Is it possible to discharge a minor child and his mother from an apartment, and also how can an ex-wife and children be discharged?

Is it possible to expel a mother with a minor child from an apartment: conditions and grounds

An adult (over 18 years old) can freely register and check out of a residential premises, collecting a minimum package of papers for this. Therefore, there will be no special problems with the mother’s discharge. It is much more difficult to deregister a minor citizen legally. Several conditions must be met here:

A minor cannot be deregistered without providing the address of future registration.
If the apartment is privatized, and the child himself turns out to be the owner, then he should be provided with compensation for his share in the real estate (in monetary or equity terms).
The minor himself must be registered in the same place as his parents or actual guardians, that is, when registering the baby with his mother, he must be registered at the place of the citizen’s future registration.
If a citizen is over 14 years of age, he has the right to independently fill out an application and attend all proceedings regarding his deregistration.

The basis for organizing deregistration may be the sale of an apartment, a change in the actual place of residence of adults, that is, mother and father, or the death of a parent and child (in this case, deregistration may occur automatically).

The Government Decree “ On the rules of registration and deregistration ” No. 512 of April 23, 1996 strictly stipulates that the interests of the child should not be infringed upon in the process of discharge and subsequent change of registration.

That is, if adults can be discharged from full-fledged housing into communal real estate, then this is unacceptable for a minor. The living conditions of the baby should not change for the worse. Otherwise, the guardianship and trusteeship authorities, together with the migration service, have the right to file a claim for violation of the rights of the child.

At the new place of registration, the minor should be offered the same living area or a larger one (that is, if in the old apartment the little one had 12 square meters at his disposal, then in the new apartment his living conditions should not become worse).

If, when selling real estate, there is no subsequent purchase of housing , then a certain amount from the transaction must be transferred to the baby’s personal account.

Is it possible to expel a minor child and his mother from the apartment? Only if the legality of such actions is observed. If modern legislative bodies sometimes turn a blind eye to respecting the interests of an adult, then harming the interests of a child will certainly not escape the attention of the guardianship authorities.

A chain of articles of law that you need to rely on for an extract

Art. 304 of the Civil Code of the Russian Federation states: “The owner may demand the elimination of any violations of his rights, although these violations were not related to deprivation of possession.” This means that the registration of the ex-wife and children violates the rights of the owner to freely use the apartment, and he has the right to demand the elimination of these violations. Of course, if there are legal grounds for this.

Next, it is important to know on the basis of which articles you can write out your ex-wife and children SEPARATELY. Only after this the owner will have an understanding of how to write them all out at once. After that, I analyzed individual situations.

ex-wife

First, it’s worth clarifying how the owner got the apartment. Some citizens do not take this into account. The options are:
The apartment was purchased during marriage, but the ex-wife is not the owner. Then the apartment is the common property of BOTH spouses, even if it is registered in the name of only one of them - clause 2 of Art. 34 RF IC. Therefore, according to the law, the ex-wife owns a share of the purchased apartment, although nothing is indicated about it in the documents or Rosreestr. After a divorce, joint property “does not disappear”, the former spouses simply become participants in joint property - Art. 253 Civil Code of the Russian Federation. The same applies when the apartment was received during marriage under an exchange agreement - clause 2 of Art. 567 Civil Code of the Russian Federation.
What to do? There are two options: 1) It is better to file a claim for the division of joint property, and not for the release of the ex-wife. I advise you to divide everything according to the law. 2) You can try to write out your ex-wife 3 years after the divorce. Based on clause 7 of Art. 38 of the RF IC and clause 1 of Art. 200 of the Civil Code of the Russian Federation, the limitation period is 3 years from the moment when a person learned or should have learned about a violation of his right. According to the logic of these articles, 3 years can be counted from the moment of divorce. But there is another problem. If the ex-wife finds out that she has been discharged or wants to be discharged, she will sue for the division of property. At the trial she will say that she decided to do this because... her rights were violated. Therefore, I advise dividing the property.
Exception: the purchased apartment is not considered common property if the spouses signed a marriage contract, which states that only one of the spouses owns the apartment - clause 1 of Art. 33 and art. 42 RF IC.↓
Paragraph 13 of the Supreme Court Resolution No. 14 of July 2, 2009 - after a divorce, family relations with the ex-wife are terminated, so she automatically becomes a former member of the owner’s family.↓
Clause 4 art. 31 of the Housing Code of the Russian Federation - a former family member does not retain the right to reside in the owner’s apartment unless there was another agreement between them. In simple words, the ex-wife does not have the right to live in the apartment unless there is another agreement. Therefore, she can be discharged even if she lives there. The main thing is that there is a fact of termination of family relationships - this is a divorce.

It doesn't matter whether the ex-wife pays utility bills. Even if this is so, it is enough to write about it in the statement of claim and that’s it. There is no need to prove anything.

Adult child (son or daughter)

Here you need to clarify when the adult child was registered in the apartment - after March 1, 2005 or before. Because from March 1, 2005, the Housing Code of the Russian Federation is in force, and until this date the Housing Code of the RSFSR is in force.

The adult child was registered after March 1, 2005.
Clause 4 art. 31 of the Housing Code of the Russian Federation - former members of the owner’s family do not retain the right to reside in the apartment. Therefore, in order to discharge an adult child, the owners need to recognize him in court as a former family member. Kinship in this case does not matter here.↓
The conditions for recognizing an adult child as a former member are specified in paragraph 13 of the Resolution of the Plenum of the Supreme Court of July 2, 2009 No. 14. These conditions are accepted by the court IN THE CUMULATION and are decided on the specific circumstances of each case:
1. Adult children and their owners do not provide each other with support and assistance; there are conflicts and disagreements in the family.↓
There is no common budget between them, it is separate.↓
They do not live in the apartment and do not pay utility bills - these conditions are optional, but will be additional advantages.

The main conditions are numbered 1, 2 and 3. Therefore, in the statement of claim, the owner must indicate that family relations with the child have been terminated. The child has become a former member of the family because there is no common household between the owner and the child, no common budget, no mutual assistance, no respect, and that there are constant conflicts. On this basis, we ask that he be recognized as having lost the right to use the apartment. The fact of non-residence is also worth indicating. The same thing needs to be reported in court.

Even if an adult child lives in the apartment and/or pays his share of the utilities, the owner still has a great chance of discharging him. The main thing is to “put pressure” on ending family relationships.

The child was registered until March 1, 2005.
Based on clause 2 of Art. 127 Housing Code of the RSFSR, former family members of the owner retain the right to reside in the apartment. Here the chances are 50/50 - half of the judges discharge, the others refuse to discharge. Moreover, even if the child does not live in the apartment, does not pay utilities and has other property in his property.
There is a way out - to change the owner. The Civil Code of the Russian Federation will come into force here. Clause 2 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 of use by family members of the previous owner. In simple words, adult children of the previous owner do not have the right to live in the apartment after the transaction. This means the new owner will be able to write them out.

Minor child

Everything is different here. A parent will not be able to discharge his minor child (son or daughter), even if he does not live in the apartment after the divorce.

Why? This is judicial practice. Divorce of parents and their separation do not affect the rights of the child, including housing rights - clause 1 of Art. 55 and paragraph 1 of Art. 63 RF IC. Therefore, divorce is not grounds for losing a child’s right of residence. In addition, the child, due to his age, cannot independently exercise his right to residence, and therefore lose it. Therefore, he may not live at his place of registration. All this is indicated in paragraph 14 of the Supreme Court Resolution No. 14 of July 2, 2009.

The solution is the same - change the owner. The new owner will be able to write out on the basis of clause 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 of use by family members of the previous owner.

Where does the deregistration take place, and where should one go in controversial situations?

It is impossible to remove a mother and children from registration without legal grounds. Firstly, a corresponding statement about the need for discharge must be drawn up by the child’s official representatives (mom, dad or guardians).

Secondly , applicants will have to collect a whole range of technical documentation confirming that the interests of the child are not infringed. Thirdly, even if all the papers have been collected, the migration service and guardianship authorities reserve the right to refuse to discharge the child.

To discharge the mother, it is enough to contact the migration service with papers confirming her identity and property documents. The procedure itself should take no more than three days (according to current legislation).

Sometimes reviewing documents for deregistration takes longer. However, employees of this authority are obliged to warn about the duration of consideration of the application.

There are several cases when deregistration of a child also occurs through the migration service without visiting the guardianship authorities . Firstly, this is possible if the child is not the owner of the privatized property.

Secondly, deregistration without contacting the guardianship authorities is possible if the child was registered in the property before it became privatized. If the mother has all the necessary documents confirming registration in the first apartment and the availability of a place where the child will be registered after, a visit to the guardianship authorities is also not necessary.

If controversial situations arise regarding the deregistration of a mother and her minor child, the plaintiff must apply to the court with a corresponding application.

Modern judicial practice confirms that decisions are predominantly made in favor of the child, and cases involving minors are considered with special care.

Pre-trial release option

If there is a need to deregister an ex-wife and her child, the algorithm of actions usually includes visiting several authorities at once. What are the step-by-step instructions for action in such a case?

It is necessary to visit the guardianship authorities, where, with the provision of all documents, permission to discharge the minor will be issued within 14 days (you should apply if the child is the owner of privatized property).
Next, the mother and baby should visit the migration service, where in addition to the need to submit a list of documents, they will also need to fill out applications for discharge. If the child is already 14 years old, he can fill out the paper himself.
Having accepted all the documents, the government body must make a decision in 3-4 days (in fact, 1-1.5 weeks).
Since the law strictly regulates that it is impossible to discharge the baby anywhere, within the next 7 days after the moment of discharge, adults are obliged to register the baby to a new place.

A child can only be registered in a room where at least one of his parents is already registered, since a minor cannot live separately from his parents, as evidenced by the Civil Code of the Russian Federation.

If all the documents provided by the adults are true, the process takes about two weeks and occurs without complications. If the mother and baby are discharged without legal grounds or the papers provided by the applicant raise doubts among the migration service employees, the issue of discharge will have to be resolved through the court.

Now let’s briefly analyze the situations and what to do for each of them.

Situation No. 1 - to discharge an ex-wife with children when one of them is a minor. Or all the children are minors.
What to do? Since the parent will not be able to register his minor child (more details), it is necessary to change the owner “temporarily”. The main thing here is that the parent of a minor child is not listed as the owner of the apartment before the trial. Or waiting for the child to come of age is the next situation.
IMPORTANT: You should not make it so that the new owner is a grandparent of a minor child. Courts refuse to allow owners to sign out their minor grandchildren. Why? Clause 4 art. 31 of the Housing Code of the Russian Federation - former members of the owner’s family with whom family relations have been terminated do not have the right to live in the apartment. Even if the owners say in court that they recognize their minor grandchildren as former members of the family and family relations with them have been terminated, they will still be denied an extract. The courts believe that family relationships between grandparents and their grandchildren cannot be terminated. And it doesn’t matter that - 1) The grandparents themselves did not register their grandchildren in the apartment, the previous owner did this. 2) Even when the grandson has not lived in the apartment for a long time, because, due to his age, he cannot independently exercise his right to residence, and therefore lose it. Therefore, he may not live at his place of registration. Although I believe that this is not entirely legal, this is judicial practice.
You can change the owner through a donation or purchase and sale. Which one is better depends on the specific situation. If you give real estate as a gift, it is better to give it to a close relative - then the recipient (who was given the gift) will not have to pay tax (clause 18.1 of Article 217 of the Tax Code of the Russian Federation). Close relatives - parents, spouse, sibling. I wrote above that there is no need to make sure that the new owner is the minor child’s grandparent. They won't be able to write them out. If the owner has a sibling, then it is better to give it to them. It’s okay that the new owner will be the minor child’s uncle/aunt. Judicial practice shows that if the owner himself did not register his nephew/niece, but the previous owner registered them, he will be able to register them on the basis of clause 2 of Art. 292 of the Civil Code of the Russian Federation.
Instructions - how to donate an apartment. If the owner only has a share, then a notarial agreement will be required when donating - more details. Instructions - how to donate a share in an apartment. The length of ownership does not matter - the donor does not pay tax, even if he owns the property for less than 3 years.
Instead of donating the apartment, you can sell it. Better for a distant relative or non-relative. And after checkout, resell the apartment back. To prevent the new owner from being subject to tax when selling the apartment back, both transactions must be completed within one year (tax period) and for the same price. For example, sell an apartment in March 2021 for 4 million rubles. The trial lasts approximately 3 - 5 months. After checkout, the apartment is immediately sold back for the same 4 million rubles. It will be available sometime in September 2021. No one will pay tax, because everything was done in one calendar year (tax period).
Read also: Certificate of pregnancy. How to get a pregnancy certificate?
Follow the link to find a list of documents for selling an apartment for cash, because our sale will be temporary. If the child's parent only has a share, our instructions are how to sell the share.
The new owner must indicate in the statement of claim that family members of the previous owner (his ex-wife with children) do not have the right to live in the apartment on the basis of clause 2 of Art. 292 of the Civil Code of the Russian Federation. If they have already left, this must also be indicated. It will be an additional plus. The same thing needs to be said at the trial.
Situation No. 2 - discharge your ex-wife and adult children.
Children were registered after March 1, 2005. How to write it out? There is no need to change the owner here. The owner must be informed in the lawsuit and in court: 1) Family relations with the ex-wife have been terminated, she is a former family member and there were no agreements regarding her residence after the divorce. And if there were, they are now terminated. 2) There is no mutual assistance and respect between the owner and the adult child, there is no common household, they have a separate budget, there are constant quarrels and disagreements. Thus, family relations between them were terminated and he became the owner of a former family member, therefore he lost the right of residence on the basis of clause 4 of Art. 31 Housing Code of the Russian Federation. 3) If any of them does not live in the apartment, this must also be reported. It will be additional evidence of the termination of family relationships.
Situation No. 3 - to discharge an ex-wife and adult children, where one of them was registered before March 1, 2005. Or both children.
The same situation as with a minor - you need to “temporarily” change the owner. The main thing is that the child’s parent is not the owner before the trial. And the new owner will be able to write them all out under clause 2 of Art. 292 of the Civil Code of the Russian Federation.
The apartment can be donated or sold - it all depends on the specific situation. If you give it as a gift, it is better to give it to a close relative, so that the recipient (to whom it was given) does not have to pay tax. Close relatives - parents, spouse, sibling (Clause 18.1, Article 217 of the Tax Code of the Russian Federation). In this situation, you can donate an apartment to: 1) one of the parents who will be the adult child’s grandparent. 2) a sibling who will be the child’s uncle/aunt. And the new owners will discharge the adult child on the basis of clause 2 of Art. 292 of the Civil Code of the Russian Federation. The main thing here is that the new owner did not register an adult child, the previous owner did this. Kinship doesn't play a role here. I have provided a link to the donation instructions above.
Or the apartment can be sold. Then it is better for a distant relative or a non-relative. And after checkout, resell the apartment back. To prevent the new owner from being subject to tax when selling the apartment back, both transactions must be completed within one year (tax period) and for the same price. For example, sell an apartment in April 2021 for 5 million rubles. The trial lasts about 3 - 5 months. After checkout, sell the apartment back for the same 5 million rubles. It will be available around October 2021. No one will pay tax, because everything was done in one calendar year (tax period).

Cases of jurisdiction of the case and correct preparation of the statement of claim

If the standard procedure for some reason does not suit the applicant, he should prepare for difficulties. The fact is that it is quite difficult to discharge a minor, even with his mother, from a home in court, since this judicial body most often takes the side of the child.

In what cases do they most often turn to the courts to resolve such issues?

In case the migration service or guardianship authorities refused to issue an extract.
In case the applicant wants to discharge the baby from the apartment with his mother to nowhere or to a room with worse living conditions.
In case the mother and child oppose deregistration.
A court hearing is also carried out if it is necessary to recognize the mother and her child as dead (in the event of a long absence or missing person).

During the trial of such cases, representatives of the guardianship authorities must always be present at the hearings. Their task is to protect the interests of the child.

To go to court, the plaintiff must file a statement of claim. It is compiled in any form. Such a statement indicates why the plaintiff insists on an extract, and why the issue must be resolved through the court.

If you have a refusal from the migration service or guardianship authorities, it should also be attached to the case, especially if the person is confident that the decision of the government authorities is illegal.

Despite the arbitrary, unspecified form of the statement of claim, the main claim must be clearly stated. The plaintiff should indicate why he insists on deregistration and provide arguments for his innocence.

Experts advise immediately contacting lawyers to draw up a statement of claim, since incorrectly formulated thoughts in this document may cause the case to be rejected.

In addition to the listed statement of claim, the person will have to provide a certificate of family composition, all papers for the apartment, and documents confirming his identity.

You should also attach papers confirming that there is a place where the child can be registered, and that the living conditions there meet all state requirements (the housing should not be in disrepair, and the area of the room where the baby will live should not be less than what was available at the previous apartment).

On our website you will find information about: discharge of a child without parental consent, discharge from municipal and privatized housing, ways to do this if the child does not live at the registration address and a general algorithm of actions on how to do this.

Residence address is the registration address

One of the most frequently asked questions is “The ex-wife and children have moved out of the apartment. What address should I indicate in the statement of claim and other documents? Actual address? What if he is unknown?

According to the logic of the court, the place of residence of the defendant is considered to be the place of his registration - paragraph 63 of the Resolution of the Plenum of the Supreme Court of June 23, 2015 N25. Therefore, in the statement of claim, we indicate the address of residence of the ex-wife and children as the address of their registration - the apartment from which the owners need to deport them. The plaintiff is not required to know where the defendant actually lives.

As a result, all subpoenas to the ex-wife and children will be sent to a place where they may not actually live - Art. 113 Code of Civil Procedure of the Russian Federation. If they do not receive a summons (because they do not live there), the court will still consider that everything has been done to notify them. The law is respected here. Receiving correspondence is a citizen's responsibility. If they do not appear in court, the case will be considered without their participation - clause 4 of Art. 167 Code of Civil Procedure of the Russian Federation.

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State duty and deadlines for resolving the issue

Another important document that must be attached to the statement of claim is a receipt for payment of the state duty in the amount of 200 rubles. Without payment of this fee, the case will not be considered.

The period for consideration of the claim is 5 days . During this period, the judge must review the application and announce a decision on its consideration or refusal.

If the answer is positive, a court date is set. On average, such cases are considered within 1-2 months. Such a long period is due to the fact that cases related to the deregistration of a child are considered much longer than those concerning adults.

If the child is over ten years old , he has the right to appear before the court, expressing his desire to be discharged or to maintain registration. Usually the court focuses on the opinion of the child himself and his desires. It is also possible to discharge the child from the father and register him with the mother.

Where can I challenge a court decision?

If the court refuses to issue permission to discharge the mother and child, the plaintiff should not despair. He can either file a new claim for re-examination of the case due to the emergence of new evidence of his innocence, or appeal to the Magistrate's Court.

In this case, the time frame for considering the case will be delayed, but the person will have a chance to achieve a legal solution to the controversial issue.

If adults want to legally discharge the baby with the mother, then usually no difficulties arise in the process.

If such a need is dictated by selfish interests directed against the child, then the goal is unlikely to be achieved. Both the courts and the migration service work harmoniously and their main goal is to prevent violations of human civil rights, especially of minors who are unable to protect their interests.

Now you know whether the mother of a minor child can be discharged from the apartment, when and how this is possible.