How is the division of a residential apartment acquired by equity participation made? Is the spouse entitled to claim a share of the market value of real estate or only a part of the amount specified in the share agreement? Can the other spouse re-register the equity participation agreement for another person?
When dividing between spouses an apartment acquired in the form of equity participation in housing construction, the following options are possible:
- The apartment was put into operation and transferred to the ownership of the shareholder by the developer.
- The apartment has been put into operation, but has not yet been transferred to the ownership of the developer.
- The apartment is under construction and not put into operation.
SECTION OF THE APARTMENT, THE OWNERSHIP OF WHICH IS REGISTERED
In accordance with Article 32 of the Law of the Republic of Kazakhstan "On Marriage and Family", an apartment purchased under a shared participation agreement is the common joint property of the spouses. Thus, from the moment of registration of ownership of an apartment, it can be divided according to the general rules for the division of property at the claim of one of the spouses.
The division will be made based on the market value of the residential apartment at the time of the consideration of the claim, determined by the appraisal company or a forensic expert. One of the spouses will be compensated in the form of half the market value of the apartment or other property will be awarded for this value.
SECTION OF AN APARTMENT, THE OWNERSHIP OF WHICH IS NOT REGISTERED
According to paragraph 2 of Article 32 of the Law "On Marriage and Family", property acquired by spouses during marriage (common property of spouses) includes, along with other property, also contributions, shares made to commercial organizations, and any other property acquired by spouses during marriage property, regardless of in whose name it was acquired or which of the spouses contributed funds.
In accordance with Article 115 of the Civil Code of the Republic of Kazakhstan (General Part), the rights of a shareholder under an equity participation agreement are property rights, and also relate to the common property of the spouses.
Thus, when dividing property, the spouse has the right to file a claim with the court for the division of money contributed under the equity agreement, since this money is common property. In this case, the court will recover compensation from the other spouse in the amount of half the cost of the contributions under the agreement.
The market value of the apartment in this case cannot be taken into account, since the apartment is not yet the common property of the spouses. Therefore, in some cases it may be advisable to wait for the transfer of the apartment to the spouse-investor in order to divide the apartment. At the same time, it should be taken into account that the limitation period for claims for the division of property of spouses is three years (paragraph 6 of Article 36 of the Law "On Marriage and Family").
CAN A SPOUSE, WITHOUT THE CONSENT OF THE OTHER SPOUSE, ASSIGN THE RIGHTS TO EQUITY PARTICIPATION?
In the event that the apartment has not yet been transferred to the ownership of the shareholder, there is a danger that the spouse participating as a shareholder in the share agreement may assign his rights under the agreement to another person. In order to challenge such a transaction in court, the second spouse will have to prove that the other party to the transaction knew or obviously should have known about the disagreement of this spouse to make this transaction (paragraph 2 of Article 33 of the Law "On Marriage and Family"). But in accordance with paragraph 16 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On the application by the courts of the legislation on consideration of cases on divorce", if the court establishes that the spouse alienated the common property or spent it at his own discretion against the will of the other spouse and not in the interests of the family, or concealed property,