Art. 252 Civil Code of the Russian Federation. Division of property in shared ownership

Article 252 of the Civil Code of the Russian Federation contains the procedure for dividing property among equity holders. The procedure is carried out by agreement of the parties or by the rules of the proceedings. Let's consider further art. 252 Civil Code of the Russian Federation with commentaries.

General information

Article 252 of the Civil Code of the Russian Federation determines that property that is owned by citizens in shared ownership may be subject to division under an agreement. Any participant has the right to demand its part. In the event that the parties fail to reach agreement on the conditions and method of division, the dispute is considered and resolved according to the rules of the proceedings. In Art. 252 cl. 3 of the Civil Code of the Russian Federation establishes that if the allocation in kind without disproportionate harm to property is impossible or directly prohibited by law, the owner of this part may demand the payment of its value by other participants.

Specificity of compensation

Point four of Art. 252 of the Civil Code (on compensation) determines that the disproportion of property that is allocated to the participant, his share is eliminated by cash payment or in another way. Reimbursement of value instead of giving him a part of the object in kind is allowed only by his consent. Paragraph 4 of Art. 252 of the Civil Code of the Russian Federation describes cases when the procedure is carried out without the permission of the participant. These include situations where the share of the owner is insignificant and can not be singled out realistically. In such cases, the authority considering the dispute obliges other participants to reimburse the cost of its part. With the receipt of compensation, the owner loses the right to his share.

Explanations

In accordance with the provisions of Art. 252 of the Civil Code of the Russian Federation, in the process of the division of property between several owners, the equity right to the object is terminated. If one or several parts belonging to different subjects are selected, the remaining ones remain in the common possession of at least two persons. The possibility of satisfying the claims of the plaintiff will depend on several circumstances. First of all, the characteristics of the property itself are taken into account. Technically, it should be possible to carry out the procedure described in Art. 252 Civil Code of the Russian Federation. In addition, participants must be willing to pay or receive a refund for the value of their parts.

Feature Procedure

When applying the provisions of Art. 252 Civil Code practice shows that the actual section is allowed in the event that as a result of it there will be at least 2 objects that are independent of each other. At the same time they should be suitable for separate operation. According to the Decree of the Plenum of the Supreme Council of 1981, the segregation, at the request of the shareholder of the part of the property belonging to it, can only be carried out when it constitutes an autonomous (isolated) area in a house with a separate entrance, or it can be converted into a property by re-equipment. If there are technical possibilities, but with a deviation from the size of the shares of each participant, the authorized body, taking into account specific circumstances, has the right to reduce or increase the size of the provided parts. At the same time, monetary compensation for the attached areas is assigned (clause 4, Article 252 of the Civil Code of the Russian Federation). When carrying out a section in the solution, a specific isolated part should be indicated, which is allocated. The resolution also prescribes the value of the share to which it corresponds.

Nuance

It can not be considered as excluding the possibility of a section / section of the prospect of encumbrance of any of the new facilities created by an easement. This relationship of parts does not in itself mean their non-isolated use. According to the claims of the relatives of the developer, the spouses who built the house together, as well as the heirs, the court can make the section of the building unfinished by construction. This is allowed if, when assessing the degree of readiness of a building, it is possible to establish separate parts to be allocated, with the further technical possibility of bringing the works to the end by these persons. If the section of a house unfinished by construction can not be implemented, the court can recognize the rights of certain subjects for building materials and structural elements of the structure.

Disproportionate damage

In accordance with the provisions of Art. 252 of the Civil Code of the Russian Federation, the division / division of objects can not be carried out if, if physically dismembered, they are destroyed or lose their useful properties. Under the disproportionate damage to the procedure, it should be understood that it is impossible to use the property for a specific purpose, a significant deterioration in the technical condition or a decrease in artistic / material value (for example, a collection of coins, books, paintings), inconvenience in operation,

An Important Moment

If it is impossible to divide the property or to allocate part of it in kind, the subject does not lose the right to demand the definition of the procedure for using the thing if it is not established by agreement of the parties. At the same time, the court takes into account the established factual situation. The existing order may not exactly correspond to parts in common ownership. In addition, the court takes into account the actual possibility of joint exploitation, the need for each subject in the property.

Alternative option

In his capacity is the appointment of compensation for the value of the property. It is imputed in case of impossibility to carry out in relation to property section / division in kind. With the receipt of payment, in accordance with paragraph 5 of Art. 252 Civil Code, the owner is deprived of the rights to share. It should be noted that the decision to impose a reimbursement of value is authorized by the authorized body against the will of owners who are not seeking to divide. However, this is allowed with the consent of the distinguished participant. In accordance with the provisions of the decisions of Plenums BC No. 6 and WAS No. 8, these rules are applicable in the consideration of a dispute concerning an indivisible thing. It can be, for example, a musical instrument, a car and so on. The only exception is the allocation of a share of the property of peasant farms. Under certain circumstances, the court is entitled to transfer the indivisible object to the ownership of one of the equity participants, if it shows a significant interest in use, regardless of the size of the parts of the remaining entities. The citizen who accepted the thing is obliged, however, to reimburse the rest of its value.

Amount of payment

In the event that owners do not achieve agreement on the amount of compensation, it is established by experts performing appraisal activities or by a commission formed within the framework of production. When determining the amount of payment, local (retail) prices for building materials, transportation tariffs, labor costs are applied at the rates applicable in the given territory. In addition, the wear level of the facility, its location, availability of amenities and other circumstances are taken into account. The calculation takes the costs that will need to be implemented for technical re-equipment, as well as the likely deterioration of the property state. Compensation may not replace the division / division, but accompany them if they are possible in fact, but without respecting the principles of proportionality of the resulting parts to ideal shares.

Compulsory cost recovery

Art. 1 GK fixes the principle of inviolability of property. Given its absolute nature, in accordance with the general rule, compulsion to obtain reparation is not permitted, instead of allocating part of the property in kind. However, there is an exception to this provision. It is established by the fourth paragraph of Art. 252 Civil Code of the Russian Federation. In accordance with the provision, the authority considering the dispute may oblige the remaining property owners to pay the value of the allocated share. Forced compensation is allowed when the following set of conditions is met:

1. The small size of the share, the value of which is compensated.
2. The impossibility of separating it in kind.
3. The lack of interest of the owner, who loses the right to share, in the operation of a common facility.

Only the second condition can be objectified.

Characteristics of the criteria

The insignificance of the share and the disinterestedness of the owner in use are determined in each case separately, taking into account the circumstances. For example, in a small apartment, even 1/4 part can be considered as insignificant. Moreover, 1/64 of a multi-storey mansion does not fall under the criterion of insignificance. As for the disinterest of the owner, in determining it, it is necessary to establish:

1. Possibility of fixing a piece of property for a subject.
2. The commensurability of interest with the inconveniences that are caused to other parties to the relationship by his participation.
3. Does the person have similar property. For example, does he have another room in which he can live.

When deciding on the existence of a significant interest in the use of property, the court examines all evidence supporting the operation of the facility due to professional activity, health status, age, dependents, and so on.

Section of inheritance

Its features are fixed art. 1168 GK. In accordance with the norm, the hereditary mass, owned by 2 or more persons, can be divided by agreement. If it includes real estate, the agreement, as well as the agreement on the allocation of shares, can be concluded after the receipt of the notarial certificate. When sharing the hereditary mass, some privileges are provided. In particular, they are defined for the owner, who at the time of opening the case had a greater interest in the objects than the rest. For example, an entity that owned a deceased, indivisible thing with a stake in which is included in the inheritance, has the pre-emptive right to receive it on account of its part in relation to successors who were not its owners. It does not matter whether the object was used last or not. The heir, who constantly exploited the thing that is part of the mass, has the priority right to receive it in relation to other successors who did not use it and who were not equity holders. The subject who lived at the time of the death of the original owner of the property together with him, can count on the acquisition of household goods.

Additionally

Disproportionate property, the receipt of which, according to the pre-eminent right, is claimed by the successor in accordance with the norms of Art. 1168 or art. 1169 GK, with a share is eliminated by transferring other objects or providing compensation. The legislation defines certain features of real estate registration when dividing an estate. It is carried out in accordance with the agreement between the successors and the issued notarial certificate. As for joint ownership, its division is made after determining the shares in it for each participant (Article 252, 254 of the Civil Code of the Russian Federation).