Question: as far as I know, in the event that a person registered at the place of residence and living in an apartment, at the time of its privatization, refused to participate in privatization, then, despite the fact that such a person does not become the owner of the housing, he cannot be evicted from this apartment. A person who refuses to participate in privatization acquires an indefinite right to use the disputed housing. Moreover, such a person is not subject to eviction at the suit of the new owner of the disputed apartment (in the event of its sale).

Is it always like this? Are there exceptions to the rule? In what case can a person be recognized as having lost the right to use residential premises, at the time of the privatization of which, this citizen had registration in it at the place of residence?

According to paragraph 3 of Art. 83 of the Housing Code of the Russian Federation, in the event that the tenant and members of his family leave for another place of residence, the contract for social rental of residential premises is considered terminated from the date of departure.
This position is reflected, for example, in Determination of the Chelyabinsk Regional Court dated July 2, 2012 in case N 11-4310/2012 .

The defendant not only does not currently live in the disputed residential premises, but also did not live in it at the time of the privatization of the apartment

In resolving the civil law dispute, the court stated the following.

It can be seen from the case materials that on the basis of an agreement on the transfer of residential premises to ownership dated 27.01.2003, the plaintiff is the owner of the apartment at: .. At the conclusion of the said agreement, the defendant refused to participate in privatization.

Assessing the evidence presented by the parties, given that the defendant voluntarily left the apartment in 1998, has not lived in it since the indicated time, did not provide evidence to the contrary, the court of first instance came to a reasonable conclusion on the recognition of Ch.O. lost the right to use the disputed residential premises.

At the same time, the panel of judges does not accept the arguments of the complaint about the preservation of Ch.Oh. the right to use the apartment in accordance with Art. 19 FZ "On the entry into force of the Housing Code of the Russian Federation", since the defendant voluntarily left the apartment before its privatization, did not live in it after the transfer of the apartment to the property, and therefore, lost the right to use it. (Appeal ruling of the Krasnoyarsk Regional Court dated December 12, 2012 in case No. 33-10808)

The Review of Judicial Practice in Civil Cases for November 2012, prepared by the Belgorod Regional Court, contains similar conclusions, in particular, the court states that the legislator proceeded from the need to ensure the housing rights of persons who remained to live in a privatized residential building without obtaining the status of its owner, but interested in using this space.

The said Review states, in particular, that the provisions of Art. 19 FZ N 189-83 FZ cannot be considered as detracting from the rights of the owner of such a dwelling in comparison with the rights that he had before its privatization, including the right to sell the apartment to the privatizing person, and to the buyer to raise the issue of terminating the right to use those persons who, having lost interest in the use of residential premises in connection with moving to a new place of residence, do not take actions to formalize their waiver of the rights to the previously occupied residential premises in a voluntary manner established by law.

At the same time, it should be noted that not in all cases the courts are guided by the above arguments and the rules of law. The provisions of Art. 19 of the Federal Law "On the entry into force of the Housing Code of the Russian Federation" is often understood by the courts as the legal grounds for the emergence of an indefinite right to use residential premises, regardless of other legally significant actions and inactions of a person (such as the actual refusal of a citizen from the right to use residential premises).

Many of us remember how quite recently, when buying an apartment, it was necessary to thoroughly check the composition of the residents, otherwise you could stumble upon unplanned tenants (realtors called such cases “buying and selling housing with filling”). This problem was solved by introducing Art. 292 of the Civil Code of the Russian Federation, a small but elegant amendment - they simply removed the “not” particle and it turned out that now the transfer of ownership to another person has just become the basis for terminating the right to use housing by members of the former owner's family.

However, another problem of a similar nature has recently become relevant: new owners of once privatized apartments are faced with such a problem as maintaining the right of permanent (unlimited) use by persons who lived together with the previous owner at the time of privatization and abandoned it. Where did this problem come from? So, everything is in order.

Background

On July 4, 1991, the federal law “On the Privatization of the Housing Stock in the Russian Federation” was adopted, which allowed citizens who entered into a social tenancy agreement to acquire residential premises free of charge. A prerequisite for privatization is to obtain the consent of all residents at the time of privatization in this apartment.

Citizens living together with the tenant have the right to refuse privatization in writing. Such citizens have the right to consent to the execution of all documents for one of the family members. As the Supreme Court of the Russian Federation points out in its resolution of July 2, 2009 No. 14 “On some issues that have arisen in judicial practice in the application of the Housing Code of the Russian Federation”, “... giving consent to the privatization of a residential building occupied under a social tenancy agreement, without which it would have been impossible (Article 2 of the Law of the Russian Federation of July 4, 1991 N 1541-1 “On the Privatization of the Housing Stock in the Russian Federation”), they proceeded from the fact that the right to use this residential premises for them would be of an unlimited nature ... ”.

However, even if a person refuses to privatize, this does not mean giving up the dwelling itself or other rights to this property. In practice, it usually looks like this: a family member, having refused privatization, leaves to live in another dwelling; the person who privatized this apartment concludes a purchase and sale agreement; after a while, a former family member of the former owner, who once refused privatization, is announced. Such a citizen submits a statement of claim in which he asks to move him back into this apartment, and the owner tries to prove that such a person voluntarily left the apartment and did not retain the right to use the living quarters.

In this case, the decisive role is played by Article 19 of the Federal Law “On the Enactment of the Housing Code of the Russian Federation”, which states that the termination of the right to use residential premises is impossible due to the termination of family relations between family members if the former family member at the time of privatization lived together with the tenant of this apartments. In other words, a person who has refused privatization retains the right to permanent (unlimited) use of this residential area, even if this apartment has already changed its owner several times.

This conclusion was confirmed by the Ruling of the Constitutional Court of the Russian Federation dated July 2, 2013 No. 1033-O “On the refusal to accept for consideration the complaint of citizen Gelfand Mikhail Borisovich about the violation of his constitutional rights by paragraph 1 of Article 247 of the Civil Code of the Russian Federation” in para. 5 of paragraph 2: “The current legislation guarantees the protection of the right to use residential premises to former family members of the owner of this residential premises. Thus, former members of the owner's family who renounced the right of ownership to a share in a dwelling during its privatization retain the right to permanent (unlimited) use of this dwelling and exercise it on the conditions provided for by housing legislation; Citizens living together with the owner in the residential premises belonging to him are granted the right to use this residential premises on an equal basis with its owner, unless otherwise established by an agreement between them, and the right to demand the elimination of violations of their rights to residential premises from any persons, including the owner of such premises ... »

What to do if you encounter such a problem

This problem is very complex from a legal point of view, and it is not always possible to solve it. However, there are several ways to get rid of this problem.

The first way: unfortunately, judicial practice in this category of cases takes the side of the “user”, and the court satisfies his claims for moving into an apartment. In theory, there is an opinion that it is generally impossible to waive such a right, since a person retains the right to use a dwelling throughout his life. In my opinion, this statement is not true, since Part 2 of Article 1 of the Housing Code of the Russian Federation states that citizens, at their own discretion and in their own interests, exercise their housing rights, including dispose of them. Citizens are free to establish and exercise their housing rights by virtue of an agreement and (or) other grounds provided for by housing legislation. That is, citizens voluntarily dispose of their housing rights, including the right to refuse them. This statement has found its reflection in judicial practice.

By the cassation ruling of the Nizhny Novgorod Regional Court dated March 29, 2011 in case No. 33-2964 / 2011, the plaintiff's claims to recognize as having lost the right to permanent (perpetual) use of residential premises were satisfied in full, since the court established the defendant's voluntary departure from the apartment (the proof of voluntary departure was dismantling and removal of the gas column and plumbing fixtures belonging to the defendant, as well as the defendant's recognition that during the entire period of departure the plaintiffs did not create obstacles to the use of the residential premises), it means that the defendant, at his own discretion and in his own interests, disposed of his housing rights in relation to disputed residential premises in accordance with Part 2 of Article 1 of the Housing Code of the Russian Federation.

A similar cassational ruling was adopted by the St. Petersburg Regional Court on January 19, 2012 in case N 33-475 / 2012, in which it canceled the decision of the district court and adopted a new decision in the case, since the defendant's departure was voluntary, and the plaintiff during the absence of the defendant did not obstruct the use of the disputed apartment.

The second method: if it is not possible to evict a citizen for whom the court retained the right to permanent (perpetual) use of this apartment, then the owner has the right to demand in court that the contract of sale and purchase is not concluded, since, according to Part 1 of Article 558 of the Civil Code of the Russian Federation, an essential condition of the contract of purchase - sale of a residential building is an indication of the list of persons who retain the right to use in accordance with the law when the owner changes. The former owner, in accordance with part 1 of article 460 of the Civil Code, was obliged to transfer the living space free from the rights of third parties, but this direct obligation was ignored.

In this case, the provisions of the Civil Code of the Russian Federation on unjust enrichment are applied, that is, the parties must return all property received under an unconcluded transaction.

What difficulties may arise? Having achieved the entry into force of the court decision on recognizing the contract of sale as not concluded, you may encounter a lack of funds from the seller, and the bailiffs will be powerless in this case.

Therefore, it is necessary to use this method of protection very carefully, since in this case there is a risk not only not to receive money, but also to completely lose the dwelling.

Is it possible to check the apartment when buying?

Checking an apartment for this kind of encumbrance is very problematic. Not even a professional realtor can help. The thing is that such a right of permanent (perpetual) use of residential premises is not registered anywhere. In the unified state register of rights to real estate and transactions with it, such encumbrances are not recorded anywhere, since neither civil, nor housing legislation, nor the federal law “On State Registration of Rights to Real Estate and Transactions with It” provide for registration of the right to permanent (perpetual) use of the apartment. When buying an apartment, you can be required to provide a form 40 certificate from the passport office or from the FMS, which indicates the list of persons registered in this apartment at the time of privatization. However, if the apartment has already been resold several times, then a request for a Form 40 certificate will not give any results, and you will have to trace the entire chain of actions performed with the apartment, which is very difficult.

And it is this feature that adds to us ( Buyer) headache in finding out all the personalities who may have such use rights. But we still have to find out, and now we will find out.

It is obvious that each owner has all kinds of rights to the apartment, including unconditional right of use her. But the surprise for the Buyer is that there may be other people - not the owners - who, according to the law, also have, i.e. the right to reside in it.

Of course, we need an apartment that is free from the rights of unauthorized persons to live in it. And for this we must, at least, know these people.

Who can have the right to live in an apartment?

1. All apartment owners they can be seen from or from);
2. Family members of the apartment owner, incl. former ( who do not have ownership rights to the apartment, but are registered in it);
3. Persons who have received the right to use the apartment testamentary refusal (in the case when the apartment was inherited by the owners);
4. Rentees – previous owners of the apartment who have entered into a contract with the current owner Lifetime maintenance contract with a dependent;
5. Persons with whom the owner of the apartment has concluded hire agreement, or .

Let's consider them in order. We will be interested in the question of which of them can save the right to live in the apartment after its sale , and how can we get rid of this right ( in some cases).

The owners of the apartment, who are not “registered” in it, lose right of use together with ownership when selling an apartment.

The owners “registered” in the apartment can retain the right to live in it only if it is expressly indicated in and agreed with the Buyer ( which usually does not happen in practice.). In other cases ( those. in most deals) - The seller, after the alienation of the apartment, is obliged to deregister ( check out), and this condition must be indicated as a separate clause in the contract.

Owner's family members may have right to use the apartment only if they are "registered" there. It is the presence of "registration" that confirms their right of residence in the apartment. Their discharge from the apartment, respectively, deprives them of this right. As a general rule, family members of the owner must leave the apartment when it is sold (this obligation is established by law). And if they do not, the new owner can "write" them out of the apartment through the court.

But there are nuances!

For example, temporarily discharged members of the owner's family have a chance to restore their "propiska" ( those. restore the right to use) even after the sale of the apartment, if they prove in court that their right has been violated. Such temporarily discharged characters can be those who underwent long-term treatment in a hospital, went on a long business trip, went to serve in the army, went to serve a sentence by a court decision, etc.

True, since 2015, the mandatory deregistration at the place of residence has been canceled for conscripts and prisoners. That is, now even if they "departed at their destination" ( since 2015), they still remain registered in their apartment, and right of residence do not lose in it. And those who were sent “for logging” before 2015, respectively, were deregistered at their place of residence, but can restore their right to live in an apartment upon their return.

Registered in the apartment minor children require increased attention. We will look at this case in detail later, in the step Opens in a pop-up window."> INSTRUCTIONS - "Purchasing an apartment with minors".

List of all persons "registered" ( registered at the place of residence) in this apartment will show us, and in some cities it is replaced ( for more information about all these papers, see the links in the Glossary).

Distinguish usual Extract from the house book and archival (extended) extract.

Regular Statement gives information about all "registered" in this apartment at the moment.

Archival Extract gives information about all tenants who have ever been "registered" in this apartment, including those who are currently registered.

Both are issued at the passport office of the local house administration ( ZhEK, REU, HOA, etc.), or in the center of public services of the MFC "My Documents". But they can get only owners apartments, or residents registered in it. Therefore, we need to demand such a paper from the Seller, but it is better to go and order it to be received with him. If this is not possible, or there is a feeling that the Seller does not agree on something, then the Buyer can order obtaining an Extract from the House Book special services ( about them below).

Such "insurance" will give us an advantage in the event of a litigation with those who do not want to leave the apartment after the transaction. Then they are discharged forcibly, by a court decision. And the same written commitment from third parties in addition to other terms of the transaction, according to the contract), will be a weighty argument in court.

Reinsurance. Some lawyers with experience in litigation argue that even from those people ( not owners), which were evicted from the apartment BEFORE it was sold , it is advisable to take a written statement that they do not object to this transaction . This may sound crazy because they no longer have any rights to the apartment), but the same lawyers give examples when tenants discharged before the sale of the apartment subsequently restored their right to live there through the court.

Who else can have the right to use the apartment?

Regardless of residency, right to use the apartment may have persons with whom the owner ( Salesman) concluded lease agreement or contract for free use . In fact, this encumbrance, which may not be reflected in title, nor in Extract from the house book. Actually, the Seller has the right to sell the apartment with such encumbrance, but is obliged to notify the Buyer about it, indicating this in a separate paragraph in Contract for the sale of an apartment (DKP).

In this case, we need to require the Seller to terminate such a user agreement ( employer) apartments.

By the way, you still need to put the following thought into your head - correct drafting reduces the risk of possible claims "third parties", incl. claims for right to use the apartment.

In conditions PrEP it is recommended to enter the obligation of the Seller to notify the Buyer of all users apartments, commitment remove from registration records of all tenants "registered" there, and transfer the apartment free from the rights of "third parties" .

Additionally in PrEP you can enter the obligation of the Seller, in case of claims from "third parties" solve them independently and at your own expense ( or compensate the Buyer's legal costs).

It is important that these clauses of the contract are spelled out legally competently and have an unambiguous interpretation.

Competently formulate these obligations of the Seller in PrEP will help .

Another practical incentive for the Seller to “legally vacate” the apartment after the transaction is a special condition for receiving money when calculating. The seller receives the full amount for the apartment only when all tenants are removed from registration records.

Deregistration of all tenants before the deal or after) realtors call "legal exemption" apartments. Of course, the situation is greatly simplified if at the time of the transaction the apartment is already "legally free".

So, we found out who, apart from the owner, has the right to use and live in the apartment, studied the Extract from the House Book, re-read the title document, and took the necessary measures to remove all tenants from the register. Take a deep breath and move on.

According to domestic legislation, the right to lifelong use of an apartment is provided, and it entails the inability to write out or evict the person concerned, even if the owner changes.

The right to permanent residence and use of the apartment

The non-terminating right of forced residence may arise during privatization if a person renounces it in favor of other persons - family members. Family ties may weaken and it may be possible to “expel” a relative to the street, but the law will be on his side. Thus, the Supreme Court of Russia has repeatedly pointed out to the courts that it is impossible to satisfy the requirements for deregistration of persons who have refused privatization.

• The right to lifelong residence and use of an apartment may arise from the legal relationship of inheritance, for example, when establishing the refusal of a will. We remind you that a testamentary refusal allows the testator to "bestow" the heir at the same time with the duties and rights of the person registered in the apartment.

  Important! This is how, for example, a dwelling is bequeathed with the obligation to grant the right to life-long use of housing to a brother / aunt / grandmother, etc.

• "Lifetime" registration when paying for a share in a housing construction cooperative from its members, as well as former members and their spouses. For lifelong residence, it is enough to pay a part of the share and keep the documentation confirming this fact.
• The conclusion between the spouses of a marriage contract or an agreement on the division of property, which contains a provision on the right of life-long use of the spouse-non-owner, also entails the inadmissibility of eviction of this citizen.
• Minors from an orphanage or other children's institution retain the right to the abandoned living space involuntarily and cannot be deprived of their registration in it.

Important! These categories of people have the right to life-long use and possession of the occupied premises.

How can I get a lifetime contract?

The owner of housing space has the right to provide for use or possession of housing belonging to him on the right of ownership:

• on the basis of a contract of employment;
• contracts for gratuitous use;
• on other legal grounds;
• as well as to a legal entity on the basis of a lease agreement or on another legal basis, taking into account the conditions established by the Civil Code of Russia.

According to article 683 of the Civil Code of the Russian Federation, a residential lease agreement is concluded for a period not exceeding 5 years. If the term is not specified in the agreement, it is considered concluded for 5 years.

Under a gratuitous use agreement (loan agreement), the lender (one party) is obliged to transfer the thing for gratuitous use for a time to the borrower (the other party), the latter is obliged to return the same thing in the condition in which he received it, taking into account normal wear and tear or in condition which is stipulated by the contract.

Thus, when purchasing an apartment, it is worth paying attention to the persons registered in it in order to make sure that the chosen apartment is not burdened by the “eternal guests” living in it.

ATTENTION! Due to recent changes in legislation, the information in the article could be out of date! Our lawyer will advise you free of charge - write in the form below.