Art. 247 of the Civil Code of the Russian Federation: essence, features, nuances
Quite often the property belongs to several entities at once. In such cases, talking about the features of the use and ownership of such property, as well as the allocation of its part regulatesst. 247 of the Civil Code. PracticeThe application of this rule is quite extensive. Consider the provisions of the article in more detail.
As indicatedparagraph 1 of Art. 247 of the Civil Code, participants in shared ownership use and own the objects by agreement. If it is not achieved, the order is established by the court. ByPart 2 of Art. 247 of the Civil Code, any participant can receive for use and possession a part of the property in proportion to the share. If it is impossible to single out this part, he is entitled to demand compensation from other owners.
Art. 247 of the Civil Code with comments
It appears that equity owners can establish any conditions and rules for the use and possession of property. Since the right belongs to all these persons, by agreement they have the right to perform any actions in relation to material values.Of course, the behavior of participants should not violate the provisions of the law and infringe upon the interests of other people. Implementing the powers of use and possession, the owners physically possess the property, extract useful properties from it. Accordingly, withinst. 246, 247 of the Civil Code of the Russian Federation, use, disposal, possession of property, on the one hand, are predetermined by the specifics of the objects, and on the other, by the will of their legitimate owners.
Nothing prevents subjects from making a decision on which the object will use only one of them (or several persons). Guided bySection 2, Art. 247 of the Civil Code, the parties may stipulate certain compensation to other participants for this. However, a refund may not be foreseen. It all depends on the will of the participants. The reasons for this can be both objective (limited space, inability to live in a house of several families, etc.) and subjective (unwillingness to live with someone under the same roof) circumstances. In some cases, guided byst. 247 of the Civil Code,the owners use the object in turn. This happens when it is impossible to operate the property in parts (in the case of a car, for example).It should be noted that the agreement of the parties can establish a variety of ways of exercising powers, up to the elimination of one of the owners of ownership with the payment of compensation to him underst. 2, Art. 247 of the Civil Code.
The procedure and conditions for the use and possession of the object by agreement of the participants, in accordance withst. 247 of the Civil Codeare established unanimously. When discussing options and making a final decision, it does not matter the size of the share of a particular subject. The main thing is that the parties come to a mutually beneficial result. The agreement form of the parties is not fixed by law. This means that it must comply with the general rules of articles 158-165 of the Code. However, due to the specifics of the agreement, derogations are allowed. One of them is due to the lack of need for state registration of the agreement. In addition, the rules on writing, as well as the consequences of non-compliance, do not automatically apply.
As stated in paragraph onest. 247 of the Civil CodeIf the participants do not come to an agreement, the procedure and conditions for the use, possession of property shall be determined by the courtMoreover, the instance resolves disputes even in the event of an agreement, but in the event of disagreement on their execution. There are no criteria established by the court. However, they are implied. To begin with, we note that the properties of the disputed property, as well as the nature of the distribution of shares between participants in legal relations, must be taken into account.
Allocation of part in the right
It is permitted under paragraph twost. 247 of the Civil Code. It is necessary to take into account a number of nuances. First of all, such a procedure should be legally and technically possible. In addition, as a general rule, there must be an agreement of all owners on this. If it is missing, the dispute is decided by the court. In this case, a part of the property corresponding to the value of the share will be provided. For example, in the property of the subject is 1/3 in the right. Accordingly, he can get a third of the object. These actions, however, do not mean the materialization of a share. The "real" part of the property does not arise. The share in the law remains unchanged. Between the parties is reached only an agreement on the method of exercising its legal capacity.The impossibility of his achievement is compensated by a court order.
The inability to provide one of the participants of the property in accordance with the size of its share may be due to several reasons. First of all, an object can be indivisible. Accordingly, its separation in nature is impossible without significant changes in its properties and purpose. In addition, not in all cases it is possible to allocate a proportionate part of the property. For example, three subjects own a three-room apartment of 45 square meters. m, with rooms in 12, 17 and 16 m2. The shares of the participants are equal. At the same time, there are rooms in the apartment that will always be shared: bathroom, kitchen If we are talking about giving each person a part of the object, a proportionate share, then there should be premises of 15 square meters. m (45/3). In the example there are no such rooms. In this regard, the participant who has received the use of 12 square meters of space. m, may claim compensation for the three missing meters.
Let us turn to the explanations of the Plenum of the Armed Forces. In one of its judgments, the court indicates the following.In determining the procedure for using an immovable object, a specific part of the structure is transferred to each equity owner, in accordance with the size of his share. In this case, the termination of the common law does not occur. The allocated part of the property may be non-insulated premises and not always exactly correspond to the values of the shares belonging to the owners. If a room larger in size than the part due to the subject is transferred to use, at the request of the other parties, a fee may be charged. When making calculations, the prices usually charged for the use and possession of the relevant property should be taken into account.
Possession, use, disposal of common facilities in such structures is subject to special rules. The procedure establishes Article 290 of the Civil Code and 36-48 LCD standards. In particular, it is stipulated that the owners of the living space in apartment buildings own premises that are not parts of their apartments and are intended to serve more than one room, including:
- Elevator and other mines, elevators.
- Ladders, platforms.
- Attic, technical floor, basements, which are engineering communications.
- Sanitary, mechanical, electrical equipment, other communications, located in the house.
- The plot of land on which the house is located, with elements of improvement and greenery, other objects. The size and boundaries of the plot should be determined according to the provisions of the LC and GC.
Disposition of property
It, as indicated by Article 246 of the Civil Code, is carried out by agreement of the joint owners. The participant may dispose of their part of the property with some restrictions. By virtue of the provisions of Article 250 of the Code, in case of alienation of a share to a third party, equity owners are vested with a preemptive right to purchase at a cost established by the seller and on other equal conditions. Exceptions are cases of the sale of an object at a public auction. These rules, however, do not apply to owners of common premises of an apartment building. The owner of the apartment can not sell the share without the alienation of their living space. A part of each owner in the right to common premises always has the same fate as the ownership of the living space, i.e.follows her.
The owner of a share has the right to demand its separation from the common property. However, this provision does not apply to owners of premises in multi-unit buildings. Given the above, you can define several signs of shared ownership in the MKD:
- There is no possibility to allocate part of the property in kind.
- It is impossible to alienate a share in the right separately from the premises.
- A part cannot exist autonomously. It is considered an integral element of the premises, which, in turn, is an object of law. Accordingly, the share always follows his fate.
Similar signs have common premises in communal apartments.
The criterion for determining the share in the right is the area of the object that is owned. The part of each participant in ancillary premises is proportional to the share belonging to him in the total area of the house, unless otherwise provided by agreement. All legitimate owners of premises can use and own such objects. Only some of the premises can be allocated to someone from the owners of apartments without prejudice to the interests of other persons living in the same house.For example, in some cases, part of the basement may be provided. But the allocation of the roof, non-apartment engineering equipment and other similar objects is impossible. As many lawyers note, the share in the right to ancillary facilities, as a rule, is more likely a burden (burden) than a boon. On the one hand, due to this mode of use and ownership, absolutely all owners of living space in an apartment building have the opportunity to exploit corridors, staircases, elevators, etc. However, there are also nuances. For example, why does a person living on the first floor have an elevator? In practice, there are many disagreements about such objects. All of them are resolved only in court.