Determining the order of use of living space

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Quite common are cases where several owners live in one apartment. Sometimes there are conflicts between them, in which one of the co-owners of the apartment restricts or prevents the other from using the shared apartment or house.

There are several ways to resolve this issue: establishing the procedure for using common property or allocating in kind its share of common property. These methods can be used both out of court (contractual) and in court. Below we will consider each option in more detail.

Ways to determine the order of use of living space

The out-of-court method of establishing the order of use of residential premises is that co-owners can voluntarily enter into an agreement on the order of ownership and use of common property (house or apartment) in order to avoid possible disputes and normal coexistence.

Such an agreement may be concluded in a simple written form, and may, at the request of the co-owners, be notarized. If the contract is notarized, it will be binding on the person who subsequently acquires a share in the right of joint partial ownership of this property.

The agreement on the order of ownership and use of common property must contain:

• information on co-owners with indication of shares in property rights and title documents;
• inventory of property;
• the order of use (which premises are put into use, and which remain in common use);
• costs of maintaining common property;
• miscellaneous.

It should be noted that in the case of establishing the order of use of housing, the utility bill is not actually divided, but only establishes the order of reimbursement of expenses for the maintenance of common property. That is, all owners are obliged to reimburse the funds paid for utilities to the co-owners to whom the bill is issued (who pays for utilities).

Co-owners of an apartment are not always able to agree on the order of ownership and use of common property, so the owners often go to court with a lawsuit to establish the order of use of living space.

It should also be emphasized that each of the co-owners has the right to provide him with possession and use of that part of the joint property in kind, which corresponds to his share in the right of joint partial ownership. If it is impossible to provide him with a room that would correspond to the size of his share (providing a smaller room), he has the right to demand from other co-owners who own and use the common property, appropriate material compensation.

Allocation of shares from the common property in kind is possible only if it is technically possible to divide the dwelling into independent real estate. That is, each owner can be allocated a separate part of the house (apartment) with an independent exit, or there is a technical possibility to convert the house into isolated apartments, which correspond in size to the size of the shares of co-owners. In this case, two separate real estate objects are created with the provision of a postal address to each object, registration of separate utility bills.

If the allocation (division) is technically possible, but with a deviation from the size of the ideal shares of the co-owners, taking into account the specific circumstances, the division (allocation) can be carried out by changing the ideal shares and awarding monetary compensation to the co-owner. In the absence of the consent of all co-owners to change the shares, the issue is resolved in court.

The division into independent real estate objects must meet the conditions stipulated by the current building regulations. The division (allocation) of shares in kind is carried out after the business entities that carry out technical inventory of real estate (BTI) provide an opinion on the technical feasibility of the division of real estate, or an opinion on the technical feasibility of allocating shares in kind of real estate.

In the case of division (separation), the right of ownership of joint ownership of housing is terminated, and each co-owner has the right of ownership of only part of it.

If the owners cannot agree on the division or separation, then one of the owners may apply to the court with a corresponding claim for the division (separation) of part of the house or apartment. In considering such a case, the court must establish the technical possibility of division of the real estate object, or allocation in kind of a share from the real estate object.

The court also takes into account that in accordance with Art. 47, 48 of the Housing Code of the USSR (currently in force) housing is provided to citizens within the norm of living space, but not less than the size determined by the Cabinet of Ministers of Ukraine and the Federation of Trade Unions of Ukraine. The norm of living space is set at 13.65 square meters per person.

That is, when allocating (dividing) the court adheres to the rule that establishes the minimum size of living space that can be provided to citizens.

It should be emphasized that real estate objects, which include spontaneously constructed (reconstructed, re-planned) real estate objects, are not subject to division. The issue of division of such real estate can be considered only after the recognition of ownership of them in accordance with the law.

Thus, we can conclude that the allocation in kind of shares from the common property is a rather complex procedure, which has many nuances, and above all requires a lot of effort and time. Therefore, for a positive solution to this issue, it is better to consult with lawyers who have significant experience in this field.

Approximate list of required documents:

• Legal documents for the real estate object with indication of shares.
• Technical passport.

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