How to permanently expel an ex-husband who is not the owner from an apartment

Article updated: March 25, 2021
Alexey BessonovPracticing Moscow lawyer

Hello. I am a visiting lawyer from the Bessonov and Partners law firm. I specialize in discharging citizens in court.

Any person can be discharged from an apartment without his consent ONLY THROUGH THE COURT. This is expressly stated in paragraph 1 of Art. 35 LC RF and Art. 7 of the Law of June 25, 1993 N 5242-1. There is NO other way.

If, after a divorce, the ex-husband, not being the owner of the apartment, refuses to check out or ignores this requirement, the owners need to go to court and file a claim for termination of the rights to use the residential premises. Next, you will need to attend court hearings and obtain a positive court decision.

Important: All owners must agree to the ex-husband’s discharge and report this at the trial. If one of them expresses his disagreement, then the claim may be denied.

First, let’s estimate the chances of being discharged and what laws to rely on

It is important to know how the owner got the apartment. Many people do not take into account some points, but in vain. Therefore, let's look at the options:
- The apartment was purchased during marriage, but the ex-husband is not the owner. Then the apartment is the joint/common property of BOTH spouses, even if it is registered in the name of only one of them - clause 2 of Art. 34 RF IC. That is, the ex-husband owns “half” of the purchased apartment - according to the law, but not according to the documents. But the owner of the property cannot be written out, even if he does not live in it - clause 1 of Art. 209 of the Civil Code of the Russian Federation.
  After a divorce, joint property does not automatically disappear. It’s just that former spouses became participants in joint property on the basis of Art. 253 Civil Code of the Russian Federation. The same applies when the apartment was received during marriage under an exchange agreement - clause 2 of Art. 567 Civil Code of the Russian Federation.
  What to do then? There are two options: 1) It is better to file a claim not for the ex-husband’s discharge, but for the division of joint property in order to divide everything according to the law. 2) Try to write out your ex-husband, but only 3 years after the divorce. Why? Based on clause 7 of Art. 38 of the RF IC and clause 1 of Art. 200 of the Civil Code of the Russian Federation, the limitation period is 3 years from the moment when a person learned or should have learned about a violation of his right. According to the logic of these articles, 3 years can be counted from the moment of divorce. But there is another problem. If the ex-husband finds out that he has been discharged or wants to be discharged, he will most likely sue for the division of property. At trial he will say that he decided to do this because his rights were violated. Therefore, I advise you to immediately divide the property. After all, such an apartment is like a “time bomb.”
  Exception: the purchased apartment will not be considered joint property if the spouses signed a marriage contract before or after the transaction - Art. 42 IC RF.
Clause 13 of the Supreme Court Resolution No. 14 of July 2, 2009 - after a divorce, the ex-husband automatically becomes a former member of the owner’s family and family relations with him are terminated.↓
Clause 4 art. 31 of the Housing Code of the Russian Federation - the ex-husband, as a former member of the family of owners, does not retain the right to use the residential premises, unless there was another agreement between them.
Explanation - the ex-husband does not have the right to live in the apartment unless there is another agreement. In court, the owners must be informed that after the divorce from the ex-husband there were no agreements regarding his residence. And if there were, they are now terminated.
IMPORTANT: if the apartment went to the owners during privatization and the ex-husband refused to participate in it, the conditions for discharge and the instructions themselves are very different. Therefore, I wrote a separate instruction on how to discharge a person who refused to participate in the privatization of an apartment. It is also suitable for a situation with an ex-husband.↓
Art.
304 of the Civil Code of the Russian Federation - the owner may demand the elimination of any violations of his rights, even if these violations were not associated with deprivation of possession. Explanation - the registration of the ex-husband violates the rights of the owners to freely use the apartment, and the owners have the right to demand the elimination of these violations.

It doesn't matter whether the ex-husband pays utility bills or not. If he doesn’t pay, it’s enough to indicate this in the statement of claim and that’s it. There is no need to prove anything.

Does your ex-husband live in the apartment?

If the ex-husband does not live in the apartment, this will be an additional plus on his discharge. If he still lives, then it is important to know whether he owns other real estate (apartment, share, house, room). If in court he proves that he has nowhere else to live/register, the judge IN RARE CASES may decide to leave him a residence permit for a certain period, i.e. will temporarily retain the right to use the apartment - clause 4 of Art. 31 of the RF Housing Code and clause 15 of the Resolution of the Plenum of the Supreme Court of July 2, 2009 No. 14. In practice, the period ranges from 3 months to 1 year, but is usually discharged immediately. After this period, the owners need to bring the court decision to the passport office and write it out.

If the ex-husband owns another living space, this must be proven. The instructions below tell you how to do this.

Our law office "Bessonov and Partners" offers residents of Moscow or the region. We will take on all the possible work - we will draw up a correct statement of claim, collect all the necessary documents and submit them to the court. You will not need to come to court hearings; the office's lawyer will participate in them and will do everything possible to win the case. At the end of the trial, we will bring you a copy of the court decision.
We have been working in the field of court records since 2008 and have won 84% of court cases.
The cost of the service is 60 thousand rubles. For visitors to this site there is a discount of 5% to 10%. To receive it, say that you came from the website “Prozhim.com”. For all questions and for a free consultation, call 8 (495) 642-31-96 (daily from 9:00 to 21:00 Moscow time / only for residents of Moscow and the region).

About the residential address in documents

I often get asked the following questions: “What should I do if my ex-husband has moved out of the apartment, but I don’t know where he lives now? What address should I include in the statement of claim? What to do if you know where he lives? Should I indicate the actual address?

According to the logic of the court, the defendant’s residential address is considered to be his registration address - paragraph 63 of the Resolution of the Plenum of the Supreme Court of June 23, 2015 N25. Therefore, in the statement of claim and other documents, we indicate the place of residence of the ex-husband as his registration address, that is, the address of the apartment from which we want to discharge him. The plaintiff is not required to know where the defendant actually lives.

As a result, the court will send all the summons to the ex-husband to a place where he may not live - Art. 113 Code of Civil Procedure of the Russian Federation. If he does not receive them, the court will still consider him notified. Everything is legal. Receiving correspondence is a citizen's responsibility. If the ex-husband does not appear in court, the case will be considered without him (in absentia) - clause 4 of Art. 167 Code of Civil Procedure of the Russian Federation.

About the opportunity

Is it possible to evict a registered person from an apartment?

Yes, you can . The resident is not the owner, which means that if there are appropriate grounds (for example, if a person is rowdy, endangers the living of neighbors, and simply does not pay for accommodation), he can be asked to leave and no court will be able to challenge this right.

This is possible both in the case of social rental (Article 83; 90 of the RF Housing Code) and private ownership (Articles 293, 249, 292 of the RF Civil Code; Articles 31, 91 of the RF Housing Code). Moreover, in the latter, it is enough simply that the extra person, as they say, “brown” the eyes of the owner (Article 31 of the Housing Code of the Russian Federation).

This is also possible in case of non-payment of the mortgage loan.

Eviction is possible in two ways :

through the Management Company (if everyone agrees);
through the court (if the tenant actively protests).

Find out how to evict an illegally residing or unregistered person from an apartment, as well as a former spouse or even the owner himself, on our website.

Stage No. 2 - Let's go to court

You can go to court immediately after sending the documents to the defendant and a third party (the above stage). The trial usually lasts from 2.5 to 5 months. Although the law states a maximum of 2 months - clause 1 of Art. 154 Code of Civil Procedure of the Russian Federation.

Submit a statement of claim and other documents to the court.
I remind you once again that only one of the owners can submit an application and participate in the trial, but not all of them have to. Whoever is the plaintiff will file. A claim can also be filed by a lawyer/lawyer under a power of attorney.
You need to go to court at the location of the apartment - Art. 24 and art. 28 Code of Civil Procedure of the Russian Federation. Because the defendant is registered in this apartment. Usually in large cities these are district courts, in small towns and villages - city courts.
If one of the plaintiff owners is under 14 years of age, one of the parents/guardians must participate in the court instead of him - Art. 28 Civil Code of the Russian Federation. If he is from 14 to 18 years old, he must also be present together with one of the parents/guardians - Art. 26 Civil Code of the Russian Federation.
First, you need to get the details for paying the state fee from the court office. Usually they hang on an information stand. They rarely give details as a separate receipt. The state duty is 300 rubles (clause 3, clause 1, article 333.19 of the Tax Code of the Russian Federation). You can pay it at any bank.
Then you need to submit to the reception (expedition) of the court: 1) prepared documents from the first stage; 2) inventory and checks sent to the defendant and a third party (copies); 3) original receipt with payment of state duty.
As a result, the court employee will put a stamp on a copy of the plaintiffs’ statement of claim with the date of acceptance and the entry number.
Sample of a stamp confirming the acceptance of a statement of claim
The judge will review the documents and set a date for the preliminary hearing..
Within 8 - 10 days from the date of filing the documents, the judge will consider the statement of claim and decide what to do with it next - accept, reject or leave without movement (clause 1 of Article 133 of the Code of Civil Procedure of the Russian Federation).
If everything is in order, a preliminary hearing date will be set. Usually it will take place 15 - 35 days after the application is accepted. The court will send by registered mail to the plaintiff-owner, the defendant-ex-husband (at the place of registration) and the third party a summons about the time and place of the preliminary hearing - clause 2 of Art. 113 Code of Civil Procedure of the Russian Federation.
It is better for plaintiffs not to wait to receive a summons, but after 10 days, ask the appointed judge for the date of the preliminary hearing. Judges usually see citizens on Monday and Thursday. The name of the judge can be checked at the reception (expedition).
Conducting a preliminary meeting.
A preliminary hearing is preparation for the trial (Article 152 of the Code of Civil Procedure of the Russian Federation). In it, the judge listens to the parties' demands and reviews the submitted documents. If there are not enough documents, the judge will indicate which ones.
If the plaintiffs do not know about the defendant’s property, I advise them to petition the court to request information from Rosreestr. The court will request an extract from the Unified State Register for the full name of the defendant - about the rights of an individual to the real estate objects he has.
Read also: Distance from the well to the house. How to place a well on a site according to the standards
After this, a court date will be set. It takes place 15 - 35 days after the preliminary one. Subpoenas are again sent to all parties.
Conducting a court hearing.
At the beginning of the court hearing, the judge will announce the requirements for the claim. Then he will listen to each of the parties or their representatives, additions, testimony of witnesses and other third parties, and ask questions for clarification.
What should plaintiffs do? The plaintiffs must be told at the court hearing that the ex-husband, as a former family member, has lost the right to use the apartment and his registration prevents him from using it freely. I wrote at the beginning of the article which articles of the law to rely on - link.
If your ex-husband lives in an apartment, you need to prove that he has somewhere to live. For this purpose, I indicated the need to order various extracts from the Unified State Register of Real Estate.
There may be several court hearings. By law, the defendant must be notified twice. Therefore, if he does not come to the first meeting, a second one will be scheduled. It will pass 10 - 30 days after the first one. If he doesn’t come to the second meeting, the judge will consider the case without his participation - Art. 167 and art. 233 Code of Civil Procedure of the Russian Federation.
The court's decision is announced .
After the judge considers all the demands and arguments of the parties, he will make and announce his decision - Art. 193 Code of Civil Procedure of the Russian Federation. If the ex-husband (defendant) was present at the court hearings, the court decision will be in person. If you were not present, the decision may be either in person or in absentia - at the discretion of the individual judge.
Pick up a copy of the court decision in its final form from the court office . Usually it is ready in 10 - 14 days. Although there should be a maximum of 5 days - clause 1 of Art. 214 Code of Civil Procedure of the Russian Federation. You can find out about its readiness by calling the court office. The defendant will be sent a copy of the decision by registered mail to the address from which it was written.

What categories of citizens cannot be discharged from municipal housing even through the court?

Some categories of citizens cannot be deregistered and forcibly evicted even through court proceedings. In exceptional cases, carrying out such actions will require a significant investment of time and effort. Such persons include:

orphans;
minors;
old age pensioners;
disabled people of groups 1 and 2 who became disabled due to the performance of official/military duties or due to an occupational disease;
family members of missing or killed employees of the Ministry of Emergency Situations, customs, internal affairs bodies, military personnel and penitentiaries;
family members of the deceased tenant of the apartment.

Stage No. 3 - Discharging the ex-husband

The losing party has a period to try to challenge the court decision - by filing an appeal to a higher court (Article 320 of the Code of Civil Procedure of the Russian Federation). After the expiration of this period, the decision comes into force - Art. 210 Code of Civil Procedure of the Russian Federation.

How long should I wait? In-person decision - if the defendant does not challenge it, then after a month it comes into force (clause 1 of Article 209 and Article 321 of the Code of Civil Procedure of the Russian Federation). The month must be counted from the date of the final decision. The date can be found in the text of the decision itself. For example, “The reasoned decision was made on August 20, 2021” or “The decision in reasoned form was made on August 20, 2019.” This means it will come into force on September 20, 2021.

With an absentee decision it is more complicated - it comes into force 7 days after the defendant received it, but did not appeal - clause 1 of Art. 244 and paragraph 1 of Art. 237 Code of Civil Procedure of the Russian Federation. What if the defendant does not withdraw the decision? Then it must wait 1 month and 10 days - clause 14 of the Review of Judicial Practice of the Supreme Court No. 2 of June 26, 2015. Better than a month and a half.

When the court decision comes into force, the plaintiffs need to bring a copy of it to the passport office and the defendant will be discharged. After discharge, I advise you to obtain a fresh extract from the house register (certificate of registered persons). There will be no defendant.

The court itself will send a copy of the decision to the migration department of the Ministry of Internal Affairs (formerly the Federal Migration Service).

Is it possible to discharge a child from a municipal apartment?

The legislation protects the right of minors to housing especially carefully. Their compliance is monitored by regulatory authorities represented by:

prosecutor,
courts,
guardianship authorities.

It is almost impossible to discharge minor citizens from the living space they occupy. However, the answer to the question whether it is possible to discharge a minor from a municipal apartment may be positive in the case of:

illegal registration of a child (although this circumstance is not always taken into account by the court);
availability of statements from both parents providing evidence that the child will be registered in housing with better living conditions.

How to write a statement

Registration in Russia is of a notification and declarative nature. Registration and discharge are usually carried out on the basis of an application filled out according to the approved form.

It must be filled out correctly and not contain errors, corrections, or blots that make it difficult to read or understand. The document is filled out in Russian. It requires indicating the address of the premises from which the deregistration is being carried out, information about its owner and the tenant being deregistered.

You can submit an application in person, by mail, or electronically through the government services portal. Documents can be submitted through a representative with the appropriate power of attorney. A sample application can be found at the link below.

Download application form for discharge

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Why us?

It is extremely difficult to independently resolve the issue of expelling a person from an apartment without his consent in court. It will be necessary to take into account the norms of numerous legal acts, the constitutional right to housing, etc. Experienced housing lawyers from the Borodin and Partners board will help you understand the intricacies of Russian legislation and will qualitatively defend the client’s position in court.

Our main advantages include:

Possibility of ordering your first free online consultation on the website (tab “Free Consultation”);
24-hour personal chat with a lawyer with a service for sending electronic documents and a calendar to track the progress of the case;
Convenient ways to contact lawyers - by phone, email or via chat in your Personal Account.

If necessary, a lawyer can go to the site. Membership of all members of the bar in the Moscow Bar Association guarantees professionalism and confidentiality in the consideration of the case.

Where to go to apply

There are several ways to register a person in an apartment or to leave it. The first step is for the homeowner to contact the registration authorities. Registration issues are managed by the migration divisions of the Ministry of Internal Affairs.

You can also apply for registration (extract) through multifunctional centers (MFC). Today they are open in almost every city. MFCs operate on the “single window” principle. You can make an appointment at the center in advance using the electronic queue.

You can also submit your application and necessary papers electronically through the government services portal. To receive services on the portal, you need to register on it. After submitting and checking documents, they are sent to the appropriate department of the migration service.