Size matters: it is now impossible to buy a share of less than 6 «squares»
On September 1, amendments to the Civil Code of the Russian Federation came into effect in Russia, regulating the ownership of real estate. In particular, experts of the portal Housing Stories note that, according to the new norms, the state can initiate the forced purchase of residential and non-residential premises in the event of their inappropriate use. Elvira Deyneka, head of the legal department of the TRIUMPHAL ARKA real estate agency, tells how this law will be applied in practice:
Indeed, since September 1, quite a lot of changes in the legislation relating to the real estate sector have come into force. Here are just a few of them:
1) The legal regime of common property in a non-residential building has finally been settled. Previously, the law contained the concept of only common property in an apartment building. This apparent gap in the law gave rise to many options for resolving the issue in practice. We have encountered situations where the common property in a non-residential building was kept in the private ownership of individuals, when, along with the premises in the building, the subject of the transaction included a share of the land plot under the building, and then, along with the premises, the buyer also bought a share, which was actually a hall between several premises and the like.
Now in paragraph 2 of Art. 22.4 of the Civil Code of the Russian Federation it is said that “premises intended for servicing other premises in a building or structure are common property and do not participate in circulation as independent immovable things.”
The only question that remains is how to determine whether the auxiliary premises are common property, because we will not see any special marks in the USRN. One thing remains — to carefully study the technical plan, preferably the one that is available in Rosreestr, because. as a result of redevelopment, the premises could be changed and visually seem isolated (i.e. not be common to two or more premises).
With regard to the premises of technical floors, attics, it is clearly stated: this is a common property. So, “common property includes, in particular, auxiliary premises (for example, technical floors, attics, technical basements in which there are engineering communications serving more than one room ..” (clause 2 of article 287.5 of the Civil Code of the Russian Federation).
The fate of the premises, which are actually common property and owned by individuals, the ownership of which arose before the adoption of amendments to the legislation, is not yet entirely clear.
2) Article 10 of the Family Code of the Russian Federation from 1. 01.22 d. is valid in the new edition. Now the spouse, whose notarized consent to the transaction with the common property of the spouses has not been received, has the right to demand that the transaction be declared invalid in court within a year from the day when he knew or should have known about the completion of this transaction, according to the rules of Article 173.1 Civil Code of the Russian Federation. What does this mean?
It is necessary to prove that the buyer knew or should have known about the absence of the consent of the spouse at the time of the transaction.
That is, it will become more difficult for a spouse who is not the title owner to challenge transactions made without his participation. Until a rule is adopted that regulates the entry into the USRN of a record that the property is joint property, the risk for the buyer remains. The buyer still has to exercise good faith and discretion. Ask the seller for information about marital status, for example, a certificate from the registry office of the form No. 01, look at the page in the passport «marital status».
In the event of a dissolution of marriage, the spouses must promptly divide the property. The lack of information in the USRN gives rise to abuse by the title owner. For example, the sale of real estate without the knowledge of the former spouse. And although he subsequently tries to challenge the deal in court, he often loses. Therefore, it is important for the former spouse to allocate his share and submit an application to Rosreestr so that third parties see his rights.
As Rosreestr explained, one or both spouses can apply for amendments to the USRN entry. In the application, they indicate information about the common joint ownership of such an object and about the spouse, information about which, as the owner of such an object, is not included in the USRN as the owner of the real estate object. This application must be accompanied by a document confirming that at the time of the acquisition of real estate, the spouses were in a registered marriage. At the same time, the provision of such a document is not required if a notarized consent of the owner to make such a transaction was submitted to the registration authority earlier (for example, when acquiring a property on the basis of a transaction that required state registration).
Another change in the Family Code, which came into force from 01.01.2022 d. If a spouse, without the consent of the other spouse, on unfavorable terms, makes a deal to alienate the common property of the spouses, when dividing the common property of the spouses, the court has the right to derogate from the beginning of equality of the shares of the spouses in their common property.
3) Amendments to Art. 10 of the LC RF came into force.
From September 1, the owner of a dwelling is prohibited from taking any actions in relation to his dwelling that entail the emergence of shares, if the area of the dwelling attributable to the share of each of the co-owners is less than 6 square meters of the total area of the dwelling for each co-owner. The prohibition does not apply to situations where the right to common shared ownership of a dwelling arises by virtue of law (for example, when buying a home at the expense of maternity capital), or as a result of inheritance for any of the grounds, as well as in cases of privatization of residential premises.
- Source: Apartment stories
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