How to discharge a person from a municipal apartment

The director of the legal service “Unified Center for Protection” (edin.center) Konstantin Bobrov answers:

If a young son has other housing, then it is possible to go to court with a claim to recognize the father and son as having lost the right to use the residential premises. However, if the child has no other housing, the guardianship authorities will not allow his legal eviction. Since the Family Code gives children the right to live with their parents, the legal eviction of a father and young son will be extremely difficult.

What is social housing and who is it for?

How can I prevent my grandson and daughter from applying for an apartment?

Requirements for a claim

Then draw up a claim and submit it to the court , in the claim you must describe in detail the essence of your case, the grounds for expulsion from the municipal apartment, correctly formulate your requirements, since you can be recognized as having lost the right to use (when a citizen lived for some time) or not having acquired the right use (when I did not live in the apartment at all). In court, it is advisable to invite two witnesses (this is the minimum) who will confirm your arguments, preferably these are neighbors or your friends. Much will depend on their testimony.

It is important to remember that if you go to court with a request to be discharged from a municipal apartment , and lose, you will no longer be able to go to court. Therefore, think carefully when you go to court on your own or with legal assistance.

The head of the legal support department, Ksenia Buslaeva, answers:

The issue of deprivation of the right of registration and residence by tenants of municipal apartments can be raised after six continuous months of non-payment of utility bills. This is stated in Article 90 of the RF Housing Code. However, the decision on forced deregistration is made only in court, and the court will definitely consider the reasons for non-payment. He will classify as valid: systematic delay in payment of wages (pension, other means of subsistence, etc.), disability, guardianship of a dependent or minor; It is quite possible - ignorance of the existence of debt and other reasons. Only the owner of the premises, that is, the municipality, can act as a plaintiff in the case.

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Obstacles to the use of residential premises

The third condition is the absence of obstacles in using the apartment.

The court will also clarify the question of whether other persons interfered with the defendant’s use of the apartment.

Obstacles can be very diverse, but the main ones include restricting access to the apartment (by changing locks, physical obstruction, creating an unbearable psychological atmosphere, etc.).

In other words, the court must find out whether obstacles were created for the defendant in using the apartment.

If the defendant was prevented from using the apartment, then it will not be possible to recognize him as having lost the right to use the residential premises, since the court will most likely side with him.

However, if no obstacles were placed in his use of the apartment, and he could live in it without hindrance, then, if the other necessary conditions are met, this defendant can be recognized as having lost the right to use the residential premises and discharged.

CENTURY 21 Russia lawyer Damir Khakimov answers:

Residents can be forcibly expelled from a municipal apartment if they have moved to another place of residence, that is, they are constantly absent from their place of registration (Part 3 of Article 83 of the Housing Code of the Russian Federation). At the same time, in court you will still need to prove that these residents left the place of registration voluntarily, and not forced, and also that their absence is not temporary (due to study, treatment, service, etc.). The court will also take into account the fact of failure to pay for housing and utilities.

Failure to pay may itself also be grounds for eviction, but in this case the landlord (municipality) is obliged to provide alternative housing.

Discharge children from municipal apartments

Many lawyers refuse to take on cases when the issue concerns the discharge of children from a municipal apartment, since it is believed that it is impossible to discharge a child, and even from municipal housing.
However, it is not. In order to understand why it is possible to discharge minors from a municipal apartment, it is necessary to understand the following questions:

• What is a place of residence?
• What is registration?
• What is a social tenancy agreement?

- a residential building, apartment, room, residential premises of a specialized housing stock, or other residential premises in which a citizen permanently or primarily resides as the owner, under a lease (sublease) agreement, a lease agreement for specialized residential premises or on other grounds provided for by the legislation of the Russian Federation Federation, and in which he is registered at his place of residence.

What is registration? — Registration at the place of residence. That is, the citizen notifies the Main Directorate for Migration Affairs of the Ministry of Internal Affairs (formerly the FMS) that he lives in a certain residential premises, based on this, he puts a registration stamp at the place of residence in his general passport indicating the address of the residential premises.

What is a social tenancy agreement? —

Article 60. Social rental agreement for residential premises

1. Under a social rental agreement for residential premises, one party - the owner of the residential premises of the state housing stock or municipal housing stock (an authorized state body or an authorized local government body acting on his behalf) or a person authorized by him (the landlord) undertakes to transfer to the other party - the citizen (tenant) ) residential premises for possession and use for living in it under the conditions established by this Code.

2. A social rental agreement for residential premises is concluded without specifying its validity period.

3. A change in the grounds and conditions giving the right to receive residential premises under a social tenancy agreement does not constitute grounds for termination of a social tenancy agreement.

Article 67. Rights and obligations of the tenant of residential premises under a social tenancy agreement3. The tenant of a residential premises under a social tenancy agreement is obliged to: 1) use the residential premises for the intended purpose and within the limits established by this Code; 5) timely pay for the residential premises and utilities;

Article 83. Termination and termination of a social rental agreement for residential premises3. If the tenant and members of his family leave for another place of residence, the social rental agreement for residential premises is considered terminated from the date of departure, unless otherwise provided by federal law.

Based on the above, if we write in simple, understandable language, we get the following picture:

1. A municipal apartment is provided for the residence of a citizen and is his place of permanent residence under a social tenancy agreement.
2. Registration (permanent registration at the place of residence) is issued on the basis that a person lives in a residential building, which is his permanent place of residence on the basis of a social tenancy agreement.

It is logical that if a person does not live in a municipal apartment, does not pay utility bills, and does not maintain a common household with other tenants, then:

• He does not comply with the social tenancy agreement, which clearly states that the residential premises are provided for living.
• A person does not live in a municipal apartment, which means that this residential premises is not his permanent place of residence, it is logical that he no longer has any reason to be registered in this residential premises.

Due to the fact that deregistration from a residential premises, including a municipal apartment, is essentially deprivation of a citizen’s permanent place of residence, it is possible to deregister only on the basis of a court decision. In court, it is necessary to provide evidence that the person does not live in the apartment and has no reason to be registered due to non-compliance with the terms of the social tenancy agreement. The same applies to the removal of minors from public housing.

Lawyer, Chairman of the St. Petersburg Bar Association Globus Pravo Denis Volnov answers:

Theoretically, you can go to court to recognize citizens as having terminated the right to use residential premises and subsequently deregister them. In practice, with the proper approach of your opponents, it is very difficult to win such a case. The problem is that defendants in such cases take the position that they do not live in the apartment due to conflicts with the plaintiff. There are clarifications from the Supreme Court of the Russian Federation on such grounds, and the courts reject the claim.

Your situation is further complicated by the fact that one of those registered is a minor. At the same time, you have the right to recover part of the utility bills, but for a maximum of the past three years (statute of limitations).

What kind of government support can you get if you don’t own a home?

Can I be denied registration in the apartment where my family lives?

Procedure for a minor child

Extracting a minor from an apartment has its own characteristics:

• A child cannot be deregistered, even in a municipal apartment, if the guardianship authorities have not given their permission. It will also be necessary to register his parents, since the baby must be registered with one of them.
• The child will be discharged by court only if he does not actually live in the apartment.
• In case of damage to property, responsibility rests with the child’s parents.
• The child must be discharged to a specific address. At the same time, his living conditions cannot be worsened, for example, the area of ​​the premises should be the same or larger, but not smaller. Housing must be comfortable.

What is necessary?

To remove a child from registration, you must prepare:

1. Social tenancy agreement.
2. The child's birth certificate or passport if he is over fourteen.
3. Passport of one of the parents.
4. Technical passport of the premises into which the child is moving.
5. Documents confirming the ability to use new housing:
   extract from the Unified State Register of Real Estate;
6. certificate of ownership;
7. draft lease agreement;
8. consent of the tenant and persons living with him.
9. Permission from guardianship authorities.

Attention! The specified documents are attached to the application, which is drawn up by the child’s legal representative, in Form 6, approved by Order of the Ministry of Internal Affairs of Russia dated December 31, 2021 No. 984. The information package is sent to the territorial police department. The discharge period will be three days from the date of receipt of the application.

The procedure for discharge through the court

How to be discharged from a municipal apartment through the court? An extract from the court is also not always possible. In order for the court to recognize the need to vacate the home and discharge the person living there, compelling reasons are needed. Such restrictions on discharge are established due to the constitutional guarantee to citizens of housing.

Thus, for the court to recognize the discharge of a person as necessary, the following circumstances are necessary:

• violation of the rules of residence;
• non-payment of utility bills;
• termination of family relationships;
• actual absence of a person for more than six months.

If the above reasons exist, the court will discharge the person at the request of the employer. Other registered persons do not have the right to demand the removal of persons who are not actually living from municipal housing, since the rental agreement is concluded with the tenant and, by agreement, he is assumed to be the owner of the housing.

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The application is submitted in accordance with the rules defined in the civil procedural legislation at the location of municipal housing.

It should contain the following information:

• name of the court;
• applicant details;
• information about the person subject to discharge;
• circumstances that are considered a reason for discharge;
• request for discharge;
• list of attached documentation;
• date and signature of the applicant.

Since it is impossible to provide documents that will certify the actual absence of a person, this circumstance must be confirmed by the testimony of neighbors, a housing organization, and so on. For this reason, the application must indicate information about several neighbors who will be able to testify at the court hearing or information about the housing organization.

Based on the testimony of eyewitnesses or a representative of the housing organization, the court makes a decision to discharge the relevant person from municipal housing. Based on this decision, the person is excluded from the house register, and the corresponding registration data in the passport office is also changed.

Fulfillment of obligations to pay for housing and utilities

The fifth condition is fulfillment of the obligation to pay for housing and utilities.

The court will also clarify the question of whether the defendant fulfills his obligations to pay for housing and utilities, etc.

If, after leaving (or not moving in), the defendant did not pay for the residential premises and utilities, then this circumstance increases the chances of winning in court and recognizing him as having lost the right to use the residential premises.

If the defendant, while not living in the apartment, continued to pay in full or part of the expenses, then recognizing him as having lost the right to use the apartment will of course be problematic, but still possible.

My optimism in this matter is based on one of the rulings of the Supreme Court of the Russian Federation, which, in a similar case, found the defendant to have lost the right to use the apartment, despite the fact that he made partial payments for living quarters and utilities.

Thus, if you pay for housing and utility costs, and the defendant does not bear any expenses along with you, then this fact will become another stone in the foundation of your victory in court.