Division of an apartment between spouses

The division of property is generally a common procedure, although sometimes associated with conflicts between co-owners and other persons. Most often, a lot of problems are caused by the division of real estate, be it a plot of land or a residential building. But an even more difficult object to divide is an apartment, which the owners decided to divide into two independent and separate real estate units. Is it possible to divide one apartment into two apartments and what difficulties await property owners?

Is it possible to divide the apartment into two apartments?

According to practice, dividing one apartment into two equal ones is a rarer occurrence than combining two premises into one. At the same time, there are still situations that require the separation of one large apartment, for example, when such real estate is inherited by several relatives or during the divorce process of a married couple.

Most often, the following circumstances become the reasons for the division of housing located in an apartment building:

1. Due to the divorce of husband and wife, in order to divide one apartment into 2 parts, with the aim of acquiring separate living quarters for each of the spouses.
2. In the case of inheritance of real estate, in which relatives do not consider partition or sale of the apartment with subsequent division of the proceeds for it as an option, and also do not want to dispose of the said property in a joint manner.
3. When a child reaches adulthood and enters into a marriage relationship, which requires separate housing, which can be obtained by allocating a share in kind from a common family apartment.
4. The residential property was purchased for commercial purposes, in view of the fact that the purchase of two separate apartments may require significantly more material investments than one larger one, but with an identical area.

All these reasons are more of an everyday rather than legal nature and are by no means exhaustive. Other situations may arise in life when the division of an apartment is required.

Is it possible to share an apartment if it is large?

Expert opinion

Noskov Georgy

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

It is much more difficult to actually divide a two-level apartment or a large one, for example, consisting of three or four rooms. Current legislation determines that each newly created residential premises must have separate bathrooms (bath/shower and toilet), a room equipped for a kitchen, as well as a separate exit to the landing.

At the same time, the rights of other residents of the apartment building must not be violated and their safety and comfort cannot be jeopardized.

Important! If, in the case of the division of housing that previously consisted of two apartments, the bathroom could simply be returned to the previously allocated place, then when dividing an entire apartment, the planned places for installing a bathroom and toilet must be transferred from the status of residential premises to non-residential. This procedure seems quite difficult to implement, and in most cases, completely impossible.

Similar problems can arise when creating two kitchens. Since the apartment already has space for one, it is necessary to draw up an appropriate project for the second, which also has its own nuances:

1. Current legislation prohibits the arrangement of a kitchen space if there is a living room under its intended location, due to the fact that such actions can significantly worsen the living conditions of neighbors living on the floor below.
2. It is also prohibited to install a gas stove in a kitchen niche, which is located in a one-room apartment, due to the fact that a room with a gas stove in it cannot, in principle, have a residential purpose.

Important! Only in view of compliance with all the above conditions is it possible to divide the apartment into two separate ones, which is practically impossible in old-plan houses.

In addition, difficulties may arise when creating a separate entrance for the second apartment. This is due to the fact that to carry out these actions it will be necessary to break through the load-bearing wall. If the door opens onto the landing, you must obtain permission from all owners of other apartments.

There is another option for creating a separate exit - building a vestibule inside the original housing. However, such actions can lead to the loss of part of the living space and, as a result, a forced reduction in the size of the remaining rooms.

If the apartment is formed of 2 apartments

The division of such residential real estate, as a rule, does not cause any special complications, however, this is not a reason to believe that to carry out the division of this apartment, it is enough just to erect a partition in the designated area.

To implement these actions, you will need to make some efforts and resolve many issues.

This is just a short list of organizational and technical measures related to the division of one apartment into two objects. In addition, the list above is relevant for situations when both owners are in contact with each other and are ready for division. Otherwise, even if it is technically possible to partition in kind, the division will have to be done through the courts.

When you can't share an apartment

Along with the above requirements for the redevelopment of residential premises, there are also a number of conditions that make it impossible to divide an apartment in a multi-storey building, namely:

1. Reconstruction/redevelopment of an apartment can lead to deterioration in strength, as well as destruction of the load-bearing structures of the building, disruption of the safety or appearance of the facades of a multi-story building, malfunctions of engineering systems or similar equipment, and deterioration in the operation of fire-fighting mechanisms.
2. These actions entail a violation of the protected rights and legitimate interests of residents of neighboring apartments.
3. Redevelopment or re-equipment of housing is prohibited if, as a result of such work, the premises will not have a source of natural lighting or heating devices.
4. Ventilation ducts related to the kitchen, bathroom and toilet will be combined with ducts that have access to the living areas.
5. In case of violation of other norms and rules provided for by law.

These conditions are mainly relevant for 1- and 2-room apartments, which, due to their small area and difficulties with communications, are unsuitable for division in kind. The simplest way to divide property is to sell the property and then divide the funds.

Also, the land plot under an apartment building is not subject to division.

If the apartment building is low-rise

Often in the vast expanses of both the capital and the country as a whole, you can find low-rise construction projects of 1-2 floors, containing 4-8 apartments. In fact, these are almost private houses, where each apartment can have a separate exit or a common vestibule-entrance for 2-4 apartments.

In these cases, the chances of division are greater, since redevelopment and arrangement of communications and a separate exit are still simpler than in a 9 or 16-story building.

All the requirements listed above also apply to the division of an apartment in a low-rise residential building.

Example . Ivanov N. and A. decided to share an apartment in an apartment building and low-rise residential building voluntarily. In a house with 8 apartments and 2 floors, all exits from the living quarters opened into a common vestibule - 4 apartments on the first floor and 4 apartments on the second floor.

Based on the results of the construction and technical examination, it was established that it is possible to physically divide the living space, however, there are a number of problems with arranging a separate exit - due to the specifics of the layout, there is nowhere to put the door in the vestibule.

As a result, dividing the apartment in kind was considered impossible for the Ivanovs.

Apartment section

If it is impossible to divide the apartment, monetary compensation is collected from a member of the cooperative in favor of his ex-spouse or other family member, who has the right to a part of the share accumulation, at their request and only on condition that they agree to vacate the residential premises (unless otherwise provided legislation of the republic).

In cases of division of an apartment, various situations arise. As a rule, the division of an apartment is carried out after the divorce, when continuation of family relations is impossible. When dissolving a marriage, the Court determines which parent the minor children will live with. At the same time, children, like parents, can be the owners of an apartment or its parts (for example, privatization). In this case, one of the parents has the right to go to court both on his own behalf and on behalf of the minor in his interests. In this case, the totality of the plaintiffs’ shares may significantly exceed the defendant’s share, which makes his share insignificant. Part 4 art. 252 of the Civil Code of the Russian Federation determines that in cases where the owner’s share is insignificant, cannot really be allocated and he does not have a significant interest in the use of common property, the court can, even in the absence of the consent of this owner, oblige the remaining participants in the shared ownership to pay him compensation. Upon receipt of compensation, the owner loses the right to a share in the common property.

We recommend reading: What documents are needed to obtain a plot of land for a third child

How to divide an apartment into two hotel apartments

As in most cases of division of real estate, the division of housing in an apartment building first of all requires the expression of the will of all its owners, which is expressed in the conclusion of an appropriate agreement.

If a compromise cannot be found on this issue, then permission to carry out these actions can only be obtained in court.

ATTENTION: The following describes ways to divide apartments, which technically can be divided into two independent objects.

Agreement on dividing an apartment into two

An agreement to divide one apartment into two is concluded between all owners of such real estate. It is not subject to notarization, but the parties can have it certified by a notary if they wish, insuring themselves against possible surprises.

Content

The voluntary separation agreement must contain the following information:

• place of document preparation;
• Full names of all owners;
• information about the subject of the section such as address, total area, etc.;
• inventory information, technical data;
• the value of the property according to the assessment;
• the procedure for dividing real shares going to each owner;
• information that the object of the agreement has not been sold, not donated, and is not pledged or under arrest;
• agreement on the procedure for the parties to bear certain expenses associated with the division of real estate;
• additional items required by law;
• date of document preparation;
• signatures of all co-owners.

The agreement is drawn up in three copies without notarization and in four copies with notarization:

• 1 copy will remain with the notary;
• 1st - for each owner;
• another one will go to Rosreestr for registration of rights.

An approximate example of an agreement in this case can be seen using the example of a residential building allocated in kind.

How is it

As already noted, in order to draw up an agreement on the actual division of an apartment, property owners need to contact a notary office and provide the following package of documents:

• technical documentation for the divided apartment;
• title documents for the division object;
• certificate of state registration of joint ownership of residential premises;
• personal identification documents of all owners;
• certificate of divorce or marriage, if the owners of the property are husband and wife.
• other documents necessary to confirm the documents reflected in the agreement.

A similar package of documents will be required to conclude an agreement without a notary, when the owners immediately take the document drawn up to Rosreestr or the MFC to submit for registration of rights to newly formed real estate.

Expenses

Concluding an agreement on the real division of an apartment may cause some costs associated with the implementation of this procedure, for example:

• payment for work to establish the estimated value of the divisible property (from 2,000 to 5,000 rubles);
• carrying out construction and technical examination (from 10,000 rubles);
• state duty paid upon registration of a document in the amount of 0.5% of the price of the disputed apartment.
• expenses associated with registering property rights to newly created apartments with Rosreestr (2,000 rubles as of 2021).

All costs, excluding fees, are approximate. For more details, check with the relevant institutions in your region, prices for which can vary significantly even within one locality.

2.1. Division of an apartment into two separate ones out of court

To approve the reconstruction and (or) redevelopment of an apartment, the owner or tenant under a social tenancy agreement must contact the local government body that carries out the approval at the location of the apartment directly or through the MFC. In Moscow, the service is provided only in electronic form using the Portal of state and municipal services (functions) of the city of Moscow (hereinafter referred to as the Portal) (Parts 1, 2 of Article 26 of the Housing Code of the Russian Federation

;
clauses 1.3, 2.4.1.1, 2.4.1.2, 2.4.3.1 of the Administrative Regulations, approved. Resolution of the Moscow Government dated October 25, 2011 No. 508-PP
(hereinafter referred to as
Administrative Regulation No. 508-PP
)).

To receive the service you will need the following documents (Part 2 of Article 26 of the Housing Code of the Russian Federation

;
Part 1 Art. 55.8 Civil Code of the Russian Federation; clause 2.5.1 of Administrative Regulation No. 508-PP
;
clause 1.1 of Appendix No. 7 to the resolution of the Moscow Government dated October 25, 2011 No. 508-PP
):

1) application (request) for reconstruction and (or) redevelopment of residential premises (in Moscow, the request is filled out by entering information in the appropriate form on the Portal);

2) identification document of the applicant;

3) an identification document of the applicant’s representative, as well as a notarized power of attorney confirming his authority;

4) title documents for the apartment (if the right to it is not registered in the Unified State Register of Real Estate (USRN), and also if such documents are not at the disposal of the authorized authorities);

5) a project for redevelopment (reconstruction) of an apartment, prepared and formalized in the prescribed manner by an organization or individual entrepreneur who is a member of the relevant self-regulatory organization (SRO), and agreed upon by the competent authorities (Rospotrebnadzor, SES, architectural and planning department and fire supervision);

6) technical passport of the apartment (submitted on your initiative, as well as if it is impossible to obtain it by the authorized body in the order of interdepartmental information interaction);

7) consent in writing of all members of the tenant’s family (including temporarily absent family members of the tenant) occupying the apartment on the basis of a social tenancy agreement, or all owners of the apartment;

a decision of the general meeting of owners of premises in an apartment building on the transfer for use of part of the common property, containing a description of the object being transferred for use, drawn up in minutes, and a copy thereof (if, as a result of reconstruction and (or) redevelopment, part of the common property of the apartment building is transferred for use). The original of the decision is presented if such a decision was not previously transferred in the prescribed manner to the Moscow Housing Inspectorate;

9) minutes of the general meeting of owners of premises in an apartment building on the consent of all owners of premises in an apartment building for redevelopment (reconstruction), if previously such a protocol was not transferred in the prescribed manner to the Moscow Housing Inspectorate (if redevelopment (reconstruction) is impossible without attaching part of the common property to the apartment apartment building).

In Moscow, the body carrying out the approval is the Moscow Housing Inspectorate (clause 4.2.1 of the Regulations, approved by Decree of the Moscow Government dated July 26, 2011 No. 336-PP

).

The decision to approve the reconstruction and (or) redevelopment of the apartment or to refuse approval is made within 45 days from the date of receipt of all necessary documents by the authorized body (Part 4 of Article 26 of the Housing Code of the Russian Federation

).

In Moscow, this period is 20 working days, unless a conclusion from the Department of Cultural Heritage on the admissibility of redevelopment (reconstruction) is required. If such a conclusion is required, the period is 30 working days (clauses 2.7.1.1.1, 2.7.1.1.2 of Administrative Regulation No. 508-PP

).

In Moscow, you can optionally receive the result of providing a public service in the form of a paper document in any MFC (clause 2.3.2 of Administrative Regulation No. 508-PP

).

After completion of all construction work related to the division of the apartment, it is necessary to contact the body carrying out the approval to draw up an acceptance committee report on the completion of the reconstruction and (or) redevelopment (Part 1 of Article 28 of the Housing Code of the Russian Federation

).

If the apartment is in common shared ownership, for its division it will also be necessary to conclude an agreement between all participants in shared ownership, which determines the method and conditions of division (clause 1 of Article 252 of the Civil Code of the Russian Federation

).

The specified agreement is the basis for state cadastral registration and state registration of rights to the resulting apartments and deregistration and termination of rights to the original apartment (Part 1, 3, Clause 2, Part 8, Article 41 of the Federal Law of July 13, 2015 No. 218 -FZ

).

Judicial section

If the owners of the disputed apartment cannot find common ground on the issue of dividing the apartment, then the dispute must be resolved by filing an appropriate statement of claim with the judicial authorities.

A statement of claim for the division of an apartment is submitted exclusively to the district court due to the specifics of the dispute and the cost of the claim. Issues relating to real estate due to its value do not fall within the competence of magistrates.

Procedure

To carry out the division of residential real estate in court, the following algorithm of actions must be followed:

1. Conducting an assessment of divisible real estate to establish its exact value and calculate the price of state duty.
2. Determining the order of division of the apartment. For these purposes, specialists may be involved who will conduct a construction and technical examination in order to establish the possibility of dividing housing.
3. Drawing up a statement of claim and collecting all documents confirming the applicant’s position, as well as further submitting the specified package of documents to the court.
4. Taking part in a lawsuit and waiting for the claim to be considered on its merits.
5. Obtaining a court decision and implementing its requirements.

The most difficult thing will begin after the court’s decision - the owner’s obligation to do the redevelopment, especially if the court has assigned any obligations to both homeowners.

Procedure

After the statement of claim has been submitted to proceedings, the judge schedules a hearing to consider the requirements of the specified document. When resolving a dispute on the merits, the court is guided by the arguments of the parties to the case, the evidence they provide, as well as the materials of the construction and technical examination, which can be either attached to the additions to the statement of claim or appointed at the initiative of the court.

After studying all the circumstances necessary for a full and comprehensive consideration of the case, the court makes a decision on the possibility of dividing one apartment into two separate ones.

However, according to practice, dividing housing in a multi-storey building into several parts is practically impossible due to the large number of technical requirements provided for this procedure.

As a rule, the most likely possibility for separating two apartments from the original one are cases when:

1. The disputed housing previously consisted of two separate apartments.
2. The housing has a large area and duplicate units (bathroom, kitchen).
3. The building is one-story, which allows, without any problems, to implement one of the most essential conditions for such a section - to create separate exits for each newly created room.

In other cases, the court may come to the conclusion about establishing a procedure for the use of the specified real estate, payment of monetary compensation or its sale, with the subsequent distribution of the proceeds between the owners.

Duty cost

Due to the property nature of this category of claims, the specified document is subject to payment of state duty. The agreed tax is calculated from the total amount of claims, in accordance with the provisions of Art. 333.19 Tax Code of the Russian Federation.

In addition, in some cases, the parties will need to pay for construction and technical expertise, as well as the services of representatives in court.

The procedure for calculating the duty is set out in the table below.

Statement

The contents of the application and the requirements for the attached documents are specified in Art. 131-132 Code of Civil Procedure of the Russian Federation. When drawing up a claim, the applicant should indicate in the document the following information:

• name and address of the court;
• data of the parties to the case (full name, addresses, contacts);
• price of the statement of claim;
• a descriptive part that contains information regarding the procedure for acquiring and using an apartment, as well as the shares belonging to the owners;
• an indication of the reasons for contacting the judicial authorities, as well as information regarding the voluntary resolution of the controversial issue;
• reflection in the reasoning part of the claim of the preferred option for dividing the disputed housing, explaining one’s position by legal norms;
• list of additional materials;
• signature and date.

Expert opinion

Noskov Georgy

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

An example sample is posted below. It illustrates only one typical situation related to the division of a privatized apartment. In life, every situation is individual and it is better to entrust the preparation of such a complex legal document to a competent lawyer.

Documentation

In addition to the statement of claim, the following documents must be submitted to the court:

• expert report on the cost of the disputed apartment;
• conclusion of construction and technical expertise (if available);
• technical documentation for the apartment;
• confirmation of payment of state duty;
• copies of the claim for all parties to the case;
• other documents relevant for a comprehensive consideration of the case.

Most documents will be provided in copies, but keep the originals ready during the trial as they may be required at the request of the judge.