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Legal aspect of rendering of services on creation share properties by means of consolidation of investment opportunities

Legal relations on creation of the share property on real estate (buildings, uninhabited premises as parts of a building) can arise on the basis of contracts civil-legal character, in particular, on the basis of the multilateral contract of sale and purchase of the real estate (the seller and some buyers), contracts about joint activity (simple company).

As a rule, the contract of sale and purchase assumes purchase of already created object of the real estate (a building, premises concerning which necessary actions under the technical account and technical inventory are executed all (are issued characteristics sheet, explications, it is given inventory and cadastral numbers), the property right to object are registered when due hereunder, issued ground-legal relations.

The contract about joint activity (simple company) as one of legal grounds of creation of the share property on real estate, assumes association of monetary and other means for construction of object of the real estate (an uninhabited building). Obligations of the parties under such contract assume following actions: one of participants provides ground tap site for constructions (building site), reception of the initially-allowing documentation, carries out functions of the general customer-builder, the conclusion of contracts with the general contractor, acceptance of a building by the state inspection, input of a building in operation. The second participant provides financing construction of a building due to own and involved (extra) means.

Result and that and other form of legal relations is the created and registered share property of the parties (participants). Shares can be equal, in other sizes which should be without fail certain in the contract of sale and purchase or in the contract about joint activity. Here it is necessary to note, that the building or its part (premise) are object of the real estate, at the same time the share in the right of the general property to object of the real estate is not the real estate in the true sense this word. It speaks that the building (a part of a building), last the technical account and technical inventory, consists of rooms of a concrete arrangement and metric area on explications, i.e. is considered as property in civil-legal sense. At the same time, the share in the right of the general property to real estate (a building, a part of a building) is not property, and a property right. The building, part of a building can be a subject of sale and purchase, rent as should have, according to the requirements, the individually-certain attributes (the address, a kind of object, numbering of premises, rooms, the area, a special-purpose designation). At the same time, the share in the right of the general property to real estate can be a subject of the contract of sale and purchase only as a property right as cannot have individually-is certain other 1000 attributes, allowing it to separate from a share of other participant.

Summarizing the above-stated, it is necessary to assume, that creation of the share property on real estate together with positive circumstances (association of monetary and other means) is interfaced to some restrictions in the field of possession, using and the order shares: in the certificate on the state registration of the property right to a share in real estate (a building, a premise) the size of a share (for example, 1/2, 1/3, etc.) is underlined only, not defining the area of a part of a building, the premise, falling the size of a share. That the share in the right of the general property has got a kind of concrete property (a part, premises) participants of the share property should enter into among themselves the Agreement on allocation of shares in a nature. For its conclusion it is necessary to lead from the sanction of controls (prefecture) necessary re-plannings and, if necessary, re-equipment, technical inventory (inspection), to issue the engineering specifications corresponding occurred changes, that also is problematic enough as to harmonize with shares and to divide a building, a part of a building (premise) it is not always technically possible. The entered into Agreement on allocation of shares in a nature is the basis for the state registration of the property right of each participant of the share property. From the date of the state registration of the property right of each participant on concrete object of the real estate (a part of a building, a premise, the general share property is considered stopped.

One more complexity is the right of the order (sale) of a share to the third party. By the rules the general share property assumes the right of priority of purchase of a share other participant at the price of the offer to its third party. The written notifying order (monthly term for acceptance by other participant of the decision on purchase) is stipulated. At the same time norms about the order of the order shares in the right of the general share property can be concretized by participants corresponding agreements. For example, after the state registration of the right of each participant of the general share property, it is desirable to enter into between them the agreement on the order of the order shares. In particular, not out of place will be settlement of the order of realization of the right of priority of purchase of a share. In the Agreement it is possible to define, that in case of occurrence at other participant of doubts in objectivity of definition of the price of sale of a share, this participant has the right to involve in an estimation of a sold share of the professional appraiser, to address in court with the claim for compulsion of the participant to sell a share at the price of, certain by the professional appraiser on the side of the participant having the right of priority of purchase of a share.

It is necessary to note, that creation of the share property as a result of consolidation of investment opportunities, it is applied in civil-legal practice is often enough. For example, in Minsk the share property is more often created by means of new construction with participation of Minsk, as subject civil-legal relations on behalf of the Government or Mayor on the basis of investment contracts.

Joint activity on creation of the share property mostly concerns to new construction of buildings that assumes long enough period of realization of joint obligations (on the average 2-3 years).

More preferable form of legal relations on creation of the share property is joint purchase of buildings (parts of buildings, premises.  A variant of purchase of shares in the authorized capital of the commercial organization having in the property real estate can be considered. In this case the share property concerning real estate directly it is not created, however possession of shares in the authorized capital entitles orders property by means of acceptance of corresponding decisions by general meeting of participants. Considering, that the charter of the organization can contain the right of the participant in the case of an output to receive an equivalent of the share real estate if constructive properties of object of the real estate allow to allocate it in the independent part, the given variant can be considered as the precondition to creation of the share property together with the organization which still had in the property part of object of rather all estate after output of the participant.

It is necessary to emphasize, that within the limits of legal relations of the share property on real estate of competence of possession, using shares cannot be individually realized by participants by virtue of the above-named reasons, and are solved participants under the agreement between them. Hence, the special-purpose designation of real estate within the limits of the share property can be certain by participants only for one kind of activity. In this connection the choice of the partner on creation of the share property on real estate assumes, first of all, a generality of interests, identical or similar kinds of activity, long and steady partner relations, and also other circumstances promoting effective possession, using and the ordering of  the share property on real estate.