Apartment takeover
With the advent of the state register of real estate rights, outright raiding in the housing sector has become rare. If the premises are occupied by unknown persons, it is enough to call the police. Law enforcement officers will help you enter the apartment and ensure that intruders are expelled from it. The actions of the invaders will fall under Art. 139 of the Criminal Code of the Russian Federation.
The punishment for the crime depends on the qualifications. If criminals seize real estate in the absence of a citizen living there, they face a fine of up to 40,000 rubles, confiscation of earnings for 3 months, compulsory work of no more than 360 hours, correctional labor for 1 year or three months of arrest. If a crime is committed using violence, threats, or entry into a home by a group of people, the sanctions will be much tougher.
The injured owner will only need to write a statement to the police. Law enforcement will take over the investigation. As part of the criminal process, it will be possible to file a civil claim for compensation for damage caused, including moral damage (Article 44 of the Code of Criminal Procedure of the Russian Federation).
Features and nuances
Recently, owners of small shares have often abused their property rights. The court may refuse forced occupancy on the basis that in reality the owner of a small share intends to cause harm to other owners of the apartment. If the plaintiff’s share is insignificant, then he will have to prove the fact that there are his things in the apartment, that he permanently lives in one of the rooms and bears the costs of its maintenance. Only in this case is there a chance that the court will satisfy the claims.
Agreement on determining shares in an apartment
If a person, for example, was registered in an apartment, but did not live in it for several years, then later he may need to pick up personal belongings. In this case, the procedure is the same: if it was not possible to come to an agreement with the residents, you must go to the police. Then a claim should be filed in court to seize the items from the illegal possession of third parties.
The plaintiff will need to prove the fact that specific things really belong to him. If he demands the seizure of inseparable items of property (for example, a built-in kitchen), the court will refuse him.
Disputes between owners
Such conflicts are considered the most complex from a legal point of view. An apartment can belong to several persons at the same time . Russian legislation provides for two forms at once (Article 244 of the Civil Code of the Russian Federation): general joint and shared.
In both cases, the owners can dispose and use the property. They must do this by mutual consent. If it is not possible to reach an agreement on the rules of living in the apartment, the issue is submitted to the court for consideration. At the same time, the servants of Themis do not always satisfy claims for resettlement. Compensation is often considered as an alternative.
A monthly payment for the inability to actually use the premises is prescribed in the following cases:
- the area and layout do not allow dividing the apartment into parts;
- the plaintiff's share is extremely small;
- cohabitation of conflicting parties infringes on the interests of third parties (for example, children).
The list of grounds that courts use when awarding compensation remains open. An example of the approach is the determination of the Supreme Court of the Khanty-Mansiysk District in case No. 33-649/2015.
Can the owner not be allowed into his house?
As promised, today we are talking about the other side of the inviolability of housing guaranteed by the Constitution - judicial practice about owners whom the court did not allow into the housing that legally belongs to them.
We all know that the owner has the right to own, use and dispose of his property, including real estate.
However, the right of ownership and use is not always easy to implement even in court, especially when it comes to the right to a share in common shared property.
The first case I want to tell you about was considered by the judicial panel for civil cases of the Saratov Regional Court. Based on the results of the consideration, on August 6, 2019, an appeal ruling No. 33-5948 was issued.
The crux of the matter is this:
There are 2 houses on one plot of land, which is divided by a fence. The largest of them, with an area of more than 100 square meters. m, belongs by right of ownership to the plaintiff (let's call him Ivan). Ivan and his family live there.
The second house is one-story, with a total area of only 40 square meters. m is in the common shared ownership of Ivan and the defendant - let's call her Maria. Maria's family lives in this house. Ivan never lived in this house.
Each household has a separate entrance from the street.
Maria unauthorizedly replaced the gas equipment and heating system in her residential building.
Here Ivan became all worried, fearing for the safety of his property, and in order to exercise control over the gas supply system, he filed a claim against Maria to remove obstacles in the use of the home. In particular, he asked the court to impose on Maria the obligation to eliminate obstacles in the use of the home in 40 sq.m., giving him, Ivan, the keys to the gate and the house.
Ivan motivated his claim by the fact that he, by right of common shared ownership, owns a share in this household. Ivan indicated that his claim was motivated by the need for him to exercise control over the gas supply system that Maria had unauthorizedly installed in the disputed household.
By decision of the Saratov district court, Ivan’s claims were denied.
The regional court did not find any grounds for canceling the decision made by the court of 1st instance and did not support Ivan in his experiences.
The courts proceeded from the fact that the disputed residential building was not intended for the families of Ivan and Maria to live in it together; an agreement between them on the procedure for using the residential premises was not reached; Ivan did not make a request to determine the procedure for using the residential premises and did not want to move into the house.
Providing possession and use of a part of the common property to Ivan, commensurate with his share, is impossible.
The court, without denying the legality of Ivan’s rights as the owner of the disputed house, indicated that the participant in the common shared ownership does not have an unconditional right to move into it and live; the exercise of his rights to own and use the house depends on the size of his share in the ownership and the agreement of the owners.
Considering that the exercise of the right to use a house belonging to the owner presupposes living in it, while Ivan has not made any demands to move into a residential building, ensuring free access to a residential premises without the purpose of living in it may entail a violation of the provisions of Art. 25 of the Constitution of the Russian Federation and Part. 1, 2 tbsp. 3 of the Housing Code of the Russian Federation, Maria’s rights to live in the disputed house.
Moral: if you want to live in a small house with a second family, determine with them the procedure for using the premises that are due to your share, and without the purpose of living you CANNOT control those living in the house!
Source: Appeal ruling of the Saratov Regional Court dated 08/06/2019 in case No. 33-5948/2019.
The second court case that I want to talk about initially shocked even me, an experienced lawyer.
The story is this: a certain girl, let's call her Natalya, inherited by law from her father a 1/2 share in the right to a three-room apartment. The second 1/2 belongs to a certain Vasily, who bought it from the second heir to the apartment.
The rights of both Natalia and Vasily are confirmed by relevant judicial acts. But only Vasily and his wife live in the apartment. And 1/2 share of the right to the apartment is in their joint ownership.
A hostile relationship developed between Natalya and Vasily. Vasily does not give the keys to the apartment, where the money is obviously located, to Natalya. And Natalya, having no other housing, is forced to rent an apartment.
Having gathered her courage, she filed a claim with the magistrate, in which she asked to determine the procedure for using common property and to remove obstacles to the use of the apartment.
Having become completely emboldened, Natalya asked the court to provide her with two of the three available rooms for her use. room 8 sq.m. and 7.5 sq.m., and leave Vasily’s family to use a large room - 18.8 sq.m. I asked to secure the storage room, corridors, kitchen and bathroom for common use.
The magistrate, having considered the claim, denied Natalya, since in that isolated apartment there was only a room of 7.5 sq.m., but in order to get to the second room, which Natalya was applying for, she would have to go through a large room in which Vasily’s family, Based on Natalya’s schedule, she will live. Therefore, Natalya asked her to establish the right of passage through Vasily’s room.
Of course, Vasily was against it, and the court supported him.
What about the appeal?
And she made a new decision, according to which Vasily was obliged to hand over the keys to the apartment to Natalya and provide free access to the apartment.
Regarding the refusal to establish the procedure for using the apartment, the decision of the magistrate was not reviewed and remained in force.
Then the case went to the Orenburg Regional Court. And here - oops! The magistrate's decision was upheld, and the appeal was cancelled!
Attention, motivation!
Appeal, your ruling was canceled because, obliging you to hand over the keys to the apartment without determining the actual order of use, you did not take into account, dear one, that the defendant can only use the apartment while living in it!
But the order of use is NOT DEFINED! It’s not justified, which means access to the apartment! And, consequently, the rights of Vasily and his family to the inviolability of their home were violated!
After all, according to the law, residential premises are intended for the residence of citizens.
Source: Resolution of the Presidium of the Orenburg Regional Court dated January 26, 2015 N 44g-5.
Friends, and here I want to draw your attention to how important it is in legal disputes to choose the appropriate way to protect your violated rights, correctly formulate claims, and also follow the pre-trial procedure for resolving the dispute!
How should Natalya formulate her claim?
First, let's start with the fact that she needed to present to the court documents about an attempt to reach an agreement on the procedure for using the apartment in pre-trial proceedings.
Why?! You ask, I answer:
Possession 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.
When considering a claim to determine the order of use, the court must take into account the established order of use, which may not exactly correspond to the shares, the need of the owners for this property, and, most importantly, the real possibility of joint use.
There was no isolated room corresponding to Natalya’s share in the apartment.
So what should Natalya do, what new claim should she go to court with?
So, the options:
1. Natalya will have to come to terms with living in an isolated room of 7.5 sq.m. and ask to determine the procedure for use and the keys to the apartment in this way;
2. Natalya lives in a room of 7.5 square meters, Vasya and his wife in a room of 8 square meters, room 18, 8 - for common use.
3. Natalya demands to allocate her 1/2 in kind, and if this is impossible (which will be confirmed in court by an expert opinion), she demands that Vasily pay her appropriate compensation.
And finally, one more scenario: Natalya sells her share to any outsider. True, she will be able to do this only after Vasily either refuses the purchase or simply does not respond to her offer within 30 days. And also - sell it at a price not lower than the one at which she offered it to Vasily.
Vindication
Article 301 of the Civil Code of the Russian Federation gives the owner the right to reclaim property illegally held by third parties. The procedure for implementing this mechanism in practice was explained by the Supreme Court and the Supreme Arbitration Court of the Russian Federation in joint resolution No. 10/22 of April 29, 2010. However, the issue cannot be called resolved.
Thus, formally, owners have the right to reclaim real estate even from a bona fide purchaser. However, the wording of Art. 302 of the Civil Code of the Russian Federation significantly complicates the process of proof. It is impossible to lose or steal a permanent structure or land plot. The only basis for vindication is disposal against one's will. The need to prove this fact prevents the use of the mechanism in the fight against abuses of citizens or tenants registered in the apartment.
Reference: A bona fide purchaser receives an item from a person who does not have the right to alienate. Moreover, such a participant does not know about the illegality of the operation. An example is the sale of apartments using forged documents.
If the premises are reclaimed from a bona fide purchaser, the owner will have to compensate the cost of inseparable improvements. The basis will be Art. 303 Civil Code of the Russian Federation.
In conclusion, we note that Russians have one more legal tool at their disposal. The legal owner has the right to apply to the court with a request to establish a special ban. The basis for the negatory claim is Art. 304 of the Civil Code of the Russian Federation. The outcome of the proceedings is a binding order. The defendant must refuse to take any action. Failure to comply with the ban may result in fines.
What are the grounds for moving into residential premises?
Current legislation establishes the following legitimate grounds for moving into residential premises:
- the first and most important basis will be the right to housing, confirmed by relevant documents (certificate of ownership);
— decision of the local municipality on the allocation of housing under a social rental agreement (copy of the relevant decision of the local authorities);
- conclusion between the owner and the tenant of a lease agreement for any specific premises (actually, a lease agreement).
There are also special reasons for moving citizens into residential premises:
- a testamentary refusal, providing for the possibility of living in residential premises received by inheritance by a citizen. The right must be registered in the prescribed manner, and the newly-minted owner confirms his consent to residence by accepting the inheritance.
— conclusion of a dependency agreement. When concluding such an agreement, the dependent is equated to the status of a resident under a will. However, the owner of the premises must be prepared for the possible placement of such a category of citizens in his residential premises and does not have the right to arbitrarily evict them.
— In a number of situations, it is possible to move in through a court decision. This is the most complex category of grounds for move-in, since the interests of the parties intersect, usually having diametrically opposed views on the possibility of such move-in. In such cases, it would be better to seek the help of a qualified lawyer.
Now let’s look at the obstacle to entry using ready-made examples.
Eviction of the testator's relatives
Defendants may refuse to voluntarily move out of the apartment even if the court decision was made in your favor. How can the relatives of the deceased be evicted in such a situation?
If the court agreed with your arguments and sided with you, to evict citizens illegally living in your living space, you should contact the passport office. To do this, you will need to prepare the following documents:
- a copy of the court decision (it must contain information about the defendant’s discharge from the apartment);
- the applicant's civil passport;
- documents confirming the rights of the interested citizen to the housing inherited by him.
After this, all persons who previously lived in the apartment of the deceased are obliged to leave it immediately. If they refuse to vacate their living space, they can be forcibly evicted by contacting the bailiff service.
Documents confirming the right to inherited property
You can confirm the fact of inheritance using the following documents:
- certificate of inheritance;
- extract from the Unified State Register of Real Estate.
A certificate of inheritance is the main document with which you can confirm your rights to an apartment. It can be obtained from a notary's office.
Since an apartment is one of the types of real estate, registration of ownership rights to it involves a state registration procedure. It can be confirmed by an extract from the Unified State Register (Clause 1, Article 28 of Law No. 218-FZ “On State Registration of Real Estate” dated July 13, 2015). To obtain such an extract, you should contact Rosreestr.
If there are no errors or typos in the documents, you have no obstacles to owning the inherited living space. If inaccurate information is found in the documentation, appropriate corrections should first be made to it. You can contact a notary for a new certificate of accession to inheritance rights, and to correct errors found in the extract from the Unified State Register, you should submit a corresponding application to Rosreestr.
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Can the owner be refused occupancy?
The Constitution of the Russian Federation enshrines the right of every citizen to housing. In accordance with Art. 40 no one can be deprived of their home. The right of a citizen can be limited only in cases specified by law. And only the court has the right to apply restrictions. Theoretically, the court can refuse to move in to the homeowner. For what reasons could this happen?
As a rule, the issue of prohibiting the owner of a residential property from moving in is relevant if he is not the only owner. Housing may belong to several or more citizens on the basis of joint ownership. Thus, each of them owns his share. It is precisely the co-owners who can raise the issue of prohibiting the move-in of a specific co-owner, if there are good reasons for this.
Of course, the co-owners do not have the right to simply prohibit the owner from moving into the premises that belong to him . For example, for the reason that there is a personal conflict between them. Even if citizens raise this issue, there is little chance that the co-owner will be evicted. It’s another matter if there are more significant reasons. It can be:
- Illegal actions on the part of the co-owner in relation to other residents.
So, in accordance with Art. 10 of the Civil Code of the Russian Federation, intentionally causing harm to other persons is not allowed. This means that if the co-owners prove that the move-in has caused or intends to cause harm to them, most likely, the court will decide to prohibit the move-in of such a citizen.
- The co-owner has chronic diseases that pose a threat to the health of other residents.
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This refers to those illnesses for which the patient must live in isolation (open tuberculosis, etc.). Often, the court refuses to allow the owner to move in under such circumstances, especially if minor children already live in the premises.
Guardianship and trusteeship authorities
Why can the guardianship and trusteeship authorities come? There are many reasons: from complaints from neighbors who thought you were yelling at your child, to messages from a doctor who decided that you were not taking good care of your children’s health. Guardianship and trusteeship authorities are obliged to check these reports and take measures to protect the child. But this does not mean that such complaints are legal and justified, and the guardianship authorities should be allowed into the house without complaint.
Can they enter the apartment? You are required to open the door only when guardianship officers arrive accompanied by the police, and the police have grounds to demand access to the apartment. In this case, you need to act in the same way as in a situation with the police: ask for documents and find out the reason for the police visit. The guardianship and trusteeship authorities themselves cannot demand that they be allowed into the house without your consent.
Can the guardianship authorities take the child if they enter? No one has the right to take away a child if there is no
compelling reasons and a permitting document - this is an act of the executive body of a constituent entity of the Russian Federation or an act of the head of a municipal entity.
Guardianship officials have the right to take a child only in one case: if the minor is in danger. This may be a danger to the health or life of the child, and the law states that the threat must be “immediate.” There is no list of such dangers in the law, but in practice poor conditions are taken as a threat, for example, if an apartment has been unsanitary for months.
