Statement of claim for eviction of a former family member of the owner in connection with termination of the right to use residential premises after the expiration of the period established by a court decision (sample)

Practice, in particular the case of a lawyer on housing issues, proves that the struggle to protect your rights with the first judicial act does not stop, that subsequent courts have the right to change or completely cancel the act of a lower court and recognize that you are right in the matter of eviction of a former family member of the owner.

ATTENTION: we present our legal practice in a case that our housing lawyer won, and we will help you in the procedure for eviction of a former family member: professionally and on time. Call!

Who is a legal family member?

For the purpose of applying housing legislation, family members of the owner are defined as spouses, children and parents living together with the owner in the premises owned by him.

Other persons exercise the rights of the owner's relatives regarding the use of residential premises belonging to him in cases where they are moved in by the owner as family members.

Housing legislation considers the same composition of persons to be members of the tenant's family, but with some features. Thus, family members of the tenant under a social tenancy agreement:

spouses, children and parents living with the tenant
other relatives living with the tenant, who were moved in by the tenant and maintain a common household with him
disabled dependents living with the employer, installed by the employer as family members

IMPORTANT : in exceptional cases, other persons may be recognized as members of the employer’s family in court

Based on the above, family members of the owner or tenant run a common household, live together and are settled as relatives or recognized as relatives of the owner/tenant in court.

Regarding a family member of the employer, the specific requirement of Art. 69 Housing Code of the Russian Federation. Relatives must be indicated in the social tenancy agreement with the appropriate status.

VIDEO on the topic:

Eviction of the owner's family members

When the former spouse of the owner of the residential premises does not vacate him in accordance with paragraph 4 of Article 31 of the Housing Code, the owner can file a lawsuit demanding immediate eviction.

To do this, you will need to present to the court exhaustive arguments that will help make a decision in favor of the owner, which is provided for in paragraph 5 of Art. 198 Code of Civil Procedure of the Russian Federation.

Whether or not a claim is satisfied or not depends also on the defendant. The latter has every right to file a counterclaim. Based on the facts provided, the court will make an appropriate decision.

When going to court, it is necessary to take into account such factors as privatization, since the conditions provided for in paragraphs 2 and 4 of Art. 69 of the RF Housing Code may cancel this opportunity.

If the court has made a decision to resettle one of the residents, they are given a certain period of time to move.

The Housing Code provides in Art. 35 paragraph 1 and art. 31. clause 5, his right to use the premises is terminated, and he must leave the housing within a specified period of time.

Children

The 2005 edition of the RF Housing Code provides for the resettlement of all persons who cease to be family members. Oddly enough, this also extended to minors.

The eviction of children by the owner of a residential premises cannot be carried out according to the new versions of the legislation, or rather the amendments of 2009. Guided by the rights to protect the interests of the child, eviction can be avoided.

Grandchildren

When the question is about grandchildren who want to be evicted, the matter will depend directly on several factors:

age – minor grandchildren cannot be evicted, since this would be a violation of the rights of the child (RF IC Article 56);
circumstances – reason for eviction, situation with privatization;
existence of a contract - signing an agreement for cohabitation.

If the grandchildren are already adults, then Art. 35 Housing Code of the Russian Federation. After the court hearing, the decision may well be on the owner’s side.

Moreover, a person who is no longer a family member will have to leave the premises within a time frame specified by the owner.

Therefore, the judicial eviction of the grandchildren of the owner of the residential premises is quite feasible, although there are many factors for making a court decision in favor of the apartment owner.

When cohabiting

An exceptional relationship option is civil marriage. Then the person has the opportunity to be called a family member, and the eviction of a common-law spouse (cohabitant) can cause some trouble.

The Housing Committee considers him a member of this unit of society and, in order to obtain satisfaction of the request, the court will be guided by the law.

To carry out the eviction procedure, it will be necessary to take into account such factors as the legality of his residence in the living space, and in addition, the legal regime of housing. In this variation, the owner can submit documents to the court stating that the cohabitant is not related to this property. In this way, claims to parts of the owner's property can be avoided.

You need to be prepared for the fact that the court will be guided by Article 31 of the RF Housing Code, which may serve in favor of the cohabitant. These types of cases are reviewed on a case-by-case basis, and the decision will depend on the evidence provided.

Grounds for eviction of a former family member

Persons who were moved in as family members may lose this status, which will serve as grounds for eviction. Termination of family ties between family members of the owner and the tenant are different. The status of a former relative also matters.

Thus, the tenant of an apartment cannot evict a spouse on the grounds of termination of marriage, while the owner, on the same basis, can evict the ex-wife through a judicial procedure.

A parent deprived of parental rights may be evicted by court if the child is the owner. In the case of social rent, eviction of the former parent is possible if there is a court decision on the impossibility of living together. This is the only case of eviction from non-privatized housing in the event of termination of ties.

Procedure for eviction of a former family member

Currently, eviction is possible through court proceedings.

Written demand for eviction . Judicial eviction begins with the initiation by the applicant—tenant or owner—of consideration of the case for the eviction of a former relative. To begin with, a demand is submitted to the residents, setting a deadline for leaving the residential premises. The pre-trial procedure will help further justify the need for the process and the collection of legal costs from the Defendant.
Lawsuit . The prepared statement of claim and a number of necessary documents confirming the facts stated in it must be submitted to the district court at the place of residence.
Eviction proceedings . The result of the consideration of the case is the court's decision, which contains a refusal to satisfy the requirements or a decision on eviction.
Obtaining a court decision and writ of execution . A month must pass after the court decision is made. If the decision has not been appealed by the defendant in the case, then you can pick up the original decision with a mark of entry into force and take it to the Federal Migration Service (“passport office”), where the procedure for deregistering the defendant will be carried out. It is also necessary to obtain a writ of execution for the forced eviction of the Defendant.
Initiation of enforcement proceedings . The writ of execution received in court must be presented to the bailiffs at the location of the apartment, drawing up a statement about the need to execute the court decision.
Execution of a court decision . Next, the bailiff makes a demand to the tenant to voluntarily leave the residential premises; if the period expires without result, he begins active actions to kick the tenant out the door and present him with an invoice for the enforcement action.

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How to file a claim to evict a former family member?

The statement of claim must conditionally consist of a “head”, main and pleading parts.

“Cap” is a certain set of information about the court (sending an application to a certain court has procedural significance), the plaintiff, the defendant and interested parties who need to be involved in the consideration of the case. The data is presented in this order:

name of the court
plaintiff's name, address and other contact information
the name of the defendant, his location and other contacts
names of persons who should participate in the case (third parties)

The main part contains:

Presentation of basic information. It is necessary to indicate what the threat of violation of the plaintiff’s housing rights by the defendant is,

Circumstances on which the claims are based – legal requirements and other provisions of regulations (grounds of claim)

The pleading part is the subject of the claim and contains claims for eviction:

Ask:

Recognize that N has lost the right to use the house located at the address: ...;

Evict N from the specified house

PROFITABLE: watch the video on how to file a claim or order a claim in court from our lawyer

Who cannot be recognized as an ex and evicted from the apartment?

In order to evict former relatives, a minor cannot be forcibly evicted, since their rights are protected in a special manner. This rule applies to any form of ownership of residential premises. Evicting a minor may be impossible or a very difficult process, since you cannot evict a child “to nowhere”; it is necessary to obtain the consent of the guardianship authorities.

The only exception in this situation may be the fictitious registration of a minor in a place where he does not live, if this has been established by the court. However, these circumstances, as a rule, are not of interest to the court and it is impossible to prove them.

It is also impossible to evict a person on alimony support - a dependent. Such a person can be evicted only upon termination of alimony obligations to him.

It is impossible to evict persons who refused privatization, even in the event of a change of owner, since they acquire a special type of right to use residential premises - a lifelong right.

Lifetime right of residence can be acquired by relatives specified in the will. Nothing can be done about this either.

You cannot evict a relative if the living space was transferred from him under a gift agreement with the condition of the right of his lifelong residence.

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Law practice on the issue of eviction in Yekaterinburg

This is also proven by the example of one of our many cases. Citizen D. contacted our office with a request to remove two adult sons, who left back in 1993, from the apartment she owned (read more about eviction of a former family member from an apartment). At the same time, the eldest son, born in 1975, spent most of his adult life in prison, and the youngest, born in 1987, lives with his father. She received the apartment by paying the cooperative a share for it. She also explained that registering at the place of residence of two more people imposes on her a large amount of expenses for paying for utilities, which no one is going to reimburse her.

We drew up an application to recognize the sons as having lost the right to use the trustee’s apartment and filed a lawsuit.

At the first court hearing, the defendants submitted a counterclaim to move into their mother’s apartment, but they could not provide sufficient arguments as to why they had not done this until now, and they also did not indicate the reason for not incurring expenses for payment of utilities.

On our part, witnesses were invited to the court of first instance who confirmed the absence of attempts to move into the apartment of citizen D., which indicates the absence of intentions to live there, and many other evidence was presented of the sole use of the residential premises and bearing the burden of expenses for its maintenance. Moreover, during the court hearing, the general impossibility of living together was also confirmed, since the sons expressed threats to the mother if they move in, “to make her an unbearable life,” and also at the court hearing, the defendants, in order to give their position more significant attempts were made in various ways to denigrate our trustee.

As a result, the court of first instance decided to recognize the younger son as having ceased the right to use the disputed apartment, and, on the contrary, to move the older son into it. In this case, the only argument for moving in was that the defendant did not move into the apartment due to the fact that he periodically served in prison for fairly serious crimes.

We, of course, could not agree with such a court verdict, and filed an appeal with the Sverdlovsk Regional Court.

When considering this civil case, the court of second instance considered our arguments that there were no grounds for our eldest son to live in the apartment belonging to our trustee to be unconditional, and overturned the decision of the court of first instance regarding his move-in.

The outcome of this case was not only the protection of the housing rights of citizen D., and the emergence of the possibility of deregistration of defendants who do not live with her, but also her protection from possible attacks on her health, both physical and mental.

And we were once again convinced that we must never give up, no matter how hopeless the situation may be, using all available methods provided for by law, including by appealing judicial acts of various authorities.