On the issue of limited real rights: the right of lifelong residence
Based on the words “in particular” in the wording of Art. 216 of the Civil Code of the Russian Federation, it seems that it established an open list of limited real rights, although the generally accepted doctrinal view is the principle of a closed list of real rights (numerus clausus). However, this principle only means that new real rights cannot be “invented” by participants in civil transactions, but it does not mean at all that new real rights cannot be introduced by the legislator.
The right of lifelong residence, which will be discussed below, is, in our opinion, the product of two evils. Firstly, the hastily adopted and, therefore, ill-considered privatization legislation, in particular, the RSFSR Law of July 4, 1991 N 1541-1 “On the privatization of housing stock in the Russian Federation.” Secondly, judicial practice, for unknown reasons, allowed such an obvious abuse of the right, which is the right of lifelong residence.
So, according to Part 4 of Art. 31 of the Housing Code of the Russian Federation “in the event of termination of family relations with the owner of a residential premises, the right to use this residential premises for a former family member of the owner of this residential premises is not retained, unless otherwise established by an agreement between the owner and the former member of his family. If a former family member of the owner of a residential premises has no grounds for acquiring or exercising the right to use another residential premises, and also if the property status of a former family member of the owner of a residential premises and other noteworthy circumstances do not allow him to provide himself with another residential premises, the right to use the residential premises owned by the specified owner may be retained by a former member of his family for a certain period based on a court decision. In this case, the court has the right to oblige the owner of the residential premises to provide other residential premises for the ex-spouse and other members of his family, in whose favor the owner fulfills alimony obligations, at their request.”
This provision already raises questions: on what basis does a former family member receive the right to use? It seems that there are no legal grounds; to exaggerate, one can imagine this situation as if a stranger applied to the court to move into your apartment on the grounds that he has nowhere to live. In addition to such an obvious absurdity of the situation from a legal point of view, it seems appropriate to take into account everyday relationships: a former family member, as a rule, a former spouse, may be in a conflicting relationship with the residents of the said premises, why does the court so unceremoniously intrude into the deeply personal relationships of citizens?
Further, according to Art. 19 Federal Law “On the entry into force of the Housing Code of the Russian Federation” dated December 29, 2004 N 189-FZ “the effect of the provisions of Part 4 of Art. 31 of the Housing Code of the Russian Federation does not apply to former family members of the owner of a privatized residential premises, provided that at the time of privatization of this residential premises, these persons had equal rights to use this premises with the person who privatized it, unless otherwise established by law or agreement.”
This article is disclosed in the interpretation recorded in the review of legislation and judicial practice of the RF Armed Forces for the 4th quarter of 2005:
“Question 45: Will the right to perpetual use of residential premises be retained by a former family member of the owner of the residential premises, who refused to participate in the privatization of housing, when the ownership of the residential premises is transferred to another person, taking into account the provisions of Article 19 of the Federal Law “On the Enactment of the Housing Code of the Russian Federation” "and Article 292 of the Civil Code of the Russian Federation?
Answer: Article 19 of the Federal Law “On the Entry into Force of the RF Housing Code” provides that the provisions of Part 4 of Art. 31 of the RF Housing Code does not apply to former family members of the owner of a privatized residential premises, provided that at the time of privatization of this residential premises, these persons had equal rights to use this premises with the person who privatized it, unless otherwise established by law or agreement.
It follows from Part 2 of Article 292 of the Civil Code of the Russian Federation that the transfer of ownership of a residential building or apartment to another person is the basis for termination of the right to use residential premises by family members of the previous owner, unless otherwise provided by law.
In accordance with Article 2 of the Law of the Russian Federation “On the privatization of housing stock in the Russian Federation,” citizens occupying residential premises in the state or municipal housing stock, including housing stock under the economic management of enterprises or the operational management of institutions (departmental fund) on social rental terms, have the right with the consent of all adult family members living together, as well as minors aged 14 to 18 years, acquire ownership of these residential premises.
The consent of the person who lives together with the owner of the residential premises is a prerequisite for privatization. It should be taken into account that, having given consent to the privatization of residential premises, the person proceeded from the fact that the right to use this residential premises for him would be of an indefinite nature, therefore, his rights must be taken into account when transferring ownership of the residential premises to another person, since a different interpretation would violate the provisions of Article 40 of the Constitution of the Russian Federation, according to which everyone has the right to housing and no one can be arbitrarily deprived of their home.
In accordance with Part 1 of Article 558 of the Civil Code of the Russian Federation, a list of persons who, in accordance with the law, retain the right to use residential premises after its acquisition by the buyer, indicating their rights to use the residential premises being sold, is an essential condition of the contract for the sale of a residential building, apartment, part of a residential building or apartment in which these persons live.
It follows from this rule that when alienating residential premises, the contract must indicate the right of the person who lives in it to use this residential premises; otherwise, the contract cannot be concluded, since an agreement has not been reached on all essential terms. Consequently, if a former member of the owner’s family at the time of privatization had equal rights with a person who subsequently acquired ownership of this residential premises, but refused privatization, giving consent to privatization to another person, then when the ownership of the residential premises is transferred to another person, he does not may be evicted from this residential premises, since he has the right to use this residential premises. In this case, it is necessary to proceed from the fact that the right of use is of an indefinite nature.”
Such an unconvincing argument and “far-fetched” Art. 40 of the Constitution of the Russian Federation demonstrate to us the obvious abuse of law committed by the Supreme Court. It is clear that practice strives to follow the general paradigm of a social legal state, where individual rights and freedoms are immutable and much more significant than economic rights, in particular the right of property. However, we must not forget that by violating the right of property, we thereby violate the inalienable rights of the individual.
Move-in claim
In 2004, Anna received a lawsuit from her stepmother, who demanded that she be moved into the apartment of her deceased husband. In court, Olga, as evidence of her right to lifelong residence in her husband’s apartment, provided an agreement for the free use of residential premises, concluded on November 25, 1997 between her and Alexey for a period of... 100 years!
According to Art. 292 of the Civil Code of the Russian Federation, Olga, as a member of the family of the owner of the residential premises, may demand elimination of the violation of her rights to the residential premises from any persons, including the owner of the residential premises.
Anna presented her arguments in court, saying that the stepmother does not fulfill the terms of the agreement to which she refers, because she has not used the apartment since 1999. Doesn't pay rent, doesn't make routine repairs. She also said that Olga had brought the apartment into such a state that it became impossible to live in it.
So, who can have the right to use an apartment indefinitely?
Persons who did not participate in the privatization of the apartment, but had the right to do so
The right of indefinite residence in an apartment is reserved for these persons, provided that at the time of privatization of this residential premises they had equal rights to use this premises with the person who privatized it (Article 19 of the Federal Law of December 29, 2004 N 189-FZ “On the Entry into Action of the Housing Code of the Russian Federation"). At the same time, their right of use will remain regardless of the basis for the transfer of ownership to the new owner of the apartment (whether it is purchase and sale, exchange, donation, rent or inheritance).
And even the fact that such a person has previously privatized another apartment and is its owner will not be an obstacle to his maintaining the right to perpetual use of the apartment in which he is registered (clause 18 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 2, 2009 N 14 “On some issues that have arisen in judicial practice when applying the Housing Code of the Russian Federation").
The above article of the law on the entry into force of the Housing Code of the Russian Federation deals exclusively with former family members, however, in judicial practice, as a result of a broad interpretation, it applies to all family members of the tenant who lived in the apartment (or retained such a right) at the time privatization and agreed to its implementation without their participation (see, for example, Determination of the Supreme Court of the Russian Federation dated February 16, 2016 N 22-KG15-3). If you hear the phrase “privatization refuser,” then know that these are the people who are meant.
However, in some cases, the right to participate in privatization is also reserved for persons who were not registered in the apartment at the time of privatization, who did not consent to privatization (did not refuse to participate in privatization). For example, if a citizen was declared missing by a court decision and removed from registration at the apartment address, and therefore did not take part in privatization, he will still retain the right of indefinite residence (see, for example, the Appeal ruling of the Moscow City Court dated 04/06/2017 in case No. 33-12960/2017).
In the same way, the right of indefinite residence is retained for a person sentenced to imprisonment and deregistered before the privatization of the apartment, but not earlier than June 23, 1995 (the date of adoption of Resolution of the Constitutional Court of the Russian Federation No. 8-P, which was given appropriate explanations).
Persons included in the order for the provision of an apartment in a housing construction cooperative
In accordance with the previous legislation, family members of a person accepted as members of a housing-construction cooperative acquired an independent right to residential premises provided to a member of a housing-construction cooperative under a warrant, based on the decision of the general meeting of members of the cooperative, approved by the executive committee of the district, city, district in city of the Council of People's Deputies, and retained the right to use the residential premises in the future, if after their occupancy the issued order was not invalidated on the grounds provided for by law.
Despite the fact that there is no direct indication in the law that these persons retain an indefinite right of residence, in judicial practice the rights of these persons are actually equal to the rights of family members of the owner of a privatized apartment (Determination of the Supreme Court of the Russian Federation dated May 29, 2012 N 11-КГ12-2 ; Determination of the Supreme Court of the Russian Federation dated January 12, 2016 N 56-KG15-31).
3. Persons to whom such a right is granted on the basis of a testamentary refusal.
Testamentary refusal is an obligation that a testator can assign to one or more heirs under a will or by law at the expense of an inheritance. The person in whose favor such an obligation is established is the legatee. The legatee has the right to demand the fulfillment of this obligation.
Thus, the testator has the right to impose on the heir to whom a residential house, apartment or other residential premises is transferred the obligation to provide another person with the right to use the residential premises for the period of that person’s life or for another period. Upon subsequent transfer of ownership of the specified premises to another person, the right of use granted by testamentary refusal remains in force (Article 1137 of the Civil Code of the Russian Federation).
A testamentary refusal can be established in a will or in an inheritance agreement - an agreement between the testator and heirs, the terms of which determine the circle of heirs and the procedure for transferring rights to the testator's property after his death (Article 1140.1 of the Civil Code of the Russian Federation). The right to receive a testamentary refusal is valid for three years from the date of opening of the inheritance.
Persons to whom such a right is granted on the basis of a lifelong maintenance agreement with dependents
Under an agreement of lifelong maintenance with a dependent, the annuity recipient, a citizen, transfers his residential house, apartment or other real estate into the ownership of the rent payer, who undertakes to provide lifelong maintenance with the dependent of the citizen and (or) a third party (persons) indicated by him. The rent payer's obligation to provide maintenance for dependents may include the provision of a lifelong right to use the apartment. In this case, the rights of the annuity recipient to live in the apartment are equal to the rights of the legatee, that is, he receives the right of lifelong residence, unless otherwise provided by the agreement (Article 34 of the Family Code of the Russian Federation).
Persons to whom such a right is granted on the basis of another agreement or obligation
In our practice, we have encountered purchase and sale agreements and even gift agreements with the condition of preserving the right of lifelong residence in the apartment of certain persons. Despite the fact that a gift agreement cannot provide for obligations for the donee (and preserving the right of lifelong residence is, in fact, the obligation of the donee not to interfere with the donor’s right to use the apartment), the courts rightfully indicate that the parties can enter into an agreement that contains elements of various contracts provided for by law or other legal acts (mixed contract), and qualify such a gift contract as a mixed contract.
Moreover, the right of lifelong residence may arise from a written obligation (statement) that the person retains the right of lifelong registration in the apartment. Thus, in one of the court cases, the recipient was given an obligation, drawn up by a notary in the form of a statement, by which the donor was given the right to lifelong registration in the apartment. At the same time, the gift agreement itself did not mention any rights of the donor to lifelong residence. Despite the fact that ownership of the apartment subsequently passed to another person (the donee entered into another donation agreement), and the donee’s statement was canceled by him, the court sided with the donor and retained his lifelong right to live in the apartment (Appeal ruling of the Moscow City Court dated January 12, 2017 in case No. 33-1137/2017).
Marina Klepko Partner, Nedelko and Partners Law Firm
Testamentary refusal
Testamentary refusal is a legal concept, the essence of which boils down to the heir’s refusal of part or all of the property received by inheritance, the fulfillment of certain property requirements of the testator in favor of third parties.
According to Article 1137 of the Civil Code of the Russian Federation, the testator has the right to impose on the heirs the obligation to perform certain actions in favor of one or more persons (legatees) at the expense of the inherited property.
The following obligations may be provided for as a testamentary refusal:
- transfer into the ownership of the legatee of certain property included in the inheritance;
- transfer of certain property for use to the legatee;
- one-time or ongoing payment of the legatee's bills;
- payment of regular allowance to the legatee;
- performing certain work or providing a service to the legatee;
- granting the legatee the right to reside in residential premises, which is inherited.
A testamentary renunciation can be carried out one-time, can take a short period of time (a month, a year, several years), or can last quite a long time or even indefinitely - the timing of the renunciation can also be indicated in the will.
Legatees have the right to demand that the heirs fulfill the obligation assigned to them by the testator.
Lifetime residence
The right of lifelong residence is one of the possible privileges that the owner of a residential premises has the right to provide for in a will. The legatee (that is, the person who should be granted the right of residence) can be either a relative of the testator or a stranger. The period of residence in a residential building can also be clearly specified, for example, a year, several years, indefinitely.
What should an heir do who, according to the will, must share living quarters with another, sometimes a complete stranger? Violating the will of the testator is unacceptable. If there are legal grounds for this, the heir can challenge the will in court. However, if there is no reason to question the will of the testator, who provided for the right of lifelong residence, the heir can only refuse the inheritance. Another option is that the legatee can issue a written and notarized refusal to live in the residential premises - disinterestedly or in exchange for certain benefits on the part of the heir.
