Today, the hype around the adoption of a bill on the confiscation of the only housing from owners with outstanding debts continues to grow. So can they be evicted from their only home? Of course, no one can take away an apartment or house while putting a person out on the street, since these actions are limited by Article 446 of the Civil Procedure Code of the Russian Federation, however, there are situations when it is still possible to lose your current place of residence for debts.
First of all, the issue was raised in relation to owners of large houses and cottages. If the living space is large enough, why can’t you sell it, buy something simpler, and pay off debts and loans with the difference?
If the total area of housing exceeds at least twice the norms established by law per person (for all residents), during a trial regarding a citizen’s debts, such property may be forced to sell. This norm is considered to be 30 square meters per resident.
In addition, among those who may lose their only home due to debt in 2020, citizens without debt may also fall into the “risk” zone if:
• they are the cause of systematic violations of safety rules; • they spoil the living space, making it unsuitable for living or even for commercial purposes as non-residential premises; • there is another legal owner of the property.
According to the bill, tenants who have ignored incoming utility bills for six months or longer may be evicted. This applies to those living in public housing.
Can they be evicted from their own home?
Repossessing an apartment from the owner is the most difficult thing. If this is the only option that is suitable for living, the bailiffs cannot take it away. The law allows for such measures to be taken if the house in which the housing is located is unsafe, left for demolition, or considered unsafe. Also, in some cases, the state has the right to seize an apartment for its own needs. Under such conditions, the citizen is given housing, which in value corresponds to the seized one. In addition, financial compensation is paid.
Will the owner's only home be taken away for debts in 2020? At the moment, according to the law, they cannot do this, but options are being considered to supplement the conditions, leaving the possibility of confiscating the apartment from the owner for non-payment of alimony or refusal to compensate for damage caused to health.
Who cannot be forcibly evicted
The resolution of the Supreme Court of the Russian Federation states that the Constitution of the Russian Federation guaranteed citizens not only the right to housing, but also the right to move freely. In this regard, the Constitutional Court of the Russian Federation, by Resolution 8-P of December 23, 1995, recognized the articles of Soviet laws, according to which it was possible to deprive a citizen of an apartment due to non-residence in it, as inconsistent with the Constitution of the Russian Federation.
Based on the wording of the Resolution, it should be assumed that no matter how long and no matter how far a person registered in a given living space is absent, he cannot be evicted from there for this reason.
It is definitely impossible to deprive a person of the right of residence without his will if:
- the owner is obliged to pay alimony in favor of this person;
- the person in favor of the owner did not participate in the privatization. Even after the sale of the apartment, the new owner will also not have the right to prevent such a person from using the apartment;
- minors in the absence of an alternative accommodation option. Children are not former family members in any case.
If the plaintiff:
- purchased an apartment during marriage;
- privatized it for himself during marriage, although the spouses had equal rights to privatization;
- It will not be possible to remove the former spouse from the home if such a possibility is not specified in the marriage contract (SK Art. 34; ZhK Art. 31; 189-FZ of December 29, 2004, Art. 19).
There is no rule in the housing complex that allows the owner to remove any person from the housing due to his regular violation of the interests of other persons living with him.
Divorce means separate management of the household; the procedure for using the apartment is established, indicating a specific room.
This applies not only to municipal apartments, but also to those in personal ownership, if eviction is impossible for some reason. Former spouses become neighbors and are required to adhere to standards similar to those existing in communal apartments.
How does the process of “eviction” from the only housing occur?
According to the bill, the forced sale of housing for debts can only be carried out by a corresponding court decision. There are corresponding regulations that concern the features of the debtor’s house or apartment, area and cost. If the court rejects the claimant's claim against the owner, the sale of the living space will be considered illegal.
In a case involving debts with subsequent possible eviction, the court must hear the following parties:
• the claimant; • debtor; • family members of the debtor.
The court decides not only the question itself, whether to evict the debtor from the only home or refuse the claimant, but also, in the case of a positive decision in favor of the plaintiff, the amount for which the former owner has the right to buy a new home.
You must decide to purchase a new apartment within 90 days. Otherwise, the funds allocated for this go to the state budget. Local governments provide assistance in finding housing.
The authors of the bill and debt collectors believe that for debtors, the real risk of eviction from their only home will increase payment discipline.
There are several categories of individuals who cannot be evicted from their apartment:
• disabled people of groups I and II; • minors whose parents have no other housing; • dependents of the owner; • single parents; • those who executed a testamentary refusal; • those who received real estate under a marriage contract; • those who refused privatization in favor of the owner.
The legislation is on the side of the owners and does not allow eviction from the only home in most cases. Neither collection services, nor collectors, nor bailiffs can kick you out of an apartment - this is done only by court decision. If this is initiated by the state, the citizen will be offered housing of equal value. The bill only allows for eviction from a mortgaged apartment or seizure of real estate for debts on alimony and compensation for harm to health.
Case practice
The court considered the claim to declare the bailiff's actions illegal. According to the applicant, this was expressed:
- The refusal by the FSSP employee to issue relevant decisions and his failure to forward decisions to the debtor;
- In illegal entry into housing;
- In illegal eviction to the street in winter;
- In damage to property, illegal arrest.
Having examined the case materials, the court came to the conclusion that the issue of expulsion from the only home (mortgage apartment) was resolved during another meeting, the bailiff acted on the basis of the court decision on eviction that had entered into force . The case materials indicate that notification of the voluntary compliance with the court decision and the date of forced eviction were sent to the debtor.
If you are interested in the issue related to judicial practice on eviction from an apartment, we recommend that you familiarize yourself with this material.
Further actions are recorded in the act, their legality is confirmed by the witnesses interviewed, there are no comments in this document on the part of the plaintiff. On this basis the claims were refused. The court considered the actions of the bailiff legal, not exceeding and violating the powers granted to him.
Unauthorized occupation of housing.
If an individual lives in an apartment illegally, you can easily expel him by contacting law enforcement agencies or the court.
Law-abiding citizens are most concerned about the issue of debts to banks and microfinance organizations for loans, borrowings and mortgages. So, under the new law, is it possible to be left without the only home due to debts? Theoretically, under a number of circumstances, this is possible, but rarely in judicial practice such cases end in loss of living space. However, it is not worth accumulating debts, hiding from the bank collection service and bailiffs, hoping for the protection of the law. It’s better to deal with the debt trap and restore peace of mind to yourself and your family.
Use of residential premises in another capacity
Ownership of real estate sometimes gives the owner the feeling that he can do whatever he wants here. In fact, he has responsibilities. One of them is that residential premises can only be used in this capacity, only to live in it. This rule can be broken in various ways.
For example, transform your own apartment:
- to a production workshop or warehouse;
- to a gambling establishment;
- in a cafe and so on.
If this happens, then this fact gives the court grounds to evict this tenant. In this case, it can be either just a tenant or the owner of the apartment. In a sense, damage to an apartment, cluttering it, or actions that lead to the destruction of real estate can be considered a violation close to this. This is also one of the grounds for eviction.
Then, when a tenant voluntarily left his apartment for a long period of time, he may be discharged by court decision. This also applies when it comes to the right of lifelong residence due to refusal to participate in privatization.
In this case, not any absence is considered, but only those that are not due to valid reasons. An example in this case could be a long business trip for several years or, for example, serving a sentence under a court verdict, which in itself does not violate the right of the convicted person, although not the owner, to the right to live in an apartment. In the latter case, after release, he will be able to live again at his previous place of residence.
Eviction from the only home with a mortgage
If the debtor’s only home is under a mortgage, according to the situation in 2020, they can actually be evicted from him. The loan agreement with the bank stipulates that if payment is not made, the bank may file an application with the court to foreclose on the apartment.
The threat of being left without an apartment if it is mortgaged exists both among debtors who have other real estate and among those who do not.
Read Stages and consequences of bankruptcy of legal entities
How does the process of “eviction” from the only housing occur?
According to the bill, the forced sale of housing for debts can only be carried out by a corresponding court decision. There are corresponding regulations that concern the features of the debtor’s house or apartment, area and cost. If the court rejects the claimant's claim against the owner, the sale of the living space will be considered illegal.
In a case involving debts with subsequent possible eviction, the court must hear the following parties:
- claimant;
- debtor;
- debtor's family members.
The court decides not only the question itself, whether to evict the debtor from the only home or refuse the claimant, but also, in the case of a positive decision in favor of the plaintiff, the amount for which the former owner has the right to buy a new home.
You must decide to purchase a new apartment within 90 days. Otherwise, the funds allocated for this go to the state budget. Local governments provide assistance in finding housing.
The authors of the bill and debt collectors believe that for debtors, the real risk of eviction from their only home will increase payment discipline.
There are several categories of individuals who cannot be evicted from their apartment:
- disabled people of groups I and II;
- minors whose parents have no other housing;
- dependents of the owner;
- single parents;
- those who executed a testamentary refusal;
- those who received real estate under a marriage contract;
- refused privatization in favor of the owner.
The legislation is on the side of the owners and does not allow eviction from the only home in most cases. Neither collection services, nor collectors, nor bailiffs can kick you out of an apartment - this is done only by court decision. If this is initiated by the state, the citizen will be offered housing of equal value. The bill only allows for eviction from a mortgaged apartment or seizure of real estate for debts on alimony and compensation for harm to health.
Grounds for eviction from an apartment
The main grounds for eviction from a residential premises by a court decision are considered to be malicious violations of the rules of living in a residential premises or the loss of the tenant’s right to use the apartment.
For example, citizen K. lived in the apartment of his wife, who is the owner of the residential premises. After the divorce, he lost the right to reside in this residential premises, as he ceased to be a member of the owner’s family. If he does not leave the apartment voluntarily, she has the right to file a claim to evict her ex-spouse and, subsequently, after the court decision enters into force, to apply to the SSP for help in forced eviction.
So, the reasons why eviction may occur without the provision of alternative housing:
- divorce of spouses, if only one of them is the owner of the residential premises;
- deprivation of parental rights;
- violation of the structure of the property, if it threatens the destruction of the building or a significant reduction in its strength;
- malicious violation of the rights and interests of neighbors (noise at night, rows, creation of a drug den, etc.);
- inappropriate use of a property (operation as a warehouse, store, workshop).
In some cases, eviction is possible only with the provision of alternative housing, this is possible on the basis of:
- eviction from a municipal apartment for long-term (more than six months) non-payment of utility bills;
- resettlement in connection with the alienation of land under a building or in connection with the transfer of a residential property to non-residential;
- eviction due to recognition of the property as unsafe.
Most often, forced eviction occurs during resettlement according to the first list, but sometimes citizens do not want, for some reason, to leave their old apartment for new housing, even if the alternative living space is more comfortable, and the old house is in disrepair. In such cases, the assistance of SSP employees will also be required.
