Article updated: March 25, 2021
Alexey BessonovPracticing Moscow lawyer
Hello. I am a visiting lawyer from the Bessonov and Partners law firm. I specialize in discharging citizens in court.
In paragraph 1 of Art. 35 Housing Code of the Russian Federation and paragraphs. 5 (f) clause 31 of Government Decree No. 713 dated July 17, 1995, it is clearly written that it is possible to discharge any person from an apartment without his consent only THROUGH THE COURT. This also applies to people who refused to participate in privatization. There is no other way.
It is extremely difficult to discharge such a person from the apartment. After all, having refused privatization, he now has the right to indefinite use (residence) in the apartment. And even if the owner of the apartment has changed - Art. 19 of Federal Law No. 189 of December 29, 2004. But you can try to write it out if certain conditions are met.
IMPORTANT : There are two types of citizens who refuse privatization: 1) Of their own free will, by writing a refusal. 2) They have already spent their right because they participated in the privatization of other housing, but they wrote consent to its implementation. When discharged, these are two identical cases.
Only under these conditions will it be possible to discharge someone who refused privatization
They are listed in paragraph 3 of the Review of Judicial Practice of the Supreme Court for January-July 2014. That is, a “refusenik” can be discharged only when, through his actions, he HIMSELF renounced his right of residence, so he can be recognized as having lost this right.
It makes no difference who the person who refused to participate in privatization is or was the owner - a former husband or wife, son, daughter, parent, grandfather, grandmother, brother, sister, uncle, aunt or a stranger. The conditions are the same for everyone and are considered by the judge in their entirety. I will list them in the form of a chain:
- A person who refuses to participate in privatization does not live in the apartment for a long time - clause 3 of Art.
83 Housing Code of the Russian Federation. Although this article of the law talks about the termination of a social tenancy agreement when leaving a municipal apartment, and our apartment is already privatized, it is applied here by analogy - Art. 7 Housing Code of the Russian Federation. No period of non-residence is established in any official document, but in practice the minimum is 3 years . This is exactly the deadline that I and my colleagues who participate in the courts for the deportation of citizens have determined. We have also read quite a few similar court decisions. If a “refusenik” does not live for 1 year, the chance of being discharged is only 20%. If 2 years - 50%. If 3 years - 90%.↓ - I left the apartment on a permanent basis, and not temporarily due to study, work, business trips, treatment, etc. I took all my things out of the apartment. This is stated in Art. 71 Housing Code of the Russian Federation.↓
- Left voluntarily, and not forced - clause 2 of Art. 1 Residential Complex of the Russian Federation. For example, you cannot discharge a person if he left due to conflicts with the owners of the apartment and proves this. Or is in prison. You can, of course, submit the court verdict to the passport office and it will be “formally” issued. After leaving prison, he can register back without any problems. Even the new owners won't sign him out. I wrote about this at the very beginning of the article.↓
- He does not pay utility bills, does not participate in the repair and maintenance of the apartment for at least 3 years (clause 4 of article 69 of the Housing Code of the Russian Federation). This period is similar to the minimum period of non-residence.↓
- He did not try to move into the apartment again, and if he tried, he was NOT prevented from doing so.↓
- It is better that all owners agree to the discharge of a “refusenik”. If one of them is against it and reports this in court, there is a high probability that the judge will reject the claim.
Consequences of the decision
Many people are interested in what rights remain with a person who refuses privatization. This is especially true for the right to use residential premises. The consequences of refusing privatization are:
- Reservation of the right to use living space. A person can live in an apartment or house even if the property is sold.
- A person who loses ownership also loses the right to vote when real estate is sold. A person cannot even count on receiving part of the funds from the transaction.
- Possibility to privatize real estate later.
So, a person who has lost his privatized share in an apartment retains the opportunity to live in it. And even moreover, he cannot be evicted by force if the property has new owners (Federal Law “On the privatization of housing stock in the Russian Federation”). A person can use his lost chance for privatization at any time, but only as long as he has the right to use the property indefinitely.
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But it is impossible to refuse privatization after the procedure has been carried out. If the owner wants to lose his rights to a certain type of real estate, he can do this through sale or donation. But there is no such thing as “deprivatization”.
Why are you more likely to win your case with a lawyer?
If all the above conditions are met, this is good, but only half the battle. The main difficulty is that in court you need to PROVE everything in WRITTEN. The judge will not believe the words and arguments. In practice, the judge will initially be on the side of those who refuse privatization.
To prove it to the judge, you need to provide him with certain certificates and acts from various government departments/organizations in advance. An ordinary citizen, of course, can send requests, but they will still not be answered. Because they don't have to. It is better to entrust this to a lawyer. He, having the status of a lawyer, can make legal requests for the necessary organizations - paragraphs. 1 clause 3 art. 6 and paragraph 5 of Art. 6.1 Federal Law of May 31, 2002 No. 63-FZ. And organizations are obliged to respond to requests from lawyers, otherwise they face a fine - Art. 5.39 Code of Administrative Offences.
A lawyer will study your situation and send requests to those organizations and departments that are beneficial to you. The lawyer himself will draw up a request, send it and collect answers. Then, from the received answers, it will select the most useful ones. I have provided sample answers in the instructions below.
If you do not contact an attorney, you can ask the judge to send inquiries by organization. The judge will formalize the requests, but will offer you to take them to the organizations, plus pick up the answers when they are ready. He will offer it, but he has no right to force it. And you will no longer have the opportunity to adjust more profitable requests for your business. And you will no longer be able to filter out the responses received and discard unnecessary ones. In addition, you will not know some of the answers because they will be sealed in envelopes. All this reduces the chances of discharge to zero.
It is much more profitable to hire a lawyer and have a better chance in court, because no one will want to deal with such a problem apartment. For example, no one will want to buy such an apartment. After all, those who refuse to participate in privatization have the right to live in the apartment even if the owner changes - Art. 19 of Federal Law No. 189 of December 29, 2004. Buyers do not need such problems.
Our law office "Bessonov and Partners" offers residents of Moscow or the region. We will take on all the possible work - we will draw up a correct statement of claim, collect all the necessary documents and submit them to the court. You will not need to come to court hearings; the office's lawyer will participate in them and will do everything possible to win the case. At the end of the trial, we will bring you a copy of the court decision.
We have been working in the field of court records since 2008 and have won 84% of court cases.
The cost of the service is 60 thousand rubles. For visitors to this site there is a discount of 5% to 10%. To receive it, say that you came from the website “Prozhim.com”. For all questions and for a free consultation, call 8 (495) 642-31-96 (daily from 9:00 to 21:00 Moscow time / only for residents of Moscow and the region).
Is the right of residence permanent?
Under current law, a tenant may lose their right to occupancy. For example, if a citizen uses the living space of a relative with whom he has lost family ties. This applies to ex-spouses.
This is important to know: Where to carry documents after privatization of an apartment
For example, if a wife divorces her husband, and at the same time she is the sole owner of the property, he must leave the premises. When he does not do this voluntarily, the spouse has the right to go to court.
In addition, you can evict a tenant from a municipal apartment who has not shown interest in the property for a long time. Eviction takes place in court, where all circumstances will be considered.
However, these rules apply only indirectly to the situation under consideration. Regulatory legal acts establish that a person who refuses privatization has the right to lifelong residence in an apartment.
This interpretation should be taken literally. In other words, a tenant who refuses privatization can use the apartment until he dies.
It is important to understand that the right of lifelong residence is not inherited. If the parents lived in the apartment on the basis of an indefinite right of use, the children will not be able to use it.
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Until a person is deregistered, no one can evict him. This point significantly complicates the process of selling an apartment. Buyers rarely agree to purchase real estate with such an encumbrance, since after the transfer of ownership the “eternal tenant” will not lose the right of lifelong residence.
Which residential address to indicate?
Here I will answer the following questions: “I don’t know where the “refusenik” lives now, what address should I indicate in the statement of claim? And if it is known, then indicate the actual address?”
According to judicial practice, the defendant’s residential address is considered to be his registration address - paragraph 63 of the Resolution of the Plenum of the Supreme Court of June 23, 2015 N25. Therefore, in the statement of claim, we enter the residence address of the “refusenik” as the address of registration - the apartment from which we want to discharge him. The plaintiff is not required to know where the defendant actually lives. Often he doesn't even know about it.
As a result, all subpoenas will be sent to the defendant to the apartment address - Art. 113 Code of Civil Procedure of the Russian Federation. If he does not receive them (because he does not live there), the court will still consider him notified. According to the law, the court did everything in its power to notify the defendant. Receiving correspondence is a citizen's responsibility. If he does not appear in court, the case will be considered without him (in absentia) - clause 4 of Art. 167 Code of Civil Procedure of the Russian Federation. This is to the advantage of the plaintiffs, because he will not be able to protect his interests.
Features of refusal to privatize one of the prescribed
Dear readers! The article talks about typical ways to resolve legal issues, but each case is individual. If you want to find out how to solve your particular problem , contact a consultant:
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If the applicant is in prison, the application for refusal can be certified by the head of the correctional institution. If the “refusenik” lives in another city or state and cannot immediately notarize the refusal, he should entrust this process to a third party.
Buying an apartment with a privatization refuser
Good afternoon. Does he now have registration at his place of residence (propiska)? If yes, then on what basis. Insurance: notarized statement from the objector, a correctly drawn up purchase and sale agreement, professional organization and execution of the transaction.
There are a lot of insoluble contradictions in your question: - sq. was issued for 4 people, but the eldest son was never registered? - He was not registered, but he wrote a refusal to privatize? - Apt. privatized by court. why? - should I be afraid of indefinite use? but at the same time he was never registered. what use? You clearly don’t understand what you wrote. You can draw your own conclusions.
How and when can you sell a privatized apartment?
- they became full owners of apartments;
- the owners could rent out the property and receive additional income from this for the family budget;
- it was possible to sell the home at the market price (and this is a considerable amount, especially considering that the apartment was given for free);
- after the death of the owner, the property rightfully passed into the possession of his direct heirs;
- the owners could make a will in favor of third parties (both individuals and legal entities);
- It was possible to mortgage an apartment when applying for a loan from a bank.
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For example, if a citizen sold a privatized apartment for 1.5 million rubles in April, then he had to pay 195 thousand rubles to the treasury. In November of the same year, he purchases a new home for 3.2 million rubles. This means that the state must pay him a tax deduction in the amount of 260 thousand rubles. (the maximum permissible value), but taking into account his tax obligations in the amount of 195 thousand rubles, he will receive only 65 thousand rubles from the treasury. (260 -195 = 65).
Buying an apartment with privatization refusers
Konstantin, good afternoon! In principle, of course, it is better to avoid such a situation, since the voluntary renunciation of the right to reside in a given apartment by persons who have retained such rights due to refusal of privatization, if they have the right to participate in it, deprives them of the right to reside. Voluntary refusal is expressed, for example, in deregistration at a given address. A notarial obligation, in the absence of a place where they can register - and the new owners may simply refuse to register them - will, of course, somewhat simplify the process of forcibly deregistering them through the court, but still does not guarantee this with 100% probability. As for the described scheme, it must be taken into account that, in accordance with Part 5 of Art. 488 Civil Code of the Russian Federation
I think then it’s better to formalize it in the form of an agreement (Article 421 of the Civil Code of the Russian Federation), stating that after re-registration of the title to you, they undertake to check out and not apply for residence, with a corresponding penalty for failure to meet the deadlines. Or write these conditions into the purchase and sale agreement, making them a party to the obligation.
What is the right to use premises
As a rule, the desire to privatize housing arises from a family living in an apartment on the basis of a social tenancy agreement. In this case, the owner of the property is the municipality or the state.
Accordingly, the right to use residential premises arises from the moment of signing a social tenancy agreement with the municipality or state. It is a mistake to believe that it appears from the moment the apartment is re-registered as private property.
Refusal from privatization should occur on a voluntary basis. It is drawn up in the form of a special document and certified by a notary office. It is the notary who must verify the voluntariness of writing the refusal and certify the authenticity of the signature. This is necessary to minimize the presence of reasons for going to court.
A citizen who has refused privatization has the right:
- for permanent residence in residential premises;
- for permanent registration at the place of residence;
- to be freely present in any part of the residential premises;
- for the use of communications, etc.
In other words, the lack of ownership of real estate will not in any way affect the right to use living space.
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Privatization refuser will prevent you from buying an apartment
Who is a refusenik? A privatization refuser is a person who agreed to the privatization of housing without his participation, although he also had the right to privatize it. By refusing to privatize, he automatically refuses to be the owner of part of the apartment. But since he is registered in this apartment, he has the right to live in it indefinitely, if he wants - even after it is sold.
When will he leave? Refuseniks are guaranteed an indefinite right to live in the apartments in which they lived before privatization. If the objector voluntarily changes his place of residence, it would seem that the right is terminated. After all, if a person moves, he is obliged to re-register. But re-registration in itself does not create or terminate any rights; moreover, it can be temporary or forced, which can be proven later.
How to formalize a refusal to privatize an apartment: grounds, pros and cons
All other persons may refuse to participate in the privatization of the apartment for any reason. For example, such a decision may be related to caring for one’s family. Many give up in favor of children, brothers and sisters.
- residents who do not have a residence permit; they have no rights to housing;
- citizens who have already participated in free registration of property rights in the past;
- evicted by court decision ; it does not matter whether such persons are registered or not - they are no longer entitled to a share in the premises;
- residents who wrote a refusal to register; they have expressed their will and no longer influence the process.
How to fill out an application from a person refusing privatization when selling an apartment
1) First, make a donation of 1/6 of the daughter’s share to the husband and mother (that is, the “refuseniks” living today will receive the same shares of the apartment that they would have received if they had participated in privatization) 2) And then buy the apartment from the husband, mother and minor children
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1) At the notary, conclude an agreement between the owners and the “refuseniks” on the termination of the right to use the apartment. 2) The voluntary renunciation of the right to use must be notarized, indicating the reason - sale of the apartment and change of place of residence, indicate the address. 3) Mandatory deregistration before the transaction for “refuseniks” 4) Notarized obligation for “refuseniks” to register in their new apartment after registration of transactions 5) Take a receipt from the “refuseniks” stating that they received part of the money from the apartment being sold from the owner
