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Allocation of shares from joint ownership

Friday February 3rd, 2017

Quite often there is a situation when the owner of real estate is not one person, but several co-owners. Most often, joint ownership occurs when housing is privatized to all family members, when the property is acquired by a husband and wife during marriage, in the case of acquisition of property by family members as a result of their joint work or when property is acquired at the expense of family members. her.

Of course, this form of ownership is comfortable for co-owners if there is an agreement between them on the use or disposal of property. However, as practice shows, life goes on, families grow, new family members appear in the family, there may be a separation and transfer of shares in connection with the opening of the inheritance and relations between co-owners become tense, co-owners do not agree on joint ownership of property. Accordingly, there are questions about the possibility of disposing of their share, the possibility of its allocation.

What is joint ownership?

First of all, it should be noted that a distinction is made between joint joint ownership, when the shares of co-owners are uncertain, and joint partial ownership, when the shares are clearly established.

The legal regime of joint ownership is characterized by the following features:

the presence of unconditional consent of the co-owners of the property to exercise their property rights
if one of the co-owners disposes of the joint property, it is considered that the latter acts with the consent and consent of the others. That is why the notarized consent of all co-owners is required when concluding transactions concerning the disposal of common property.
the right of each co-owner to allocate his share

How to practically allocate a share in the house (apartment)?

If there is an agreement between the co-owners and they do not object to one of them allocating his share, then it is possible to conclude an agreement on the allocation of such a share in kind, which is notarized. In this case, the right of joint ownership is terminated and the co-owner acquires the ownership of the allocated property to each other. However, if there is a dispute between the co-owners, you need to go to court to protect your right.

As a rule, during the court hearing of such cases a construction and technical expertise is carried out, the decision of which raises the question of possible options for allocating the co-owner’s share, or the allocation of one of the co-owners will not violate the rights of others.

If it is technically impossible or not allowed by law to separate a share from the common property, such co-owner may expect to receive monetary or material compensation for his share from other co-owners. However it is necessary to remember that compensation is possible only with the consent of other co-owners.

In addition, in deciding this category of cases, the court must take into account the financial situation of other co-owners, whether they are able to pay compensation requested by the co-owner, or the allocation in kind of shares of one of the co-owners does not violate the rights of others to own, use and dispose their property.

If it is not possible to allocate the share of one co-owner without violating the interests of another, in this case it is possible to determine the order of use of common property, clearly assigning specific premises to each of the co-owners. Most often, this method of protecting the interests of the co-owner is used if the apartment is subject to division and separate living quarters or equip separate entrances is simply not technically possible.

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