How does a forced exchange of municipal housing occur through the court? Does this happen often? According to official statistics, about 20% of the total housing stock in Russia has not yet been privatized, that is, it belongs to the state.

A considerable part of these residential premises is provided to needy citizens by the state. In this case, housing is municipal and the principles of owning it are quite different from the same actions with private property.

However, the actual owners - residents registered in a municipal apartment or house - are not deprived of the right to exchange living space under conditions that will be convenient for all of them. As a rule, such a procedure does not suit at least one of the owners of the described housing, so the decision to carry out the exchange is made by a judicial authority.

We will talk about this event in more detail in the material below.

The main legislative act that will help you understand the issues of housing exchange is the Housing Code of the Russian Federation

When considering the forced exchange of municipal housing through the court, it is important to turn to the main legislative acts in our country, which fully cover this topic.

All issues relating to residential premises and transactions over them are resolved through consideration of the Housing Code (LC) of the Russian Federation.

In the topic we are considering, all the provisions of the code are important, which regulate the basic concepts, procedure and process of providing this type of housing and exchanging it.

First of all, it is important to define the concept of “municipal housing”. In accordance with Article 49 of the Housing Code of the Russian Federation, such housing is a housing facility provided to needy citizens from the local municipality (region, territory, region, etc.) for living.

The use of an apartment or house received from the state must be carried out in compliance with all conditions and legislative rules specified in the Housing Code of the Russian Federation (chapters 7, 8, 8.1, 8.2).

According to the same code, the tenant (the actual owner of the housing under the contract) has the right to exchange living space. But only if all other tenants and the landlord (the municipality) who provided him with housing agree to this. The main legislative provisions for this type of exchange are presented in articles 72 to 75 of the RF Housing Code.

Difficulties in exchanging municipal living space

Summarizing the information presented in the legislative act, we can highlight the following:

• The exchange of housing provided under a social tenancy agreement can only be carried out with the written consent of all tenants of the housing, the landlord and the guardianship authorities (if there are minor tenants). In other cases, an exchange can only be achieved through court.
• In the exchange procedure there is no limit on the number of participants participating in it.
• The exchange of municipal living space can be carried out either peacefully or through the courts.
• A housing exchange can only be carried out if, after its completion, the rights of none of the tenants are violated. Otherwise, the exchange may be declared invalid in court.
• In a number of situations specified in Article 73 of the Housing Code of the Russian Federation, the exchange of municipal living space is not allowed.
• Tenants have every right to refuse to exchange housing. But their refusal must be justified. Otherwise, it may be appealed in court.
• The exchange agreement is concluded in writing and in compliance with all legal and legislative nuances of this procedure.
• An agreement concluded in violation of the rights of employers, the provisions of the Civil Code of the Russian Federation and the Housing Code of the Russian Federation will be declared invalid in court. After the agreement is declared invalid, all municipal tenants will be relocated to the original housing provided. The culprit, who through his unlawful actions provoked the invalidity of the contract, is obliged to bear some responsibility both to the legislator and to other participants in the exchange transaction.

Do not forget that each individual case may require a more in-depth reference to the legislation of the Russian Federation, so sometimes it is impossible to do without the help of a professional lawyer. Above are only the main legislative provisions that relate to the exchange of municipal living space.

Forced exchange of municipal housing through the court

Difference between voluntary and forced exchange

Forced exchange (exchange) of a municipal apartment is a legal transaction between social tenants, the implementation of which is aimed at dividing a large and common dwelling into several small but separate ones.

This type of exchange can be carried out either voluntarily (through the consent of all tenants) or compulsorily (through the court).

It is important to understand that when such housing is provided to several tenants who are registered in it, they are all given equal rights. Therefore, each employer can initiate an exchange.

First of all, the initiator needs to contact all other tenants with a proposal for a voluntary exchange of housing. If employers do not agree to act this way, then they will have to prove the need for exchange in court.

If there are compelling reasons for carrying out an exchange, the state, represented by the court, has every right to force all tenants to exchange. Forced exchange of residential premises is permitted for the following reasons:

• employers and, accordingly, cohabitants often conflict, and a peaceful solution to the problem cannot be achieved;
• one of the employers does not conflict with cohabitants, but leads an antisocial lifestyle or is a hooligan;
• one of the residents has a serious illness, which can be dangerous not only for him, but also for his roommates.

It is possible to exchange municipal housing voluntarily or judicially only if the landlord, the local municipality, agrees to this (as a rule, no problems arise). Regardless of what is chosen, the opinion of all registered employers is taken into account, even those who do not live in it.

Since the described housing is the property of the state, the procedure for its exchange is very different from a similar one, but with private ownership, and is considered more complex in legal terms.

General requirements for compliance with the forced exchange procedure

When deciding to carry out an exchange through the court, you should understand that it is very problematic to do without the help of a professional lawyer. Often, even the most legally savvy citizens have problems asserting their rights in such situations.

The general procedure for carrying out the procedure is regulated by the Housing Code of the Russian Federation and has the following form:

1. As noted earlier, before going to court, it is necessary to invite all tenants to exchange housing peacefully. If at least one of them does not agree, then going to court cannot be avoided.
2. Before going to court, it is equally important to make sure whether the landlord who provided the housing agrees to the exchange or not. In most cases, the local municipality will give permission for the procedure to be carried out, but not always. The tenant has the right to appeal any refusal of the landlord in court.
3. Having received permission to exchange this housing from the landlord, you can go to court. It is necessary to file a claim with a judicial authority expressing the plaintiff’s request for a forced exchange of housing. In the statement of claim, it is important to indicate all the arguments that are significant in your opinion, which certify the advisability of exchanging the home. Having considered the claim and all the arguments of the defendants, the court will issue a verdict to confirm or refuse the forced exchange.
4. Having received an official refusal to exchange, you can continue litigation, but often they do not produce results. If the court forced the remaining tenants to exchange, then it is necessary to begin the search for municipal housing into which they will be relocated. When selecting new housing properties, it is important to take into account that they have municipal status and satisfy the wishes of all tenants. The total area of ​​new housing units for exchange must be equivalent to the previous place of residence.
5. Having found suitable options for exchange, an exchange agreement is concluded, which officially confirms the fact of the procedure. The agreement is concluded with the participation of the local municipality and all tenants of such housing in writing. After which the original contract is provided to each landlord of the new home.

In general, the procedure for exchanging municipal housing through the court has many nuances that are important to consider at all stages of its implementation. In most cases, it is almost impossible to do without the help of a professional lawyer, do not forget about this.

Claim form and required documents

How to file a claim in court for forced size of an apartment?

Based on the fact that today’s material examines in detail the procedure for the forced exchange of a municipal apartment through the court, it would not be superfluous to consider the correct form of the claim and the necessary documents for filing with the court.

It is worth understanding that the legal literacy of the drafted claim largely determines whether you will be able to achieve your goals in the trial.

A correct statement of claim must necessarily contain the following information:

• Full name, address, year of birth and contact details of the plaintiff (the employer who initiates the exchange);
• Full name, address, year of birth and contact details of the defendant or defendants (employers who do not agree to the exchange);
• information about marriage or its dissolution (if there is one between tenants);
• information about children (if any among employers);
• address of housing and period of residence in it;
• description of housing (apartment or private house, floor, rooms, condition, etc.);
• housing stock;
• the plaintiff's arguments indicating the need for forced exchange;
• offering exchange options;
• information that the defendant or defendants did not voluntarily agree to make the exchange;
• request to a judicial authority to carry out a forced exchange.

In the process of asserting your rights in court, you may need the following documents:

• a copy of written consent from the landlord to carry out the exchange;
• consent of the local executive or administrative government agency for intercity exchange (if deciding to move to another locality and get municipal living space there);
• a copy of the title document for the home;
• certificate of registration from the place of residence;
• certificate of family composition (if the employers are a family);
• a copy of the divorce or marriage certificate (if available);
• a written application for refusal or consent to exchange from all tenants of the described housing;
• receipts for payment of all necessary state fees.

By adhering to the above rules for drawing up a claim and collecting the necessary documentation, you can significantly increase the chances of a successful outcome of the legal proceedings.

In what cases will the court refuse an exchange?

What can prevent you from carrying out a forced exchange of living space?

Forced exchange of housing through the court is a rather complex legal procedure. Even after collecting all the necessary documents and competently drafting a claim, the employer cannot guarantee himself success in achieving his goals in the lawsuit.

This is due to the potential presence of any factors that may force the court to refuse the exchange.

One part of them is enshrined in the Housing Code of the Russian Federation, and the other is formed based on the individual characteristics of each case. Taking into account the presence of such factors, the judge makes a final verdict.

In accordance with Article 73 of the Housing Code of the Russian Federation, the exchange of municipal housing is not allowed if:

• the landlord sued the tenants for termination of the agreement or for changing its terms;
• housing rights are already being challenged in court in another case;
• the dwelling, which is a potential object of exchange, has been declared unfit for habitation or will be demolished/converted;
• as a result of the exchange, any employer will have to live with a citizen suffering from one of the diseases specified in paragraph 4 of Article 51 of the Housing Code of the Russian Federation.

If any of the above factors are present, the judicial authority will refuse the forced exchange of municipal housing.

In addition to the legally established reasons for refusing to exchange, when making a verdict, the judge must take into account the specifics of each case individually.

In accordance with the legislation of the Russian Federation, after the exchange of housing, the living conditions for each tenant should not be worsened and their rights cannot be infringed. When deciding a case, a judge will often consider the following factors:

• the capacity of individual employers;
• proximity to the place of work/study of each resident;
• the presence of serious illnesses among employers;
• family status of residents.

Based on the information presented above, it is important to note that it is not always possible to succeed in court when deciding to forcibly exchange municipal housing.

So, for example, the claim is guaranteed to be rejected if, as a result of the exchange, a wheelchair user from an apartment on the 1st floor is moved to a room on the 4th, located, moreover, in an entrance without an elevator.

Nuances of the event

Nuances that must be taken into account when preparing a claim for forced exchange

The entire process of exchanging municipal housing is quite confusing and difficult to implement.

Even after reviewing and carefully studying the material presented above, not every person will be able to fully understand the essence of this procedure. One way or another, you will have to deal with the legislative and legal aspects of the exchange.

To simplify the process of understanding all the intricacies of the exchange of municipal housing, our resource has highlighted a number of important nuances of this event for consideration:

1. Any tenant or, more simply put, a registered tenant has every right to initiate an exchange.
2. Do not forget that it is necessary to carry out an exchange through the court only if the remaining employers or part of them have refused the voluntary procedure and the event is justified on your part.
3. Before going to court to file a lawsuit, be sure to consult with a legal professional about the advisability of such a practice in your case.
4. Draw up a statement of claim specifying all the details of your situation and in accordance with the form presented earlier. Also, do not forget to take care of collecting some documents.
5. When deciding to go to court, remember that in the process of resolving controversial issues you will have to incur some financial expenses. You will definitely have to spend money on paying the necessary state fees, obtaining certificates and processing other documents. In addition, litigants often spend considerable amounts of money on the assistance of lawyers and advocates.
6. Even if you achieve a forced exchange of the described housing in court, do not rush to rejoice. The fact is that not in all regions of the country the municipal housing stock is rich enough. As a result, it can be very difficult to find suitable housing for exchange. At this stage, you need to be prepared for a long and persistent search for housing for exchange that will satisfy all the necessary requirements.

As you can see, litigation on issues of forced exchange of municipal housing is not an easy matter. During the course of a trial, new problems may arise, making life more difficult for those involved. Is it worth it or not - decide for yourself.

When resolving such issues through the court, do not forget to use the material presented above and contact professionals for help.

You can learn more about exchanging an apartment by watching the video:

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16 Jan 2017 116

If a voluntary exchange agreement has not been reached between the tenant of a residential premises under a social tenancy agreement and the members of his family living with him, any of them has the right to demand a forced exchange of the occupied residential premises in a judicial proceeding of the occupied apartment for premises in different houses (apartments). At the same time, noteworthy arguments and legitimate interests of persons living in the exchanged residential premises are taken into account (Part 3 of Article 72 of the Housing Code of the Russian Federation).

It is necessary that the residential premises proposed for relocation do not worsen the living conditions of family members who object to the exchange. In addition to the requirements for residential premises (footage, number of floors, availability of an elevator, central heating, hot water supply and other amenities, in relation to the locality in which the apartment is located), there are other circumstances that may be the reason for the court to refuse a claim for forced exchange.

The residential premises offered for exchange must be located within the city or locality where the residential premises being exchanged is located. The area in which the living space is located also matters. Relocation of a person from one area to another, as a rule, is not considered a deterioration in living conditions. However, in judicial practice there are cases when relocation to another area was recognized by the court as a circumstance worsening living conditions, and on this basis the claim was rejected.

If the living space offered for exchange is a room or several rooms in a communal apartment, then the number of neighbors in such an apartment should not exceed the number of members (or former members) of the family that is moving away. The court may reject a claim for forced exchange in the case of people living in a communal apartment who abuse alcohol, cause scandals, or violate the rules of the hostel. This circumstance may be recognized by the court as worsening living conditions.

It is a common belief (even among lawyers) that a claim for forced exchange can be brought to court with two or more exchange options. This is nothing more than just a misconception, since the legislation does not make such requirements. If a suitable exchange option is found in the singular, interested parties can apply to the court, which must accept the claim for consideration.

From judicial practice*(22)

The court decision satisfied I.'s claim for the forced exchange of a two-room apartment: T. and K. were moved to two privatized rooms of a three-room apartment, and I. and his son were moved to a one-room apartment; V. was moved to the disputed apartment.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation satisfied the protest submitted by way of supervision, canceled the court decisions and sent the case for a new trial to the court of first instance on the following grounds.

The court, having satisfied I.'s claims, indicated in its decision that the living space offered to the defendants for exchange does not worsen their living conditions, since they are not deprived of the right to apply to the court to declare the privatization invalid. However, such a conclusion contradicts the requirements of the law. The defendants live in an apartment belonging to the municipal housing stock, the tenant is T. The rooms into which the defendants must move as a result of the exchange are owned by B. In accordance with Art. 1 of the Law of the Russian Federation dated July 4, 1991 N 1541-1 “On the privatization of housing stock in the Russian Federation” (as amended on December 29, 2004), the transfer of housing into the ownership of citizens is carried out on a voluntary basis. In this case, any coercion is excluded.

The court, by its decision, satisfied the claims and moved T. and K. into privatized rooms, while the defendants objected to the forced transfer of ownership of the living space to them. The reference in the decision to the right of the defendants to apply to the court with a claim to declare privatization invalid is not a basis for satisfying the claim for forced exchange, since it violates the principle of voluntariness of the transfer of housing into ownership.

Since the reasons for the refusal of defendants in claims for forced exchange may be different, in each case the court, when considering this category of cases, is obliged to take into account and verify the reasons why the defendant objects to the exchange.

Housing complex of the Russian Federation Article 72. The right to exchange residential premises provided under social tenancy agreements

1. The tenant of residential premises under a social tenancy agreement, with the consent in writing of the landlord and members of his family living with him, including temporarily absent members of his family, has the right to exchange the residential premises occupied by them for residential premises provided under a social tenancy agreement to another to the employer.

2. Members of his family living together with the tenant have the right to demand from the tenant the exchange of the residential premises they occupy under a social tenancy agreement for residential premises provided under social tenancy agreements to other tenants and located in different houses or apartments.

3. If an exchange agreement has not been reached between the tenant of a residential premises under a social tenancy agreement and the members of his family living with him, any of them has the right to demand a forced exchange of the occupied residential premises in court. At the same time, attention-worthy arguments and legitimate interests of persons living in the exchanged residential premises are taken into account. If there is a need for a forced exchange of residential premises occupied under a social tenancy agreement by a minor (minors) and citizens deprived of parental rights in relation to these minors, other persons living together with the minor (minors), the legal representatives of minors, the guardianship authority have the right to submit a corresponding demand to the court and guardianship or prosecutor, if the cohabitation of these citizens with such minors violates the rights and legitimate interests of minors.

(see text in the previous edition)

4. The exchange of residential premises that are provided under social tenancy agreements and in which minors, incompetent or partially capable citizens who are members of the families of the tenants of these residential premises live, is allowed with the prior consent of the guardianship and trusteeship authorities. The guardianship and trusteeship authorities refuse to give such consent if the exchange of residential premises provided under social tenancy agreements violates the rights or legitimate interests of these persons. Decisions of the guardianship and trusteeship authorities to give consent to the exchange of living quarters or to refuse to give such consent are made in writing and are provided to applicants within fourteen working days from the date they submit the relevant applications. Providing applicants with decisions of guardianship and trusteeship authorities on giving consent to the exchange of living quarters or on refusing to give such consent can be carried out through a multifunctional center.

The lawyer, S.O. Koroleva, responded:

Hello Alena!
In accordance with Part 3 of Art. 72 of the Housing Code of the Russian Federation, if an exchange agreement has not been reached between the tenant of a residential premises under a social tenancy agreement and the members of his family living with him, any of them has the right to demand a forced exchange of the occupied residential premises in court. At the same time, attention-worthy arguments and legitimate interests of persons living in the exchanged residential premises are taken into account.
From this rule of law it follows that the subject composition of plaintiffs and defendants (parents and children) is not significant in resolving this category of cases.
As shown judicial practice, forced exchange of municipal housing carried out in court at the request of any interested person.
Refusal of the claim will also entail the lack of evidence from the plaintiff that the proposed option for exchanging residential premises is really optimal, which can be seen in the following examples from judicial practice.
The court refused to carry out a forced exchange of apartments, since it found that the exchange option proposed by the plaintiff would lead to a violation of the defendant’s full implementation of his housing rights: his share of the total area and kitchen would decrease. The premises proposed for relocation are located on the first floor of a house of an earlier year of construction, the location of which is significantly remote from the metro (Cassation ruling of the St. Petersburg City Court dated December 6, 2011 N 33-18033/2011).
The court rejected the claim for forced exchange of living space, relocation, and the obligation to conclude a social tenancy agreement, since as a result of the proposed exchange, the living conditions of the defendants being forcibly relocated will worsen: the defendants are provided with an apartment smaller than the one they had before the exchange; the house in which the proposed apartment is located was built 19 years earlier than the one from which the defendants are being relocated; the apartment currently in their use is located in a new building (Determination of the Moscow City Court dated October 28, 2011 No. 33-35094, see also Appeal Determination of the same court dated May 6, 2015 No. 33-13945).
The court's decision to refuse to satisfy the claim for forced exchange of residential premises by a higher court was left unchanged, since the proposed option for exchanging residential premises occupied by the parties does not meet the requirements of housing legislation: during relocation, the housing rights of the defendants, including a minor child, will be worsened, since the size the residential and total area per each of the defendants in the proposed premises is less than the size of the specified area pertaining to them in the occupied apartment (Determination of the Moscow City Court dated October 28, 2011 N 33-31025).
The claims for forced exchange of residential premises, termination of the right to use residential premises, deregistration were refused, since the lack of a balcony, elevator, and the need for repairs in the residential premises proposed for forced exchange significantly violate the legitimate interests of residents of the exchanged residential premises (Determination of the Moscow City Court dated 04/06/2011 N 33-7643).
The claim for forced exchange of residential premises was rejected, since the exchange according to the option proposed by the plaintiff would violate the rights of a minor child: he will live in a room in a three-room communal apartment where six people are registered, but there are explanations from the defendant that in the proposed for a minor daughter, nine people actually live in the living space for the exchange; the room intended for moving into this room is located on the first floor of an old house with a gas water heater; Satisfaction of the stated claims will lead to the need to change the child’s educational institution or area of ​​residence, which may negatively affect her mental state (Determination of the Moscow City Court dated July 13, 2010 N 33-20766/2010).
When considering one of the cases, the court found that when the defendants moved to a 2-room apartment, their living space would be reduced. If in the occupied 4-room apartment each of the defendants has 9.72 sq. m, then in a 2-room apartment the standard living space for each of them will be 9.03 sq. m. m. The lower court, in addition, did not take into account that one of the defendants is a pensioner and, due to his age, such changes in living and social conditions are difficult, his work is located in close proximity to his place of residence and the clinic he uses is also located in this area. When changing place of residence, the defendant will spend not only time, but also money on travel, which is also significant and deserves attention (Determination of the Arkhangelsk Regional Court dated April 11, 2002 N 33-1062).
If the options proposed by the plaintiff for the exchange of residential premises do not violate the balance of interests of all parties to the dispute, do not infringe on the rights and legitimate interests of the defendant, then the court may satisfy the stated claim according to one of the proposed options.
Thus, the court noted that the option proposed by the plaintiff involves relocating the defendant to a living room slightly, but still larger than the one he currently occupies, and the proposed housing is not inferior to the one occupied at the time of consideration of the dispute in terms of the level of amenities; the size of the kitchen in the proposed version is slightly smaller than that currently available to the defendant; The entrance to the double loggia is only available through the neighbors' room, but they do not have the right to use the loggia in violation of the rights of other neighbors in the occupied communal apartment. Under such circumstances, the claim for forced exchange of housing was satisfied (Determination of the Pskov Regional Court dated December 9, 1999 N 33-1141).
In a similar case, the court indicated that the proposed options for exchanging the disputed living space met the requirements of housing legislation. The difference in the size of the living space provided to the defendants is insignificant and cannot be regarded as a deterioration in their living conditions. Other interests of the defendants will also not be infringed due to relocation: the apartment offered to them meets sanitary and epidemiological requirements and has all public amenities. The court took into account the presence in both options of a separate bathroom, telephone, elevator in the house, number of floors and area of ​​apartments, etc. (Definitions of the Moscow City Court dated 04.05.2011 N 33-13221 and dated 29.09.2011 N 4g/6-79).
An analysis of the current law enforcement practice allows us to draw the following conclusions. When the plaintiff applies to the court with a demand for a forced exchange of residential premises, he must present several options for such an exchange. The proposed options must be no worse or slightly worse than the situation in which the defendant finds himself. If the premises offered for exchange are better, this is an additional argument in favor of the plaintiff. It is desirable that the defendant’s living conditions after the exchange of premises are optimally close to those that he had, namely a balcony, loggia, separate bathroom, a certain type of house, floor, elevator, area infrastructure, transport availability, etc. (Appeal ruling of the St. Petersburg City Court dated May 13, 2014 No. 33-3947/2014).
The court takes into account all the circumstances worthy of attention, such as: the defendant’s need for medical care, usual activities near his previous home, the condition of the living space received, etc. If the optimal option for exchanging an apartment is proven without compromising the defendant’s housing rights, the plaintiff has every chance of winning the case.
Our lawyers are ready to assist you in conducting this legal process, please contact us, we will be happy to help.