What is share ownership
Total equity ownership is a property owned by several persons with the definition of the share of each of them. Each participant of such legal relations has the right to receive a portion of the proceeds from the use of values, and bears part of the responsibility for maintaining them. Let us consider in more detail the features of common ownership.
The share in total ownership is expressed as a fraction or percentage. In accordance with paragraph 1 of Article 245 of the Civil Code, parts of property belonging to co-owners are considered equal, unless it follows otherwise from the essence of the relations established between them, the agreement or the law.
The magnitude of the share can be adjusted for various reasons. Changes may be associated with improvements in the property, changes in the subject composition, etc.
In accordance with paragraph 3 of Article 245 of the Civil Code, a participant in share ownership can expect an increase in its share in proportion to the increase in the total value of the property if the improvement made by it is inseparable.If it is recognized as separable, the subject acquires the right of ownership to it.
Shared property participants may use, own, dispose of by mutual agreement. If there is no agreement on matters relating to tenure, the dispute may be resolved in court. Conflicts related to the disposal of property cannot be resolved in court.
A participant in shared ownership may count on the provision for his use and possession of a part of the common property in accordance with the size of his share. If this is not possible, he may demand from the other co-owners of appropriate compensation. The right of common ownership is real. It must be properly executed and registered. Only in this case is the subject's right to the share allocated to him in possession and use, protected from the encroachment of third parties.
Each co-owner can independently manage only his part in the common property.
Joint and shared property
In the Civil Code there are two main types of common property: shared and joint.The first one is spoken in the case when each participant is the owner of a certain part of the property. In joint ownership, the shares of persons are not determined in advance. They are established only in case of division of property or separation of any part from it. In this regard, joint ownership is often denoted as no-share ownership.
Each participant in shared ownership (and eventually joint) in the division or separation of a part is entitled to a share. In other words, each subject has a share in the right to the entire property complex. The right of participants is not limited to a specific part of the whole thing. It covers the entire property. The specificity of common property is that several persons have the right to the same material value.
Grounds of occurrence of shares
They may be provided by law or contract. Share ownership can be established by agreement of the participants in joint ownership, and if such an agreement is not reached, by a court decision.
The legislation does not establish an exhaustive list of the reasons for the occurrence of shares in property.There are no restrictions on the subject composition. Owners of shares in share ownership may be citizens, citizens and legal entities, citizens and the state, the state and enterprises, other subjects in any combination.
As for joint property, its occurrence is possible only in cases directly enshrined in the law. It is also possible to transfer property from the share ownership mode to the joint ownership mode only in situations provided for by the rules.
It must be said that relations connected with joint ownership are primarily personal and confidential. In this regard, the range of their participants should be significantly limited.
Measure of shares
Quantifying the part of the property belonging to a particular participant in shared ownership is of paramount practical importance. It is necessary for the distribution among the subjects of income derived from the use of the thing, as well as the cost of maintaining the property. In addition, the quantitative measurement of the share allows you to determine what the owner can claim in the case of the division of property or the separation of its share.
It should be understood that the value of a part of the property belonging to a participant in legal relations varies throughout their length. It may decrease and increase due to changes in the subject composition of legal relations, making improvements, under other material circumstances.
Definition and change of shares
Parts of the property belonging to the participants are recognized as equal, unless the other follows from the legislation, the essence of the legal relations between the subjects, or the contract. By agreement of all co-owners, the rules for determining and changing parts of a property can be established depending on the contribution each participant made to the formation and increase of property.
If a person has made improvements to the general object, then their fate and their influence on the magnitude of the share will depend on the observance of the established procedure and the nature of such improvements themselves. If they are inseparable, and the order of their introduction was observed, then the participant is entitled to demand an increase in his share. Such a change should be commensurate with the increase in the value of the common property. If the established procedure has not been observed, the participant does not acquire such a right.
With separable enhancements, the situation is somewhat simpler.They become the property of the participant who implemented them, unless otherwise is fixed by agreement. Making such improvements, respectively, does not in itself give a party the right to demand an increase in its share, since they are separable. This means that the item can be returned to its original state without causing disproportionate damage.
Section and selection
Their bases and methods are different. Allocation and division can take place by the mutual consent of the participants, and by the decision of the court. In this case, the separation can be carried out not only at the request of the owner, but also at the request of creditors in order to foreclose on the material values belonging to the debtor.
If the law permits and there is a technical possibility, the division and division occur by allocating a share in kind. As a rule, there are no problems when taking stock of land plots. If this is not possible, the participant in the relationship who wishes to allocate his share may receive compensation (monetary or other). It should be said that it is not always possible to divide the property exactly in accordance with the shares.In such situations, the participant who received the smaller part can also count on compensation from the other co-owners. In this case, he gets the difference between the property allocated to him and the value of the ideal share.
On the basis of the principle of mutual consent, necessary in the exercise of the right to dispose of property in common ownership, the payment of legal relations to the participant instead of the separation of a share in kind is allowed only if he agrees to it. Meanwhile, there is an exception to this rule. If the share of the owner is so insignificant that it is impossible to allocate it in kind, and the owner himself is not interested in using common property, the court is entitled even in the absence of its consent to impose on the other participants of legal relations the obligation to pay him compensation. Such a situation often arises when ownership of a small apartment is common. After receiving compensation, the entity loses the right to a share of common property.
As stated above, the subjects of common property are exercised by agreement with each other.In the Civil Code fixed the most important rule regarding the disposal of such things. It consists in the following. When a share is alienated to a foreign entity, the other participants have a preemptive right to acquire this share on the terms offered by the owner, with the exception of the sale of property at auction.
This rule will be considered as observed if the seller sends a written notice to the other owners of their intention to dispose of their shares. The notification must include all essential conditions of the forthcoming transaction. If the other co-owners express a refusal or do not respond to the notice, the entity may sell its share to any person. It should be noted that the law establishes different terms for sending a response by the other participants in shared ownership. Land plots and other real estate objects may not be sold to third parties within a month from the date of the notice. For movables, the term is 10 days.
However, the owner has the right to pledge his share without asking the consent of the other participants. However, the right of pre-emption applies in the case of foreclosure.The legislation protects, first of all, the interests of other owners, therefore, in this case, the right of preferential acquisition is also retained. Only if participants in common ownership express a refusal can a penalty be imposed on the share.
In the event of the sale of a share in violation of the right of pre-emption, any co-owner may, within three months, demand by court to transfer to him the duties and rights of the buyer.
Co-ownership in marriage
It arises in the event that the exercise of powers in respect of joint property is carried out not on the basis of the law, but in accordance with the contract. Spouses can enter into a marriage agreement. In this case, the contractual regime of disposition, use and possession will apply to all property specified in the terms of the agreement.
Spouses can also conclude separate agreements on the creation / acquisition of wealth. In this case, one part of the common property may be subject to the legal regime, and the other - contractual.
It should be said that in addition to the voluntary establishment of shared ownership, the law also provides for compulsory. It is carried out in court.
The allocation of the share of the total property of the spouses
This action leads to the fact that each spouse becomes an equity owner. This means that they have the opportunity to independently dispose of part of the property in compliance with, of course, the procedure established by law. It should be remembered that the second spouse gets the right of preferential purchase of a share if the first decides to sell it.
Allocation of shares will also lead to the division of responsibilities for the maintenance of the object. We are, in particular, about paying taxes, insurance, utilities and other payments.
It should be noted that when establishing the ownership of a common object in a marriage contract, if it is declared invalid or if it is terminated (both by mutual consent of the spouses and in court), the participants of legal relations transfer to the legal regime for the realization of their property rights.
If the share ownership was established in an individual contract (for example, on the purchase of an apartment), the decision of the participants of legal relations or by a court of law instance allowed only a change in the value of shares.Joint ownership of the property cannot be established. In such a situation, the only way to return to such a regime of ownership may be challenging the completed transaction and recognizing its invalidity. But for this, the parties must have good reasons.
As can be seen, shared ownership can bring a lot of problems to the subjects. This is quite a burdensome right, since it implies certain restrictions for all its owners. First, without observing the established procedure, one cannot dispose of his part of the property. Otherwise, any co-owner may recognize the transaction as invalid and require transferring the obligations and rights of the acquirer to it.
Many difficulties arise when making improvements to the common property. If they are separable, they are recognized as movable property and simply become the property of the subject who carried them out. With the inseparable improvements is much more complicated. The fact is that they increase the size of the property and, accordingly, increase its value. In such situations, you should be extremely careful.
It is far from always that friendly relations are established between the participants in share ownership. Often, unbearable conditions are created for some of the owners, and he has to sell his part, instead of improving it and using it.