How to expel your ex-spouse from the apartment

A family is not only a legally formalized union of a man, a woman and their relatives, as some believe, it is a very complex social institution.

Family members are united not only by family ties, but also by a certain number of property rights. And it is quite natural that the property side of the relationship becomes the subject of disputes. This issue arises especially acutely during divorce.

And in order to resolve such issues, while respecting your own interests, you need to have a certain set of knowledge in this area.

How to expel a spouse from privatized housing

Today, most families live in privatized apartments and houses. In this case, the owners of real estate can be either one of the spouses or both. Considering that after the breakup of the family, the spouses are not eager to continue living together, the issue of eviction of one of them arises especially acutely.

For what reasons and on what grounds can a person be evicted from an apartment? In fact, the list of reasons why one spouse wants to expel the other from a privatized apartment is quite extensive.

It can be:

banal abuse of alcoholic beverages;
usual hostility after the end of a relationship;
behavior of one spouse that does not meet the expectations of the other, and much more.

However, current legislation stipulates only one basis for eviction of a citizen from an apartment - the presence of a certificate of divorce. That is, only an ex-spouse can be legally discharged.

Housing Code of the Russian Federation, Part 4, Art. 31 of the Housing Code of the Russian Federation: “In the event of termination of family relations with the owner of a residential premises, the right to use this residential premises for a former family member of the owner of this residential premises is not retained, unless otherwise established by an agreement between the owner and the former member of his family.”

In this case, the decisive point is the question of which spouse is the owner of the property.

If the property is owned by only one of them, then, as a rule, there are no problems with the registration of the ex-husband or wife. The exception is when the ex-spouse does not want to leave premises that do not belong to him.
It’s another matter when real estate is the common property of a husband and wife and was acquired during the marriage (Part 1 of Article 256 of the Civil Code of the Russian Federation). In this case, the issue of dividing property and deregistering the former spouse will have to be resolved amicably, because the law does not give anyone the right to deregister the owner of the property.

However, as in many cases, there may also be exceptions here, and they are described in Part 2 of Article 256 of the Civil Code of the Russian Federation: “Property that belonged to each of the spouses before marriage, as well as received by one of the spouses during marriage as a gift or in by inheritance, is his property. The property of each spouse may be recognized by the court as their joint property if it is established that during the marriage, investments were made from the common property of the spouses or the personal property of the other spouse that significantly increased the value of this property (major repairs, reconstruction, re-equipment, etc. .)".

It should be taken into account that your desire to expel your spouse from the apartment is not enough in this case. It is necessary to have a court decision, when making which the judge has to take into account a large number of nuances and factors.

Is it allowed to write out an ex-wife?

The dissolution of a marriage relationship inevitably entails the division of the common living space. Most often, ex-spouses try to go to different apartments. It very rarely happens that they remain in the same living space.

In some situations, it is possible to resolve the issue of travel quite peacefully. For example, when adequate relationships have been maintained between spouses.

However, it is usually difficult for them to reach an agreement, and then they have to sort it out in court.

Due to the fact that the relationship between husband and wife is terminated, the former spouse has the right to expel the spouse from his living space (Article 31 of the Housing Code).

However, there are some caveats. For example, when an agreement on property rights was signed between a man and a woman, it will not be possible to write out the wife.

If there is no agreement, then a woman can be deregistered only in court or by obtaining her consent.

What documents are needed to register an ex-spouse?

To expel one of the spouses from an apartment (house), it is necessary to apply to the court with a corresponding statement of claim. A number of documents must be attached to it. Namely:

1. Certificate of divorce. To obtain it, you must contact the registry office or, if there are grounds, the judicial authorities.

Article 21 of the RF IC: “Dissolution of marriage is carried out in court if the spouses have common minor children, except for the cases provided for in paragraph 2 of Article 19 of the Family Code, or in the absence of the consent of one of the spouses to dissolve the marriage.”

2. Extract from the Unified State Register.

Any owner must have this document, since ownership of real estate arises only with the receipt of such a document. From 2021, an extract from the Unified State Register has replaced the Certificate of State Registration of the Right to Housing. You can get it at any territorial MFC or Rose Register branch. 3. Copies of all pages of the house book.

This document will help confirm a number of facts indicating the need to remove the ex-spouse from the apartment. For example, that the ex-spouse ignores paying utility bills or does not live in the apartment for a long time. 4. Receipt for payment of state duty.

Since this claim is a claim of a non-property nature, it will be necessary to pay a state fee.

How to file a claim?

The header of the application indicates the name of the court to which the claim is sent, the name of the wife (plaintiff), and the name of the husband (defendant). The place of residence of each party is also indicated. You can fill out the application yourself or seek the help of a lawyer.

Sample sample (letter body):

indicate the address of the apartment.
Write the number of the title document.
Determine the basis for considering the case.

If payment for housing and communal services is overdue, additionally indicate the amount of the financial claim. The claim is accompanied by copies of all documents confirming the breakdown of family relationships and containing data on offenses on the part of the husband.

Procedure for deregistration from a privatized apartment

According to the established Art. 28 of the Code of Civil Procedure of the Russian Federation, the statement of claim is filed with the district court at the place of residence of the defendant. Since the defendant was registered in a shared apartment at the time of filing the claim, his place of residence coincides with the plaintiff’s place of residence.

But if the defendant lives in another place, retaining ownership of the apartment that is the subject of the dispute, then the application should be submitted to the district court at the place of actual residence of the defendant.

An exception to this rule is described in Art. 28 of the Code of Civil Procedure of the Russian Federation: “A claim against a defendant whose place of residence is unknown or who does not have a place of residence in the Russian Federation may be brought to court at the location of his property or at his last known place of residence in the Russian Federation.”

After receiving a court decision to discharge the plaintiff, it is necessary to visit the territorial office of the Ministry of Internal Affairs (previously it was the Department of the Federal Migration Service). Your actions here:

provide copies of your passport (or other identification document) and court decision;
write an application, a sample and form of which will be given to you by an employee of the Ministry of Internal Affairs.

As a result, the ex-spouse will be de-registered and after three days the applicant will be issued a deregistration slip.

The amount of the state fee in this case is 300 rubles for filing a statement of claim (clause 3, part 1, article 333.19 of the Tax Code of the Russian Federation).

Some online sites give a figure of 200 rubles. But this information is outdated, because... the fee has been increased in 2021. I would like to note that contacting the Ministry of Internal Affairs is free, as is issuing a departure certificate.

Some nuances

If the spouse does not have the opportunity to live with relatives (the property does not belong to him), then the court, showing humanity and concern for the citizen, can make a decision on discharge, but with a delay of 1 year .

During this time, the husband has the right to stay in the apartment, but after a 12-month period, even if an alternative place of residence is not found, his further presence in the territory is illegal.

If the apartment is sold by the wife as the owner (Civil Code of the Russian Federation, Article 292, paragraph 2), then the registered husband, due to a change of owners, loses the right to use the property , but may deliberately not issue an extract. When a claim is filed by the new owner of the apartment, the claim is satisfied in most cases.

Check-out and eviction - what's the difference?

Many citizens often confuse the two concepts of “discharge” and “eviction”. Indeed, they are quite interconnected. However, you should understand the difference between them.

If “discharge” deprives the former spouse of the right to residence purely legally, then “eviction” deprives him of this right in fact. After all, it often happens that the court made an appropriate decision, and the Ministry of Internal Affairs issued a leave certificate, and the ex-husband declares: “I don’t care about these documents, I’m not going anywhere, and I’ll live here!”

In this case, you will have to go to court again, this time for a court order. After the appeal, the judge issues a court order, on the basis of which the bailiffs are obliged to evict the ex-spouse from your home.

I wrote “obligated to evict,” because almost everyone who has ever contacted this service knows how our bailiff service “works.”

Reasons

In accordance with the provisions of the Constitution of the Russian Federation, every citizen of our country has a legal right to housing, therefore, for his forced deportation there must be good reasons, for example the following:

after the divorce, the husband transferred the municipal housing into ownership, and the wife registered in the apartment did not take part in the privatization;
a woman does not live in this apartment for a long time or evades paying utility bills;
The marriage contract states that after a divorce, the apartment becomes the property of the husband.

In principle, being the sole owner of the property, the husband can initiate forced deportation at any time, but there are a number of exceptions to this rule. The court will not allow the ex-wife to be evicted from the apartment if:

the woman took part in privatization and owns a share in a shared apartment;
the woman signed a waiver of participation in privatization in favor of her husband or children;
the apartment was purchased by the spouses jointly after marriage, including with a mortgage;
according to the terms of the marriage contract, the woman has the right to live in the disputed apartment for life;
this is the only housing and financial capabilities do not even allow you to rent an apartment for temporary residence;
The housing in question is municipal.

Is it always possible to discharge a citizen?

The question of whether an owner can always evict a former spouse is asked to lawyers quite often. The answer to this question lies in Art. 31 of the RF Housing Code and clause 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 2, 2009 No. 14. Moreover, this issue is resolved exclusively in court.

The fact is that if the ex-spouse does not have any other housing, as well as the funds to buy or rent it, the court may grant him the right to live for some time in the disputed living space.

Part 4 art. 31 of the Housing Code of the Russian Federation: “If a former family member of the owner of a residential premises does not have grounds for acquiring or exercising the right to use another residential premises, and also if the property status of a former family member of the owner of a residential premises and other noteworthy circumstances do not allow him to provide himself with another residential premises, the right the use of residential premises belonging to the specified owner may be reserved for a former member of his family for a certain period on the basis of a court decision.”

The court has the right to oblige the owner of the property to provide housing for the ex-spouse if he is obliged to pay alimony for child support. In this case, the court takes into account a large number of nuances, such as the health status of the ex-spouse, the duration of the marriage, the age of the husband and wife, etc. (clause 16 of PPVS No. 14).

The legislative framework

When drawing up a purchase and sale agreement, a clause must be included on the registration of the old owners within a certain period. For the judge, this is an argument in favor of eviction if the conditions have not been met. When this provision is not included in the document, it is necessary to use the civil code.

A list of laws that you can rely on to write out the former owner:

Article 209 of the Civil Code, paragraph 1 - the owner can independently dispose of the purchased property.
235 art. Civil Code, clause No. 1 - the right of use is terminated at the moment when the previous owner of the residential property sells it.
Article 292 of the Civil Code, paragraph 2. If a formal agreement is concluded between the buyer and the seller, then the right to transfer property is considered legal. The former owner has no legitimate interest in using the residential premises, nor in allowing his family members to enter the apartment.

These provisions indicate that after the purchase, the new owner is authorized not to open the door to the former owner, as well as his relatives, since they interfere with the legal possession of the purchased apartment.

Based on these documents and a clause in the contract, the court will forcibly evict the former residents. The resolution of the executive body must be submitted to the Ministry of Internal Affairs so that the employees can independently resolve the issue.

How to expel an ex-spouse from a municipal apartment

Many citizens believe that it is impossible to discharge their ex-spouse from an apartment occupied under a social tenancy agreement. Actually this is not true. You can sign out, although the procedure for checking out in this case differs from that provided for a privatized apartment. After all, the former spouse, although he ceased to be a member of the family, did not lose the right to reside in a municipal apartment (Part 4 of Article 69 of the Housing Code of the Russian Federation).

Despite the above, there are reasons why it is still possible to discharge your ex-spouse from public housing. They are specified in Part 4 of Art. 83 Housing Code of the Russian Federation.

Termination of a social rental agreement for residential premises at the request of the landlord is permitted in court in the following cases:

failure by the tenant to pay for housing and (or) utilities for a period of more than six months;
destruction or damage to residential premises by the tenant or other citizens for whose actions he is responsible;
systematic violation of the rights and legitimate interests of neighbors, which makes it impossible to live together in the same residential premises;
use of residential premises for purposes other than their intended purpose.

If at least one of the above reasons is present, you can safely go to court with a claim for the discharge of your ex-spouse.

In order for the court decision to be positive, a number of documents must be attached to the statement of claim:

certificate of divorce;
an extract from the house register;
additional documents in favor of the plaintiff;
confirmation of payment of utility bills (checks, receipts);
confirmation of violations of public order by the defendant (fines, warnings);
documents confirming that the defendant uses the premises as non-residential;
certificate of inspection of the premises (with recording of various damages).

Security of the purchase and sale transaction

When purchasing, you need to find out in advance about the registered people. It is worth visiting the passport office and getting an official extract from the house register, which stores information about residents who are registered at the desired address.

If additional guarantees are needed, you should order information from the archive. The papers indicate persons who have a lifelong right of residence in a specific area. But this certificate is difficult to obtain; passport office employees are reluctant to carry out the procedure.

After an official refusal, you can contact a legal agency dealing with real estate issues. Qualified employees will assist in resolving the situation.

Disadvantages of housing with registered people

It’s a rather reckless move to buy an apartment where an indefinite number of people are registered. There are different situations, but before purchasing you need to carefully study all the information. If a person completely trusts the former owner, then it is not necessary to immediately check him out of the apartment. This is also done after the transaction is completed, if there are good reasons for this.

However, there may also be unscrupulous sellers who create problems for the new owner of the property. They refuse to voluntarily move out of the apartment and, after receiving the money, use it as before. The only chance to organize legal consequences is to go to court with an official statement.

The main problem and disadvantage are citizens who cannot be officially evicted from a newly acquired apartment.

Legal advice

The procedure for eviction of a former owner is a complex process. You should contact a lawyer for advice.

The new owner does not have the right to restrict the movement of certain persons around the living space, since they are “protected” by official registration and are authorized to use even the sold property, including in situations where the owner has changed.

This state of affairs is extremely delicate and complex. Competent lawyers advise not to enter into conflicts and not to evict people using physical force, because they can call the police, for which they have legal grounds.

To resolve the situation, it is necessary to carry out the official deregistration procedure and receive a departure certificate. Only after these events have been carried out will the registered persons be officially considered strangers in the apartment.

How to register former owners? Consultation with a lawyer

The procedure for expelling a citizen from a municipal apartment

This type of dispute is within the jurisdiction of the district court. The statement of claim is filed at the place of residence of the defendant or (in exceptional cases) at the location of the disputed property.

After receiving a positive court decision, you must contact the territorial internal affairs body, where the ex-spouse will be deregistered.

Documents that need to be provided:

court decision (copy);
passport (copy);
statement.

After 3 days you need to receive a certificate of departure of your ex-spouse.

The state fee when filing an application with the court is 300 rubles. Issuance of a departure certificate is free of charge. The period for filing an appeal is 1 month from the date of the decision.

If the ex-spouse refuses to leave the premises, you must apply to the court for a court order, and then to the bailiffs at the SSP.

How to resolve a dispute voluntarily

First of all, the parties should try to resolve the matter amicably. The most reasonable thing was to clearly state the rights of the parties in relation to the disputed living space at the stage of divorce. The following situations are possible here:

During the divorce, a notarial agreement was concluded - usually there is a clause regarding the further procedure for using the living space. Accordingly, it must be referred to during a conversation with your husband about his discharge from the apartment or house.
The divorce took place in court - the court decision also prescribes the procedure for removing the husband from the living space, which remains in the use of the wife. The decision must be implemented - this is the decisive argument in the dispute between the former spouses.

If you manage to reach an agreement, you should not put off resolving the issue, but together with your husband go to the passport office and sign him out of the living space.

Otherwise, you can use another method:

Personally give your ex-husband a demand to check out of your apartment and vacate your living space. It indicates the date of removal of things and handing over the keys to the premises.
Obtain a signature on the second copy of the request.
If the ex-spouse refuses to sign the document, send it by registered mail with return receipt requested (to the registered address).

When an amicable agreement cannot be reached, registration will have to be terminated through legal action. To do this, the wife will have to collect documents confirming her right to sole use of the living space, as well as evidence that her ex-husband is preventing this.

Is it possible to register an employer?

In principle, the law does not stipulate any prohibitions on such actions. However, one must take into account the fact that the tenant’s expulsion from the municipal apartment automatically terminates the contract, and therefore all family members, which include the ex-spouse, are also subject to eviction.

A former spouse can stay in a municipal apartment only in the cases described in Art. 51 and/or 91.3 of the Housing Code of the Russian Federation, if you are in line for housing and have no reasons for being discharged from municipal housing.

○ Advice from a lawyer:

✔ Are there any differences in the discharge from a communal apartment?

Communal apartments, as relics of the “resettlement” programs that operated in the Soviet Union, survive today in fairly small numbers. Several families live in such a living space, and each of them must have their own room, which belongs to them by right of ownership or ownership. The eviction of a former family member from a “communal apartment” takes place in a manner similar to a privatized apartment. However, in fact, a person can continue to live in a residential area, but in a different room and with another resident, if the latter agrees to registration and occupancy.

✔ What if the person being discharged has nowhere to register?

The absence of any residential premises in which one can register after eviction from an occupied apartment is the main basis that allows the court to recognize the right of a former family member to remain. The spouse is given a certain period during which he must not only live, but seek the opportunity to either acquire ownership of a separate home or enter into a lease agreement (commercial, social or residential premises of a social use fund). If these actions are not carried out, sanctions may be applied by the court.

✔ Is it possible to discharge a tenant from a municipal apartment?

Deprivation of the registration of the tenant himself is often fraught with a similar effect for the former spouse, since he is in fact equated with family members, who, in turn, also leave the apartment upon termination of the contract. It is possible to remain in the residential premises only if the ex-spouse himself has the grounds established by Art. 51 and (or) 91.3 of the Housing Code of the Russian Federation, is in line for housing and has no reason to be discharged.

Video

How to expel your ex-spouse from your own apartment? Lawyer Sergey Anatolyevich Bogatkov tells

Published by: Vadim Kalyuzhny , specialist of the TopYurist.RU portal

How to discharge a spouse from a communal apartment

Extract from a communal apartment is no different from extract from privatized housing. In this case, the ex-spouse has the right to continue to live in the same apartment, but in a different room and with another resident, if he agrees to move-in and registration, and the room meets the requirements for accommodation of two people.

In any case, before filing an eviction claim in court, it would be a good idea to consult with a competent lawyer to ensure the maximum likelihood of a positive court decision.

Conclusion

When evicting a former owner from a purchased apartment, you must behave as correctly as possible and not use physical force. Otherwise, officially registered citizens can create many legal problems for the new owner.

Watch the video: “If the former owner is assigned to the apartment, real estate consultation.”

Judicial practice shows that in most cases the claim will be satisfied and the former owners of the apartment must leave it within a month. In addition, the defendants will be required to repay the debt, if any.

What else to read:

Special requirements for notifications about holding a general meeting of owners of an apartment building in 2021 - nuances depending on the forms and types of convening
How to expel and forcibly evict the owner from an apartment - legal grounds, procedure, eviction lawsuit for systematic violations of the rights of neighbors
Special requirements for eviction from a hostel under the new Housing Code - why someone with permanent registration can be evicted, judicial practice, samples of notice and claim
How can an owner deregister and evict a registered person from a private house without his consent - nuances of the procedure, grounds, documents, sample applications