Eviction of temporary residents and subtenants

Reasons

It is much more difficult to evict tenants with whom a written agreement has been concluded from a rental apartment than those with whom the agreement has been oral. However, there are some nuances here too. Eviction of tenants is possible only at the end of the lease agreement or if its terms are violated.

Expert opinion

Stanislav Evseev

Lawyer. Experience 12 years. Specialization: civil, family, inheritance law.

Grounds for eviction include:

• systematic non-payment of rent;
• keeping the apartment in unsanitary conditions;
• maintaining an antisocial lifestyle;
• using the apartment not as a home (warehouse, store, etc.);
• destruction or significant changes to the structure of the premises;
• violation of the rights of third parties;
• subletting an apartment;
• other conditions that are specified in the lease agreement and entail its termination (keeping pets, accommodation of a larger number of people, etc.).

Since the issue of eviction from an apartment of tenants with whom an agreement has been concluded is quite complex, it is better to turn to a lawyer for qualified help. This will save not only time, but also nerves.

Example. Konovalova I.P. transferred her apartment, located in an apartment building, to the Popov spouses for use under a lease agreement. The Popovs were ardent defenders of animals and began to bring dogs to their rented apartment “for foster care.” Animals damaged furniture and wallpaper in the apartment and disturbed neighbors by barking. That is, the Popovs could not provide their pets with proper care. Konovalova repeatedly verbally demanded that the Popovs vacate their living space from animals and move out themselves, but they did not agree. This was motivated by the fact that there is no provision in the lease agreement that residents are prohibited from keeping pets.

Then Konovalova I.P. filed a claim with the court for early termination of the lease agreement, eviction of the Popov couple and compensation for material damage caused for damaged property. She provided the court with photographs of furniture damaged by dogs, a certificate from the local police officer about a housing inspection, and testimony from neighbors. The court, having considered the arguments of both sides, sided with the plaintiff and satisfied Konovalova’s demands in full - the Popovs moved out of the apartment and paid the amount of damage caused.

Grounds for eviction

The grounds for eviction are one of the points of the concluded agreement. In his absence, the landlord has the right to ask to vacate the apartment at any time for any reason, even far-fetched. In a communal apartment, complaints from neighbors about noisy or inappropriate behavior of temporary residents can become a reason for “showdowns”. The presence of a small child in the absence of an agreement is not a mitigating circumstance, however, when resolving the dispute in court, it can become a basis for canceling the eviction decision.

Independent use of measures to force the eviction of tenants can be qualified as arbitrariness, which entails the following penalties for the owner:

• an administrative fine of up to 300 rubles (Article 19.1 of the Code of Administrative Offenses of the Russian Federation);
• in case of damage to the property of tenants - by a court decision from a fine of up to 80 thousand rubles to 2 years of correctional labor (Article 330 of the Criminal Code of the Russian Federation);
• in case of infliction of violence or the threat of its use - by a court decision from arrest for six months to 5 years of serving a sentence (Article 330 of the Criminal Code).

When tenants don't pay

One of the important points of a residential lease agreement is the amount and timing of rental payments. Late payment is a compelling argument for early termination of the contract, even if it was not concluded in writing.

Threats, the use of physical violence and changing locks during a rental agreement are fraught with criminal liability for the landlord. In this case, it is wiser to resort to legal proceedings.

The algorithm for eviction of non-paying tenants is as follows:

1. Notice of eviction - by registered mail or in the presence of two witnesses 3 months before the expiration of contractual obligations.
2. Filing a claim in court - during the court hearing, evidence will be presented and a decision will be made.
3. Transfer of writ of execution to bailiffs.

When tenants make noise

Noisy tenants are more of a nuisance to neighbors than to the property owner. But, as practice shows, the landlord is inclined to listen to the complaints of people living in the neighborhood and take their side. When receiving angry messages from neighbors, the owner of square meters can:

• peacefully resolve the conflict by calling the tenants to order or asking them to vacate the apartment;
• involve the police by asking the local police officer for help;
• go to court, having first collected evidence of noisy behavior and obtained testimony from neighbors.

The owner of square meters is forced to take the side of his neighbors by Article 293 of the Civil Code of the Russian Federation, according to which he can be deprived of this living space by selling it at public auction for systematic violation of the rights of other residents.

How to evict tenants

There are many different options for renting residential premises. Each of them has its own characteristics, both moving in and moving out. Let's look at the most common situations.

With a rental agreement

If the rental agreement for residential premises is concluded between the tenant and the landlord, then the issue of eviction is resolved strictly within the legal framework. The terms of the contract must define all the grounds in connection with which it can be terminated early. It would also be useful to indicate the terms of the extension and the expiration date of the contract.

If tenants do not want to evict from the apartment, even when there are grounds for doing so, then the only way to defend their rights is to appeal to the justice authorities.

Without a rental agreement

If, before moving in, the parties did not bother to enter into a written agreement with all the conditions, then the consequences could be sad for both parties.

Thus, the landlord can be accused of concealing income and, accordingly, not paying taxes, and tenants can be evicted simply at the request of the property owner. You can read more about how to evict tenants without an agreement here.

With registration

If tenants are registered in a temporary residence area, then before being evicted from the apartment they must be deregistered. This can be done by contacting the Department of Internal Affairs of the Ministry of Internal Affairs of the Russian Federation (formerly the Federal Migration Service of Russia) with a copy of the lease agreement, the term of which has expired, or with a court decision and the tenants will be discharged within three days.

The residents themselves can also apply to the Department of Internal Affairs of the Ministry of Internal Affairs of Russia with an application for deregistration, but if they do not want not only to be discharged, but also to be evicted, then it is necessary to file a lawsuit with two demands.

You can read more about how you can discharge temporarily registered people in this article.

neighbors

If it so happens that your neighbor has rented out an apartment, and the tenants do not comply with generally accepted living standards (unsanitary conditions, noise at night, immoral lifestyle, etc.), then you need to contact the owner of the apartment. If he refuses to evict the tenants, then you should contact the police.

The district police officer, of course, does not have the right to evict the apartment (this function belongs to the court), but it is necessary to collect evidence and, perhaps, the district police officer’s checks will force temporary neighbors to leave the premises or lead a normal lifestyle.

If you are unable to come to an agreement with your neighbors, you must file a lawsuit claiming that your rights established by law are being violated.

With kids

There is an opinion that minors cannot be evicted from a rented apartment. In reality, it is quite simple to discharge minors.

However, the court may grant a deferment of eviction for up to one year. It is intended to enable the child’s legal representatives to find suitable housing.

You can read about how to evict minors from an apartment here.

How can you legally evict tenants?

In general, the procedure for eviction of tenants involves notifying tenants of the termination of contractual obligations, making final payments and releasing square meters from the personal property of temporary residents. The presence or absence of a contract is manifested in the form of some subtleties presented in the table.

If either party disagrees, the disputed issue is resolved through judicial proceedings:

1. Drawing up a claim demanding to vacate the living space.
2. Preparation of the evidence base.
3. Protection of interests during court hearings.

Without an agreement

In the absence of a signed rental agreement, the property owner has every right to terminate the oral agreement unilaterally, using various methods:

• directly express your intentions to the tenants, announcing the deadline;
• raise rent;
• change the lock on the front door;
• invite a district police officer to record the condition of the premises and assist in the eviction of stubborn tenants;
• submit a statement of claim to the court.

With a contract

If there is a rental agreement signed by both parties, there are only two options for eviction:

• due to the expiration of the contract - unless a new contract is signed;
• ahead of schedule: violation of essential clauses of the contract: unsystematic payment of accommodation;
• violation of the rules of residence - noise, unsanitary conditions, damage to property;

The decision to evict is sent by registered mail in the form of a notice written in free form, which reflects the following facts:

1. Personal data of the parties to the contract.
2. Reason for eviction.
3. Period of execution.

If the tenants refuse to move out voluntarily, they can call the police or go to court for help.

Procedure

In order to evict tenants from your apartment, you must submit a statement of claim and a complete package of documents to the court at the defendant’s place of residence. In the case of rented housing, it is necessary to contact the justice authority that serves the territory in which the disputed apartment is located.

After receiving the decision, if the tenants do not move out, they must contact the bailiffs. They are the ones who are called upon to ensure the enforcement of the court decision.

○ How to evict tenants living under a contract?

If the parties have entered into a lease agreement, this largely protects them from improper behavior of the counterparty.

✔ Rights and obligations of the tenant and the owner, if the agreement is concluded.

Provided that the contract does not stipulate otherwise, the tenant has the following rights:

• The ability to fully use the property transferred to him.
• The ability to invite temporary guests, provided that this will not be repeated every day.
• Have a pre-emptive right to conclude a new contract.
• Sublease apartments with the consent of the owner, etc.

At the same time, he is obliged:

• Maintain the transferred property in the same condition in which it was received, taking into account normal wear and tear.
• Use housing exclusively for its intended purpose.
• Pay rent within the period established by the agreement, etc.

The rights of the lessor under a standard lease agreement are as follows:

• Rent out housing.
• Systematically check its condition.

He has only one duty:

• Present the property for temporary use in accordance with the drawn up acceptance certificate (if defects are subsequently discovered that were not indicated at the time of the contract, the owner must eliminate them).

✔ Eviction based on the expiration date of the contract.

If the lease has expired, a new agreement is drawn up solely with the consent of each participant. At the same time, no one can persuade the other party to sign the document.

But if the tenants refuse to leave the apartment after the expiration of the contract, you can invite the police to help, who will draw up the necessary protocols for the court.

✔ Early eviction.

Only the tenant has the right to terminate the tenancy agreement early. The owner of the area must go to court to evict tenants before the expiration of the contract, presenting evidence of the grounds. These include:

• Systematic non-payment of rent.
• Violating the rules of residence and creating situations that threaten the life and health of neighbors.
• Recognition of the house as dilapidated.

✔ Notice of eviction.

Before proceeding with forced eviction, you must try to resolve the matter peacefully by inviting the tenant to voluntarily leave the premises. To do this, you need to write a notice of eviction demand. There are no special requirements for its design, but it is necessary to specify:

• Personal data of the parties to the agreement.
• Description of the claim against the company.
• Deadlines for vacating living space.

It is advisable to send the notification by registered mail. The tenant's signature confirms receipt of the notice.

Algorithm

In order to evict persons living in it from an apartment under a lease agreement, it is necessary to adhere to the following algorithm of actions.

Statement of claim

A statement of claim for eviction from an apartment of tenants with whom a lease agreement has been concluded is drawn up according to the same rules as other claims for eviction from an apartment.

It must contain the following information:

• full name of the court authority that will consider the claim;
• the correct name of the claim (depending on the requirements put forward);
• full details of the plaintiff, including passport series and number, registration and residence addresses;
• the most complete data of the plaintiff (usually, when concluding a contract, the data is indicated and a copy of the passport is attached);
• the grounds for the tenants to have the right to use the premises;
• the grounds on which you own the apartment;
• demands for eviction (and others, if any);
• their motivation with references to regulations and documents attached to the claim;
• a list of documents attached to the claim;
• signature of the plaintiff and date of preparation.

○ Advice from a lawyer:

✔ The tenant with whom the contract is concluded does not pay for utilities.

The obligation to pay for utilities is not automatically assigned to the tenant. Failure to pay them will be grounds for eviction only if the corresponding obligation is included in the lease agreement. If the contract is concluded for a period of less than 1 year, the basis for its termination and eviction will be a delay of 2 months. And if the agreement term is more than a year, then the number of unpaid months must be at least 6.

✔ Neighbors are unhappy with the tenant.

Creating uncomfortable conditions for people living nearby is one of the grounds for terminating the lease agreement and eviction of the tenant. Therefore, if neighbors systematically express their dissatisfaction, the owner of the apartment may decide to vacate it. If there is an agreement, this will have to be done in court, and then the testimony of neighbors will be needed. And if there is no lease agreement, then the owner does not even need to explain the reasons why he is evicting the tenant.

Video

The owner of the rented apartment demands to vacate it in the next three days. Is such a requirement legal? Maria Evnevich tells in the program “I Have the Right”.

Published by: Vadim Kalyuzhny , specialist of the TopYurist.RU portal

Documentation

In order to evict tenants, it is necessary to provide the court with sufficient evidence. This can be either witness testimony or documentary evidence.

So, as evidence, certificates and decisions on bringing to administrative responsibility from the police can be presented if the residents led an immoral lifestyle. If they caused any damage to the premises, then there must be a certificate from the housing inspector.

In each specific case, the evidence may be different, but there is a mandatory list of documents without which consideration of an eviction claim is impossible.

These include:

• plaintiff's passport;
• certificate of registration of ownership;
• rental agreement;
• extract from the house register;
• receipt of payment of state duty;
• evidence supporting the motivation of the requirements.

Features of eviction of tenants in court

To go to court, you must follow the pre-trial procedure. As an attempt at a peaceful resolution, before going to court, offer in writing to the tenants to move out within ten days. If the tenants do not agree, then prepare a corresponding lawsuit in court.

You must attach accompanying documents to your application confirming the circumstances specified in the text:

• document confirming the identity of the applicant;
• documents confirming ownership of the apartment;
• lease agreement between you and the tenants;
• information confirming violations by residents of one of the clauses of the contracts (fact of lack of payment, unacceptable behavior of residents, damage to property, and so on);
• receipt of payment of the state duty for the statement of claim.

However, we must remember that while the trial is ongoing, your tenants will live in the disputed apartment and pay for it at the price specified in the contract. In addition to the main claims, you can request that the defendants pay all the costs you incur. The court's decision cannot be predicted; it depends on specific circumstances. For example, if you simply abuse conscientious tenants, then the court will not terminate the contract early just because you are the owner. But if the court sides with you, the payment of your expenses may also be imposed on negligent tenants.

Arbitrage practice

Disputes regarding rented apartments in Russian courts are quite rare; the parties to the dispute most often settle the conflict out of court. However, in large cities, where the real estate market offers a wide selection of housing for rent, such claims do occur and most often the court sides with the plaintiff, the owner of the apartment.

Example. Pavlova G.T. rented out the apartment she owned to I.V. Krylov. under the lease agreement. The contract stated that early termination of the contract is possible at the initiative of any party, but such a need must be notified two weeks in advance. The agreement including such a condition was signed by both parties.

Three months later, Pavlova G.T. I decided to rent out the apartment on more favorable terms. I notified I.V. Krylov in writing. about the need to move out. However, he did not want to voluntarily move out, citing the fact that he had not violated the terms of the contract, there were no complaints from neighbors, he treated the property in the apartment with care and paid the rent on time. Pavlova was forced to file a claim for eviction in court, and the justice body took her side in the dispute. Krylov was expelled from the apartment.

○ How to evict tenants living without a contract?

Despite the fact that the law prohibits renting apartments without a formal contract, many landlords ignore this prohibition. Most often this is due to the reluctance to pay taxes on the income received for rent. Less often, the reasons are reluctance to deal with bureaucratic subtleties or excessive gullibility.

✔ Grounds for eviction.

Regardless of how the participants in legal relations came to such a decision, it should be borne in mind that the absence of an agreement significantly increases the risk of non-compliance by the parties with their obligations.

So, in this case, the owner of the premises can cancel the lease unilaterally at any time, which is impossible with a concluded agreement. The reasons are usually:

• Systematic violation of payment terms for accommodation.
• Violation of certain verbal agreements with the landlord.
• Use of living space for purposes other than its intended purpose.
• Lack of proper maintenance of the apartment, as a result of which the condition of the property deteriorates, etc.

✔ Does the owner have the right to evict the tenant?

The landlord can terminate the tenancy at any time simply by canceling it. The reasons listed above are grounds for eviction if you go to court. If the owner plans to cope with the problem on his own, the reasons for such a decision can be very different. In this case, the tenant will not be able to resist eviction, since there is no agreement that would protect his rights.

✔ Rights and obligations of the tenant and the owner, if the agreement is not concluded.

If there is no signed agreement, the relationship between the owner of the living space and the tenant is regulated by the Housing Code of the Russian Federation and the Civil Code of the Russian Federation.

• "1. 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 and the limits of its use, which are established by this Code.
• 2. The owner of residential premises has the right to provide possession and (or) use of residential premises belonging to him by right of ownership to a citizen on the basis of a lease agreement, an agreement for gratuitous use or on other legal grounds, as well as to a legal entity on the basis of a lease agreement or on other legal grounds taking into account the requirements established by civil legislation, this Code (Article 30 of the RF Housing Code).”

Thus, the owner has the right to own the living space and the ability to carry out various operations with it, including renting it out.

As for the tenant, without the existence of an agreement, he has the right to use the property transferred to him and carry out repair work. It is important to consider that the absence of a signed agreement practically leaves the tenant without rights.

✔ Methods of eviction.

If the tenant refuses to leave the property voluntarily, you can resort to certain actions that will help resolve the situation.

1. Change the lock. This is the fastest and easiest way to block access to a tenant's apartment. However, it should be borne in mind that if the eviction occurs solely at the request of the owner without justified claims, then the tenant can file a claim to invalidate the oral agreement.
2. Police. You can call a local police officer, who will testify to the tenant’s refusal to leave the living space, and also record the real condition of the home.
3. Court. This is an extreme measure that participants in legal relations without an agreement rarely go to. The method consists of filing a claim demanding to vacate the living space and indicating the actions taken.

✔ Features of eviction for communal apartments, small families, tenants with children.

When it comes to a communal apartment, complaints from neighbors about violations of their rights may be grounds for eviction. The absence of an agreement greatly simplifies the process of vacating the living space from the tenant.

If a room is rented in a small-family apartment, the basis for eviction is usually arrears in payment of utilities or rent. Also, the requirement to leave the room may come from neighbors who suffer from the tenant’s inappropriate behavior. In this case, they file a claim if the tenant himself evades it.

Also, the presence of a small child is not a basis for canceling the eviction procedure. In this case, the owner’s final decision depends on his conscience. However, if the case goes to court, the presence of a small child may be considered a mitigating circumstance and a basis for canceling the eviction decision.

✔ Eviction in winter.

In the absence of an agreement, you can vacate the living space from tenants with the help of the police. It is necessary to contact the law enforcement authorities with a statement that there are strangers in the applicant’s apartment who refuse to leave.

However, it should be taken into account that it will be impossible to collect rent arrears and compensation for damage to property.