How and who can be discharged from a municipal apartment

Pravozhil.com > Housing and communal services issues > Neighbors > Forced exchange of municipal housing through the court

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 are provided to needy citizens by the state under social rental agreements. 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.

Basic legal provisions

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 comply with all the terms of the social rental agreement and the 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 tenants of municipal housing under the social contract will be relocated to the originally provided housing. 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 a municipal apartment through the court

The reasons for the exchange of municipally owned housing are considered to be mainly domestic problems caused by the inability to live in the same apartment (house). But even under such circumstances, sometimes one of the co-owners does not want to divide the available square meters through exchange.

What is a forced exchange of an apartment? Watch the video:

Basic rules of law

Therefore, a refusal of this kind may serve as a prerequisite for filing a claim for a forced exchange.

This provision is regulated by:

Part 3 of Article 72 of the Housing Code of the Russian Federation, which states that if one of the parties disagrees with the exchange of housing used under a social tenancy agreement, then this issue will be resolved in court.
Part 4 of Article 72 of the Housing Code of the Russian Federation, if there are minor children in the designated living space, therefore such participants as guardianship and trusteeship authorities are mandatory in this process.
Resolution of the Plenum of the Supreme Court of the Russian Federation No. 14 and in its paragraph No. 34. The fact here is that courts, when considering cases regarding forced exchange, must take into account not only the justifications of the plaintiff, but the persons who are the defendants. That is, it is imperative to take their interests into account.

But it is worth noting that citizens who have property rights to housing in accordance with the Civil Code cannot be evicted from their homes by anyone. Such a decision can only be made by personal consent, or by a court decision.

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.

Procedure

Due to the fact that one of the parties in the forced exchange of square meters is the state represented by the municipality, the procedure indicated is slightly different from the general one.

According to the Housing Code of the Russian Federation, a forced exchange must include the following actions:

You must obtain permission from the municipal authority.
If you have the landlord's consent, you will need to go to court and write a corresponding statement indicating the reason for the appeal.
The court must certainly provide certified evidence that attempts were made to agree on the exchange of the apartment, but all of them were rejected.
If the judicial authority made a positive decision, taking the plaintiff’s side, then further actions consist of finding housing for exchange.
After finding the appropriate housing, an exchange agreement is drawn up with the participation of a representative of the municipality. Copies of the agreement must correspond to the number of participants in the designated procedure.

Options for forced exchange of an apartment.

How to file a claim correctly

Drawing up a statement of claim to the court regarding the forced exchange of municipal housing is one of the main aspects, since the desired result will depend on this. Therefore, it is best to entrust the preparation of such a document to a specialist who knows all the subtleties and possible nuances. A sample statement of claim can be downloaded below.

But in any case, the application must contain the following information:

passports of the defendant, applicant, as well as persons who are interested in this;
designation of the judicial authority that will consider the case;
detailed information about the living space that is the object of exchange;
it is necessary to indicate the reasons for going to court;
one of the main components of this document will be to provide information about proposed options for solving the problem that has arisen;
it is imperative to indicate the fact that there is a refusal to voluntarily exchange housing;
record the list of attached documents;
Finally, indicate the date the claim was filed, as well as the signature of the applicant.

What are title documents and their types? The answers are here.

It is worth noting that in addition to the written application, you must provide additional documents, which are mandatory:

a document that is the basis for cohabitation (order or social tenancy agreement);
a certificate indicating the composition of the family, as well as all persons who are registered in the designated living space;
certificate of marriage or divorce;
certified permission from the owner of municipal housing, as well as co-owners;
refusal to carry out the exchange procedure;
cadastral, technical passport for housing;
certificate indicating the place of registration;
documentary evidence of payment of state duty;
extract from the personal account.

Rights and responsibilities in a municipal apartment.

An important point is the existence of a social tenancy agreement; if there is none, then it must be drawn up. And then directly obtain permission to exchange (exchange) municipal living space.

Possible refusal to exchange housing

These include:

If the landlord has filed a claim with the tenants regarding the termination of the social tenancy agreement or a change in its terms.
When there are claims in court regarding the designated housing.
If there is documentation indicating that the living space is not suitable for habitation.
If after the exchange one of the families acquires the status of needy.
They can refuse if among the participants in the forced exchange there is a person with the diseases indicated in paragraph 4 of Art. 51 of the Housing Code of the Russian Federation.

When carrying out a forced exchange of living space, if there are minor children, then permission to carry out such a procedure must certainly be approved by the guardianship council.

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.

Law

The law does not prohibit tenants from carrying out the procedure for exchanging a non-privatized apartment. But in reality the issue is not so easily resolved. Therefore, there are not many such deals. Art. 72 of the Housing Code of the Russian Federation contains information on the rules for the exchange of municipal housing. This is the basic law relied upon in this case. It reads:

The tenant, with the written consent of the owner of the municipal apartment and all residents, has the right to exchange residential premises for other housing.
Tenants living with the tenant have the right to demand the exchange of the occupied space for other housing located in different buildings.
If disagreements arise between the tenant and the tenants regarding the exchange of an apartment, each of them can demand a forced exchange of the occupied living space through the court.
If there are incapacitated and minor family members, the exchange of an apartment without the consent of the guardianship authorities is not allowed.

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:

Any tenant or, more simply put, a registered tenant has every right to initiate an exchange.
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.
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.
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.
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 attorneys.
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:

See also Phone numbers for consultation Jan 16, 2021 kasjanenko 843

Share this post

Discussion: there is 1 comment

Ivan says:
09.20.2020 at 19:24
In general, is the option now realistic that was common in those days when almost all housing was municipal property: people from different cities come to an agreement and simply exchange their apartments without any courts?
Answer

How can two families separate in a municipal apartment?

2-room municipal apartment 4 people are registered, of which 2 are minor children - these are 2 different families. One of the families does not give its consent to privatization. It is not possible to live together in the same apartment due to hostility and negativity towards each other. What can be done in this case?! How to leave or are there any other options??

Answers from lawyers (2)

If one of several residents wants to participate in privatization, you can try to register part of the apartment as ownership. This option is only possible if part of the apartment becomes an independent object. That is, the room is registered in the BTI as a separate piece of real estate. After this, privatization is issued only for this part of the apartment. The apartment becomes communal, part of the rooms of which remains municipal, and the privatized share becomes your own. If you manage to allocate a room in a shared apartment, then it will be possible to privatize it without the consent of the other residents.

There are 2 options:

1. An agreement on the allocation of a share in kind is concluded with registered citizens. The process is carried out with the consent of those registered in writing. The agreement is certified by a notary. After this, BKI engineers draw up a plan and technical passport of the apartment, on which the privatized share is clearly highlighted.

2. If it is impossible to obtain voluntary consent to privatize the apartment of the residents, you will have to seek the allocation of a part in the form of a room through the court. Filing a claim requires the appointment of a forensic construction expert. The purpose of the examination is to check the possibility of allocating a share in kind, determining the total cost of the apartment and the price of the allocated share. After the examination, a lawsuit is filed with a request to allocate a share in the common real estate.

Based on a positive court decision, you can privatize a separate room in a municipal apartment.

To move away from your neighbors, first contact the housing committee of the locality administration for consultation.

Then obtain written consent from all persons registered in the apartment, including those who do not currently live in it, but are listed according to documents. If children, disabled people or people with disabilities are registered in the apartment, then in addition to their consent, permission from the guardianship and trusteeship authorities will be required. Most often, the application is considered within two weeks. But they may refuse if the living conditions in another apartment are worse than in the current one.

Then you need to collect documents:

— Application for exchange, certified by the signatures of all adult registered residents. - Social tenancy agreement - Passport, floor plan, explication - Document on the absence of other living space.

All required documents and the housing exchange agreement must be submitted to the municipality. The application is reviewed for 10 days, then a decision is made. A refusal can only be obtained in a few cases:

— Availability of a claim to change the social contract. rental - The right to use a municipal apartment is denied in court - The living space is unsuitable for living - The apartment building will soon be demolished - Major repairs of the building with redevelopment are planned - One of the families will receive worse living conditions than they had - When the application is approved, the municipality draws up new contracts social hiring.

It is also possible to solve it forcibly.

There is a possibility of conflict in this case. If your neighbors do not agree to exchange the apartment, then in this case you need to go to court.

In order to apply to the court, it is necessary to find an apartment for exchange, obtain written consent from those residents to await a court decision and to appear in court as a third party. During the trial in the case of the exchange of municipal housing, the rights of the changing parties must not be violated.

Links to Art. 72, 73, 74 of the Housing Code of the Russian Federation.

Second apartment

The department's press service clarified that at the moment the city renovation fund has already concluded 154 agreements with citizens in this regard, and another 154 are under consideration. According to Andrey Bochkarev, no one is turned away: everyone who is satisfied with the chosen housing expansion option pays extra for additional space and moves to a new apartment. Let me remind you that according to the law, Muscovites whose houses are included in the renovation program receive a new apartment to replace the old one absolutely free of charge. This is done according to the principle of equivalent housing: that is, the family receives the same number of rooms with no smaller area. If suddenly a person likes a smaller apartment, then the Moscow Renovation Fund will pay him compensation at the market price for the difference.

Participants in the renovation program can buy a second apartment within two years

But the city authorities have provided residents with the opportunity to expand their living space during the renovation. Let’s say, in a cramped “kopeck piece” of a five-story building, two families live - parents and a married daughter. If their house is included in the renovation program, then these people - no matter whether they are the owners or renters of the apartment - have a choice. You can, for example, get a two-room apartment again in a new building - in any case, it is larger than it was in the “Khrushchev”, and buy another one-room apartment. If you don’t have the money to buy a second apartment right away, you can buy it within two years after moving in under the renovation program. Do young people want to continue living with their parents? They can choose a three- or four-room apartment, paying only for additional space to the previous two-room apartment. The city law provides for only one restriction: the total area of new housing should not be more than 100 square meters.

The price of additionally purchased living space will be cheaper for them, since the city gives those who buy it a 10 percent discount. In addition, when paying for additional space, you can use maternity capital, as well as a mortgage.

The list of specific addresses where you can buy additional housing is quite wide. There are such houses in almost all districts of the city. The RG correspondent counted more than two dozen houses in which Muscovites can currently improve their living conditions. And this address list will expand along with the increase in the starting sites on which housing renovation projects are being built in the city. Now there are already 323 such sites. The capital can build 4.6 million square meters of housing on them, and by the end of the year it will select sites for the construction of a total of 5 million “square meters”. This, according to Khusnullin, should be the volume of the first wave of relocation of Muscovites to new housing. This will allow the entire demolition program of 15 million square meters to be completed by 2032 in three waves. The Moscow authorities are confident that they will cope with the task within the specified time frame. In particular, in the first year, 10 thousand citizens have already moved into new modern apartments, and during 2021 at least 12 thousand more Muscovites will celebrate housewarming. In total, during the implementation of the program, 1 million residents of the capital will receive new housing.

Free legal advice

Hello. I want to leave my relatives. There is a privatized 3 apartment for me and my 2 children and my mother, with my brother. The brother leads an associative lifestyle. He drinks, wakes up the children, makes trouble, destroys everything in the middle of the night, calls names, threatens, etc. He doesn’t agree to leave in an amicable way, what should he do?

When a friend or girlfriend comes to us with a request to lend money, how can we refuse, because, who knows, maybe the day is not far off when we will have to turn to our friends with exactly the same request! And it’s wonderful when debts are repaid on time.

We recommend reading: Who Pays the State Duty, Seller or Buyer When Selling a Garage

What is the best way for us to leave a privatized apartment?

My husband has a share in a two-room apartment. Privatization took place in 1993. Ownership was not formalized until 2010. In 2010, one of the owners filed a lawsuit to determine the shares, the court divided it into three relatives registered there (mother and two sons) in equal shares. Certificate.

Hello, my name is Evgenia, I have the following question: I have a two-room apartment, the personal account is registered in my name and it is also privatized only in my name, but my grandmother is also registered in this apartment (my mother registered her on her application when she was tenant) can mine.

How to Separate from Relatives from a Privatized Apartment

Moreover, if he, having registered with you, lives “somewhere out there”, you will also have difficulties in serving him a subpoena, which means he will not appear in court. and the court’s decision to deregister it may take a year or even more. Or, of course, a decision may be made in absentia, which will come into force only when it is received by this “non-relative” of yours. What if he doesn’t receive this decision in absentia? then it will not come into force.

But again, pay attention to what I wrote above. If this agreement will help you in court to remove it from the registry. accounting then if the court makes a decision in absentia (in the absence of the defendant in court), then such a decision can enter into legal force ONLY if the defendant receives it and does not protest.