Determining the procedure for using a one-room apartment

Who can determine the procedure for using an apartment and in what cases?

Since we are lawyers, we will start with a boring but important rule of law. And what can you do? Without this, you can’t go to court. If formal extracts from the Civil Code are not for you, feel free to skip them (in italics) and read on. Everything will be described there in human terms.

In accordance with paragraph 1 of Art. 247 of the Civil Code, ownership and use of property in shared ownership is carried out by agreement of all its participants, and if agreement is not reached, in the manner established by the court.

So, several conclusions can be drawn from the above article.

1) It is possible to determine the procedure for use in court .

Here, it seems, everything is clear. We looked into the law and were convinced that no one forbids going to court with such a demand.

2) This can be done when it is not possible to reach agreement on your own.

Formally, a dispute over determining the procedure for using an apartment does not imply a mandatory pre-trial procedure. Without trying to resolve the issue peacefully before trial, you do not risk the return of the claim.

At the same time, we strongly recommend that you make an attempt to come to an agreement. And record this attempt in writing.

First of all, what if you get lucky?

Secondly, proof that such an attempt was made (a written offer sent by mail) will strengthen your position and also eliminate the court's doubts about your good faith.

3) Shared owners can determine the procedure for use.

For those who are not sure that they are a shared owner, we recommend that you look at the extract from the Unified State Register of Real Estate, which will indicate whether the apartment is in joint ownership or shared ownership. In simple words, shared ownership occurs when you know exactly the size of your share (1/2, 1/3, 1/6, etc.). It most often arises as a result of inheritance, donation of a share, or privatization. The acquisition of real estate during marriage gives rise to a regime of joint ownership.

So, if the apartment is in shared ownership, then everything is in order, you can safely read on. The algorithm of actions that we reveal in this article is suitable for you.

If the property is listed as “joint”, don’t despair. This only means that your share in the apartment is currently not determined. But this is easy to change. This can be done by concluding an appropriate agreement on determining the shares with other owners, and if agreement is not reached, ask the court to determine the shares. Please note that there is a presumption of equality of shares (clause 2 of Article 254 of the Civil Code of the Russian Federation).

Next, on the basis of an agreement or a court decision, submit documents to the MFC to register changes in ownership. Voila! Ownership turned into shared ownership. Now you can determine the order of use.

Don’t want to go through the hassle of transferring property from one type to another alone? Then write to us, we will be happy to help you resolve this issue.

If you live in an apartment under a social tenancy agreement, then, unfortunately, the option of determining the order of use is not possible for you. It is also absent in cases where we are talking about a communal apartment in which one of the rooms belongs to a person by right of ownership and he wants to determine the procedure for using at least the common premises (kitchen, corridor, bathroom). Alas. The courts are unanimous that this is not possible (Appeal ruling of the Moscow City Court dated June 14, 2020 in case No. 33-22364/2017; Appeal ruling of the Moscow City Court dated May 18, 2020 in case No. 33-13844).

Yes, yes, we know, dear employers, it sounds unfair. But in defense of the judges’ position, we would like to clarify that there is an explanation. The fact is that such a requirement is actually aimed at making changes to the social tenancy agreement regarding the procedure for using the rooms of the apartment. That is, satisfying the requirement will entail changing the terms of the social tenancy agreement on the equal right to use the premises by tenants. This is not allowed under current legislation.

So, we have figured out who can go to court to determine the order of use, and also established what needs to be done before applying. Now let's figure out what to do next.

Judicial practice: why do courts refuse to satisfy a claim?

We have already discussed one case of failure above. Let us now look at other grounds for refusing to determine the procedure for using an apartment in shared ownership.

• The layout of the apartment does not allow the rooms to be divided according to shares: a three-room apartment (rooms 18 m2, 17 m2 and 15 m2) in shared ownership of the ex-husband (½ apartment) and wife (½ apartment). Total area - 50 m2. That is, each spouse is entitled to 25 m2. But the area of ​​the rooms is such that it is impossible to divide these rooms so that the spouses get 25 m2 each. The area of ​​the two smaller rooms is 32 m2 in total, while the third room is 18 m2. In such a situation, the court will most likely refuse to satisfy the claim.
• There are many owners, but the apartment is small: for example, 3 people inherited a one-room apartment. In this situation, it is unrealistic to allocate premises for each owner to use. Judicial practice throughout the country comes down to this. And even if there are 2 owners, and not 3, then it will not be possible to determine the order of use of the apartment.
• The plaintiff did not prove that he was being interfered with in using the apartment: going to court is always associated with a conflict. When the applicant goes to court with a claim to determine the order of use of the apartment, he must prove that other residents are preventing him from using his share in the apartment. If he has not proven this, then it turns out that the court does not need to determine the procedure for using the apartment.

This is also evidenced by Part 1 of Article 247 of the Civil Code of the Russian Federation, which states that the court intervenes in the affairs of apartment residents only if they were unable to reach an agreement among themselves.

What is the procedure for going to court and what should you pay attention to?

When you decide to go to court, you are faced with many questions. Let's try to answer them briefly.

Where?

The court we will go to is always selected in two stages: first by its level in the judicial system, and then by location .

As for the level of the court, in this case it all depends on whether you have other requirements for the court other than determining the order of use. The fact is that in itself, alone, such a requirement is within the jurisdiction of the magistrate (clause 7, part 1, article 23 of the Civil Procedure Code).

Note: keep in mind that large-scale changes will soon occur in this aspect, which will come into force in the fall of 2020 - you will need to apply to the district court.

But often other requirements go hand in hand with it. For example, about the recognition of the right to a share in common property (remember, we talked about this at the beginning?) and its allocation for ownership and use. If at least one of the related claims is within the jurisdiction of the district court, the entire dispute becomes subject to its jurisdiction.

As for the location of the court, the jurisdiction of the dispute will be exclusive: we will always go to court at the location of the disputed apartment (Part 1 of Article 30 of the Civil Procedure Code of the Russian Federation).

When?

And whenever. Here we have good news: the statute of limitations does not apply to such claims (Article 208 of the Civil Code of the Russian Federation).

What is the price?

The amount of the state fee that you will have to pay if you decide to go to court with such a demand will be 300 rubles (clause 3, clause 1, article 333.19 of the Tax Code of the Russian Federation).

Please note that if your claim involves several claims (possibly some of them are property claims), the state fee will be paid for each claim separately (clause 1, clause 1, article 333.20 of the Tax Code; resolution of the Plenum of the Supreme Arbitration Court, resolution dated 11.07 .2014 No. 146 “On the application of legislation on state duties when considering cases in arbitration courts”).

What documents will be required?

Of course, the full set of annexes to the claim is formed depending on the specific evidence that will be needed specifically in your case. The next section of the article, dedicated to the circumstances that the plaintiff must prove when going to court, will help you select and formulate them.

However, below for your convenience we will provide a general list of documents that should be attached to the claim in any case :

— a copy of the document confirming ownership of a share in the apartment (extract from the Unified State Register of Real Estate);

- evidence that the apartment has several living rooms (for example, copies of the BTI plan and explication);

- evidence of sending a letter to the defendant with a proposal to determine the procedure for use in a pre-trial manner (copy of the check and inventory of the postal item)

— a copy of the statement of claim with attachments for the defendant;

- receipt of payment of state duty.

So, the form of the procedure, let’s move on to the most interesting part: the content .

What to write in a claim? Which facts are important for the court and which are not so important? How to prove what you refer to? The next section will help answer these questions.

Are you tired of reading?

Perhaps the article seems too boring or difficult for you to understand. Yes, it is full of specific legal information. But don't worry, you don't have to struggle alone! It is enough to write to us so that the entire set of documents is collected, and the position for the court is qualitatively prepared.

What to refer to in court?

So, to begin with, we have to determine a list of circumstances (facts about the apartment and your life in it) that will be important to the court.

Unfortunately, it is extremely rare that ready-made lists of such circumstances are enshrined in the law (although this would make life much easier for lawyers). This is impossible due to the individuality of each specific case, its uniqueness.

In particular, with regard to disputes of the category that interests us, the Constitutional Court of the Russian Federation itself spoke on this matter, pointing out that the variety of circumstances influencing the determination of the procedure for using common property makes it impossible to establish an exhaustive list of them in the law (clause 2 of the Determination of the Constitutional Court of the Russian Federation dated November 20, 2008 N 831-О-О).

This was bad news, but don't be too quick to be sad. The next one is good. Judicial practice in such cases is often formed on the basis of the opinion of the Plenum of the Supreme Court of the Russian Federation, and in our case it expressed its opinion. Be careful, what follows is another boring quote.

In accordance with paragraph 37 of the resolution of the Plenum of the Supreme Court of the Russian Federation No. 6, the Plenum of the Supreme Arbitration Court of the Russian Federation No. 8 dated July 1, 1996, the impossibility of dividing property in shared ownership in kind or separating a share from it does not exclude the right of a participant in common shared ownership to file a claim for determination the procedure for using this property, if this procedure is not established by agreement of the parties. In resolving such a requirement, the court takes into account the actual procedure for using the property, which may not exactly correspond to the shares in the right of common ownership, the need of each of the co-owners for this property and the real possibility of joint use.

Let's decipher it. When considering such cases, courts take into account the following.

1) The size of shares of co-owners.

Firstly , it’s worth assessing whether your share in the apartment is significant in relation to the shares of other owners.

For what? If the share is insignificant, the court may not only refuse the claim to determine the order of use, but also satisfy the defendant’s counterclaim to force the purchase of your share due to its insignificance. Then you will lose your share in the apartment and receive compensation. Thus, in one case, the court granted a counterclaim for the purchase by the owner of 6/7 of the plaintiff’s 1/7 share in the apartment (appeal ruling of the Moscow City Court dated January 12, 2018 in case No. 33-0869).

By the way, if you are interested in the issue of forced buyout of a share, then this topic has already been broken down into molecules in our article .

Secondly , think about the ratio of your share in size to the actual isolated rooms in the apartment. At the same time, it is not at all necessary that the apartment have a room that ideally matches your share. Judicial practice allows deviations both up and down, but without significant excess (appeal ruling of the Moscow City Court dated April 4, 2020 in case No. 33-10332; ruling of the Supreme Court of the Russian Federation dated January 17, 2017 No. 117-KG16-10 , Ruling of the Supreme Court of the Russian Federation dated April 26, 2016 No. 25-KG16-2, appeal ruling of the Moscow City Court dated April 26, 2020 in case No. 33-15828).

You probably have a logical question: what excess will be significant? It is impossible to answer this in exact numbers. Sometimes the judge considers a deviation of 4-6 meters acceptable, and sometimes even 2 meters, in the opinion of the judge, is too much.

It is possible to draw a conclusion about the possibility of demanding in court that a room of a specific size be determined for your use only by analyzing the details of each case. The issue is ambiguous, and the final decision will be made at the internal discretion of the judge. Here, of course, a competent substantiation in the claim is very helpful, so assess whether you are ready to take on this matter yourself, or whether it is better to trust specialists who have cut their teeth on similar cases. We are ready to provide appropriate explanations both during consultation and during full case management (contacts).

2) The actual procedure for using the property.

The procedure for using an apartment, which has already existed in fact for a long time, can play into your hands and strengthen your position (decision of the Moscow City Court dated April 4, 2016 No. 4g/7-2931/16).

For example, returning to the problem of the previous paragraph, it can be noted that if in fact you have been using a room for a long time, the size of which is larger than your share in the ownership, the court will most likely leave it behind you.

For example, in a similar situation, a girl managed to get the use of the largest room in a three-room apartment, although in fact she had a 1/4 share in the ownership. How did she do it? She invited the Department of Social Protection of the Population and asked to draw up an inspection report on the living conditions in the apartment (essentially, a description of the existing procedure for use), which indicated that she and her minor child lived in this largest room.

In the presence of such evidence, taking into account the protection of the interests of the child registered in the apartment, the court ruled in favor of the plaintiff (appeal ruling of the Moscow City Court dated January 10, 2018 in case No. 33-315/2018). Moreover, the child did not have any share in the apartment at all. However, the court indicated that if the situation changes, nothing prevents the owners from applying for a determination of the order of use again.

How else can you prove the established order of use? The most obvious is the testimony of witnesses. But, as you understand, this is not the strongest evidence. Here you can show your imagination. Everything is fine with our imagination, so we will select for you the most compelling and suitable evidence for your case.

3) The need of each of the co-owners for this property.

The point that causes the most dissatisfaction and quite justifiably. You need to not just need your share in the apartment, but need it for the purpose of living .

The fact is that if you do not actually live in the apartment, are not registered there, and even have the right to use another premises where you live permanently, the court will refuse to determine the procedure for use (appeal ruling of the Moscow City Court dated February 2, 2020 according to case No. 33-1675/2013, appeal ruling of the Moscow City Court dated February 14, 2018 in case No. 33-6041, ruling of the Moscow City Court dated December 4, 2020 No. 4g/3-12119/2017).

Judges strive to protect the owner who is truly interested in using his property for its intended purpose. For example, he has no other place to live. Or his family lived for generations in the apartment in which you received a share.

At the same time, the courts write in their decisions that the acquisition of ownership of residential premises does not in itself entail the emergence of a right of use. The use of residential premises presupposes living in it.

4) Real possibility of sharing.

We are talking about the actual possibility of allocating to each co-owner a separate living room in a disputed residential premises (appeal ruling of the Moscow City Court dated December 22, 2020 in case No. 33-48610; ruling of the Moscow City Court dated January 22, 2020 No. 4g/4-292 ).

The fact is that sometimes, despite the best wishes of the owners, sharing an apartment is impossible. For example, if you have a share in a one-room apartment. Or your share in the apartment is so small that there is simply no room even approximately corresponding in size.

So, we have examined in some detail the circumstances that judges attach importance to when considering disputes about determining the order of use. It can be noted that most of them do not have clear boundaries of what must be proven. Everything is decided based on the totality of evidence within each specific case.

Of course, ideally it would be worth providing evidence of all four points:

- there is a room that almost exactly matches the size of your share;

- the order of use has developed in such a way that you live in it;

- you do not have the right to reside in other places, so the disputed apartment is the only possible home for you;

— there are no actual obstacles to the implementation of your proposed procedure for use.

In reality, everything is much more complicated. We have never encountered a case where a potential plaintiff had all the trump cards in his hands.

But, believe me, the absence of evidence of any of the above circumstances does not mean that there is no point in going to court. It's like with scales. It is only necessary that the evidence you present outweighs the defendant’s counterarguments. This will be enough for a positive decision.

Don't know how to achieve this? Well, we are always happy to help. Preparing for cases of this category requires analyzing the practice of a particular court, collecting the maximum possible evidence and highlighting the strongest aspects of your position in the claim. We are ready to do all this for you at the highest level.

But what to do if you did not plan to apply for a determination of the order of use at all, but such a claim was filed against you? Don't worry, we have everything under control here too. Remember that all the weaknesses in the plaintiff's position become a strong foundation for your counter position. This is what the bonus section of the article is dedicated to.

What if I'm the defendant?

First, make sure that all parties to the dispute own the apartment, and this property is shared. If not, go back to section one. In this case, everything becomes even too simple: there are no grounds for determining the order of use, the claim will be denied.

If the plaintiff has grounds for appeal, then it is worth moving on to collecting counterarguments. To do this, check whether you have the opportunity to prove the following circumstances:

• between the parties there was actually a different procedure for using the residential premises than that proposed by the plaintiff;
• the size of the room that the plaintiff asks to determine for his use does not at all correspond to his share in the property right, thereby violating your right as the owner;
• the plaintiff has the right to live in another residential premises, which he does, but he has no interest in the disputed apartment, he did not try to move in there;
• there is no actual possibility of determining the order of use.

If the plaintiff's share is insignificant, you can try to file a counterclaim to force the purchase of this share. In this case, we recommend submitting an expert report to the court confirming the market value of the plaintiff’s share and immediately depositing the required amount with the court.

We hope that after reading, you have formed an idea of ​​what kind of fruit it is to determine the procedure for using an apartment in court, and whether you need it. If so, we are happy to help resolve the problematic situation once and for all.

Don't be afraid to defend your rights and do it with us!

The article was prepared taking into account the edition of regulatory legal acts in force as of March 18, 2019.

Estimated cost of services to support cases on determining the procedure for using premises in the Maya Sablina Law Laboratory:

Important nuances

Various factors may influence the judge's decision regarding the determination of the order of use of residential premises. First of all, during the proceedings, the following are important:

1. The size of the shares of each co-owner of the property.
2. The procedure for using the apartment or house that existed before the filing of the claim.
3. The layout of the apartment allows you to allocate an isolated room.
4. Number of owners and composition of their families.
5. The co-owners have other residential premises in the property.

As for documents, their list may differ depending on the circumstances of the case. But the main package of documents that must be provided to the court includes:

• personal documents of owners;
• an extract from the house register;
• technical documentation for living space.
• papers that can confirm family ties between the owners.

Often, even a court decision is not able to force owners to coexist peacefully in the same living space. And therefore, a violation of the established procedure for using the apartment begins to occur. For example, one of the co-owners may restrict the other’s access to the apartment or limit his rights in other ways. In this situation, you will have to go to court again.

When determining the procedure for the use of housing by owners, the question often arises of how this will affect members of their families. After all, they are also forced to live in this living space. According to judicial practice, the owner can move other people into a living space that is in shared ownership only with the consent of the other owners. This rule does not apply only to minor children who have the right to live with their parents regardless of the consent of other owners.