Lawsuits for the allocation of a share of residential premises

The subject of the claim will be the allocation in kind of a share in the right of common shared ownership.

Jurisdiction.

This claim is filed at the location of the residential premises, as the rule of exclusive jurisdiction must be observed.

During pre-trial preparation

In order to determine the options for allocating a part of the house and dividing the land plot, the court must clarify the need for a construction and technical expertise. The experts may be asked the following questions::

- what is the cost of housing, taking into account wear and tear;

- is it technically possible to share a dwelling in kind;

- is it technically possible to divide the dwelling according to the shares of each of the co-owners;

- what options for dividing houses and apartments are possible;

- what kind of work needs to be done to renovate the dwelling in order to divide it, their cost and others.

Persons involved in the case.

The parties in this case are the homeowners. Any participant in the common shared ownership has the right at any time to demand the allocation of his share from the common property. It is possible for third parties who make independent claims on the subject of the dispute to participate in the case if a claim for the division of the right of common ownership is considered simultaneously with a claim for recognition of the right to a share in common ownership, rather than making independent claims – in the case when this claim is preceded by a claim for recognition of the right to a share in the right of common ownership, or the co-owner does not want to participate in the process as a plaintiff.

Evidence and proof.

When considering cases in this category, it should be borne in mind that the division of property is carried out only by agreement between the owners, and if no agreement is reached on the method and conditions of dividing the common property or allocating a share of one of them, the participant in shared ownership has the right to demand the allocation of his share in kind from the common property. Payment of compensation to a participant in shared ownership by other co-owners instead of allocating his share in kind is allowed with his consent. In cases where the share of the relevant owner is insignificant, cannot be effectively allocated, and he has no significant interest in using the common property, the court may, even in the absence of the consent of this owner, oblige the other participants in the shared ownership to pay compensation to him. If it is impossible to divide the common property or allocate a share of it according to the rules, the court decides to sell the property at public auction, followed by the distribution of the proceeds between the participants in the common property in proportion to their shares.

The subject of evidence in the consideration of cases in this category should include the establishment of the following facts:

- the fact that the property is in shared ownership;

- the right of the parties to the dispute to their share;

- lack of agreement between the parties on the division of property or allocation of its share;

- the possibility of allocating a share of property.

The practice of considering cases shows that allocation, at the request of a participant in common shared ownership, can be made by a court if the allocated share is an isolated part of a house or apartment with a separate entrance, or it is possible to turn this part of the house into an isolated one by appropriate refurbishment. At the same time, the court must decide who will pay for this conversion. If the allocation of a share is technically possible only with a deviation from the size of the shares, then the issue of paying monetary compensation, the amount of which is determined from the cost of the housing area, to the party to whom it is being deprived, must be resolved.

The operative part of the decision should indicate the termination of the common ownership right, determine the shares or recognize the right to a share in common ownership, indicate the redistribution of shares, if necessary, the amount of monetary compensation.

The list of documents attached to the application

In accordance with the requirements of Article 149 of the CPC, including documents confirming the circumstances on which the plaintiff bases his claims, which may include:

- title documents, extract from the legal cadastre in relation to real estate;

- technical data sheet;

- certificate of registered rights (encumbrances) on immovable property and its technical characteristics;

- documents on the composition of the family;

- property valuation documents;

- a specialist's opinion on the possibility of allocating a share in compliance with technical, fire, sanitary standards, etc.

Laws to be applied in the consideration and resolution of cases, depending on the subject matter and grounds of the claim

The Constitution.

GK.

GPC.

The Law "On Housing Relations"

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