On the issue of expelling a person living in it from an apartment without his consent

What actions to take and where to go? How to do it? These questions are very difficult for those who are faced with the issue of eviction for the first time. Our task is to talk about how the discharge procedure occurs, and most importantly, what grounds allow this to be done.

How to deregister the former owner without consent? Can the new owner do this? You can find out in what time frame you need to check out of an apartment when selling it from our article.

How to expel a person from an apartment without his consent: legislation

You can discharge a tenant without his consent on the basis of several laws:

Law	Explanation
Art. 31 Residential Complex of the Russian Federation	When a family relationship ends (for example, divorce), a person loses the right to use housing. But the court may reserve this right for a former family member for a certain period if he has nowhere to live
Art. 35 Residential Complex of the Russian Federation	If the right to use housing is terminated, the citizen is obliged to leave it within the period established by the owner. If a person uses the premises on the basis of a will or a court decision, but not for its intended purpose or allows its destruction, the owner has the right to set him a reasonable period to eliminate the defects. If the situation repeats, the owner can evict him by court decision
Clause 31 of the Decree of the Government of the Russian Federation of July 17, 1995 No. 713 “On approval of the Registration Rules...”	Deregistration is possible by court decision if the owner filed a claim to terminate the right to use the housing, and it was satisfied. Registration can also be canceled if a person is declared dead or missing
Art. 209 Civil Code of the Russian Federation	The owner has the right to dispose of the property at his own discretion. You can only write out someone other than the owner
Clause 2 Art. 292 Civil Code of the Russian Federation	Alienation of property rights is the basis for the expulsion and eviction of family members of the previous owner

Note! A citizen can be discharged from an apartment without his consent only through the court. If he agrees, but for some reason cannot submit an application for deregistration to the Department of Internal Affairs of the Ministry of Internal Affairs in person, he has the right to appoint a representative by notarized power of attorney, and he will be able to do without going to court.

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Based on what articles of the law can owners deregister a stranger?

Art. 304 of the Civil Code of the Russian Federation - the owner may demand the elimination of any violations of his rights, even if these violations were not associated with deprivation of possession. Explanation - the rights of the apartment owner are violated by the residence (registration) of an outsider and he has the right to demand that these violations be eliminated.↓
Further, the grounds for discharging a stranger depend on who registered him. Therefore, I have identified two main situations:
- Situation No. 1 - The person was registered by the current owner
  For example, the owner registered a friend, acquaintance or distant relative whom he now wants to discharge. In this situation, it is considered that they entered into an oral agreement between themselves for the free use of the apartment without specifying a period - clause 2 of Art. 30 LC RF and clause 1 art. 689 of the Civil Code of the Russian Federation. That is, the owner allowed such a citizen to live in his apartment for an indefinite period.
  The owner has the right to unilaterally terminate oral agreements with a stranger in his residence - clause 1 of Art. 699 Civil Code of the Russian Federation.
- Situation No. 2 - The person was registered by the previous owner
  For example, the owner received an apartment by inheritance, gift, or bought it. Then it turned out that a stranger was registered in it, who was registered by the previous owner.
  According to paragraph 2 of Art. 292 of the Civil Code of the Russian Federation - “The transfer of ownership to another person is the basis for termination of the right to use residential premises by family members of the previous owner...”. In simple words, those who were registered by the previous owner do not have the right to live in the apartment after the transaction or acceptance of the inheritance. They are not issued automatically, but they can be issued through the court.

RESULT: For the court, it makes no difference whether the person registered lives in the apartment and pays utility bills. Even if he lives and pays, the owner has every chance of discharging him. The main thing is to draw up a competent statement of claim indicating the articles of the law and prepare for court. Details are below in the instructions.

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How to discharge a tenant without his consent: reasons

Most often, people turn to the courts to demand an extract from their own apartments for several reasons:

Transfer of ownership as a result of inheritance or gift, if the testator or donor registered other people’s real estate at the address. The new owner does not need outsiders, and to resolve the issue he has to file an application in court.
Buying an apartment with registration. This is a classic: the seller does not warn about unregistered relatives, the buyer does not require an extract from the house register. As a result, it turns out that there are people registered in the living space, and they have to be discharged through the court.
Divorce from your spouse. If the apartment does not belong to common property, after the divorce the owner may demand termination of the right of use by the other party. This automatically entails cancellation of registration and eviction.
The registered person does not actually live in the apartment. It is not easy to discharge a non-resident person from an apartment. If a citizen is declared missing, the situation becomes simpler.
The tenant violates the rights of other residents: he regularly throws parties, invites dubious characters, and indulges in alcohol or drugs.
The registered person uses the property for other purposes: for example, if the apartment belongs to the non-residential stock, but he did not transfer it to non-residential premises and opened a store there.

Note: it is not always possible to write out and not everyone. Not everyone has the right to file a claim either. The requirement must indicate termination of the right to use housing. If you demand eviction, the prosecutor will become involved in the case, and its consideration will be delayed (Article 45 of the Code of Civil Procedure of the Russian Federation).

How to discharge a temporarily registered person without his consent? Step-by-step instruction

Is it possible and how to discharge a person from an apartment without his presence?

Legislative regulations

Can the owner of the apartment write out the registered person without his consent? Federal Law No. 5242-1 of July 25, 1993, in Article 7, sets out the main reasons for deregistration of citizens.

By the way, the concept of “extract” has long lost its force and has given way to the phrase “deregistration .

Also, in accordance with Article 31 of the Housing Code, a former spouse who lives in real estate donated or purchased before marriage by the other half can also be discharged from the apartment through the court.

Administrative regulations are used by passport office employees to process the deregistration of a citizen. People themselves who have come to the idea of discharge can also familiarize themselves with this document in order to delve into the procedure in more detail.

How can someone who is not the owner of the apartment be evicted from the apartment?

Who has the right to check out of the apartment?

Only the owner has the right to demand that a person be evicted from an apartment, provided that the citizen being evicted does not have ownership rights to the share. If the property is in shared ownership, the owner who wants to evict the second owner must first challenge the ownership of the share, while simultaneously demanding deregistration and eviction. In practice, this is almost impossible to do.

A citizen who does not have ownership rights to housing cannot file a claim for termination of the right to use. If there is a tenant in the apartment who is disturbing everyone, it is more logical to discuss this issue with the owner so that he can file a claim.

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Without the presence of the owner

In judicial practice, a situation often arises when an extract occurs without the presence of the owner. This happens for various reasons.

The person registered decided to issue an extract independently and at his own request, and to carry out this procedure through the passport office, the presence of the owner is not necessary.
Is it possible to register a person from an apartment through a third party? The owner, due to circumstances, cannot carry out the procedure for deregistration or going to court, so a legal representative does this for him.
The tenant's discharge is carried out by other co-owners without one of the apartment owners in the common interests.

You can learn about how to sign up while in another city, how to deregister at the MFC or on the State Services website, and whether you can sign up by power of attorney from our articles.

Is it possible to discharge a person from a privatized apartment?

According to Art. 19 Federal Law dated December 29, 2004 No. 189-FZ “On the entry into force of the Housing Code of the Russian Federation”, it is impossible to write out a person who has refused privatization. He has the right of indefinite residence. It is important that at the time of privatization he has equal rights with the owner.

But there are exceptions in which deregistration is possible:

The citizen does not live in the premises for a long time. A specific period is not established by law, but in practice the courts evict after three years.
The person has moved to a permanent place of residence and will no longer live in the old apartment. It is important that the departure is not temporary. If a citizen is absent for work or study, he cannot be discharged.
The citizen left voluntarily. If he moved out because of a scandal with his loved ones and reports this to the court, the claim will be rejected.
A person has not paid utility bills for at least three years.

Legal advice: before going to court, it is advisable to collect consent for the deregistration of a specific citizen from other family members: registered owners. This will make the procedure a little easier. If at least one owner objects to the eviction at the meeting, there is a possibility that the claim will not be satisfied.

Elena Plokhuta

Lawyer, website author (Civil law, 7 years of experience)

Terms and cost of registration

At the passport office, deregistration is processed within three days. If we are talking about a court, then the consideration of the case can last from one to several months. In the end, withdrawal occurs automatically, by court decision .

The procedure is free and is not subject to additional tax. If you do not have time to deal with paperwork, and you turn to special law firms that provide certain services, then it is likely that you will have to pay for their efforts.

The state fee when filing a claim is 300 rubles.

You must present the payment receipt upon submission; if you do not have it, the package of documents will not be accepted.

After discharge, a citizen deregistered is issued a certificate indicating that he has been discharged from his place of residence indicating a specific date.

Features of the removal of residents from the owner’s apartment

There are certain categories of citizens whom it is impossible or difficult to discharge, or you can do without going to court:

Minors.
Those sentenced to imprisonment.
Conscript soldiers.
Deprived of parental rights.
Recognized as missing or dead.

Let us consider in detail how to discharge a person from his own apartment if he belongs to one of the listed categories.

Children

According to paragraph 14 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated July 2, 2009 No. 14 “On some issues...”, even after the parents’ divorce, a minor child retains the right to use their housing. It will not be possible to discharge the child.

Note! It is also impossible to discharge a minor grandson or granddaughter, even if they were registered in the apartment of their grandmother or grandfather by one of the parents who is registered there at their place of residence. Courts usually refuse to satisfy such demands, citing the fact that the owner cannot recognize the child as a former family member. The only way out is to sell or donate the property. Then the minor will be discharged on the basis of clause 2 of Art. 292 of the Civil Code of the Russian Federation, but the new owner will have to deal with this.

Convicts

A person sentenced to imprisonment can be discharged from his apartment without going to court. But at the end of the period, he has the right to restore registration. If the owner prevents this, he will be able to obtain occupancy through the court.

Conscripts

Those called up for military service are registered at the place of service. Old registration is canceled automatically. Upon returning from the army, it is possible to restore registration at the old address.

Declared dead or missing

To recognize a person as dead or missing, you need to go to court. When the court decision comes into force, the owner has the right to remove the citizen from registration on its basis. Additionally, you will not have to go to court.

Deprived of parental rights

If a mother or father is deprived of parental rights, they lose the opportunity to live with the child. Housing remains with the minor, and the parent is discharged. The child himself can use the property of the deprived father or mother.

How a property owner can register a registered person: step-by-step instructions

First, the owner needs to send a written notice demanding to sign out. But this is not always required. Subsequently, the procedure will consist of several stages:

Preparation of documents.
Notice to the defendant.
Submitting documents to the court.
Preliminary meeting.
Litigation.
Obtaining a court decision.
Eviction of the defendant.

Let us consider in detail how to discharge a registered person from your own apartment through the court.

Step 1: Send a notice to check out

If the owner of the premises has previously registered a stranger or a citizen who is not a close relative, he needs to send a notice demanding that he vacate within a month after receiving the document. Close relatives and people registered by the previous owner of the apartment do not need to be notified.

Note: the request is sent by registered mail with acknowledgment of receipt. If a citizen ignores it, after a month from the date of receipt of the document, the owner has the right to go to court.

Contents and sample notice

The notification must include the following information:

From whom and to: Full name, address.
Apartment address.
The date from which the evicted citizen lives in the apartment, the basis of residence.
Request for deregistration and eviction.
Date of compilation and signature.

Sample notification

Consultation on document preparation

Step 2: preparing documents for the court

To be discharged from an apartment without consent by court, you will need:

statement of claim;
passport;
an extract from the Unified State Register confirming ownership;
extract from the house register;
an extract from the personal account if the defendant does not pay utilities;
divorce certificate if you need to evict your ex-wife or husband;
the document on the basis of which the right of ownership arose: a contract of sale, exchange, donation, rent, certificate of inheritance;
technical documents for an apartment or house with a plot of land.

Legal advice: it is better to bring original documents to court. If necessary, the secretary or assistant judge will make copies of them, and the originals will be returned.

Elena Plokhuta

Lawyer, website author (Civil law, 7 years of experience)

Note: if the property is in shared ownership, it is not necessary to involve the second owner as a plaintiff. He will participate in the proceedings as a third party who can express his opinion on the case of termination of the right to use the premises.

Proof

The plaintiff will need evidence confirming the existence of grounds for eviction of the defendant:

certificates of payment for utilities, if the defendant does not pay for them;
a certificate from the police department about the absence of calls to the address to confirm that the defendant left voluntarily;
a certificate from the district police officer confirming that the defendant has not lived in the apartment for a long time;
certificates from the Pension Fund of the Russian Federation and the Federal Tax Service about the place of work and the address of actual residence of the citizen.

Witnesses may also be invited to testify. It is better to apply for their summons in advance.

Contents and sample of the statement of claim

The statement of claim is drawn up in a number of copies equal to the number of parties. Plus one more remains in court. For example, if the case has one plaintiff and one defendant, three copies are needed.

What information is indicated in the application:

Name, address of the court.
Full name, address, telephone number, passport details of the plaintiff.
Full name, registered address of the defendant.
Information about the third party (if any): Full name, address, name.
Information about the apartment: address, area, cadastral number, number of rooms.
Number, date of registration of the document on the basis of which the plaintiff transferred ownership of the real estate.
FULL NAME. and the year of birth of the citizen permanently registered in the living space.
Grounds on which the right to use the premises should be terminated.
Request for termination of the right to use residential premises.
List of attached documents.
Date of registration and signature of the plaintiff.

Sample claim

Consultation on document preparation

Step 3: sending the statement of claim to the defendant

One copy of the statement of claim must be sent to the addresses of the defendant and a third party by a valuable letter with a list of the attachments. The defendant's address will be considered the address of the apartment from which he must be discharged. Even if he does not live there, he will be considered properly notified.

Note! Along with the application, an extract from the Unified State Register and other documents are sent, except for a copy of the passport and the agreement on the basis of which the property right is registered.

Step 4: Submitting documents to the court

The statement of claim and other documents are submitted to the district or city court at the defendant’s registered address (Article 28 of the Code of Civil Procedure of the Russian Federation). You should contact the reception. There they will issue a receipt for payment of the state fee (300 rubles). You can pay it at any bank, taking a check with you - you need to bring it to the court to confirm the transaction.

A receipt for payment of the state fee and a notification of delivery of the application to the defendant are submitted to the court along with the other prepared documents. In return, the plaintiff receives one copy of the application with a stamp of registration in court.

Step 5: Preparing for the trial

During preparation, a preliminary meeting is held. On it, the judge clarifies the claims, requests additional evidence for termination of the right of residence, the telephone number and actual address of the defendant. Usually the pre-hearing is held 20-30 days after the statement of claim is registered.

Step 6: participation in the court hearing

During trials, the opinions of the parties are heard, evidence is studied, and witnesses are interviewed. If the defendant has not lived in the apartment for a long time, the plaintiff should refer to the fact that he moved out voluntarily, does not pay utility bills, and does not participate in the costs of repairs and maintenance of the housing.

If there is a subsequent failure to appear, the court has the right to make a decision in absentia without his participation.

Step 7: Obtaining a Judgment

If the decision is made with the participation of the defendant, it comes into force one month from the date of adoption in final form. The default judgment comes into force 7 days from the date of receipt by the defendant (Article 237 of the Code of Civil Procedure of the Russian Federation). The certified copy must be picked up after you have learned about its readiness by calling the office. It is usually issued within 5-10 days.

Note! The defendant may, within 7 days from receipt of the decision, file an application for its cancellation. If the court ruling rejects the application, an appeal is filed to cancel the decision within one month from the date of the ruling.

Step 8: Evicting the Defendant

When the decision comes into force, the plaintiff must submit a copy of it to the Department of Internal Affairs of the Ministry of Internal Affairs in order for the defendant to be discharged. Deregistration is carried out within three days. As a result, a new certificate of registered persons will be issued, and the defendant will no longer be on it.

Legal advice: people often refuse to leave their home after being deregistered through the court. In such a situation, the owner has the right to change the lock in the absence of a written lock. Even if he calls the police and demands to be let in to take things away, this is not necessary: the owner of the property can dispose of it himself as he pleases and not allow strangers there.

Elena Plokhuta

Lawyer, website author (Civil law, 7 years of experience)

What documents are required?

How to check out of an apartment if you are not the owner? To extract with your consent, you must provide:

passport and its copy;
departure address sheet;
a document indicating temporary registration;
application for deregistration of a person at the place of residence.

If we are talking about submitting documents to the court , then the package is formed not by the registered person, but by the owner of the property.

It contains the following documents:

owner's passport;
copy;
certificate of ownership;
state duty in the amount of 300 rubles, receipt of payment;
statement of claim.

In a statement written by hand or typed on a computer, in addition to the initials of the person - the owner, as well as the name of the court, the meaning of your claim must be disclosed. You must clarify why you want to discharge the tenant, and most importantly, on what basis you rely .

After this, the date of writing and your signature are placed at the end of the application, and the attached documents are also listed.

If it turns out that the tenant has not lived at home for a long time, provide testimony; if the tenant does not pay for utilities, provide receipts.

Documents are submitted either to the passport office closest to your place of residence, or to the magistrate’s court also located at your place of residence.

You must contact the court through the office, where the secretaries will first accept the package from you and, if necessary, point out the shortcomings.

How to discharge a person registered from an apartment: expenses

Before deregistering an illegally registered person, you need to weigh all the costs:

State duty to court - 300 rubles.
Ordering duplicate documents from Rosreestr – from 1,000 rubles. per copy (in case of loss).
Sending statements of claim to all participants in the process - on average 500-1,000 rubles.
Drawing up a statement of claim from a lawyer - from 1,000 rubles.
Legal support on a turnkey basis - from RUB 35,000. depending on the region and the company’s price list.
Obtaining certificates from the HOA - on average 100-200 rubles.

Note: in total, if the plaintiff conducts the case independently, he can pay 3,000 rubles. If the claims are satisfied, he has the right to recover legal costs from the defendant (Article 98 of the Code of Civil Procedure of the Russian Federation).

How to discharge someone from an apartment without a person’s consent: judicial practice

Most often, plaintiffs file applications for termination of the right to use by other citizens, when there are indeed grounds, and the claims are usually satisfied:

Claim for termination of the right of use, collection of legal costs, eviction due to failure to fulfill obligations under the loan agreement (Decision No. 2-577/2020 2-577/2020~M-106/2020 M-106/2020 dated April 29, 2021 on the case No. 2-577/2020). The requirements are satisfied in full. The defendant was evicted and the costs of paying state fees were collected from him.
On recognizing the defendant as having lost the right to use the apartment. The plaintiff and her husband bought a home where the defendant was registered. He was not discharged within the established time frame (Decision No. 2-224/2020 2-224/2020~M-171/2020 M-171/2020 dated April 29, 2021 in case No. 2-224/2020). The requirements have been satisfied.
The plaintiff registered the defendant in his apartment; she needed registration for employment. Then he wanted to write her out, the court asked to recognize the housing legal relationship as not having arisen (Decision No. 2-300/2020 2-300/2020~M-122/2020 M-122/2020 dated April 29, 2021 in case No. 2-300/ 2020). The requirements have been satisfied.

Lawyer's answers to private questions

Can they discharge me without my consent, without going to court?

No. Registration is canceled only by mutual agreement of the parties. An exception is when a citizen is serving in the MLS or in the army. But even here, the Department of Internal Affairs of the Ministry of Internal Affairs rarely meets the owners halfway and discharges citizens, although by law they can do this without their knowledge.

Is it easy to sign a person out of an apartment? How long do court proceedings take?

It’s easy if the owner already has experience in conducting legal cases and there are all grounds for terminating the right of use. If he does not have such experience, it is better to contact a lawyer. The case is considered in court for about two months: a preliminary hearing is scheduled 10-20 days from the date of registration of the application, a trial is scheduled after another half a month. Typically, such applications are considered in one hearing if all parties are present.

I bought an apartment with my wife and it is registered in my name. Now they are divorced, but she is registered there. How can I write her out?

You can’t just write your ex-wife out: she’s just as much an owner as you are. First you need to divide the housing. According to Art. 34 of the RF IC, all property acquired by spouses from the moment of marriage until divorce is considered common property. Even if the property is registered in your name, by law it belongs to you and your ex-wife 50/50, but it must be divided. It will be possible to write it out only if the court leaves the apartment to you in exchange for compensation for her share.

Is it possible to discharge a disabled person from an apartment without his consent?

If there are grounds, anyone can be discharged, except minors. There is no separate law protecting the right of disabled people to live in apartments or other housing.

The owner wants to check me out of the apartment without my consent. How can I protect my rights and interests?

First you need to understand on what basis the owner is demanding eviction. If you live in his apartment and acquired the right to use it after he became the owner, he has little chance. If he bought a home where you are registered, and at the time of signing the contract with the seller he did not know about it, it is easier to cancel the registration. An exception is a purchase and sale agreement with the right of lifelong residence of a third party: the court cannot evict him from his living space. To protect your interests, you need to provide evidence confirming your actual residence and fulfillment of obligations: utility bills, other documents. It is advisable to obtain testimony from witnesses.

How to file a forced eviction?

A tenant can be discharged from an apartment without his presence only in compliance with the established action plan. You can be forced to write it out, but to do this you will need to contact the Federal Migration Service of the Russian Federation. The institution will agree to carry out the manipulation only if the owner of the property has compelling reasons for forcibly deregistering his son or daughter from the register at the place of registration. If the reason for the application is considered unjustified, the action can only be taken through the court.

Regardless of the fact that the owner is free to independently decide who to register in his property, all issues relating to the forced deregistration of residents are, in most cases, resolved in court.

When a person has a share of real estate, forced deregistration is impossible; he will have to go to court, having previously prepared a package of documentation.

To remove a tenant from registration at the place of registration, you need to have with you:

a statement of claim completed in accordance with the rules;
real estate documentation;
receipts confirming payment of utility bills;
a check confirming payment of the state duty;
certificate of the number of persons registered in the property.

The owner of the property can supplement the package of documentation with other papers confirming the presence of compelling reasons for forced eviction. So, it would not be amiss to include in the list a certificate confirming that the tenant has another home. The list should be supplemented with testimony. It must be taken into account that the court does not deal with deregistration.

Video

There are a number of additional points that should be taken into account before forcibly evicting a person from a privatized apartment. For example, you cannot discharge a person who has no other place to live. If the owner wants to remove a person who has nowhere else to live from the register, he must provide other housing. If there is a debt on utility bills, it must be forced to close before going to court. In another situation, the owner of the property will have to repay the debt.

The magistrate's court deals with issues of forced expulsion from housing. If a citizen does not agree with the decision, he can appeal the claim to higher judicial authorities. You will first need to prepare evidence confirming that an erroneous decision was made.

Consideration of an application for forced discharge without the consent of the resident is carried out within 5 days. The verdict is rendered within 1 to 2 months. In order for the court to begin considering the claim, you will need to pay a state fee. Its amount is 200 rubles if the claim is brought against only one defendant. If several citizens are involved in the case, the amount of payment increases significantly. Pay 200 rubles. is due for each defendant.

In the process of going to court for forced eviction from housing without the tenant's consent, you may need to pay for notary services and make copies of documentation. All this will increase the final cost of the procedure. If the cancellation of registration is completed, a departure slip will be provided.