Buying a share in an apartment: risks, examples and procedures for use

Is it possible to buy a share in an apartment?

Content

You can buy a share in an apartment if it is allocated. According to Art. 244 of the Civil Code of the Russian Federation, property owned by two or more people is considered common property. In turn, it can be with a definition of the shares of each owner, or without a definition (joint ownership).

The purchase of a share is possible only if it is allocated. For example, when ¼ of the right is sold. If a person wants to sell his part in joint ownership, he must first allocate a share. This often happens when selling real estate purchased during marriage: conditionally, each spouse owns ½ share, but in fact they are not allocated.

Important! The share is allocated only in the ownership of the apartment, and not in specific premises. In the latter case, it is important to determine the shares in kind, but in practice this is extremely problematic: you need to arrange two separate entrances to the apartment and comply with a bunch of other technical requirements.

Example: Sisters inherited ½ of an apartment. The specific premises have not been determined, but they have verbally agreed on the procedure for using the housing and the division of utility bills. Some draw up a written agreement or turn to the courts to resolve disputes.

A year later, one of the sisters decided to sell her share. She offered to buy it out to the second owner, but received no response. If the other owner does not agree to the repurchase within one month, the share can be sold to a third party. The woman did just that: she executed a purchase and sale agreement (hereinafter referred to as the PSA) with the buyer at the notary, presenting documents confirming the sending of a notice to the second owner.

What is a share in an apartment and is it worth buying it?

When two or more persons purchase a home, in most cases it is registered as shared ownership (with the exception of the purchase of real estate by spouses, in which case the housing is, by default, registered as joint ownership). But in the article “Purchase of an apartment in shared ownership by spouses,” we told how to register the acquired housing immediately in shares.

After registering ownership and receiving an extract from the Unified State Register of Real Estate, buyers become the legal owners of each of their shares. This means they can dispose of property at their own discretion, without violating the norms of current legislation and the interests of other owners. The owners can determine the proportions of shares independently, for example, based on how much each of them invested in the overall purchase. Moreover, each of the owners is endowed not only with rights, but also with certain responsibilities. You can find out about this by reading the article on our website “Rights and responsibilities of owners in shared ownership of an apartment”

In the housing market, individual shares, especially those not allocated in kind, are extremely rare. There is practically no demand for such residential properties. It may make sense to purchase a share if:

you need to obtain permanent registration in the region;
In the future, you want to completely take possession of the apartment by purchasing all its parts.

In both of these cases, it is most profitable to buy shares, and not the entire property. Since the real value of such an object is several times lower than the cadastral value.

Example. Brothers Ivan and Maxim Smirnov moved to the regional center for permanent residence and decided to buy a joint home. While looking through current offers, the brothers came across an advertisement for the sale of a ½ share in a four-room apartment. Moreover, if entirely similar apartments in the same area cost an average of 7 million rubles, then for half of them the ad asked for only 1.5 million. Having considered their economic benefit, the guys decided to postpone the purchase of a separate home. Six months after concluding the purchase and sale transaction, they learned that their neighbor had received a lucrative job offer and was forced to move to another country. They bought the remaining half of the apartment for another 3 million. As a result, housing cost them 4.5 million rubles instead of 7.

Features of selling a share in an apartment

The buyer also needs to know some rules. If the seller does not comply with them, the buyer may be left without money and without an apartment, because the transaction can be challenged by third parties.

What subtleties are we talking about:

Pre-emptive right of purchase (Article 250 of the Civil Code of the Russian Federation). First, the seller must provide each owner with notice of intent to sell the interest. They must agree to the buyout within a month, or issue written refusals. Only after this the share can be sold to a third party.
The sale of a minor's share is possible only with the permission of the guardianship authority. The child must be provided with other real estate or a share in the ownership.
Sale of a share in an apartment purchased during marriage. Notarized consent of the seller’s spouse is required (Article 35 of the RF IC). If a share is sold without this document, he will be able to challenge the transaction within one year from the moment he became aware of a violation of his rights.
Sale of a share in an apartment with an encumbrance. If the property is purchased with a mortgage, an encumbrance is imposed. Until the debt is repaid, owners do not have the right to give it away, sell it or exchange it without the consent of the creditor. If a restriction is imposed in the form of arrest by the FSSP, you need to pay off the debts and only then enter into a deal.

Important! You can check real estate for restrictions through the Rosreestr service.

Legal advice: you should be most careful when purchasing a share in an apartment received as an inheritance. It is advisable that the seller’s title be registered at least 3-5 years before the transaction. This way, the risk of challenging the DCT by suddenly appearing heirs will be less.

Buying a share in an apartment from a relative

The presence or absence of family ties between the seller and the buyer does not matter. If the buyer is not the owner of the other share, the DCT will in any case have to be certified by a notary, and the seller will have to notify the other owners before this.

Purchasing a share using maternity capital

Maternity capital can be used to purchase a share in property rights, although the Pension Fund of the Russian Federation refuses some, citing the fact that a separate apartment must be purchased. This is wrong. Features of the management of maternal capital are regulated by Art. 10 Federal Law dated December 29, 2006 No. 256-FZ, and there is no prohibition on purchasing a share.

Buying a share with a mortgage

Banks are reluctant to approve a mortgage for the purchase of shares in apartments, but you can still get one. The likelihood of the application being approved is higher if, as a result of the transaction, the property will belong only to the borrower. You can buy an apartment and register it as shared ownership if the mortgage is taken out by two spouses.

Note! The easiest way is to take out a mortgage secured by existing real estate. In this case, the bank will issue money to purchase the share, but the encumbrance will be placed on the borrower’s other home. Until the debt is fully repaid, it cannot be sold, exchanged or given away without the permission of the creditor.

Pitfalls and risks when buying shares

Seemingly insignificant nuances can create a number of problems when purchasing a share in real estate. Before making a transaction, the future owner should communicate with the residents and find out the composition of the co-owners in order to monitor compliance with the algorithm and the presence or absence of problematic registered persons.

What pitfalls exist when buying an apartment in its part:

Conflict neighbors leading an immoral lifestyle. Acquiring a share in an apartment with similar co-owners is fraught with difficulties or impossibility of both further sale and cohabitation.
Presence of registered minors. At the initiative of the guardianship and trusteeship authorities, whose consent is mandatory, the transaction may be declared invalid, and the goal of purchasing a share for registration has not been achieved.
Obtaining consent from your spouse. If the part being sold belongs to the jointly acquired property, then the notarized consent of the partner is required.
Compliance with the algorithm for granting pre-emptive rights to purchase. In accordance with Article 250 of the Civil Code of the Russian Federation, before selling to a third party, the remaining co-owners should be offered priority. The addressees should be sent a notice of the planned sale, after which they should receive their decision in the form of:
consent to buyout;
30-day silence, equated to refusal and giving the owner the right to look for a buyer on the side.

Sample notice of sale of a share in an apartment

Download the Notice of sale of a share in an apartment (sample) (26.0 KiB, 2,365 hits)

Sample application for waiver of the right of first refusal to purchase a share

Download an example application for waiver of the right of first refusal (33.0 KiB, 4,171 hits)

The purchase of shares of apartments or other real estate that is in shared ownership, in violation of the pre-emptive right, allows any co-owner to demand the transfer in court of the rights and obligations of the buyer (Clause 3 of Article 250 of the Civil Code of the Russian Federation). The circulation period is three months.

Risks and pitfalls when buying a share in an apartment

Let's consider several common situations in which the buyer risks being left without housing and money:

The seller did not provide the right of first refusal to other owners. They will be able to challenge the transaction and transfer the rights of the buyers to themselves.
Sale of a share by an unauthorized person. The owner can participate in the transaction through a representative for whom a notarized power of attorney has been issued (Article 185.1 of the Civil Code of the Russian Federation). Even if his interests are represented by the second owner.
Buying real estate with registered people. Registration gives the right to reside and use the premises. Before the transaction, you need to agree with the seller that he will register all relatives. Or you will have to share living space with them.
If the share belongs to a minor. Parents must obtain the consent of the guardianship authority before the sale, otherwise the transaction may be challenged. Sometimes this requirement is not met.
If the share was purchased during marriage, and there is no prenuptial agreement. The owner must obtain the notarized consent of the spouse before the sale, otherwise he will be able to challenge the transaction within one year from the moment he became aware of it (Article 35 of the RF IC).
Redevelopment has been done, but not legalized. Any changes are reflected in the technical passport. If the seller has not approved the redevelopment, the buyer will have to do this after the transaction, and it is not a fact that it will be approved.
Share in the encumbrance. This means a mortgage from a bank or a ban on registration actions from the FSSP. In both cases, Rosreestr will not register the transfer of ownership, and the buyer may lose the advance or deposit.
The buyer will not own a private room if the share size is too small. But some people buy shares in apartments for registration in Moscow or another city, and then its size will be enough. In other cases, it may turn out that the new owner will only own a couple of square meters. meters.
Difficulties in relationships with other owners. The DCP and the extract from the Unified State Register will not indicate who will use which premises. This will have to be negotiated with other owners. Often it is not possible to reach an agreement, and it is necessary to go to court to determine the procedure for using the real estate.

Note! Transactions made by incapacitated owners are also disputed. Despite the fact that a certificate from a mental health center is not required for the transaction, for the buyer’s own peace of mind it is better to request it from the seller.

How to properly register the purchase of a share in an apartment?

To purchase a dedicated share in an apartment you need:

Check the seller's documents. He must submit an extract from the Unified State Register of Real Estate, a written refusal from the other owner, a passport, registration certificate, and a document confirming the basis for the emergence of ownership rights: an old contract of ownership, a deed of gift, a certificate of inheritance, an exchange agreement, etc.
Agree with the seller on the terms of the transaction. The price, procedure and method of payment are negotiated before drawing up the DCP.
Apply for a policy. You can do this yourself or seek help from a lawyer. Registration through a notary will cost more.
Sign the agreement in triplicate in the presence of a notary. Afterwards he will put his signature and seal on all copies.

Next, the notary himself will send documents to register the transfer of ownership to Rosreestr. This will take three working days, after which you can come and pick up your copies of the agreement, as well as a new extract from the Unified State Register. The service is provided free of charge, only the state fee is paid.

Note! If the share is purchased by another owner, it is not necessary to have the contract certified by a notary. But you will have to submit the documents yourself to Rosreestr or through the MFC. Registration when submitted to Rosreestr will take 7, through the MFC – 9 working days.

Contents and sample agreement

The agreement must contain all the conditions for the sale of a share in the apartment and information about the parties to the transaction:

Full name, date of birth, registration address, passport details of the seller and buyer.
Information about the apartment: address, cadastral number, number of rooms, floor.
Size of the sold share in ownership: ½, 1/3, etc.
Cost of share.
Payment procedure: payment of a deposit or the entire amount before registration of the transaction, payment after registration, etc.
Payment method: cash, transfer from a bank card, through a safe deposit box, letter of credit, secure payment service.
Deadlines for final payment after registration, if a deposit is paid before that.
Deadlines for deregistration of the seller's relatives.
Information about the waiver of the pre-emptive right of purchase from the owners of other shares.
Rights, duties and responsibilities of the parties to the transaction.
Date of compilation, signatures of the parties.

Sample contract

Documentation

The seller must provide the buyer with written refusals from the remaining owners, or notifications confirming the sending of notices if they were ignored and responses were not received within a month. He will also need:

passport;
extract from the Unified State Register of Real Estate;
registration certificate;
title document.

The buyer only needs a passport.

Important! The same documents are also provided to the notary.

Expenses

Costs when purchasing a shared apartment are divided into several categories:

State duty. For individuals – 2,000 rubles, for organizations – 22,000 rubles. The buyer pays it.
Fee for certifying the DCT by a notary: 0.5% of the cost of the share, but not less than 300 and not more than 20,000 rubles.

The parties share the costs of the notary as agreed. Usually the seller pays for everything as the beneficiary, but you can agree to split the costs 50/50.

What to do if a child is registered in the apartment?

If a child is registered on the square, you need to obtain consent for alienation from the guardianship authorities. This is necessary to protect him from the actions of a potential criminal and protect him from conflicts. The consent is valid for one month, so it is issued last.

Be sure to read it! Is it possible to take passport photos wearing glasses in 2020?

How to buy a child's share?

It is necessary to check whether the seller complies with the rules and whether he is not hiding the fact that one of the applicants for square meters is a minor.

Terms of share sale

The child has another place to live. He must not be allowed to remain on the street.
He will have a permanent residence permit at his new address.
After drawing up a contract for the sale and purchase of a share in an apartment, the living conditions in the new place must be no worse than before.

To sell a child’s share, you also need to collect the papers from the list in the previous paragraph. Title documents for new housing will be required.

Package of documents for guardianship authorities

Guardian's passport.
Birth certificate.
Extract from the Unified State Register of Real Estate.
Application for permission to conduct a transaction.

It is possible that other papers will be required.

Lawyer's answers to private questions

Can the owner sell the share to a third party if the other owner has agreed to buy it back?

No. This will violate the pre-emptive right of the second owner, and he will be able to challenge the transaction.

I'm going to buy a share in an apartment, the owner is a minor. The apartment was purchased with maternal capital, but the child’s father was not given a share. Is it worth signing a DCP?

No, it's not worth it. According to Art. 10 Federal Law of December 29, 2006 No. 256-FZ “On additional measures to support families with children”, the share should be allocated to all family members, including men, if maternity capital was used to purchase real estate, make a down payment or pay off a mortgage.

Who must pay tax when purchasing a share in an apartment, and how is it calculated?

The seller pays the tax, because he makes a profit. Personal income tax of 13% is calculated on the cost of the share, and not the entire housing. He can take advantage of a tax deduction in the amount of RUB 1,000,000. If the share has been owned for more than three years and was received by inheritance, as a result of privatization, under a gift or rent agreement, personal income tax is not paid. In other cases, the minimum tenure is 5 years. The buyer has the right to apply for a tax deduction if he is a personal income tax payer.

Is it possible to buy a share in an apartment from relatives using maternity capital?

Yes, but the Pension Fund will check the documents as carefully as possible. Often the transfer of funds is refused, but the refusal can be challenged in court. Here is an example of such a case: case No. 2-1230/2018.

I am buying a share in the ownership. I saved the money until marriage. Will it be shared between me and my husband in case of divorce?

If it is confirmed that the money for the purchase of the share was set aside by you before marriage, it will not be included in the total amount for the division of property. To confirm, you can use a bank account statement showing the flow of funds.