Violation of the pre-emptive right to purchase a share in an apartment. Sale of shares and pre-emptive right to purchase

Hello Anna.

Your father acts in full accordance with Article 250 of the Civil Code of the Russian Federation:

Article 250. Pre-emptive right to purchase

1. When selling a share in the right of common ownership to an outsider, the remaining participants in shared ownership have the preemptive right to purchase the share being sold at the price for which it is sold and on other equal conditions, except in the case of sale at public auction.

Public auctions for the sale of a share in the right of common ownership in the absence of consent of all participants in shared ownership may be held in the cases provided for by part two of Article 255 of this Code, and in other cases provided for by law.

2. The seller of a share is obliged to notify in writing the other participants in shared ownership of his intention to sell his share to an outsider, indicating the price and other conditions under which he sells it. If the remaining participants in shared ownership refuse to purchase or do not acquire the sold share in the right of ownership of real estate within a month, and in the right of ownership of movable property within ten days from the date of notification, the seller has the right to sell his share to any person.

3. When selling a share in violation of the pre-emptive right, any other participant in shared ownership has the right, within three months, to demand in court the transfer of the rights and obligations of the buyer to him.

4. Assignment of the pre-emptive right to purchase a share is not permitted.

5. The rules of this article also apply when alienating a share under an exchange agreement.

Thus, if, within a month from the date of receipt of your father’s written offer to buy his share in the cost of the apartment belonging to you by right of common shared ownership at the price he proposed, you and your grandmother do not agree with this proposal of his, he will have the right to sell this share at the same price to any other persons.

You cannot offer your father to sell you the entire apartment, since he is the owner of only one of the four shares in it and has the right to sell only this share of his.

You can ask your father to reduce the price of the share he is selling, but if he disagrees with your proposal, he will still be able to sell his share in the apartment at the price he announced.

You can write a letter to your father with your proposals in any form, since the law does not impose any special requirements on the form of such a statement. It is only important that your proposals in this letter are expressed clearly and unambiguously.

Nevertheless, you have a chance: if your father ultimately sells his share at a price different from that offered to you, you, in accordance with part three of Article 250 of the Civil Code of the Russian Federation, will be able to legally demand the transfer of the rights and obligations of the buyers of this share to you - in including in terms of its sale price.

Using the example of one apartment dispute, the Supreme Court explained what rules should be followed when selling a share in a shared apartment. It is difficult to call the life of people who are not one family, but coexist in a common apartment, idyllic. Therefore, at the first opportunity, such citizens want to get rid of their neighbors and live in a separate apartment. The desire of such cohabitants is understandable, but the disposal of even their own shares in the apartment contains so many pitfalls that not only ordinary people stumble over them. Even judges make mistakes.

In our case, the story began with the fact that a citizen appealed to the Tyumen district court, outraged by the actions of her neighbor. The essence of the dispute is as follows - two women, each of whom had a child, owned one apartment in equal shares. It turned out that each of the residents - two adults and two children - had one-fourth share.

One of them found an option to exchange her share and the child’s share for a separate apartment. The citizen made an agreement with a certain family of four people. Naturally, the second owner of the apartment did not like this exchange, and she went to court to prove that the exchange agreement violated her preemptive right to purchase a neighbor’s share in the apartment. The district court agreed with the plaintiff. The regional court upheld this decision. The offended defendant reached the Supreme Court. There, the Judicial Collegium for Civil Cases studied the results of the proceedings and considered that the complaint could be satisfied.

The court must establish whether the letter from the one who decided to sell his share was correctly drawn up

The Supreme Court reminded its colleagues that Article 250 of the Civil Code states: in the event of the sale of a share in the right of common ownership to an outsider, the remaining participants in shared ownership have a preemptive right to purchase these shares. Moreover, at the price for which the share is sold, and on other equal conditions. The exception is the sale of shares at public auction.

The law also states that the seller of a share is obliged to notify in writing the other participants in shared ownership of his intention to sell his share to an outsider. In the same letter you must indicate the price and conditions under which the square meters are sold.

The law gives the co-owner one month to think and purchase. If the remaining participants in shared ownership refuse to purchase the neighbor’s share or remain silent, the owner of the square meters will have the right to dispose of them as he wishes.

Here’s what else is important to know: according to the law, if the owner disposes of his share in violation of the neighbor’s preemptive right, then any other participant in shared ownership has the right to demand in court within three months that the rights and obligations of the buyer be transferred to himself. And these rules also apply when alienating a share under an exchange agreement. From all the above provisions of the law, the Supreme Court concludes: a legally important circumstance that the courts must establish when considering such cases will be the presence or absence of a correctly executed notice from a citizen who has decided to get rid of his share. The correct execution of such a “letter of happiness” to a neighbor is an indication of the price of the share and other conditions, as well as confirmation of the solvency of other co-owners.

In our case, the local court, deciding this dispute, did not see evidence that the citizen, who wanted to exchange her share and the share of her daughter, correctly notified her neighbor. Therefore, the court decided that the exchange agreement violated the neighbor’s rights to priority purchase of the share.

Confirmation of solvency - namely the fact that the plaintiff had money to buy the neighbors' shares, which is half of the apartment - according to the Supreme Court, was also important for the correct resolution of the dispute. In our story, for some reason the court wasn’t even interested in the neighbor’s solvency.

The Supreme Court recalled that when demanding in court the transfer of the buyer's rights to himself, the plaintiff is obliged to transfer to the bank account of the Judicial Department in his constituent entity of the Russian Federation the amount paid by the buyer, fees and duties payable to the buyer and reimbursement of expenses incurred by him when purchasing a share of the expenses.

The Supreme Court emphasized: such a deposit of money in case the claim is satisfied contributes to the timely execution of the court decision. But according to the claim we are writing about, no money was deposited into the bank account, and therefore the court decision was not implemented.

In addition, the Judicial Collegium of the Supreme Court drew attention to an important detail. From the case materials it is clear that the defendant and those who exchanged money with her agreed on the price of the share in rubles.

It is not clear why, the district court, while considering the case, itself reduced the purchase price. And the court did not provide any legal reasons why the price “shrinked”. And this is a direct violation of Article 198 of the Civil Code. The Supreme Court ordered this case to be reviewed.

In this publication I want to talk about one case involving a claim for the transfer of rights and obligations of the buyer, based on application, providing for the possibility of a pre-emptive right to purchase a share by participants in shared ownership.

It would seem that what could be easier than reading carefully and applying its not so complex rules? But some citizens do not want to bother searching for and choosing lawyers or advocates so that they can be provided with decent protection. In this case, I represented the interests of the defendant and was simply happy with how two representatives of the plaintiff conducted the case in such a way that the natural result was a refusal to satisfy the claims, upheld by the appellate court.

Fable of the case

Citizen A. found an advertisement for the sale of a 2/3 share in the right of common shared ownership of a residential building. The shares were sold by two co-owners, each of whom owned 1/3. The third co-owner, Sh., was notified at the address where he allegedly lived with his ex-wife, since his exact location was not known.

Approximately 6 months after the conclusion of the purchase and sale agreement, A. receives a statement of claim from the court for translationrights and obligations of the share buyer on the plaintiff.

Plaintiff's position

The plaintiff indicated in the statement of claim that he was not notified of the other co-owners’ intention to sell their shares in the right of common ownership, as a result of which his pre-emptive right to purchase a share, which he intended to implement if he had been properly notified. The claim was brought about the purchase and sale agreement and the invalidation of the entry in the Unified State Register of Real Estate.

The plaintiff indicated in the claim that in June he came to the house and saw A. there, who told him that he had bought a share of 2/3. In court, the plaintiff said that A. showed him the share purchase and sale agreement. The plaintiff also wrote in the statement of claim that in October he took an extract from Rosreestr about the rights to the house and learned about the violation of his rights.

The claim was filed only in December.

Before filing a claim for transfer of rights and obligations of the buyer under the purchase and sale agreement, as it turned out, the plaintiff still filed a statement of claim to invalidate the share purchase and sale agreement.

This obvious mistake in choosing the method of protecting the right in case of violation pre-emptive right to purchase a share, quite common among some lawyers who have a vague understanding of civil law, led to the fact that the statement of claim corresponding to the proper method of protecting the right was filed so late. You don’t have to be a rocket scientist to read Part 3 and understand what kind of claim the law protects in this case.

Then the plaintiff was returned the statement of claim and he again filed a claim to invalidate the transaction, changing the subject of the claim, only after it was accepted by the court, when, as I believe, the court hinted that it would be necessary to change the claims.

Defendant's position

The first and obvious thing that caught the eye was that the plaintiff missed the deadline to go to court to protect the violated right. Indeed, Part 3 provides:
When selling a share in violation pre-emptive right any other participant in shared ownership has the right to demand in court within three months translation on him rights and obligations of the buyer .

In paragraph 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 10, the Plenum of the Supreme Arbitration Court of the Russian Federation No. 22 of April 29, 2010 “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights” the following explanations are given

Within the meaning of paragraph 3, when selling a share in the right of common ownership in violation of the pre-emptive right of purchase of other participants in shared ownership, any participant in shared ownership has the right, within three months from the day when he became aware or should have become aware of the transaction, to demand in court transferring the rights and obligations of the buyer to it.

Claims submitted after the specified deadline are not subject to satisfaction. At the same time, at the request of a citizen, in relation to the rules, this period can be restored by the court if the citizen missed it for good reasons.

In our case, the claim itself stated that the plaintiff saw a citizen in the house in June who said that he had bought shares in the ownership of the house. Many, unfortunately, read the law only in fragments and do not see in it what they do not want to see, and, perhaps, cannot see.

In black and white it says that the three-month period begins to run, which is essentially a shortened limitation period, that it starts from the moment when the plaintiff became aware or should have become aware of the transaction. In this case, it already followed from the claim that Sh. should have become aware of the violation of rights after he saw a stranger who was in the house and told the plaintiff that he had bought a share in it.

After this, the plaintiff should have taken an extract from Rosreestr, of course, if he really wanted to exercise the pre-emptive right to purchase a share, but for unknown reasons, he took the extract only in October, i.e. after a period of three months.

Naturally, I immediately announced the application of the statute of limitations to the plaintiff’s claims, citing the fact that in this case it began to run from the moment the plaintiff should have learned of the violation of his right.

I want to say that if the plaintiff had not spoken about this in the statement of claim, then we would have had to present evidence that the plaintiff should have learned about the violation of his rights in June. Special thanks to those who filed the claim this way. I would never plant a mine in a lawsuit. Let the defendant prove that the plaintiff should have known about the violation of his right before the plaintiff received an extract from the Unified State Register of Real Estate in October. And it is still unknown whether the defendant could prove these circumstances or not.

And the lawsuit was filed by those who believe that the statute of limitations begins to run from the moment the plaintiff learned of the violation of the right. That is why they did not even think about the consequences of indicating in the statement of claim a circumstance that obviously puts the plaintiff under the claim of missing the statute of limitations.

It would seem that it was necessary to at least try to rectify the situation in court and try to restore the statute of limitations, since the plaintiff claimed that he was illiterate. But no, the plaintiff’s representatives continued to insist that the statute of limitations had not expired.

Again, thanks to them for this.

Our next argument was that the co-owners did not have accurate information about where the plaintiff lived, and the notice was sent to his last known address. We argued that a bona fide co-owner, in order to ensure that his rights are not violated, must, at a minimum, inform other co-owners of where notices should be sent to him.

Our other objection was that at the time the plaintiff learned that a buyer was living in the house, he had no intention of exercising the right of preemption. The plaintiff could not provide any evidence that he had the means to exercise the pre-emptive right to purchase the share.

The most remarkable gift of the plaintiff's representatives to the defendants was that they showed that at the time of the dispute there was an amount in the plaintiff's bank account to pay the buyer, but this amount was not deposited into the account of the judicial department.

They did not take into account the explanations of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 06/10/1980 N 4 (as amended on 02/06/2007) “On some issues of the practice of consideration by courts of disputes arising between participants in common ownership of a residential building,” which states the following:

When filing such a claim, the plaintiff is obliged to deposit, by analogy with the bank account of the administration (department) of the Judicial Department in the relevant constituent entity of the Russian Federation, the amount paid by the buyer for the house, fees and duties, as well as other amounts payable to the buyer in compensation for the necessary expenses incurred when purchasing the house expenses.

The plaintiff's representatives explained to the trial court that they asked the court office how they could deposit the required amount, but they were not advised. By this they justified the fact that the plaintiff was unable to deposit money into the account.

In this case, I had no doubt that the claims would be rejected, which is what happened.

But imagine my surprise when I read the plaintiff’s appeal. In it, the plaintiff wrote that the court did not explain to him the right to file a petition to restore the statute of limitations, and also did not explain the procedure for depositing money into the account of the Judicial Department.

And all this despite the fact that the plaintiff had 2 representatives, and court hearings were repeatedly postponed, and the plaintiff was asked to provide evidence of compliance with the above-mentioned clarifications of the Plenum of the RF Armed Forces. In other words, according to the drafters of the appeal, the court should advise the plaintiff during court hearings.

I wrote only brief objections to the appeal and did not participate in it. The appellate court left the decision of the first instance court unchanged, and there could be no other option given such work in the first instance court.

Thus, I was lucky with the plaintiff's representatives, who made every effort to ensure that the claims were denied.

Most of the Moscow apartments are in joint or common Accordingly, almost everyone is the owner of a share in the apartment. Someone, having joined forces, decides to buy an apartment in shared ownership, others privatize housing into common shared ownership with family members. Some of us become owners of shares, entering into an inheritance on an equal basis with other heirs.

Naturally, it’s good to own even share in the apartment. It's better than having nothing. The share can always be sold, it can be rented out. A share in Moscow is the most inexpensive and, therefore, the most affordable housing in which you can not only live, but also register, which gives you the right to receive the full social package of a Moskvich. Today, concepts such as “share in an apartment” or “co-owner” have become well known to many.

The Civil Code of the Russian Federation provides for a special legal regime for shared ownership. So, in particular, articles246 And 247 The Civil Code of the Russian Federation establishes that the ownership, disposal, and use of property in shared ownership is carried out by agreement of all its participants. Having shared ownership of housing, it is necessary to take into account the rights and interests of all co-owners, regardless of the size of their shares. When it comes to share in the apartment, we must understand that it cannot be measured in square meters, draw a border and prohibit other co-owners from entering “other people’s territory.”

If the procedure for using the residential premises is not determined between the owners of shares in the apartment, this means that they use all the residential premises equally. Owning a share in a residential property is not the same as owning a room. The share cannot literally be seen, touched or said that the share belonging to you corresponds to some part in the apartment. can only be expressed as a fraction, such as 1/2, 1/5, or 3/16. Sooner or later, for a number of reasons, the question arises of one of the co-owners selling their share in the apartment.

How to sell a share in an apartment

Transactions related to the sale of a share in an apartment seem to be the most complex; amendments to the legislation are constantly being introduced, non-compliance with which will make the sale of the share impossible. How to sell a share in an apartment without breaking the law? When selling, you must strictly observe not only the well-known art.250 Civil Code of the Russian Federation. and also be guided by the new laws regulating the sale of shares dated July 2, 2016 No.and dated January 1, 2016 No. .

Of course, what remains unchanged is what before sell a share in an apartment to third parties, it is necessary to offer to buy it to the remaining participants in shared ownership. The new law requires that co-owners be notified only by notarial notice; previously, this could be done independently by sending a letter listing the investment. Also, since 2016, it is impossible to carry out a transaction for the sale of shares without a notary, since registration of the right to a share in an apartment is possible only if the purchase and sale or gift agreement is notarized.

Proof that you have notified the co-owners will be a certificate received from a notary about the transfer of a notice from the seller to the co-owners, indicating the price of the share and the terms of its sale. Having received such a certificate, you have the right to use it from any notary located in the region where the property is located.

Sell ​​a share in an apartment to a third party: specifics of the process

The co-owners must purchase the offered share in the apartment or refuse to purchase it within one month. Notarized refusal of a co-owner ransomshares in the apartment is provided without fail to the notary who will conduct the transaction of purchase and sale of a share in the apartment. From January 1, 2016, transactions with shares (sale/donation) are carried out only through a notary. If several co-owners have expressed their intention to buy a share in the apartment, the seller has the right to choose which of them will be given the opportunity to buy a share in the apartment.

The greatest difficulty arises in cases where the relationship between co-owners, to put it mildly, does not work out. Having learned that one of the co-owners has decided to sell his share in the apartment, other owners often begin to “put a spoke in his wheels.” This may also be expressed in a reluctance to let buyers into the apartment, in scandals during viewings that are arranged for potential buyers in order to frighten them with their inappropriate behavior.

So they appear on sale, the owner is ready to sell his share cheaper, just so as not to worry his nerves. About evasion of receiving notice of the sale of a share and much more, which we will not mention. Let's just say one thing: for every share there is a buyer. By not allowing non-living people into the apartment to come to an amicable agreement, they will not rid themselves of a new neighbor who will buy a share in the apartment with their help at a lower price.

If a co-owner is recognized as missing and in the presence of a corresponding court decision, his pre-emptive right to purchase the alienated share does not pass to other persons (family members of this co-owner, other participants in shared ownership). There are often cases when one of the co-owners died or was declared dead in court, and the inheritance for the share in the apartment was not formalized.

How and from whom to obtain a waiver of the right of first refusal in such cases? In such situations, a realtor comes to the aid of those who wish. There is always a legal way out of any situation. Our specialists will be able to solve any problem, even one that seems insurmountable at first glance.

How to sell a share in an apartmentthe law requires an outsider to notarize all co-owners. In the event of a violation of the preemptive right to purchase a share of an apartment, any participant in shared ownership has the right to file a lawsuit within three months with a claim to transfer the rights and obligations of the buyer to him. According to the general rules for calculating limitation periods, the specified three-month period begins to be calculated from the day when the participant in the common shared property, demanding the transfer of the rights and obligations of the buyer to him, learned or should have learned about the sale of a share in the apartment to an outsider in violation of his rights.

We know how to avoid this and not allow the transaction to be challenged. These are just some of the most common difficulties faced by those wishing to sell a share in an apartment. Our experience and knowledge of the laws will allow us to carry out the most complex transaction with any share in a Moscow apartment, even if it seems that this is not possible at all.

Buy a share in an apartment

Now let's look at transactions with shares on the part of the buyer. It is important to understand for what purpose it is decided. It's no secret that not a small part of the shares in Moscow are now being acquired with the aim of obtaining , although in this case, as a rule, we are not talking about actual residence. The size of such a share in an apartment may be small, for example, 1/10, if the share is smaller, for example, 1/20, 1/50, 1/100, then you will not be registered, the Federal Migration Service has been fighting very hard for the last two years registration on .

With registration at the place of residence of the new owner shares in the apartment there will be no problems, since it is carried out without the consent of the co-owners. To do this, it is enough to present a certificate of ownership to the passport office. If the procedure for use between co-owners in the apartment was not previously determined, then the future owner of the share may have to resolve this issue himself.

As a rule, achieving mutual understanding with neighbors is not easy. Then the procedure for use is determined in court. A lawsuit is filed to determine the order of use, and each share is assigned one of the rooms by a court decision. Our lawyers are ready to assist in this legal process and will defend your rights.

In this regard, it should be understood that the court makes a decision on determining the procedure for using the area, taking into account the actual situation of each co-owner. That is, the following circumstances will be taken into account: a) whether the owner of the share has a different area for living; b) does he have a family, children, other dependents; c) financial situation and much more.

It may turn out that the owner of a larger share in the apartment will occupy a smaller room in the apartment, and someone who has a much smaller share in the right may be allocated a larger living space by a court decision. There are many subtleties that only lawyers and realtors involved in shared ownership know.

Sale of shares and accommodation

If you plan to live on the share of the apartment you purchased with your whole family, you should know that for(registration) of family members at the place of residence, the written consent of all other co-owners will be required. Therefore we recommend buy a share in an apartment for all persons who will subsequently reside and register.

Let's say, for a family of 3 people, buying 1/2 share in an apartment, it is better to buy it at 1/6 for each person. And yet, there is no need to be afraid of buying a share in an apartment. Only children under 14 years of age can be registered as a share in the apartment without the consent of the co-owners. Wives, husbands, brothers, sisters, parents will not be registered without the consent of co-owners.

Buying a share of an apartment is , any apartment where there are several owners will be sold sooner or later. And when selling, you can get twice as much money as was spent on buying the share. A share in an apartment is the most profitable investment today. Not one type of real estate will bring 100% profit.

If you don’t have enough money to purchase a separate apartment, but you need to live somewhere, buying a share is the only right way out of the current situation. Buying a share is much more promising than buying a room. As established practice has shown, those apartments in which a share was purchased without viewing are sold much faster.

Sell ​​a share in an apartment: joint ownership

In accordance with the Civil Code of the Russian Federation, property (including real estate) that is owned by two or more persons belongs to them under the right of common ownership. Common property can be joint - without defining shares, and shared - with defining shares.

An example of joint ownership is an apartment acquired by spouses during marriage; there is one certificate of ownership for it and, despite the fact that only one spouse is indicated in it, the disposal of such an apartment can only occur with the notarized consent of the second.

During a divorce or at any other time, they can re-register joint property into shared property, that is, determine the size of the shares belonging to each: during a divorce, this will, as a rule, ½ shares, and in the event of division for other reasons (for example, when concluding a marriage contract), the size of the shares is determined by agreement between the spouses.

Now there will be two certificates of ownership for the apartment - for each share in the apartment yours, but on the back it will definitely be indicated who owns the remaining parts of the property. Based on these documents, each spouse can freely dispose of their property without asking the other, also observing certain formalities, which are discussed below.

Another case of shared ownership arises in a situation of inheritance by will or by law, if there is more than one heir. Today, there are apartments on the market that were originally purchased by unmarried persons who shared ownership (the so-called common-law spouses or simply people who are not related or otherwise). Real estate prices today are so high that they force people to look for a way out in a joint purchase.

Sell ​​a share in an apartment: main points

So, if you are a seller of a share, then it is important to know that your co-owner has the right of first refusal, which is referred to in Art. 250 Civil Code of the Russian Federation. That is, beforeto third parties, you are obligedall co-owners, and if they do not claim to purchase your share, they can themselves give a notarized waiver of the pre-emptive right to buy out the share. If the relationship is far from ideal and the second owner does not want to sign the papers or discuss this issue, then the law still leaves you the opportunity to dispose of your property.

Having sent a notarized offer to buy out a share to a co-owner, you must wait 30 days, and if he has not expressed a desire to buy the share on your terms, the notary who sent the notice of sale will issue you a notarial certificate stating that the co-owners have been notified. Having this document in hand, you have the right to conduct a transaction with a third party and sell the share to anyone.

The Notice of Notice will serve as proof that you have not violated the rights of another owner. It is important to remember that you must sell share in the apartment exactly at the price and on the conditions that were written in the offer. The slightest deviation from them gives your co-owner the right to go to court with a claim to transfer all the rights and obligations of the buyer to him.

If you decide , no matter for what reason, for residence or , the issue of compliance with all formalities is more important for you than for the seller of the share. When preparing a transaction, it is important to check that the seller has done everything without violating the law, because in the event of the slightest inaccuracy, you may be left not only without a share, but also without your money.

Sometimes sellers, if they do not have the opportunity to obtain a refusal from other owners, offer to formalize the purchase and sale in another way, most often through a gift agreement, a gift agreement of a small share with a further purchase and sale agreement, there are also compensation agreements with a pledge of a share - in In this case, the right of first refusal does not apply.