Agreement on determining the procedure for using residential premises

Determining the procedure for using residential premises is, as a rule, the second stage of transforming common property into shared ownership. Files in .DOC: Form of agreement to determine the procedure for using residential premises Sample agreement to determine the procedure for using residential premises

Agreements in this part are rare, since determining the procedure for using housing is usually the result of an acute dispute between persons living in the same apartment or house. It is very difficult to resolve such a dispute peacefully, and therefore the use of housing is most often established through a court decision.

Property stages

The law defines the following types of property:

personal;
general (joint);
fractional ideal;
share real.

Moreover, all these types of property have the ability to “migrate” from one type to another. Let's give an example to visualize this “migration”:

Someone Illarionov A.A. died without leaving a will. At the time of his death, he owned 1/2 of a three-room apartment, which he purchased together with his wife. His three children had the right to inherit the apartment.
Each of the four received their certificate of acceptance of inheritance and became the owner of 1/3 of the apartment. The shares turned out to be ideal, that is, abstract, since they did not have boundaries, were not rooms, etc. Thus, Illarionov’s personal property turned into shared property with ideal shares.
After receiving the inheritance, the sisters quarreled among themselves, and the eldest sister cut a lock into the kitchen door, preventing the other sisters from using the kitchen. After a series of scandals, the sisters decided to establish a procedure for use in order to gain the right to use each specific room and have access to the kitchen, bathroom and balcony. They went to court, which established the procedure for using the residential premises. So the ideal shares turned into real shares.
Since the apartment was on the ground floor, the sisters decided to make a separate entrance to each of the rooms, that is, to isolate themselves. They received permission for redevelopment and extension, thus each receiving separate, separate housing. The changes made were registered in the BTI and the sisters each received a separate apartment number, that is, a separate address. Thus, real shares became personal property, and common shared property ceased to exist.
If we assume that after the death of any of the sisters, her apartment will be inherited by her two heirs, then personal property will again turn into common property, repeating the cycle of property.

Such an example is not at all abstract, and judicial practice knows cases when co-owners reached 1/12 shares.

Agreement on provision of premises for free use

An object transferred for use must have a specific description that allows it to be identified. In the absence of a description, the contract may be considered not concluded.
The borrower does not have the right to sublease non-residential premises; by agreement with the lender, he may, however, transfer non-residential premises to third parties for free use.
If the non-residential premises are an object of cultural heritage or part of it, then the agreement for gratuitous use must undergo state registration.

Please note => Liability for a fatal accident at work

Lender on the right of ownership, as confirmed by a certificate of ownership: series, N, issued .1.3. The premises transferred to the Borrower under this agreement are marked on the BTI plan and in the BTI explication, which are integral parts of this agreement. 1.4. The premises are provided for free use with all accessories and related documents.1.5. The lender guarantees that the transferred premises are not the subject of a pledge and cannot be alienated for other reasons by third parties, are not in dispute and are not under arrest or prohibition. 1.6. The Borrower has the right to place a sign with its name in the place specified by the Borrower, as well as indicate the address of the premises in its documents.2. OBLIGATIONS OF THE PARTIES2.1.

Reasons for determining the order of use

As mentioned above, determining the order of use is always a consequence of a conflict. The causes of the conflict may be the following conditions:

a co-owner occupies a premises in housing with an area larger than his share in the common property. For example, with the right to 1/3 in an apartment, the co-owner occupies a room equal to half the living space;
one of the co-owners restricts the other co-owners’ right to use utility rooms (kitchen, balcony, toilet, pantry);
the presence in the residential premises of one walk-through room, in which isolated living is difficult;
the desire of one of the co-owners to move into a room with a larger area than his share, provided that the other co-owner does not live in the apartment at all;
the presence of strained relations between co-owners, in which one party simply wants to get on the nerves of the other co-owners.

Since conflicts between co-owners can reach a high degree of intensity, a peaceful settlement of a dispute about the order of use between them is practically impossible. Therefore, most legal relations, one way or another connected with the transformation of ideal shares into real ones, are resolved through a claim to determine the procedure for using residential premises.

If the conflict is not clearly expressed or if during the trial the co-owners decided to resolve the dispute on their own, the law allows them to enter into an agreement to determine the procedure for use.

Contents of the agreement

Chapters 35 and 36 of the Civil Code of the Russian Federation determine the conditions and procedure for an agreement on the use of residential premises. And Article 423 of the Civil Code of the Russian Federation stipulates the remuneration and gratuitousness of contractual relations.

If you decide to conclude an agreement, you can use a ready-made sample.

But remember that it must contain basic information, without which the contract cannot be considered valid.

The agreement must contain the following sections:

Parties to the contract.
An object that serves as a living space.
Free provision of housing.
Responsibility, rights and obligations of the parties.
Terms of termination.
Place and date of conclusion.
Signatures of the parties.

Parties to the transaction can only be individuals. It is necessary to indicate the full passport details and place of residence of each party to the transaction.

It is important that there are no errors in the information provided. If they do not correspond to the data from the passport, the document will not be considered legally valid.

The contract must contain a separate indication that the transaction is free of charge. If the owner expects the tenant to pay the rent, it is better to negotiate this separately. Otherwise, the contract cannot be considered gratuitous, since it will include the need for payment.

The responsibility of the parties, as a rule, states that the owner undertakes to provide housing for living, and the tenant undertakes to maintain it in proper condition. If the contract has terminated and the tenant continues to reside, the contract is considered renewed free of charge. But the owner should not be against this.

Thus, the agreement for the use of residential premises becomes a legal guarantee not only for the owner of the property, but also for the tenant. It establishes the basic rights and obligations of the parties, which does not create controversial situations. And if a dispute does arise, it can be resolved pre-trial and in court.

This is important to know: Deprivation of ownership of a land plot

The video story will tell you why a contract for the use of residential premises should be concluded

Limits of use

The use of residential premises refers to established rules, according to which co-owners or tenants:

occupy a certain place in the living room:
use utility rooms;
use passages to common areas.

With long-term joint ownership and use of residential premises, a so-called established order develops. To a certain extent, it is the established order of use that the courts are guided by when making decisions on establishing the order.

It should be clarified that determining the order of use does not at all mean allocating a separate room to each of the co-owners in conditions where there are more co-owners than the number of rooms in the residential premises. This means that claims for this category of disputes are extremely complex, and even more difficult to resolve the dispute through peaceful negotiations.

When making a decision, the court takes into account many factors, ranging from the number of co-owners actually living in the residential premises and ending with an expert’s opinion on the possibility of dividing the housing.

Ways to determine order

There are three possibilities to determine the order of use of residential premises:

go to court with a corresponding claim;
draw up an agreement on the procedure for using housing;
draw up a settlement agreement during the legal proceedings.

Of course, it is necessary to go to court when a peaceful determination of order is impossible.

In order to provide the court with evidence of this impossibility, it is advisable for one of the co-owners to send a written proposal to the other co-owners to resolve the conflict by voluntarily determining the order of use. You may be able to include a copy of these written notices when filing your claim.

It is also possible to reach an agreement during the consideration of the case in court and enter into a settlement agreement. Such an agreement is approved by the court and subsequently becomes the equivalent of a writ of execution if any of the co-owners evades the terms of the settlement agreement.

Drawing up an agreement

An agreement can be drawn up on two grounds:

as a written confirmation of an already established procedure for use;
as a result of an agreement on a dispute.

The agreement is drawn up in simple written form, that is, it does not require notarization. However, this rule will not be an obstacle to contacting a notary if the co-owners so desire.

The text of the agreement must contain the following information:

Full name of co-owners;
description of the right of each of the co-owners to use the residential premises (share by inheritance, share in the common property of spouses, other ways of acquiring the right of shared ownership);
characteristics and address of the residential premises, including information about the area, number of rooms, common areas;
a statement of the terms of the agreement, namely the will of each of the co-owners to establish a general procedure for use;
the actual terms of the agreement. For example, “the co-owners establish the following procedure for use. Ivanov I.I. enjoys a room of 16 m² and has unobstructed access to the bathroom, storage room and kitchen. Ivanov A.I. enjoys a room of 18 m² and has unobstructed access to the kitchen and bathroom. Ivanova M.I. uses a room of 14 m² and has unhindered access to the balcony, bathroom and kitchen”;
signatures of all parties to the agreement and the date of its preparation.

Loan agreement for non-residential premises

An agreement for the gratuitous use of non-residential premises regulates the relationship between the owner of the object and its user. Under the terms of this agreement, there is no payment for the use of the property, which, in fact, is its significant difference from other types of agreements.

Name and information about the parties. In this paragraph, you must indicate the following data: (for individuals - full name, address of place of registration, passport details; for legal entities - name, legal and actual address, OGRN, full name of the representative of the organization, document on the basis of which the person has the right to make transactions).
Subject of the agreement. This paragraph indicates the object that is transferred for use, the address of the location, technical parameters (area, number of floors), the actual condition of the object at the time of its transfer, details of the documents on the basis of which the owner’s ownership arose.
Validity. A specific period is indicated during which the lender provides the premises and the borrower can use it.
Rights and obligations. In this paragraph, you need to indicate the rights and obligations of the lender: the right to conduct inspections on the use of the object for its intended purpose, the right to alienate, transfer for paid use to other persons, the obligation to transfer the object within the agreed period; rights and obligations of the borrower: caring for the property, paying for utilities, carrying out repairs, returning the premises within the agreed period.
Responsibility of the parties. In this paragraph, it is advisable to prescribe penalties in case of violations of the agreement by the parties. For example, establish a penalty or fine for violation of deadlines for the transfer and return of an object, damage to property, etc.
Terms of termination. It is possible to indicate the possibility of early termination of the agreement. In this case, the parties must notify each other in advance, it is necessary to indicate within what time the notice of termination must be sent.
Extension of the agreement. This clause stipulates the possibility of prolonging legal relations if neither party objects.
Force majeure circumstances. It is necessary to indicate those circumstances that may interfere with the proper fulfillment of obligations: military operations, blockades, emergencies, epidemics, floods, earthquakes, etc.
Signatures of the parties.

Please note => Code by okpo by inn online free

Settlement agreement in court

The claim process can be very lengthy and costly. Moreover, neither the plaintiff nor the defendant can be sure that the decision made by the court will satisfy them.

An option to avoid wasting time and money, as well as the possibility of obtaining an unfavorable solution, would be to conclude a settlement agreement between the parties to the process.

You can inform the court about the existence of a settlement agreement both in court and outside it, by filing a petition through the office.

The settlement agreement itself can be oral or written. The written agreement is attached to the materials of the civil case, and the oral agreement is entered by the secretary into the minutes of the court session.

It is still advisable to draw up a written agreement and relieve the secretary of the need to take notes on the text, every word of which may be important. Simultaneously with the agreement, a petition for approval of the settlement agreement is also submitted.

The consideration of the petition takes place at a court hearing. During the consideration, the judge establishes the voluntariness of his conclusion and the validity of its conditions, after which he retires to the deliberation room.

Based on the results of the review, the court either approves the agreement or refuses to approve it. In the first case, the proceedings are terminated, and in the second, they continue until a court decision is made. Rejection of a settlement agreement may occur if its terms violate the rights of other persons, in particular minors or incapacitated persons.

Contents of the settlement agreement

In general, the content of the settlement agreement corresponds to the content of the agreement drawn up in pre-trial procedure. The specifics of the settlement agreement will be the following:

the name of the court that is considering the case;
civil case number and name of the claim;
information about the procedural status of the parties to the agreement (plaintiff and defendant);
presentation to the court of a request to approve the settlement agreement and terminate the proceedings.

A settlement agreement approved by the court receives the status of a binding one, and if any of the parties evades the fulfillment of the obligations assumed under the agreement, it acquires the force of a court decision. This means that the agreement can be submitted to a bailiff for enforcement.

Sample contract for the use of premises

3.2. Any of the parties to this Agreement that has not fulfilled its obligations under the contract or has performed them improperly shall be liable for the above in the presence of guilt (intention or negligence). The absence of guilt for non-fulfillment or improper fulfillment of obligations under the contract is proven by the party that violated the obligations. 6.2. In the event of reorganization or liquidation of the Lender, the rights and obligations of the Lender under this agreement are transferred to another person to whom the ownership of the premises or other right on the basis of which the premises were transferred for free use was transferred.

21 Dec 2021 marketur 242

Share this post

How to register a person temporarily in a privatized apartment
Sample of a notarial consent of a spouse to complete a transaction
How to pay a separate performance fee before
Who is the defendant in a claim for recognition of ownership of a garden plot?