Court decision establishing the procedure for using an apartment

Home » Housing disputes » Determination of the procedure for using residential premises or a house in shared ownership

There are often situations when people who are complete strangers to each other live in the same apartment or house. The reasons are different: the former spouses divorced, but still live in the same living space, the apartment was inherited by several people who, sometimes, are not even related to each other, etc.

Selling a property and leaving - this option is not always possible, people continue to live in a common living space, each of them has some share of the property, no one wants to give up their part of the housing to other owners, when sharing an apartment, misunderstandings and mutual claims arise, escalating into scandals.

What can be done in such a situation to avoid such developments? Determine the procedure for using a joint property that is in shared ownership.

In what situations is a procedure for determining the order of use of housing necessary?

As a rule, shares of an apartment or house are owned by relatives who inherited the property, or by former spouses who divorced. In both cases, citizens who are not members of the same family and do not lead a joint household actually live in the same residential premises. In these or similar situations, the question arises of determining the procedure for using housing.

The best option is to establish rules for cohabitation in one residential premises by several owners independently and voluntarily. It is for this purpose that a voluntary written agreement is concluded, in which the co-owners stipulate all the nuances of using a joint house or apartment. Ideally, the agreement should be certified by a notary office.

For example, spouses Nikolai and Lyudmila Rokotov lived in a two-room apartment, which they bought jointly after marriage. A few years later, the couple divorced and divided their joint property, including the apartment, equally. Neither Lyudmila nor Nikolai had anywhere to move out; neither of them could buy out the second spouse’s share, so they continued to live in the living quarters together.

If the spouses were somehow able to come to an agreement with the separate rooms, then they constantly had minor clashes regarding the order of using the kitchen and other common rooms. Nikolai loved to bring friends and colleagues, they often drank alcoholic beverages, while Nikolai did not take them to his room, but received them in the kitchen. Lyudmila did not like such gatherings; minor domestic conflicts arose on this basis. Nikolai also had some complaints about Lyudmila regarding her use of the bathroom.

But since they had nowhere to escape from each other, the former spouses decided to enter into an agreement to determine the procedure for using the apartment. They agreed that Nikolai would no longer take his friends to the shared kitchen, and Lyudmila would not use the bathroom as a clothes dryer.

Procedure for using residential premises: judicial practice

Determining the mechanism for using residential premises is one of the ways to protect property rights. Often, such disputes arise when there was a division of an apartment with maternity capital.

The court not only has the right to distribute rooms in the apartment. It is within his competence to provide access to a person whose interests are infringed.

Judicial practice shows that decisions are made to move in and transfer copies of keys to the plaintiff. In this case, the claim may raise several demands simultaneously.

When considering a case, the courts also rely on the position of other persons living in the apartment. If the proposed use option puts them in a deliberately disadvantageous position, then a refusal to satisfy the claims may follow.

Below are several examples from judicial practice. All names of participants in the cases have been changed.

The right to use a privatized apartment

Citizen Emelyanov filed a lawsuit against his ex-wife; he asked to divide the apartment. Also, the subject of the requirements was the recognition of ownership of ½ share and the determination of the procedure for using the residential premises. In particular, the plaintiff asked to assign a room of 15 square meters to him. m.

The application is motivated by the fact that during the period of the marriage, the parties to the dispute privatized the apartment without allocating shares. Subsequently, family relations were terminated. At the time of filing the claim, the defendant was obstructing the use of the property.

The Cheryomushkinsky District Court of Moscow, by its decision dated July 09, 2017, in case No. 2-1633/17, satisfied the claim. He assigned each spouse a room in a two-room apartment.

Moving into the apartment and determining the mode of its use

This problem is relevant when the owners of the apartment are strangers. The plaintiff, Fedorova, filed a lawsuit against the defendant, Petrov. In her appeal, she asked to be moved into the living space, to oblige the other party not to interfere with her stay and to hand over duplicate keys.

A separate requirement was to determine the procedure for using a three-room apartment. Fedorova asked to be given a room of 11 square meters. m..

Respect for the interests of other owners

When determining the procedure for using residential premises, the court takes into account the interests of other persons living in it. The following dispute can be cited as an example. Citizen Nikitina appealed to the court to the defendants Smirnova and Smirnov. She asked to be moved into the apartment and not to interfere with her use of the premises.

In addition, the question was raised about the allocation of a non-passable room. The court found that Nikitina and Smirnova own a three-room apartment in equal shares. And also, with reference to materials from law enforcement agencies, it is confirmed that Smirnova does not allow Nikitina into her home.

By the decision of the Cheryomushkinsky District Court of Moscow dated February 1, 2016 in case No. 2-176/13, the request for Nikitina’s accommodation was satisfied. At the same time, the court considered the mechanism for distributing rooms proposed in the lawsuit to violate the interests of the defendants, since they get access to the territory. Therefore, this part was rejected.

Options for using shared ownership

The order of use of housing is influenced by several factors:

The size of the shares of each owner.
The number of separate living rooms in an apartment or house. If it is enough to allocate separate rooms to each of the owners, then this is one option; if there are more owners than separate rooms, then determining the order of use will be much more difficult.
Number of registered residents . For example, if there are two owners (ex-husband and wife), but in fact a minor child lives in the apartment with the mother, then the wife is allocated a larger room.
Do the co-owners have alternative housing ?
Family connections of all owners.
Layout . Many residential premises have walk-through rooms; of course, none of the owners would agree to have other apartment residents constantly walking through their personal space.

The best option would be if the number of separate rooms is not less than the number of co-owners. In this case, each of them occupies a separate room, and the kitchen, bathroom and other common areas remain shared. That is, it turns out to be a kind of communal apartment.

If housing in shared ownership does not allow each owner to be allocated a separate room (one-room apartment, or there are more owners than rooms), then in this case it is possible for one owner to buy out the other’s share. Typically, the owner of the majority of the apartment buys out a smaller share, but other buyout options are also possible.

It is extremely rare, but there are other options for determining the procedure for using joint housing. For example, periodic use of an apartment by two (or more) owners. That is, one owner lives in the apartment for a specified period, then he leaves it and another owner moves in for the same period of time.

Options for determining the procedure for using shared ownership

The procedure for using an apartment in shared ownership depends on a combination of several factors:

the size of the share of each co-owner;
the number of rooms in the apartment (is it possible to allocate a room to each owner, while their size may differ from the size of the share);
the number of persons registered in the apartment (a mother and child need more space than one owner);
availability of other housing suitable for living by the co-owners;
whether the co-owners are relatives and if so, how close;
housing layout (separate or “pass-through” rooms in the apartment).

If the number of owners of a property is equal to the number of rooms, then the issue is resolved quite simply - everyone is allocated a room, and common areas (kitchen, corridor, bathroom) remain shared.

The procedure for using them can be determined, including according to a schedule, or maybe without one. In any case, none of the neighbors can prevent others from using them.

If the apartment is one-room or it is impossible to allocate a separate room to everyone, then it is possible to determine the use of housing by one owner, but at the same time he must pay compensation to the others. The amount of compensation is determined by the average market rental price of a similar apartment (in a shared ratio).

The option of periodically using the apartment is also allowed. That is, one owner uses it for a certain period, and then the second. However, in practice this happens very rarely.

How to determine the procedure for using an apartment in shared ownership

The procedure for using any residential premises (room, apartment, house) implies certain rules that all owners of this premises establish for themselves and among themselves, in accordance with which this housing is used by all of them.

Sharing regulations can be:

established;
installed.

In the first case, we mean the procedure that has developed over time for the operation of individual rooms, a common kitchen and bathroom, and other premises. In other words, co-owners have been using an apartment or house together for a long time, sometimes for years, and they have no joint claims against each other. Often all residents are satisfied with the current situation and they are not going to change anything.

The situation becomes more complicated in cases where there are any mutual claims between the owners regarding the procedure for using the residential premises, or one of the co-owners against the other (others). In this case, it will be necessary, through peaceful negotiations or with the help of the court, to establish a certain procedure for the use of residential premises by all its owners.

The regulations for the joint use of residential premises assume that each of the co-owners has a separate room or part of it, most often commensurate with their shares of property (the so-called personal space), in addition, the rules for the use of common areas (kitchen, bathroom, other utility rooms) are stipulated.

Of course, in a situation with shared ownership of residential premises, the ideal option would be to allocate the share of each of the co-owners in kind, but, unfortunately, in practice this does not always work out. The actual allocation of a share requires redevelopment, and if with a separate house the procedure for dividing one living space into two or more separate ones can somehow be carried out, then in cases with an apartment in an apartment building this is almost impossible. The owners have to negotiate and determine the procedure for using the apartment that suits all residents.

There are two ways to determine the order of use of residential premises:

when consensus is reached, an agreement is concluded ;
if agreement is not reached, file a claim in court .

Of course, the first option is the most successful in terms of maintaining good neighborly relations between residents; in addition, drawing up an agreement will take much less time than litigation. In the first option, it is assumed that all co-owners of an apartment or house agree among themselves on how they will use the common premises, which of them will get which room, and enshrine this agreement in the text of the voluntary agreement. If necessary, the document is certified by a notary office.

If an agreement cannot be reached, the parties resort to solving the problem with the help of the court. But even in this case, it is necessary to try to resolve the dispute out of court. To do this, the initiator of the procedure must contact the remaining owners with a written proposal to conclude an agreement. It is better to send the document by registered mail with notification, or hand it over to each of the co-owners personally against signature. In court, this written proposal will serve as evidence of an attempt to resolve the dispute out of court.

The legislation does not stipulate the mandatory certification of an agreement by a notary; moreover, agreements can be concluded orally. But if one of the residents violates an oral agreement that is not written down on paper and not certified by a notary office, then it will be problematic to prove the violation.

Statement of claim to determine the procedure for using residential premises (sample)

On this page you can download a template for a statement of claim to determine the procedure for using residential premises, drawn up by our lawyers, taking into account current legislation and established judicial practice.

Let's briefly analyze the situation. When does it become necessary to determine the order of use? The answer is when the persons living in the apartment cannot agree on who should live and where, i.e. which room(s) to occupy, restrict access to it for other residents, etc. Such disputes very often arise between shared owners, as well as the owner and his family members. What will determine the procedure for using an apartment? Firstly, you will be assigned a specific living space (i.e., a room or rooms). Secondly, you can restrict access to this room to other people living in the apartment. IMPORTANT! In a municipal apartment, it is IMPOSSIBLE to determine the procedure for using the apartment, because The norms of housing legislation today provide for this to be done only in relation to apartments (houses) that are privately owned. Those. There is no law that you can refer to in order to demand a determination of the order of use in a municipal apartment. In relation to private property, it is the opposite. According to Art. 247 of the Civil Code of the Russian Federation, ownership and use of property in shared ownership is carried out by agreement of all its participants, and if agreement is not reached, in the manner established by the court . It should be noted that when making a decision on such disputes, the court primarily takes into account:

the size of shares in the property rights of the parties;
the established procedure for using the apartment;
number of residents;

It should also be noted that the size of the room allocated for use may be greater than the size of the share in ownership of one of the parties.
At the same time, the other party has the right to demand proportionate compensation for the use of this area. Common areas: kitchen, bathroom, hallway are assigned by the court to the common possession and use of the parties. You can contact us for help in drawing up a claim and representing your interests in court. We have been providing legal services for over 10 years and have never had any complaints from our clients! Our contact phone number: 8 (495) 510-70-16.

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Statement of claim to determine the procedure for using residential premises

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Below is a standard form of a statement of claim to determine the procedure for using residential premises, which will help you protect your interests in court.

In ________________________ (name of the court and address) Plaintiff: ________________________ (full name and address) Defendant: ________________________ (full name and address) Third party: ________________________ (full name and address) Cost of claim: 0 rubles; State duty: 300 rubles.

STATEMENT OF CLAIM to determine the procedure for using residential premises

I, ________ (insert full name) am the owner (or tenant, i.e. indicate on what basis you live there) of the residential premises and am registered in it. The apartment is located at: _______ (specify address). A copy of the certificate of ownership (or social tenancy agreement), as well as an extract from the house register in the attachment. Also, gr. is registered and lives in this apartment. __________ (indicate the full name of the defendant). The relationship between us is of a conflictual nature. Over the course of a long period of residence in this apartment, a certain procedure for using the living space has developed between the parties. Currently, a dispute has arisen between us about the procedure for using the rooms in this apartment, i.e. who should live in which room. Due to the fact that we cannot agree on the procedure for using the residential premises voluntarily, I ask the court to establish this procedure in accordance with the existing use, namely: to allocate me (and my family members, if any) the right to use a room of _____ square meters. The defendant is given a room with an area of ___ square meters for use. According to Art. 31 of the Housing Code of the Russian Federation, the owner of a residential premises exercises the rights of ownership, use and disposal of the residential premises belonging to him by right of ownership in accordance with its purpose within the limits of its use, which are established by the Housing Code of the Russian Federation. Members of the family of the owner of a residential premises who are capable and limited by the court in their legal capacity are jointly and severally liable with the owner for the obligations arising from the use of this residential premises, unless otherwise established by agreement between the owner and members of his family. In accordance with Art. 288 of the Civil Code of the Russian Federation, a citizen who is the owner of a residential premises may use the residential premises for personal residence and residence of members of his family. In accordance with Art. 247 of the Civil Code of the Russian Federation, ownership and use of property in shared ownership is carried out by agreement of all its participants, and if agreement is not reached, in the manner established by the court. A participant in shared ownership has the right to be provided for his possession and use of a part of the common property commensurate with his share, and if this is not possible, he has the right to demand appropriate compensation from other participants who own and use the property falling on his share. I consider my demands to be based on the law and subject to satisfaction. Based on the above, guided by Art. Art. 12 Civil Code of the Russian Federation, art. art. 22, 131-132 Code of Civil Procedure of the Russian Federation,

I ASK THE COURT:

Determine the following procedure for using the apartment located at the address: (specify address):
allocate for use to the plaintiff and his family members the right to use a room with an area of ___ sq.m.;
allocate to the defendant a room with an area of ___ sq.m. for use,
common area: kitchen, bathroom and hallway to be assigned to common ownership and use.

Appendix: 1. A copy of the statement of claim for the parties to the case and third parties, for the court; 2. Receipts for payment of state duty; 3. A copy of the certificate of ownership (or social tenancy agreement); 4. A copy of an extract from the house register; Date of application “____”____________ 20____ Plaintiff's signature ____________

We will be glad to see you in our office located at the address: Moscow, Shchelkovskoe highway, 77, building 1, office 111. To make an appointment, call:
8 (495) 510-7016. Opening hours: Mon-Fri: from 10:00 to 19:00, Sat: from 11:00 to 15:00, Sun: closed.

Agreement on determining the procedure for using residential premises

Sample agreement on determining the procedure for using residential premises

If the co-owners have already been living together for some time and, in fact, the procedure for using common premises and individual rooms has developed, while the residents do not have any claims against each other, then it can be stated that they have already entered into a verbal agreement on the procedure for using the apartment or house and this procedure they are quite satisfied.

But each of them will want to insure themselves a little for the future - suddenly one of the co-owners wants to change the existing order and begins to establish their own rules. Owners can consolidate the existing dormitory rules in the residential premises they own by concluding a written agreement among themselves on the procedure for using their joint apartment. To do this, they must draw up the text of the agreement, which indicates which room is used by each tenant, indicate their footage, other characteristics, and also stipulate the rules for the use of common premises.

In order for the document to have legal force, each of the co-owners must sign it. Owners can also contact a notary office and, in order to give the document greater legal force, have it certified by a notary.

As a rule, such agreements are drawn up extremely rarely. If the co-owners live in peace and harmony, then they do not need an additional agreement, but if they have any mutual claims, then it is unlikely that they will be able to reach an agreement peacefully; in this case, only the court can solve the problem.

Determining the procedure for using residential premises that are privately owned

The need to determine the procedure for using residential premises often arises due to hostile relations between family members (former family members) of the owner. The conflict leads to the obstruction of one of the family members (former family members) in the use of housing, which is expressed in changing door locks, throwing out things, creating other obstacles, including threats of harm to health when trying to enter the disputed residential premises.

The appropriate way to protect the violated right in this situation is to file a claim for occupation and determination of the procedure for using residential premises, in which the plaintiff indicates which residential premises in the apartment or house he asks to be allocated for his use, and which to leave for the use of the defendant.

Determining the procedure for using residential premises is considered a simple dispute, which is why this category of disputes falls under the jurisdiction of justices of the peace.

However, there are various pitfalls that you need to be aware of when filing a claim to determine the procedure for using residential premises.

Thus, only a co-owner of property that is in shared ownership has the right to demand determination of the procedure for using residential premises.

When considering cases of this category, the court first of all takes into account the voluntarily established procedure for use. When determining the procedure for using residential premises, a participant in shared ownership may require the provision of both an isolated room and a non-isolated one. The court may leave the passage room in the apartment for the common use of the co-owners. The size of the room(s) allocated to a co-owner does not have to correspond exactly to the co-owners' ideal shares. The Supreme Court of the Russian Federation indicated that the provision of a room for use by one of the co-owners that exceeds the size of his share does not violate the rights of the other co-owner to own a common living space, since the right of shared ownership does not terminate.

If the right to use is infringed, a participant in shared ownership may demand recovery from another participant in shared ownership, to whom the residential premises were transferred in excess of his ideal share, a fee for the use of the part of the premises that exceeds the share.

In the event that the procedure for using the residential premises has not been established, the court determines the procedure for use based on the size of the shares of the co-owners in the ownership of the apartment, interest in living in this residential premises and other factors. Moscow lawyers" href="https://gribakov.com/o_kollegii/nashi_advokaty/">Lawyers of the College "Gribakov, Polyak and Partners" in Moscow will provide assistance in resolving issues related to determining the procedure for using residential premises.

Through the court

The first and main condition for establishing the procedure for using residential premises through the court is that the residential property must be in common shared ownership. If residents live in a communal apartment, then each of them is already the sole owner of a separate room; in this case, disputes are possible only by determining the conditions and procedure for the operation of common areas.

The second condition is that only the owner of a share of an apartment or house can file a claim in court. If a citizen who is not a co-owner lives in a residential building and is even registered, he cannot be the initiator of changing the procedure for using the real estate.

Procedure

The initiator of a legal dispute must follow a certain algorithm and take a number of sequential steps:

Try to resolve the problem out of court . The initiator sends a letter to each of the owners, indicating how he sees a way out of the current situation. If one of the co-owners answered negatively or ignored the proposal altogether, the initiator can move on to the next step.
Collect all necessary documents . If the plaintiff files a statement of claim without an attachment, the court will leave the claim without consideration. The court may also require additional documents; the plaintiff must be prepared for this.
Draw up a statement of claim . It is better to entrust this procedure to a professional. Any legal error in drawing up a claim may lead to refusal to accept the claim or to a delay in the process.
Take part in court debates . Often, litigation lasts more than one month, so if you do not have time to attend court hearings, or you are not sure that you can protect your interests on your own, it is better to use the services of an experienced specialist.
Appeal the court decision . This step is only necessary if you are not satisfied with the court's decision.
Receive a court decision that has entered into force . There are often cases when defendants, even after a court verdict has entered into force, do not want to comply with it. In this case, you can contact the bailiff service, who, on the basis of a writ of execution, will open proceedings in the case and force the defendant to execute the court decision.

Required documents

The following package of documents must be attached to the statement of claim:

several copies of the claim (according to the number of participants in the process plus one copy);
a photocopy of the passport or a document replacing it;
extract from the Unified State Register of Real Estate;
document of title, maybe a sales contract, deed of gift, certificate of inheritance of a share, etc.);
papers that will confirm an attempt at pre-trial settlement;
registration certificate for a residential property;
receipt for payment of state duty.

Deadlines

The timing of a claim depends on many factors, such as:

appearance of participants in the process;
the position of the defendant;
presence or absence of any documents;
other important nuances.

In any case, the trial usually lasts at least two months.

Price

In accordance with Art. 333.19 of the Tax Code of the Russian Federation, the amount of state duty for a non-property dispute will be 300 rubles.

The cost may increase slightly if you seek help from a lawyer, for example, depending on the region, drawing up a statement of claim will cost you from 1 to 3 thousand rubles, and you will also have to pay separately for the services of a lawyer for representing your interests in court.

Example

Spouses Nadezhda and Maxim Rakitin bought a two-room apartment with a total area of 60 square meters. During their marriage, they had a daughter, but the couple soon divorced the marriage, as Maxim began to abuse alcohol. After the divorce, the former spouses divided the joint apartment equally, that is, each of them got a share of living space with an area of 30 square meters, but Nadezhda and Maxim were unable to separate.

Maxim immediately after the divorce took a large room with an area of 20 square meters, leaving a small ten-meter room for Nadezhda and her daughter. No persuasion from his ex-wife had any effect on Maxim; he did not agree to exchange rooms with Nadezhda.

Rakitina filed a claim to determine the procedure for using the apartment, which was in shared ownership of the former spouses, to the court. In the statement of claim, she indicated that she lives alone with her young daughter in a small room, and her husband occupies a large one and asked the court to transfer to her use the room currently occupied by Maxim Rakitin.

The court, having considered all the circumstances of the case, made a decision: to determine the procedure for using a two-room apartment as follows: to oblige the defendant to transfer a large room with an area of 20 square meters for the use of the plaintiff and her daughter, and to move into the room that Rakitina occupied before the trial.

Contents of the statement of claim regarding the procedure for using residential premises

An analysis of the norms of legislation and judicial practice allows us to conclude: regardless of the size of the owners’ shares, when considering a claim, the court will take into account the actual established procedure for using the property and the need for such property. It will also take into account the real possibility of joint use of property without prejudice to each other’s rights and interests. But we are talking about cases where both the plaintiff and the defendant actually moved into the housing. And the plaintiff does not need to move in (for more details, see the claim for moving into residential premises).

We recommend that you indicate the following circumstances in your claim:

address and information about the residential premises: apartment or house, title documents (purchase and sale agreement, social tenancy, lease, etc.), total and living area, number of rooms, access to rooms, location of the bathroom and kitchen. It would be useful to provide a cadastral passport and a housing plan for clarity;
the number of persons living in the residential premises, their gender and age, reasons for use. It is advisable to provide documents about family composition and information about registration at the place of residence to the court;
the established procedure for use and the reasons why it does not suit the plaintiff.

The person who applies to the court must describe the optimal procedure for using the housing: who uses which room and why.

If the co-owners have other housing on the right of ownership, this information can be provided independently. Or file a petition in court to request relevant information from Rosreestr. The lack of need for housing will affect the determination of the procedure for using the residential premises of other co-owners.

The defendants in the case are the co-owners of the housing (tenants under a social tenancy agreement), and third parties can be interested citizens and organizations (family members of the co-owner, the landlord).

Claim to determine the procedure for using an apartment in shared ownership

The statement of claim does not have a specific unified form, however, its preparation must be approached with all responsibility. It must be drawn up in accordance with all the requirements of Art. 131 Code of Civil Procedure and contain the following information:

name and address of the court;
personal data of the plaintiff and defendant(s);
document's name;
the grounds on which the right of ownership to a share in the residential premises arose;
the size of the shares of all owners;
description of the living space: number of rooms, their size and location, description and area of utility rooms, etc.;
the essence of the conflict;
an indication of attempts to resolve the dispute pre-trial;
claim;
a numbered list of all attached documents;
date and signature.

Sample statement of claim to determine the procedure for using residential premises

SOLUTION

In the name of the Russian Federation

Magistrate of judicial district No. …….. St. Petersburg …….. T. I.,

with the secretary………I.S.,

considered in open court a civil case based on the claim of …….. Ekaterina Arkadyevna to …….. Alexander Gavriilovich, 3 persons - …….. Alexandra Yuryevna in his own interests and the interests of minor children - …….. Egor Alexandrovich, … ….. Zakhar Aleksandrovich, on determining the procedure for using residential premises, and the counterclaim of …….. Alexander Gavriilovich to …….. Ekaterina Arkadyevna, 3rd persons …….. Alexandra Yuryevna in their own interests and the interests of minor children - …… .. Egor Alexandrovich, …….. Zakhar Alexandrovich,

Arbitrage practice

When considering claims to determine the order of use of housing, courts use the following legal regulations:

Art. 35 of the Constitution of the Russian Federation;
Art. 247 Civil Code of the Russian Federation;
Art. 304 Civil Code of the Russian Federation;
Art. 3 of the Housing Code of the Russian Federation;
Art. 30 Housing Code of the Russian Federation.

In many ways, the court's decision will depend on the specific situation and intentions of each party.

For example, if one of the spouses does not need a living room, he has alternative housing in which he lives, and he filed a lawsuit in order to fray the nerves of his ex-spouse, then the court is unlikely to satisfy such a claim.

If one of the co-owners does not actually live in the disputed apartment, then the second has the right to have a room with better characteristics installed for his use than his opponent.

For example, after the divorce, Olga Nikiforova remained in a two-room apartment, bought together with her ex-husband Dmitry, and he moved to a one-room apartment, which he bought before marriage. In the apartment of the former spouses, one of the rooms was a passage room, and the second had an area twice as large, that is, the rooms were clearly not of equal value.

Dmitry, despite the fact that he had moved out of the apartment, insisted that the large room remain at his disposal, since he had invested more money in the purchase of the apartment than his ex-wife. But he had no intention of selling his share to her or living in the apartment.

Olga filed a statement of claim in court, where she asked that not a small walk-through room be allocated for her to live in, but a more comfortable one. The court satisfied her claims in full.

Litigation of this kind, such as determining the order of use of housing by two or more owners, is usually quite difficult. Preparation of an evidence base, reliance on established judicial practice in similar cases, knowledge of procedural law and the ability to apply it in practice - all this is unlikely to be within the capabilities of a common man who is not versed in jurisprudence.

The lawyers on our site have extensive experience in handling cases of this kind, so by contacting our specialists, you can get qualified answers to any questions related to housing law.

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Natalya Fomicheva

Website expert lawyer. 10 years of experience. Inheritance matters. Family disputes. Housing and land law.

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How can a court determine the procedure for using an apartment in shared ownership?

The powers of the court and the scope of its boundaries in the matter of establishing the rules for joint ownership of a residential property are determined taking into account the provisions in clause 30 of the PP of the Supreme Court No. 14 and clause 25 of the PP of the Supreme Court No. 22 of June 27, 2021:

You can determine the procedure for using the apartment, taking into account the size of the property.
Establish the size of the share in payment of utility bills in proportion to the volume of property rights and the number of people with access to utility resources within the property.
Grant the right to conclude a separate agreement with the management organization and utility providers to generate a receipt in proportion to the size of the share.

The procedure for using a municipal apartment through the court

If the apartment was received under a social tenancy agreement, the court determines the expenses of each of the residents (including former family members) in accordance with a previously concluded amicable agreement on the procedure for the use of shared property by all residents. This rule, how to determine the procedure for use, is also enshrined in provisions from the Resolutions of the Plenum of the Supreme Court of the Russian Federation.

Statement of claim to determine the procedure for using the apartment

The place of consideration of the issue of how to determine the procedure for using shares in the apartment is the responsibility of the magistrate, in accordance with the statements in paragraph 7 of part 1 of Art. 23 of the Civil Procedure Code. According to the standards established in the Tax Code of the Russian Federation, the cost of the duty will be 300 rubles (Article 333.19). You will need to pay a receipt before filing a claim.

Particular attention is paid to preparing the claim. The success of the case in court is determined by how legitimate the plaintiff’s claims are and whether they meet the interests of other owners.

: Claim to determine the order of use of residential premises (45.5 KiB, 140 hits)

In a claim to determine the procedure for using an apartment, drawn up in accordance with the general requirements of the Code of Civil Procedure of the Russian Federation, the following is indicated:

recipient - the court district to which the appeal is filed;
information about the plaintiff (full name, address) and defendants (other shareholders);
the text of the appeal indicates the reasons that prompted you to seek help in court;
the main part of the claim describes in detail the situation with the apartment and its characteristics (address, size of living space, number of residential premises, availability of access to them).
if the tenants, at the time of filing a claim, create obstacles to the full use of the share, this must be indicated in the claim.
After describing the situation, they move on to formulating their demands and justifying them in accordance with the law. In addition to Art. 247, 252 of the Civil Code of the Russian Federation and Art. 30 of the Housing Code of the Russian Federation, there are a lot of other legislative norms that will help the plaintiff justify his demands to establish a procedure for using an apartment with shared ownership.

The claim form is signed and the filing date is set. After the main part of the claim, a list of attached documentation is listed. Correct argumentation and competent selection of documents will help determine the right to use a share in the apartment and increase the chances of winning in court.

Documentation

The plaintiff's words must be supported by documents. Although cases may vary, the following documents will most often be required:

Extract from the Unified State Register.
Apartment purchase agreement.
Certificate of ownership share from Rosreestr.
Technical passport from BTI.
Certificate of family composition and residents registered at the address.
Payment document confirming payment of the duty.

Litigation requires a thorough knowledge of the law. Without appropriate legal training, the plaintiff is faced with the problem of competently substantiating his position and formulating his rights in full compliance with legislative norms. To increase the chances of satisfying claims through court decisions to determine the procedure for using an apartment, it is worth planning the costs of legal assistance. We first suggest you contact our consultants using the form below or online chat.

Court decision to determine the procedure for using residential premises

SOLUTION

In the name of the Russian Federation

On June 14, 2013, magistrate judge of judicial district No. 177 of the Ramenki district of Moscow, M.V. Kopnenkova, with secretary N.V. Tarasova. with the participation of lawyer K**** SV., having considered in open court civil case No. 2-****/13 on the claim of B**** A**** N**** to T**** V**** L**** on determining the procedure for using residential premises.

INSTALLED:

The plaintiff filed a lawsuit to determine the procedure for using the residential premises located at the address: Moscow, st. M****, house 11, bldg. 3, apt. 79. motivating your demands by topics. that he is the owner of a 1/6 share in this residential premises - a 3-room apartment with a total area of 81.1 sq. m. m., living area 45.9 sq. m. The owner of this residential premises is also T**** V.L., who owns 5/6 of the share of the specified residential premises. In fact, the plaintiff does not currently live in the said apartment; due to the current conflict situation with the defendant, the defendant and his common-law wife live in the disputed residential premises. Currently, there is a huge dispute between the owners about the procedure for using the specified residential premises, for whatever reason. The plaintiff asks to determine the procedure for using the specified residential premises, to allocate for his use a living room with an area of 9.8 square meters. m.. and the defendant is allocated a living room with an area of 21.7 sq.m. for use. and a living room with an area of 14.4 sq. m. in accordance with the shares in the property.

Representative of the plaintiff Gadzhiev F.Ya. appeared at the court hearing, supported the clarified claims to determine the procedure for using the apartment and asked to satisfy them by allocating an isolated living room with an area of 9.8 square meters to the plaintiff for use. m.

The defendant and his representative - lawyer K**** SV. appeared at the court hearing, objected to the satisfaction of the claim, since they believe that a certain procedure for using the disputed residential premises has not developed, and if the claim is satisfied, the rights of the defendant, as the owner of 5/6 of the disputed residential premises, will be violated, since the room that The plaintiff asks to allocate for his use disproportionate to his share in the disputed apartment, namely more than it. Moreover, the plaintiff never lived or moved into the disputed residential premises, which is significant, according to the defendant, in determining the procedure for using the said residential premises. Moreover, currently only the defendant and his common-law wife live in the said apartment, and they actually use the entire apartment. In connection with this. The defendant and his representative asked that the claims be dismissed in full.

The court, having heard the opinions of the parties and examined the written materials of the case, comes to the following conclusion:

As established at the court hearing:

The disputed residential premises is a three-room apartment with a total area of 81.1 sq.m. living area 45.9 sq.m. with room sizes: 9.8 sq.m. m., 14.4 sq.m. and 21.7 sq.m. located at the address: Moscow, st. M****, 11, bldg. 3. sq. 79, all rooms in the indicated apartment are isolated. The owners of this apartment are: T**** V.L. - 5/6 shares and B**** A.N. - 1/6 share. In accordance with Art. 247 of the Civil Code of the Russian Federation, ownership and use of property in shared ownership is carried out by agreement of all its participants, and if agreement is not reached, in the manner established by the court.

A participant in common ownership has the right to be provided for his use and possession of a part of the common property commensurate with his share, and, if not possible, mine. The right to demand from other participants who own and use the property. attributable to her share, corresponding compensation.

A participant in shared ownership has the right to demand the provision of only that part of the property that is proportional to the share in ownership.

The plaintiff requests that an isolated living room with an area of 9.8 square meters be allocated for his use. m., the defendant has an isolated living room with an area of 14.4 sq.m. and an isolated living room with an area of 21.7 sq. m., as established at the court hearing, from the moment the defendant moved into the disputed apartment, a certain procedure for using this residential premises developed, so the defendant constantly resides and uses rooms with an area of 14.4 square meters. m. and 21.7 sq. m.. and in a room of 9.8 sq. m. before her death, their common mother lived with the plaintiff - T**** N**** B****, and currently no one lives in this room, and therefore the court sees no obstacles in to determine the procedure for using residential premises between the owners.

At the same time, the court does not agree with the position of the defendant and his representative that if the claim is satisfied, the rights of the defendant, as the owner of 5/6 of the disputed residential premises, will be violated, since the room that the plaintiff asks to allocate for his use is disproportionate to his share in the disputed apartment, namely more than it. Moreover, the plaintiff never lived or moved into the disputed residential premises.

According to paragraph 37 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 6. Plenum of the Supreme Arbitration Court of the Russian Federation No. 8 of 07/01/1996. “On some issues related to the application of part one of the Civil Code of the Russian Federation”, the impossibility of dividing property in shared ownership in kind or separating a share from it, including in the case specified in part two of paragraph 4 of Art. 252 of the Civil Code of the Russian Federation, does not exclude the right of a participant in common shared property to make a demand to determine the procedure for using this property, if this procedure is not stopped by agreement of the parties. In resolving such a requirement, the court takes into account the actual procedure for using the property, which may not exactly correspond to the shares in the right of common ownership, the need of each of the co-owners for this property and the real possibility of joint use.

Thus, from the meaning of the above provisions of the law it follows that when establishing the procedure for using an apartment, each of the co-owners is given a specific part of the apartment for use, based on his share in the right of common ownership, while it does not follow from the provisions of the law that the premises, which the owner asks to be allocated for use, must always exactly correspond to the shares belonging to the co-owners; in addition, the question of moving in or not moving into the disputed residential premises cannot in any way affect the determination of the procedure for using this residential premises, since the fundamental right of ownership of the share in the disputed residential premises, in connection with which. the court comes to the conclusion that the claims are justified and considers them to be satisfied.

Based on the above and guided by paragraph 37 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 6. Plenum of the Supreme Arbitration Court of the Russian Federation No. 8 of 07/01/1996. “On some issues related to the application of part one of the Civil Code of the Russian Federation”, Art. Art. 194-198 Code of Civil Procedure of the Russian Federation. Art. 247 Civil Code of the Russian Federation, magistrate

DECIDED:

Determine the procedure for using residential premises - a three-room apartment located at the address: Moscow, st. Mosfilmovskaya, 11. bldg. 3, apt. 79, with a total area of 81.1 sq.m.. living area of 45.9 sq.m. m.

Allocate for the use of T**** B**** L**** an isolated living room with an area of 14.4 sq.m. and an isolated living room with an area of 9.8 sq.m.

Leave common areas for the common use of the owners.

The decision can be appealed on appeal to the Nikulinsky District Court of Moscow within a month from the date the decision was made by the magistrate in final form, through judicial district No. 177 of the Ramenki district of Moscow.

Magistrate Kopnenkova M.V.