Housing problem: when a residential property is not be called a common property

Galina Pavlova, Managing Partner, made comments for Pravo.ru.

The husband and wife got divorced, not reaching an agreement on dividing their apartment. The apartment was bought while they were married, however it was financed mostly on the husband’s money. The court of the first instance found that he should obtain the share proportional to the committed investment. The appeal came to decision that the money was to build the family budget and found the apartment as a marital property subject to be divided by halves. The Supreme Court put the lid on the matter.

Elena and Stanislav O* got divorced after thirteen years of marriage, but couldn’t divide amicably the one-room apartment in Novosibirsk. The woman addressed Zheleznodorozhny District Court of Novosibirsk with the claim to recognise her as an owner of 1/2 share in the apartment.

Her ex-spouse brought a cross action. Stanislav claimed that before marriage he owned an apartment which he sold later, and all money were invested under shared construction participation agreement paying the remaining balance from the family budget (5.59 % from the total amount). The family however decided not to wait until the house is built, assigned the agreement to a third party and purchased the disputed apartment. Considering investing common funds under the agreement of participation in shared construction Stanislav O brought a cross action to the court to recognise him as an owner of 9441/10 000 share of common property for the apartment.

The court of the first instance met the demand of the ex-husband, but Novosibirsk regional court did not agree with it and made the decision to split the apartment in half as the demandant wished. The appeal found that the disputed apartment had been bought within marriage and so it is considered a common property. The money of the ex-husband from his own apartment sale “had been put into the family budget and spent in favour of the family” found the appeal. Stanislav O. appealed this decision tothe Supreme Court(Case No67-КГ15-26) <...>

“The SC’s opinion is not a new one in relation to such cases,- says Galina Pavlova, Managing Partner, Pavlova&Partners Law firm. - there are numerous cases, in particular, on dividing privately-owned apartments when the courts took the same approach in making decision on defining common property holdings”. According to Pavlova the SC’s opinion is important for legal practitioners as it demonstrates that key factor for such cases is collection and presentation of necessary evidence. She believes that the claimant has proved his opinion so convincing that the SC has came to decision not to remand the case for a new proceeding.

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Ирина Кошечкина