Comment to article 210. Definition of shares in the right of shared ownership  The Civil Code of the Republic of Kazakhstan  

Paragraph 1 of the commented article establishes the presumption of equality of the participants' shares in common shared ownership. This presumption applies if the size of the participants' shares in shared ownership is not determined by legislative acts or by agreement of all participants in common shared ownership.

In reality, the shares of participants in the right of common shared ownership are often unequal. Such an inequality of shares is provided for both by legislative acts and by agreements of participants in common ownership. For example, according to paragraph 3 of Article 31 of the Law on Housing Relations, the size of the share of each owner of premises in a condominium in the common property, unless otherwise provided by an agreement of the owners, is determined by the ratio of the usable area of residential premises in separate (individual) ownership to the total area of the entire house. Further, when inheriting by will, the testator has the right to determine the shares of the heirs in the bequeathed indivisible property, and the heir may, by law or by will, waive his share of the inheritance in favor of another heir, who may thus have a different share in ownership of the inherited indivisible property than other heirs.  

The inequality of shares in the right of common shared ownership can also be established by agreement of its participants. For example, several citizens, when purchasing a house in shared ownership, can agree on the size of the shares of each of them. In the marriage contract, the spouses may establish common shared ownership of the property acquired during marriage and the inequality of shares in the right of shared ownership of this property. The parties to a joint activity agreement may establish unequal shares in the right of common shared ownership of their common property (Article 230 of the Civil Code).  

The composition of participants in shared ownership, the degree of their participation in the increment or improvement of this property may change, which leads to a change in the ratio of shares. There are other reasons for changing the shares of participants in the right of common shared ownership. Therefore, paragraph 2 of the commented article provides for the possibility of all participants in shared ownership by their agreement to establish the procedure for determining and changing their shares in the right of common ownership, depending on the contribution of each of them to the formation and increment of common property. Such an agreement may be entered into by the participants in the common ownership both during the creation of the common property and during its existence.

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The commentary was prepared within the framework of the scientific and practical research program of the Scientific Research Center of Private Law of the Kazakh State Law University.  

Head of the working group on the preparation of the draft Civil Code of the Republic of Kazakhstan, Corresponding Member of the Academy of Sciences of the Republic of Kazakhstan, Professor Suleimenov M.K.

Deputy head Professor Basin Yu.G.