ALLOCATION OF A PART ON REAL ESTATE IN KIND

Based on the court doctrine on the possibility of allocating to one co-owner of a residential building in kind, the court is guided by the current legislation of Ukraine, which provides for the possibility of ownership, use and disposal of their property. That is, no natural person, legal entity, public authorities and local governments can be deprived of property rights without the presence of confirmed facts, as it is inviolable.

 The very right of ownership of real estate is acquired on the basis of transactions. As a result, such a right of ownership is considered acquired if there are no direct instructions to the contrary.

 Thus, the allocation of a part of the joint property is the transfer of a part of this property to the property of the participant of the joint property in accordance with the allocated part and as a result, the right of ownership in the joint property is terminated. That is, as provided by the Procedure for assigning a real estate registration number, approved by the Cabinet of Ministers of Ukraine dated December 8, 2010 № 1117 "On the identification of real estate for registration of rights to them", a separate area is allocated, which should be a separate real estate.

 Because, in the actual division of real estate, in the case of reconstruction of housing, and as a consequence, two apartments are formed, provided that there is no division of rights to such an object, which will become joint property. In the absence of agreement between such owners on the legal regime of its use, then there is an "inheritance" of the legal regime of the thing from which such allocation was made.

 However, during real estate transactions, the law does not provide for cases of interference in the physical integrity of such real estate, because the division of the entire property complex occurs without the reconstruction of the latter.

 In the case of complex non-additive things, for the latter there is an interference with the physical integrity of the object. As an example, when dividing a house, it is necessary to make it two independent real estate objects - apartments with separate entrances / exits, which is achieved by reconstruction of objects.

 Instruction №55 determines the order of division of a residential building or any other real estate. Thus, in accordance with the above-mentioned Instruction, the division of real estate is carried out on the basis of a conclusion on the technical feasibility of division in compliance with applicable building codes.

 The decision of the Makariv District Court of Kyiv Region rejected the claim on the following grounds: division of the house in kind is possible provided that the right of ownership or the right to use the land under the house has been issued, without land documents it is impossible.

 If each of the owners has a document, namely the ownership of part of such a house, which is confirmed by a separate title document and the part must have its own technical passport. The next step is to obtain the appropriate permission to develop a land tenure project. After obtaining the relevant permit, the land allotment project is approved, which is approved by the decision of the session of the village council on the free transfer of land ownership to the citizen. Based on the decision of the village council, the citizen is issued a state act on land ownership.

 If a residential building has two owners, and the technical documentation and the title document have only one, then the privatization is carried out only with the consent of all co-owners. In the absence of such consent, it is possible to divide the house in court or enter into an agreement between the owners of the division of common property, notarized. The final step, each of the owners is to apply for the privatization of land independently.

 Thus, when allocating a part to real estate in kind, actions are performed that are of a material nature that are not identical in nature with the legal nature of such actions.

 Thus, after the allocation of part of the land in kind to only one co-owner, ie from the standpoint of legal relations between the owners, the actual allocation of the latter occurs at the time of division of such. When allocating a share of real estate located on a land plot, it is possible to allocate a share from the property complex, so such a person receives a physical allotment, for example, an apartment in a multi-storey building, and other co-owners remain on the right of joint ownership. property of an apartment in this house.

 As noted above, such circumstances should be taken into account when addressing a particular issue in accordance with law enforcement practice.