Shares in an apartment: how to determine, divide and contest a will

You own an apartment together with someone: a former spouse, relatives, co-heirs. Or you are going to buy a share, gift it, or allocate one to a child. The documents say “1/4” or “1/2”, but what that means in practice — how many metres it is, whether you can live there, how to sell it — is unclear. Mistakes begin with the everyday idea of a share as a “room” or a “part of the apartment”.

In fact, a share in an apartment is an ideal part in the right of common ownership, not a physical piece of floor space. Hence the confusion over division, disposal and the pre-emptive right of the other owners. Below is an analysis of the key situations: how shares are determined, when a notary is required, how to divide an apartment on divorce and between heirs, and whether a will over a share can be contested.

How shares in an apartment are determined: metres, ideal parts and what this means in practice

A share in an apartment is an ideal part in the right of common ownership, not specific square metres. The size of the share is confirmed by a title document: a sale and purchase agreement, a certificate of inheritance, a court decision or a division agreement. The owner may use the entire apartment, but his actual possibilities depend on the consent of the other co-owners.

Confusion arises when a person believes that a specific room or square metres belong to them. In practice, this leads to disputes: one owner occupies the largest room, citing the size of their share, while another demands that the premises be vacated. To avoid conflict, it is important to understand that a share gives the right to participate in use, while the procedure for access is established by agreement or by a court.

• A share is part of a right, not a separate room or square metres.
• The size of the share is confirmed by a document of ownership.
• Use of the flat depends on the consent of the other owners.
• A room is allocated only by agreement or through a court.

Transfer of a share in a flat without a notary and sale of a share: when a transaction can proceed without certification

Transfer of a share in a flat without a notary is permitted if all owners sell their shares simultaneously under a single contract — then notarial certification is not required. A simple written form is also possible when the entire flat is transferred as a whole, when the shares cease to exist as separate objects. If, however, an owner disposes of only their part, the transaction must be certified by a notary.

Buying a share in a flat through a notary reduces risks: the notary checks the seller's legal capacity, the absence of arrests and hidden encumbrances, and compliance with the pre-emptive right of the other owners. Without notarial certification, the buyer risks facing a challenge to the transaction, a demand to transfer the rights to another owner, or the contract being declared invalid.

• Sale of a share in a flat without a notary is possible only when all shares are sold simultaneously under a single contract.
• Buying a share from a single owner without certification — the risk of challenge and loss of the right.
• The notary checks the pre-emptive right of purchase of the other owners and the cleanliness of the transaction.

Gifting a share in a flat: notary, contract and transactions without certification

A notary certifies the gifting of a share in a flat if a share in common property is being transferred: without certification, such a transaction is invalid. The parties sometimes sign a contract of gifting of a share in a flat without a notary in order to save money, but registration in the Legal Cadastre will not go through, and the record of the right will remain with the donor.

If you are gifting the entire flat or several shares at once, certification may not be required. But when gifting a share in a flat without a notary, the risk of challenge is higher: the transaction may be declared invalid, and the donee will be left without rights. Documents: identity card, title document, technical passport and consent of the donor's spouse. The notary will check legal capacity and the absence of arrests.

• A contract in simple written form — only when certification is not mandatory
• A notarially certified contract — when transferring a share in common property
• Consent of the spouse, if the property was acquired during the marriage
• A certificate confirming the absence of encumbrances and arrests

Purchase and sale of a share in a flat between relatives and the pre-emptive right of the other owners

When relatives divide a flat, selling a share to one of them is the most common option. The law requires that the share first be offered to the other participants in common ownership: their pre-emptive right is enshrined in the Civil Code. Without written notification, the transaction may be challenged, and the buyer, even if a close person, risks losing both money and the share.

Notification is sent to each co-owner in writing, stating the subject matter and the price, and they wait for a refusal or silence within the established period. If any of them wishes to buy the share themselves, the seller is obliged to sell to them on the same terms — it is not permitted to change the buyer or lower the price 'for a relative'. A refusal is best recorded in writing or before a notary: this protects both the seller and the buyer.

• Identify all co-owners of the share and their contact details
• Send each of them written notification with the terms of the transaction
• Wait for refusals or the expiry of the response period
• Have the contract of purchase and sale of the share certified by a notary

The response deadline and the procedure for formalising it are clarified on a case-by-case basis.

Division of an apartment on divorce where there are minor children

On dissolution of marriage, an apartment acquired during the marriage is considered joint property, and the spouses' shares are, as a general rule, equal. But if there are minor children in the family, the division of an apartment on divorce where minor children are present has its own features: the court first assesses with whom the children will remain and whether they will keep their usual living conditions. Housing registered in the name of one spouse may still be included in the division if it is not proven that it was bought with personal funds or received as a gift or by inheritance.

The interests of the children do not directly turn them into owners of a share in the division, but the court may depart from equal shares and increase the portion of the spouse with whom the children remain. The grounds are usually: the child living with that parent after the divorce, that parent having no other housing, and the use of targeted child payments and housing payments to buy the apartment. To confirm this, a birth certificate, a certificate of family composition and place of residence, and documents on income and payment for the apartment are needed.

Division of an apartment between heirs and allocation of a share in kind or compensation

The heirs receive the apartment in common shared ownership. Division is possible by agreement with notarial certification or through court. It is divided into ideal shares, not by rooms.

Allocation of a share in kind is possible where there is an isolated premises with a separate entrance, kitchen and bathroom. Otherwise the court considers awarding monetary compensation. Here is what should be checked before filing a claim:

• Technical passport and floor plan: whether there is an isolated room and a separate entrance
• An expert opinion on the feasibility of redevelopment and conversion
• Information about other owners: who actually lives in the flat and pays for it
• Evidence of a substantial interest on the part of the heir, or of its absence
• Options for exchange or buy-out of a share that you are prepared to discuss

The outcome depends on the layout and the position of each owner, not only on the size of the share.

Can a will for a share in a flat be challenged and how is this done

A will for a share in a flat can be challenged, but not because an heir disagrees with the testator's decision — only on strictly defined grounds. As a rule, the dispute is that at the time of signing the testator did not understand the meaning of his actions or could not control them, that he was put under pressure, misled, or that his helpless state was taken advantage of. A separate ground is a breach of the form of the will and the procedure for its certification, as well as the situation where only a share is bequeathed but the rights of heirs entitled to a compulsory share are infringed.

The claim may be brought by heirs under the law or under another will whose interests are affected, as well as by their representatives acting under a power of attorney. In court it is not the mere fact of disagreement that must be proved, but a defect of will or of form, so medical documents on the testator's condition, a post-mortem psychological and psychiatric expert report, witness testimony, certificates confirming medication, as well as the text of the will itself and the materials of the inheritance file, are collected in advance.

What most often forms the evidence base:

• Extracts from the medical record and conclusions on the testator's diagnoses
• Conclusion of a post-mortem psychological and psychiatric examination
• Testimony of witnesses, the notary, doctors and neighbours
• Text of the will and documents from the inheritance file

A share in an apartment is not equal to metres: until you have carried out an allocation in kind or agreed on the procedure for use, you own an ideal part of the right to the entire apartment. Before signing any transaction with a share, check whether the other owners have a pre-emptive right and whether notarial certification is required.