Most of the citizens of our country were lucky to be the owner of a certain property: cars, apartments, houses, villas, furniture, household items and much more. When it comes to the right to property, usually refers to the ability of the owner to perform any actions with his things. He can sell, give, exchange, change or spoil them. Often this decision is made by the owner of the item on their own (unless any restrictions stipulated by law are applied).
However, this rule cannot be universal, since there are exceptions for it. If the property does not belong to one, but to several people (common shared and common joint property), then when performing operations with its participation, the consent of all interested parties is necessary.
Common ownership concept
The common property becomes property owned by two people or more persons. Often this applies to objects and objects transferred to the owners as an inheritance by law.
The testator, who made the will, usually clearly indicate the heirs of specific things and objects. However, if there is no such document, the property is transferred to the heirs in accordance with the procedure specified in the legislation. There is a strict hierarchy called a queue. As a rule, in each of these queues there are several equal new owners. All of them become participants in common ownership, and their rights, opportunities and obligations are regulated by the Civil Code (CC).
Types of common property and their features
In accordance with the Civil Code, there is a common shared and common joint ownership. Their common feature is the division of property rights between several people, but participants in the shared type of property relations can determine the size of their share, and this is not possible with common joint ownership.
A striking example of the latter can be considered all items, as well as movable and immovable property items that were acquired by spouses during the marriage. The share of each of them is impossible to calculate.
At the same time, the law recognizes their property in common ownership, if a special contract was signed at the time of marriage. The marriage contract may determine the value of the share of each spouse. They can even completely abandon the general management of accounts by choosing a separate regime.
In the same way, people participating in a peasant (farm) economy agree among themselves on what size shares will belong to each of them. In other words, in such cases, we are talking about replacing the relations of joint ownership with equity participation. Such manipulations can only be performed with the unanimous decision of the parties involved. Reverse metamorphosis is not possible.
Of course, participants in such property relations are not always related to each other. As a result of the sale, strangers can become owners, but in any case, each of them should take care of building normal relations with other participants. This is dictated both by the rules of good form and by elementary common sense: sooner or later there will be a need for their assistance.
Ownership rights of shared ownership: a little important theory
In order to better understand the legal rules that govern the property relations of participants in common property, it is worth turning to the source of modern law - ancient Roman jurisprudence. In the writings of the Romans it is indicated that each owner can dispose of the shared right to own the whole thing. This means that he does not own a specific share of the property, but a share of the right to this object or object. Thus, shared common property is the possession of the right to dispose of property, and not the thing itself.
The practical application of the rule described above is as follows: the owner of one fourth share in the rights of common shared ownership of a real estate object (for example, an apartment), whose area is 80 square meters. m, can not consider himself the owner of 20 square meters. m of this housing. At his disposal is one of the shares in the right to the entire apartment, but not the right to a quarter of the area.
There are conditions under which a participant in common shared property can become the sole owner of the property, and the procedure for securing the right to use his part may also be available to him.
Certain Aspects of Ownership and Use of a Common Property
The Civil Code of the Russian Federation provides all owners with the following options:
- Possession of a specific subject (real possession).
- Use of one’s thing, object or object (profit-making through its direct use, obtaining fruits, products and income).
- Disposal of the specified item (rental, sale, exchange, return as collateral).
A share in the right of common shared ownership imposes an obligation on the owner to coordinate the planned actions with all other copyright holders. It should be borne in mind that if a participant cannot find a common language with at least one of the other owners of the share (even the smallest), all actions taken by him with the object will be regarded as illegal.
Example to illustrate
Consider a situation in which four people share the common ownership of a land plot with several trees. One of them is interested in using the object himself. Others do not want to share it or work on it, their proposal is the transfer of land for rent. Alas, with this form of ownership, voting cannot be a solution to the question, since without exception all participants must agree with the final result.
How can one come to a common denominator?
If a compromise cannot be reached, the participant in the common share ownership has the right to go to court. According to the law, the plaintiff may ask (or even demand) that he be given the opportunity to own and use part of the common plot (or any other object) that is proportional to his share.
If this is not possible, then other participants owning and using the property may compensate the plaintiff for the value of his share.
There is no law by which a court could force one of the participants to sell a common object or agree to lease it. Civil law provides for the conclusion of such agreements only on a voluntary basis. In extreme cases, a person may sell one of those parts into which shared common property is divided. This can be done in circumvention of obtaining the consent of other participants, however, the right of preemptive purchase must be respected.
Legal aspect: past due credit obligations
A share in total shared ownership is part of a person’s property. This gives the right to creditors to claim compensation for the debt at the expense of its value. The law permits the use of these measures when collecting debts from participants in both shared and joint ownership.
Carrying out the compulsory determination and evaluation of the share (in the case of joint ownership), as well as its sale, creditors are required to take into account the legal interests of other parties. As with voluntary sales, participants have the pre-emptive right to be the first to bid. If this procedure is not followed and a stranger buys a stake, the transaction may be challenged after the trial.
In view of this, the creditor may require the debtor to sell his share to one of the participants. In these circumstances, the sale of property in common ownership should be performed without underestimating its value (which could be beneficial for the debtor and buyer). This condition is aimed at protecting the interests of the creditor.
In the event that none of the participants showed a desire to buy another share, the debt must be repaid by selling it at a public auction. This measure is designed to protect the debtor from deliberate understatement of the price, since during the bidding process he has a chance to get the maximum amount.
Interestingly, the lender does not have the right to purchase the debtor's share, as it may violate the rights of other participants. When they give up their advantages, the requirement of the law on the organization of tenders comes into force. The described procedure is relevant only if the debtor has shared common property. This can in no way be applied to those who own a share in the joint property. In this case, the creditor can insist only on the allocation of a part of the debt in order to recover the debt from him by other methods.
What should you know about the maintenance, repair and modernization of objects in common ownership?
Being the owner of any property, a person naturally shows concern about his condition and safety. He not only enjoys the rights and benefits, but also bears a certain responsibility. For example, on his shoulders lies the concern for the maintenance of objects and objects, as well as the risks associated with their damage and death.
The main costs include:
- The need for major and ongoing repairs.
- Insurance payments.
- Registration costs.
- Payment of security and utility bills.
- Tax payment.
These nuances are also relevant for people who own joint or shared property. Common shared ownership is a specific type of asset, so the amount of expenses is divided between owners in proportion to the size of their share. All participants must bear financial obligations, regardless of whether they use the facility or not.
In cases where one of the participants does not want to pay the agreed part of the costs of maintaining the property, others may resort to the forcible recovery of the amount of money.
However, it is worth making a reservation that participants can resort to a lawsuit only if the house in common shared ownership (or another property) can be seriously damaged due to non-payment of part of utility bills, mandatory repair or restoration work. Upholstery of rooms with expensive panels will not be recognized as necessary work, therefore, it makes no sense to expect compensation for its cost.
If you want to refine or decorate the property, it will be optimal to obtain written consent for such events. The document will be a confirmation of a unanimous decision and will allow the one who carried out these actions to increase their share in proportion to investments.
Why do we need common shared property and what to do with it?
Like any other property, shared common property is an object of inheritance, gift, purchase / sale or rental transactions. Only the participant himself has the right to decide what to do with his share.
However, rules are rules, and they must be followed. Therefore, if you want to sell the stake to an outsider (not a participant in the common property), the seller is obliged to write and send out information letters to other owners. They should indicate the volume and value of the shares sold, as well as other conditions. The letter may be delivered in person, against signature, or sent by mail.
In the event that none of the co-owners is interested in buying, a plot in common shared ownership (another item or object) can be sold to any buyer.
You should be aware that participants in shared ownership can think about whether they will buy a share or not, over the following time periods:
- When selling real estate - one month.
- When it comes to a movable item - ten days.
Owners can challenge the legality of the transaction within three months after its completion. If they have any doubts, they should not miss this period, because after the court will not consider their case. Owners should be aware that they will not be able to achieve recognition of the transaction invalid, only the transfer of ownership of one of the participants is possible.
The peculiarity of the process of giving, wills or giving as collateral is that it is not required to notify other participants. In any case, this transaction will be recognized as legal and valid.
Total shared ownership of land: how to properly dispose of property?
All the laws and regulations described are also valid in the case when the object of shared public property is land. True, operations with such real estate are associated with a whole set of specific features.
First of all, it should be noted that the number of owners of some sites can reach several hundred. This is due to the fact that many agricultural lands were purposefully allocated to become shared property of workers on state and collective farms (after the liquidation of organizations).
Today there is a steady interest in such areas. Some of them are used for growing products, while others build residential houses. There are no prohibitions on the sale and purchase of land, however, there are some restrictions on the resale of shares to third parties (in order to avoid the mismanagement of resources).
Owners, planning a sale, exchange or transfer to lease, turn to the other participants to allow them to allocate their land shares in the common share ownership. The purpose of this action is not necessary, since in fact it concerns only the shareholder. Most often it becomes:
- A transaction between citizens or with an organization (donating, exchanging, selling, buying, renting).
- The emergence of inheritance rights to a certain share of the plot (in accordance with the will or law).
- Court decision on the legality of property claims for a share.
- The process of land privatization.
To allocate a share, a decision of the meeting of shareholders is necessary. They determine the place where the land will be allocated, and designate it on the site plan. Then comes the turn of land surveying - a procedure carried out by a cadastral engineer on the ground. The allocated share is fenced off and a new cadastral number is assigned to it .
The shareholder is obliged to inform the public about his intention to allocate a share and organize a meeting of owners. He can use any convenient local media channel (newspapers, radio, television).
The assembled shareholders approve the draft boundary plan, draw up a protocol and sign an act on the coordination of the boundaries of the new site. The owner of the allocated share receives further documents at Rosreestr.
How to distribute income from common ownership
As a result of the independent use of a common object by all owners, its sale or rental, they receive a certain income. Since the property is common, then money cannot belong to one person.
In fact, the question of how much of the income is due to each shareholder is not regulated by law. They resolve this issue among themselves in the process of negotiations and discussions. The state determines only the procedure for documenting the decision of the participants in common ownership on the distribution of their income.
Often, the funds received are divided between the owners of the property in proportion to the value of their shares. In this case, the efforts made by each of them to generate income should be taken into account. Often the owner of a small share who has performed a large amount of work (for example, necessary to cultivate a common land plot, sell it or lease it) can rely on a substantial part of the profit.
Particular attention should be paid to the owners of how the sold common ownership will be documented. A sales contract cannot simply contain an indication of the transfer of money to one of the owners. After all, this does not allow to carry out the correct and reliable calculation of tax deductions.
Owners are required to draw up an agreement or an additional agreement between themselves, which comes with the contract of sale. Having indicated in this document all the data on the distribution of the funds received by them, they will arrive according to the law.
Many participants in common shared ownership, faced with the need to conduct any operations with their part of the property, have difficulty observing all legislative norms and rules. This is not surprising, because in everyday life people do not often encounter property laws and cannot quickly navigate the many nuances of their business.
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