What is the essence of the right of lifelong residence?

A right of life occupancy means that the property can be sold and changed hands, but the people living in the premises will remain until they see fit to leave. They cannot even be forcibly evicted through the courts.

There are several groups of citizens who have the right to be registered and use someone else’s living space, regardless of the will of the owner. You cannot evict tenants:

• those who have signed a sale agreement with the right of lifelong residence;
• those who renounced their right to privatize living space;
• who are rent recipients;
• who received registration and the right of lifelong residence under the will of the deceased owner of residential property.

In each case, permanent residents have their own reasons for lifelong registration. How they arise is described later in the article.

Why do they not like those who refuse privatization?

Let us remember that privatization means receiving free ownership of the housing where you live from the state. Who is a “privatization refuser”?

Everyone probably knows what privatization is Let us remember that privatization means receiving free ownership of the housing where you live from the state. But there is also such a thing as “privatization refuser.”

Who is a privatization refuser?

all persons permanently registered at the address of the property at the time of registration of the transaction participate in privatization

You can understand who was registered at that moment using an archival extract from the house register. How and what to watch in it can be read here .

But the registered person may waive his right to participate in privatization. If he refused, then he is a refuser of privatization .

So, if at the time of privatization there were more people registered in the apartment than indicated in the privatization agreement, this could be a problem.

So why don’t they like those who refuse privatization?

It seems that what’s wrong, well, the person refused privatization. You never know what reasons he had.

It's like that. And even according to the Civil Code (Article 292), the sale of residential premises provides grounds for termination of the right to use them by family members of the previous owner. True, unless otherwise provided by law. But the law establishes something else. Here, Article 19 of the Federal Law “On the Enactment of the Housing Code of the Russian Federation” states that this paragraph does not apply to persons who had the same rights to privatization as the one who ultimately privatized the housing.

And it turns out that people who refused to participate in privatization have the right to live in an apartment for life, regardless of the change of owner. Even if they later explicitly renounced their right again. Such a person may change his mind and then present his legal rights to live in YOUR apartment. And you, as the new owner, will have to prove in court that he no longer has rights.

This is the strange right a person who refuses privatization has, guaranteed to him by Russian legislation.

That is why banks that give loans secured by such housing, and realtors who select housing for their clients, do not like those who refuse privatization.

This is important to know: Preferential mortgage for secondary housing in 2020

What to do if a privatization refuser is still present?

Let's consider several options that can protect you to a certain extent when purchasing real estate with a privatization refusal.

1. If a refusenik left the apartment a long time ago, did not take any part in the maintenance of the apartment, did not pay utility bills, we can say that he, in principle, lost his rights to use this apartment. Even if he makes some claims later, you can win such a case through the court. In September 2014, a review of the judicial practice of the Supreme Court of the Russian Federation was published, which to some extent turned the judicial vision of this problem upside down and made it possible to deprive such missing “refuseniks” of the right of lifelong residence.

True, there is a nuance here - the refusenik must be voluntarily discharged from the apartment. If at the time of privatization he was, for example, in prison or doing military service, and the apartment was privatized without him, it will be difficult to prove the voluntary nature of his absence. And you may definitely have problems.

1. At the time of the transaction, the objector owns another home. In this case, the courts are also unlikely to accommodate him, recognizing the transaction for the purchase of housing by the new owner as invalid. But it’s better to play it safe and take yourself copies of documents confirming the existence of such property. This will prove your prudence in the transaction. And the courts “love” prudent and conscientious purchasers.
2. In any case, it is worth taking from the refusenik a notarized statement that he does not claim the right to use this property and the right of ownership of it, and also does not intend to claim any rights in the future. Even if he no longer lives in this property. And, if the refusenik is still registered in the apartment, it is advisable to include in the notarial application a clause that he undertakes to leave the given living space within a certain period of time.

Be sure to do your own due diligence before purchasing a residential property.

Ask the home seller for an archival extract from the house register and see for yourself if there are any “extra” people there. If there are, find out where they are now. Request additional documents or assurances.

But we remind you once again that even the presence of notarial statements or the refusal of registration in this housing does not deprive the refusenik of the right to use this housing under the law and does not fully protect you from a potential lawsuit on his part. And despite the presence of certain positive judicial practice and comments of the Supreme Court on this matter, each court case is individual and its outcome depends on the individual judge.

In case of refusal of privatization

A person who has written a refusal to privatize can live on his square meters for life, regardless of the wishes of the actual owner of the apartment. Even if the owner decides to sell the home along with the former relative registered in it, the latter will live in the premises until he himself is discharged or dies.

How it arises. The right to lifelong registration in a certain dwelling arises for citizens who lived in municipal premises at the time of its privatization, but refused to register their housing in their own name. Various situations arise in families. As a result of a divorce or conflict, the owner may have a desire to evict people close to him in the past onto the street. The rights of refuseniks to lifelong registration are protected by law.

Where to look . Lifelong residents - privatization refuseniks - are registered on paper in the certificate of registration from the passport office. Additionally, you can request a social lease agreement and a privatization agreement from the seller. By comparing them, it is possible to establish a list of residents and possible citizens with the right of lifelong residence.

Read this material about the refusal of privatization.

Consequences of the decision

Many people are interested in what rights remain with a person who refuses privatization. This is especially true for the right to use residential premises. The consequences of refusing privatization are:

1. Reservation of the right to use living space. A person can live in an apartment or house even if the property is sold.
2. A person who loses ownership also loses the right to vote when real estate is sold. A person cannot even count on receiving part of the funds from the transaction.
3. Possibility to privatize real estate later.

So, a person who has lost his privatized share in an apartment retains the opportunity to live in it. And even moreover, he cannot be evicted by force if the property has new owners (Federal Law “On the privatization of housing stock in the Russian Federation”). A person can use his lost chance for privatization at any time, but only as long as he has the right to use the property indefinitely.

This is important to know: Is it possible to mortgage a share in an apartment without the consent of other owners?

But it is impossible to refuse privatization after the procedure has been carried out. If the owner wants to lose his rights to a certain type of real estate, he can do this through sale or donation. But there is no such thing as “deprivatization”.

With rent

The rentee is the former owner of the apartment who sold the housing on the condition that he will receive maintenance from the new owner and retain the opportunity to use the housing.

How it arises. The right to use someone else's housing arises on the basis of a signed rental agreement. The subject of the agreement between the parties is the home and the conditions for its transfer to another owner. The dependent, after signing the annuity agreement, retains the right of lifelong occupancy until death.

In each individual case, the list of requirements and the amounts spent depend on:

• from the real cost of housing;
• personal wishes of the seller;
• competence of lawyers advising parties to the transaction.

The list of put forward requirements can be anything. All conditions must be specified in detail, documented, and signed by a notary by both parties.

There are two types of annuity. In the first case, payment and maintenance of the dependent continues until his death. In the second case, the new owner spends money on the former owner until he pays off a certain amount. In both cases, the seller and buyer enter into a notarized rental agreement with the right of lifelong residence. The relationship between the parties when registering rent is regulated by Art. Art. 601, 602, 603, 604, 605 ch. 33 Civil Code of the Russian Federation.

Where to look. In addition to the certificate of registration, you need to look at the basis document. The annuity agreement will specify who the annuitant is. It is also possible that, in addition to the former owner of the property, any third party may live in the apartment.

Read our previous article for more information about annuity.

What is the right to use premises

As a rule, the desire to privatize housing arises from a family living in an apartment on the basis of a social tenancy agreement. In this case, the owner of the property is the municipality or the state.

Accordingly, the right to use residential premises arises from the moment of signing a social tenancy agreement with the municipality or state. It is a mistake to believe that it appears from the moment the apartment is re-registered as private property.

Refusal from privatization should occur on a voluntary basis. It is drawn up in the form of a special document and certified by a notary office. It is the notary who must verify the voluntariness of writing the refusal and certify the authenticity of the signature. This is necessary to minimize the presence of reasons for going to court.

A citizen who has refused privatization has the right:

• for permanent residence in residential premises;
• for permanent registration at the place of residence;
• to be freely present in any part of the residential premises;
• for the use of communications, etc.

In other words, the lack of ownership of real estate will not in any way affect the right to use living space.

This is important to know: Until what year has the privatization of dacha and garden plots been extended?

Testamentary refusal

A testamentary refusal obliges the person who inherits the property of the deceased to carry out his will. Including the will to provide an apartment to a third party with the right of lifelong residence. According to the law, it does not arise, only within the framework of a will.

How it arises. The right of lifelong residence can be obtained by persons mentioned in the will of the deceased owner. As a condition, a circle of persons who must live in the dwelling for life or for a limited period without ownership rights may be specified.

In addition to residence and registration, a third party under the will of the deceased may receive maintenance from the homeowner. For these purposes, the heir spends the funds left by the deceased owner of the real estate. The registration will remain with the person specified in the will even after the sale of the home by the heir. The buyer will not be able to evict such a tenant from the apartment.

Where to look. Certificate of registration + certificate of right to inheritance. It is ideal if the seller shows the original will.

Is it possible to include such a right in a gift deed?

The right to live in the donated apartment will accrue to the donor, who indicated in the contract that he will remain registered and will use the square meters. There are different opinions regarding the legality of such a deed of gift.

• Most lawyers consider it unacceptable to include clauses in the gift agreement that assert the right to lifelong residence in the apartment of the former owner. Lawyers see this act as an attempt to cover up an ordinary apartment rental agreement.
• Civil Code of the Russian Federation, clause 1, art. 572 expressly states that the gift must not be complicated by any counterclaims on the part of the donor. The right of lifelong residence in this context is considered precisely as a counter-provision - an obligation to provide the right to use housing to the former owner. Due to a direct legislative prohibition, such clauses of the contract are unacceptable.
• There is a third opinion. Lawyers advise drawing up two separate documents. The first will stipulate the donation of property, and the second should secure the right of the former owner to lifelong residence. However, the judicial protection of the second document is a big question.

IMPORTANT! Our editors do not recommend drawing up a deed of gift with such a condition. It is safer to draw up a rental agreement with a notary.

Read an interesting article about the fate of donation after the death of the donor here.

Purchase and sale of an apartment with lifelong tenants

How it arises. The right to residence may arise as a result of the sale of a home, when this is agreed upon and included in a separate clause of the contract. After the property passes to the new owner, the seller acquires the status of lifelong occupant. This is not a basis for encumbrance by Rosreestr and the owner has the right to resell the apartment with its tenants to another person.

The owner of the property does not need to obtain permission to sell from the persons using the living space. The transfer of home ownership (apartment) occurs according to the usual scheme. The transaction differs from a standard purchase and sale in that the owner selling real estate with significant restrictions, in accordance with Art. 558 of the Civil Code of the Russian Federation, is obliged to warn buyers about the presence of tenants in advance, and in the contract indicate the names of persons entitled to lifelong residence in the dwelling.

If this was not done during the transaction, and the parties signed a standard document that does not contain clauses limiting the capabilities of the new owner, the buyer will have the right to challenge the transaction and return the money.

Where to look. Certificate of registration (house register) + previous DCP, which must indicate citizens with the right of lifelong residence.