to determine the procedure for using a municipal apartment :
- by concluding a voluntary agreement between those registered in the apartment, this method is very effective, since if it is necessary to determine the procedure for using the apartment, then a priori a dispute has already arisen.
— judicial procedure for determining the use of a municipal apartment.
Conditions for determining the order of use
To determine the procedure for using a municipal apartment,
- one of the conditions is the number of rooms, there must be at least 2, since this will be impossible to do in a one-room apartment.
- The number of registered citizens and the number of families also depend (if there are 10 people in 3 rooms and everyone wants to use a room for themselves, the court will refuse).
Judicial order
Let's look at the most typical situation. You live in a 3-room municipal apartment; your ex-husband, son, wife and child are also registered and living in the apartment. Sooner or later, a situation will arise when you want to determine who should use which room in the apartment, but it is not possible to agree between the residents. One room has an area of 15 sq.m., the second - 18 sq.m., the third - 24 sq.m., and accordingly everyone wants to use a room with a larger area, so it is not possible to come to an agreement voluntarily. You decide to go to court because you are tired of eternal conflicts, prepare a statement of claim and describe your situation.
Municipal apartment: features
Important points for determining the procedure for using residential premises in a municipal apartment:
- a client who received a smaller room may demand monetary compensation. For example, the owner of a larger space will pay more of the rent;
- the agreement is valid only between those owners who went to court. If the apartment is sold to other people or is inherited by them, they may demand that a new procedure for using the premises be established;
- determining the order of use includes not only rights, but also responsibilities. That is, all capable citizens living in a given apartment are equally responsible for its condition. They pay utilities, maintain order in their own rooms, and jointly make repairs in common areas when necessary.
Each citizen has his own housing rights, it is important to know them and be able to use them without violating the interests of other persons. In cases where the conflict cannot be resolved peacefully, a court decision on the procedure for using housing will come to the rescue. In this case, the court will determine which of the residents can use which rooms.
Documents for court
To determine the procedure for using a municipal apartment in Podolsk, you will need a technical passport, if you do not have it, then you need to order it from the BTI, it is necessary in order to clearly show the number of rooms in the apartment, their area, and who uses which of them.
As a rule, the claim must indicate that over a certain period of time the following order of use has developed. In the claim, you must justify which room should be used, give your arguments, taking into account your situation, the large room should go to the use of your son, wife and child. In addition to the registration certificate, you attach to the claim a social tenancy agreement or warrant, as well as a copy of your passport and, if there are other residents, an extract from the house register. This package of documents is enough to submit an application to the court, plus do not forget to pay the state fee at the bank (300 rubles), send the statement of claim to the defendants and submit it to the court.
In court, you prove your position; as a rule, the court makes a decision on the stated demands if no counter-arguments are presented, and your demands are lawful and justified.
Court decision to determine the procedure for using the apartment
In the case at different stages of the trial, lawyers Ushakov Yu.A. participated on the plaintiff’s side. and Putilov I.A. Please note that a claim to determine the procedure for using residential premises is filed at the jurisdiction in the event that there is no requirement for occupancy - to the magistrate. The case was completely won and as a result, the plaintiff, having begun to use this apartment, prompted the defendant to actually divide this property.
SOLUTION
IN THE NAME OF THE RUSSIAN FEDERATION
October 16, 20xxg. magistrate judge of the court district No. 62 of the Yasenevo district of Moscow Gribov D.V., with secretary Medaleva T.A., with the participation of the representative of the plaintiff lawyer Putilov I., the representative of the defendant Kharlamova N.S., the defendant Kh.Yu., having considered in open court hearing, civil case No. 2-265/xx on the claim of XB to XY to determine the procedure for using the apartment,
INSTALLED:
The plaintiff filed a lawsuit against the defendant with demands to determine the procedure for using the property. In support of his claims, he indicated that he, by right of ownership, owns 1/2 of a share in apartment x, located at the address: Moscow, Odoevskogo proezd, 3, building 7. The other 1/2 share in the apartment belongs to his ex-wife HY. Apartment of two isolated rooms with an area of 11.7 sq.m. and 18.9 sq.m. Based on the above, the plaintiff asks to determine the procedure for using the disputed property by assigning him the right to use a room of 11.7 sq.m., since such a procedure for using the apartment will not infringe on the interests and rights of the defendant.
The plaintiff did not appear at the court hearing and was duly notified.
The plaintiff's representative supported the claim and asked to determine the use of the XV. a room with an area of 11.7 sq.m., leaving common areas for joint use by the parties.
The defendant appeared at the court hearing, did not admit the claims, and believes that the claims should be denied, since the plaintiff does not live in the disputed apartment and did not intend to live. In addition, the plaintiff’s share of ownership in the disputed apartment is 15.3 sq.m. and allocating him a room measuring 11.7 sq.m. will significantly violate his rights.
The defendant's representative supported the defendant's opinion.
Having heard the explanations of the parties and examined the case materials, the court finds the claim justified and subject to satisfaction on the following grounds.
As established by the court, apartment No. x, located at the address: Moscow, Odoevskogo proezd, 3, building 7, consists of two isolated rooms with an area of 18.9 sq.m., 11.7 sq.m., and has a living area 30.6 sq.m., total area 56.9 sq.m., which is confirmed by the explication (case sheet 13), floor plan (case sheet 12).
According to the certificates of state registration of rights, the said apartment is in shared ownership of HB and HY, which is confirmed by certificates of state registration of ownership, according to which, HB is the owner of 1/2 share of the apartment, which is 28.45 sq.m. total area, including 15.30 sq.m. residential (case file 7), HY is the owner of 1/2 share of the apartment, which is 28.45 sq.m. total area, including 15.30 sq.m. residential (ld. 32).
Article 247 of the Civil Code of the Russian Federation establishes that the ownership and use of property in shared ownership is carried out by agreement of all its participants, and if agreement is not reached, in the manner established by the court. A participant in shared ownership has the right to be given for his possession and use a part of the common property commensurate with his share, and if this is not possible, he has the right to demand from other participants who own and use the property falling on his share, appropriate compensation.
In accordance with paragraph 37 of the Resolution of the Plenum of the Supreme Court of the Russian Federation “On some issues related to the application of Part 1 of the Civil Code of the Russian Federation,” the impossibility of dividing property in shared ownership in kind or separating a share from it does not exclude the right of a participant in common shared ownership to make a claim for determination the procedure for using this property, if this procedure is not established by agreement of the parties.
Since an agreement on the procedure for using the apartment has not been reached between the parties, the court considers it possible to determine it by allocating XB for use to the plaintiff. living room with an area of 11.7 sq.m., defendant XY. - living room 18.9 sq.m. m. Utility rooms, including a kitchen with an area of 10 sq.m., a restroom with an area of 1.1 sq.m., a bathroom with an area of 2.9 sq.m., corridors with an area of 9.6 and 2.7 sq.m. shall be left for the joint use of the parties. Summer premises: a loggia with a size of 2.0 sq.m. and a balcony with an area of 0.9 sq.m., also be transferred to the joint use of the parties, since, according to the explanations of the parties and the floor plan, these premises are not isolated from each other and have a separate exit through the kitchen, and their transfer will not lead to a violation of the defendant’s rights to use an isolated room of 18.9 sq.m.
In this case, the court proceeds from the fact that the plaintiff is allocated an isolated room corresponding to his share in the property right, has an equal right of use and ownership with the defendant, and therefore refusal to satisfy the claim will entail an infringement of his rights as the owner of the apartment.
The defendant’s arguments that the rights and interests of the plaintiff in the event of a room with an area of 11.7 sq.m. being allocated for his use. will be infringed, since his share in the living area is 15.3 sq.m., has no legal significance, since the difference between the area determined for use and the real share is not significant. In addition, the plaintiff himself decides how to use his rights, taking into account the interests and rights of the
other persons. Providing the above room for use to the plaintiff does not infringe on the legal rights and interests of the defendant.
The defendant’s arguments that the plaintiff has not previously lived in the disputed residential premises are also unfounded. As follows from the explanations of the defendant and the plaintiff’s representative, after the divorce, the defendant left for another place of residence due to a conflict situation, but his belongings remained in the apartment, which are located both in room 11.7 sq.m. and in room 18, 7 sq.m. As established by the court and not disputed by the parties, the procedure for using the apartment was not determined between the parties, the defendant uses two rooms. Under such circumstances, the plaintiff's claims are based on the law and are fair.
Article 98 of the Code of Civil Procedure of the Russian Federation establishes that the party in whose favor the court decision was made, the court awards the other party to reimburse all legal costs incurred in the case. According to Article 100 of the Code of Civil Procedure of the Russian Federation, the party in whose favor the court decision was made, upon its written request, the court awards the other party the costs of paying for the services of a representative within reasonable limits. As follows from the case materials, the plaintiff paid a state fee in the amount of 100 rubles (l.d.Z), which are subject to recovery from the defendant. Also, payment was made for the services of a representative in the amount of 15,000 rubles (ld.Z 1), which, based on the principle of reasonableness, the court considers it necessary to recover from the defendant in the amount of 10,000 rubles. Based on the above and Art. 194-199 Code of Civil Procedure of the Russian Federation, court
DECIDED:
Determine the following procedure for using apartment No. x, located at the address: Moscow, Odoevskogo proezd, 3, building 7, apt. x, having allocated a room with an area of 11.7 sq.m. for the use of XB, having allocated a room with an area of 18.9 sq.m. for the use of XY, common areas: balcony, loggia, restroom, bathroom, corridor with an area of 2.7 sq.m. m., corridor area 9.6 sq.m. leave in joint use of the parties.
To recover from HY in favor of HV legal expenses for payment of state fees in the amount of 100 rubles, for payment of representative services 10,000 rubles, and a total of 10,100 rubles.
The decision can be appealed on appeal to the Cheryomushkinsky District Court of Moscow within 10 days through a magistrate.
Case Study
We were contacted by a young man who was registered in a municipal apartment along with his minor child and father. The apartment was a two-room apartment; after the birth of the child, the client and the father had a dispute over the use of the apartment, who should use which room.
provide the client and his son with a larger room for use , citing the fact that he and his child needed this particular room. The court sided with us and made a decision that satisfied our demands.
Procedure for using residential premises
The procedure for using residential premises is the rules that are agreed upon between the participants in shared ownership when owning and using common property.
If a certain order of use has developed in an apartment over time (several months, years), then this is called the established order of use of the residential premises.
The procedure for use assumes that each of the co-owners occupies a certain room or rooms, in proportion to their shares of property. Also, co-owners can determine among themselves the procedure for using common areas , if we are talking about a communal apartment.
Many people are interested in whether it is possible to determine the procedure for using a municipal apartment . Residents of a non-privatized apartment, of course, can agree among themselves and establish rules for using the apartment. there can be no question of allocating a separate room for the use of residents , even if those living in the apartment have disagreements on this matter.
Determining the procedure for using an apartment provided under a social tenancy agreement is not provided for by current legislation.
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