Yulia Dymova, legal consultant of the secondary real estate department of Est-a-Tet, answers:
Depends on which relative it is and in what period the apartment was donated. There is Article 292 of the Civil Code, which existed in different interpretations. Until 2005, in the event of a transfer of ownership, the previous users retained the right to use. Therefore, if the gift agreement was in place before 2005, then it is hardly possible to write out a relative. After 2005, the right of use is effectively lost in the event of a transfer of ownership.
The nature of the gift agreement prohibits the imposition of any conditions, including conditions on the preservation of the right of use. However, the relative himself can enter the process with a counterclaim and claim that he is a close relative, and on this basis there may be a rather lengthy legal process for deregistration.
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Legal consultant Olesya Obizhaeva answers:
When drawing up a contract of gift and transfer of real estate to a new owner, the rules of registration at the place of residence apply, regardless of whether a contract of gift, purchase and sale, exchange, etc. is concluded. If a person does not want to register independently and of his own free will, then the only way out is one - discharge through the court. Therefore, if the person who is registered in the apartment does not want to write an application for deregistration, you will have to prepare a statement of claim in court. In this case, deregistration occurs in accordance with a court decision that has entered into legal force.
It should also be remembered that persons registered at the place of residence have the right to use this premises, as well as register minor children without the consent of the owner. In this case, several people will have to be discharged through the court, which will result in a loss of time, nerves and money.
Lawyer Sergei Kulikov (St. Petersburg) answers:
If you refuse to voluntarily vacate the apartment, you will most likely have to go to court with a request to evict without providing another living space. So, in accordance with the norms of housing legislation, having registered your cohabitant at your place of residence, you provided him with premises for free use. Currently, you do not want to provide him with living space, so his refusal violates your rights as the owner of the apartment. Try to explain to him that it is in mutual interests to resolve the issue peacefully. If he does not agree, then, in accordance with Art. 35 of the Housing Code of the Russian Federation, give him a written demand to vacate the apartment indicating the deadline. If he refuses to accept the document, record the fact of your appeal to him using technical means, and attract witnesses. If your request is not fulfilled within the time limit set by you, go to court with a claim for eviction.
In addition, it would be a good idea to contact the police during periods when the tenant is abusing alcohol: most likely, in this state he is not behaving quite adequately and is violating the rules of the hostel. The police will record the fact, preferably more than once, this evidence will help you prove your position in court about the need to evict the citizen.
Does “civil marriage” give rights to real estate?
Can I kick my husband out of the apartment without his knowledge?
Nikolay Kosyak, head of the Rambler/Finance project, answers:
If an apartment is transferred into ownership under a gift agreement, then its owner has the right to expel registered citizens from the apartment. This can be done without the consent of the resident, however, only in court. To do this, you need to prepare a statement of claim for termination of the right to use residential premises based on the transfer of ownership as a result of a donation. In this case, it is necessary to refer to clause 2 of Art. 292 of the Civil Code of the Russian Federation.
The situation is more complicated with the discharge of minors from the apartment; then the consent of the guardianship and trusteeship authorities is required for discharge. Living conditions should not worsen. If we are talking about an elderly relative, then he also cannot be discharged “to nowhere.”
The gift agreement can also be executed with the right of lifelong residence of the donor. This option is often considered by older people who give an apartment to their relative, but want to play it safe and retain the right to continue living in the apartment or house. In this case, it will not be possible to discharge a relative; according to the law, it is prohibited to evict the donor. The agreement may stipulate that the donor will occupy one of the rooms and use common areas. It is important to pay attention to what wording is stated in the agreement: the right of use or the right of ownership. In the second case, the donor will be able to defend his property even against the owner.
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/ Apartment / Extract from the apartment without consent
Discharge of a person from an apartment by the migration service is possible only in two cases permitted by law: 1. If there is a voluntary application by the person being discharged to remove him from registration at his place of residence;
2. In court if there is no consent.
Most often, the reasons for forced deregistration, as judicial practice shows, are:
- evasion of one of the residents from paying utility bills;
- long-term non-residence in the apartment of one of the family members;
- divorce from the owner of the apartment;
- the intention of the apartment owner to further privatize the residential premises, without including residents who do not actually live in the apartment among the participants in the privatization;
- the impossibility of cohabitation of residents in residential premises, which are occupied under a social tenancy agreement;
- in other cases permitted by law.
The procedure for checking out of an apartment may vary depending on who is the owner of the residential premises and what type of housing stock the apartment belongs to.
In particular, the legal nature, procedure and grounds for an extract from a municipal apartment and an extract from an owner’s apartment have different legal justifications and significant differences.
Extract from the apartment of certain categories of persons also has a number of features. Thus, there are special requirements regarding the deregistration of minor children and those sentenced to punishment in places of deprivation of liberty.
There is a certain circle of people who cannot be discharged from residential premises without obtaining their consent. In this case, the homeowner has only one choice - to negotiate with this person about voluntary checkout from the apartment. Let us consider in more detail how the owner can remove a person from an apartment without his presence and consent.
A municipal apartment, according to housing legislation, is the property of the state or municipal authorities. Consequently, in the absence of the person’s consent to be removed from the apartment, forced deregistration is possible only by the owner or with the consent of the owner through the court.
1. No payments for utilities or for the living space itself for 6 months or more. In this case, it will be necessary to prove in court that failure to pay rent for housing and utilities is not due to the absence of a responsible tenant.
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In addition, it is worth considering that eviction of a tenant from a municipal apartment in case of failure to make mandatory payments is possible only together with the tenant, that is, with the citizen living in the apartment with whom a social tenancy agreement has been drawn up.
2. Systematic (constant) violation of the interests and rights of neighbors. Such violations include, for example, fights, noise late at night, etc.
3. Causing damage to property in the apartment by the tenant and destruction of the residential premises transferred to him on the terms of social rent.
4. Use of the apartment by residents for purposes other than its intended purpose. A municipal apartment is transferred to the tenant under a social tenancy agreement only for living, so using it for any other purpose (for example, as an office space) is a violation of the terms of the agreement and may lead to forced eviction and deregistration of the tenant and his family members.
In case of non-payment of utility bills, the plaintiff in the case of forced eviction from a municipal apartment is the owner of the property, that is, an authorized state or municipal body.
In all other named cases, it is necessary to follow the pre-trial settlement procedure. First, you need to write a complaint addressed to the owner of the property, on the basis of which he will issue a warning to the tenant guilty of violating the order or using the apartment incorrectly.
If, after the warning, the violations are not eliminated, you can go to court and demand that the violator be forcibly removed from the registration register.
The easiest way is to discharge tenants from a privatized apartment if it belonged to the owner before marriage. In the event of a divorce, the former spouse, as provided by housing legislation, loses his right to use the apartment of the spouse-owner.
To evict in this case, the apartment owner needs to go to court, which will have to satisfy the claim in accordance with the Housing Code (4th part of Article 31) of the Russian Federation. In addition, the owner of an apartment acquired before marriage can also write out, without consent, all the relatives of the former spouse registered in this apartment.
The situation is more complicated if the housing was privatized with the consent of all other residents registered in the apartment.
In this case, the court will refuse to satisfy the claim for forced ejection from the apartment, since everyone registered in the municipal apartment had equal rights to a share of housing.
By signing their consent to the privatization of housing by one of their family members, they acquired the right to use the living space on equal terms with the owner.
If the apartment was purchased during marriage, then it will also not be possible to register one of the spouses (except for cases where there is a marriage contract providing for the sole ownership of one of the spouses in this housing), since the housing will be considered joint property regardless of whether in whose name it is privatized.
If the apartment was passed to the new owner by inheritance or was received by him as a gift, he can legally deregister all the tenants living in the apartment, since the transfer of ownership according to the Civil Code is considered the basis for the termination of the rights of the previous tenants to use the apartment.
However, even in this case, the court, based on specific circumstances, may decide to preserve the tenant’s right to use this apartment even if there is a new owner. The basis for this is the financial situation of this tenant or some other circumstances that do not allow him to secure a new place to live.
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Special rules are provided for the discharge from the apartment of minors and citizens sentenced to serve a sentence and who are in prison.
Discharge of minors is only possible from a municipal apartment if they are registered with one of the parents and live with the other. In this case, a mandatory condition is the registration of the minor in the apartment of the other parent. Discharge of a minor child in this case is possible either with the consent of both parents or through the court.
In the latter case, the written consent of authorized employees of the guardianship and trusteeship authorities must be provided to the court. It should be taken into account that such consent is not always given by the guardianship authorities.
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For example, it is almost impossible to register a child in an apartment that is smaller in area than the previous one, since this is considered a violation of the child’s rights.
It is very difficult to discharge a child from a privatized apartment, even with the consent of both parents.
A convict who is in prison by court verdict can be discharged from the apartment, referring to this court verdict. However, when a convicted citizen returns after the end of his sentence, he may demand that his right to housing be restored through the court. If by that time the apartment is sold, he will be able to challenge the deal in court and demand that his right to residential premises be restored.
Official representatives of various organizations talk about registration, most of us, out of habit, talk about registration and discharge. What intricacies will residents of the “municipal apartment” have to delve into if any problems related to discharge arise? We'll figure out. So, is it possible and how to discharge a person from a non-privatized apartment?
There may be situations where termination of housing registration is not feasible in principle. Let's start with more optimistic cases.
Deregistration (extract) of residents from apartments, both public and privately owned, can be voluntary or forced.
The tenant checks out himself if he registers in another housing or moves. Forced deregistration is carried out by court decision and is possible if there are compelling reasons: the citizen’s absence for a long time, non-payment of utility bills, and so on.
Articles 209, 288 and 292 of the Civil Code of the Russian Federation provide for the rights of the owner to housing, namely: use, disposal, possession.
These rights are exercised by the citizen who owns the property in accordance with the purpose of the residential or non-residential space. Moreover, the owner can either personally reside in the apartment or house, or settle (register) his relatives or third parties in it.
The owner can expel people from the apartment with or without their consent (by court decision).
In the first case - by agreement of the parties - no problems arise. If a citizen does not want to voluntarily check out, and he has lost the right to use housing, the owner goes to court with a claim, in which he indicates the reason for deregistration.
There are certain nuances when checking out different categories of people from housing:
- It is easy to write out your ex-spouse if the apartment was purchased by the husband or wife before the marriage. One of the spouses automatically loses the right of residence after a divorce, which is enshrined in Art. 31 of the Housing Code of the Russian Federation.
- To remove a minor child from an apartment, you must obtain permission from the guardianship and trusteeship authorities. This government body considers each case individually and monitors compliance with the rights of the child when changing place of residence.
- The owner can deregister a person who is serving a sentence in prison according to a court verdict. However, upon release, the latter has the right to register in this apartment.
- Also, the owner can discharge the tenants (even without their consent) if he became the owner of the apartment by inheritance, as a result of a donation.
Info
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