The concept of “privatization of residential premises” is defined by Article No. 1 of the Law of the Russian Federation “On the privatization of housing stock in the Russian Federation”. This is a free, voluntary and indefinite transfer of housing occupied by citizens of the Russian Federation in the public housing stock on the basis of a social tenancy agreement into the full ownership of these citizens. The opportunity to privatize officially became available to every citizen since 1991, and he can use this right once throughout his life. However, this procedure can be performed only by the personal will of the resident and no one has the right to force him to register the property. That is why in the current real estate market, offers like “I will sell an apartment with a privatization refuser” appear every now and then. What does this wording mean? Does the refusal of privatization really exclude the right of lifelong residence of the tenant in the apartment? What does a potential buyer risk by entering into such a transaction? Evgenia Galkina , a lawyer in the field of civil and housing law, explains .
Photo from the personal archive of Evgenia Galkina /
How can a citizen’s refusal to privatize housing be officially formalized?
Every citizen living in public housing has the right to refuse privatization, as well as to this procedure itself. Meanwhile, there is no such concept in the law. There is only Article 2, which states that all persons entitled to it must agree to this procedure. Thus, a citizen always writes a statement of consent to privatization, but clarifies whether he takes part in this procedure or not.
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What does privatization give?
With the help of privatization, citizens receive the right not only to live and use public services, but also to dispose of housing at their own discretion. What was not available under the social lease agreement is freely sold by the owners who registered the property under the privatization agreement:
- rent;
- transfer by will;
- exchange;
- donation;
- other transactions requiring the expression of the will of the tenant.
After completion of the process, the new owner receives not only the rights, but also the obligations to maintain the apartment in technically sound condition, make repairs, and also fulfill tax obligations. In addition, the owner’s expenses include maintenance and repair of common property if housing in an apartment building is privatized (elevators, roofs, basements).
The reasons for refusing to privatize one of the registered persons may be different, depending on the specific circumstances. For example, apartment residents under a social lease agreement have the right to expect to receive another property if the previous one is lost. Sometimes a waiver of privatization is issued in favor of another person, but only if there are only 2 potential co-owners. If the number of registered co-owners is greater, it is impossible to transfer your rights to a specific tenant.
What are the consequences of refusing privatization and what rights does the refuser have?
If a citizen refuses privatization, the transfer of municipal living space to joint shared ownership is carried out for everyone who took part in this procedure. As for the refusenik, his refusal to privatize his share in the apartment will entail the following:
Loss of “voice”1 when selling a home. A person whose ownership of real estate has been lost does not even have the right to claim a share of the proceeds from the sale of living space.
Preservation of the right to privatization. Despite the refusal to privatize here and now, the citizen retains the opportunity to undergo this procedure later.
Retention of the right to use living space by a conscientious objector. Privatization of an apartment in the name of other residents is not an obstacle for the refusenik in terms of using housing. A person who has not agreed to privatization may continue to live in the apartment, even if it is sold by decision of other owners.
“Moreover, it is not possible to forcibly evict a person who has lost a privatized share in a property, even if new owners appear. And the right to privatization, which the tenant has lost, he can exercise at any time - as long as he has the right to use the property indefinitely,” notes Evgenia Galkina.
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What are the risks when buying an apartment with “refuseniks”?
I learned from an expert at Sobesednik.ru what the risks are when buying an apartment with “refuseniks” from privatization.
“Refusal of privatization” is a term from realtor slang. In the law, such citizens are named as follows: persons who gave their consent to the privatization of residential premises without their participation. They are thus not the owners, but, being registered in the apartment, they have the right to unlimited use of this residential premises. When buying an apartment in which “refuseniks” are registered, the new owner can get a big headache. We are discussing what pitfalls there are in such a deal with the head of the legal department, Alexander Perepelkin.
- What is the problem? Doesn’t clause 2 of Art. work here? 292 of the Civil Code of the Russian Federation, which states that the transfer of ownership of residential premises to another person is the basis for termination of the right to use this residential premises by family members of the previous owner?
- Such a norm really exists. However, this does not mean that in all cases you can safely buy apartments where family members of the seller live and are registered, relying on their oral (or even written) assurances that after the sale they will voluntarily vacate the apartment and be deregistered. You should also not be sure that otherwise they could easily be recognized as having lost the right to use the sold apartment and be evicted in court.
The fact is that this is just a general rule that has been in effect since January 1, 2005 and applies unless otherwise provided by law (or agreement). That is, there are exceptions to this rule.
— And refuseniks are just such an exception?
- Undoubtedly. If we are talking not just about members of the owner’s family, but about persons who gave their consent to the privatization of residential premises without their participation, then they have an indefinite right to use the residential premises. And in the event of a subsequent change of owner, this right is in no way terminated.
- What law is this provision written in?
— It’s a paradox, but you won’t find such a rule anywhere in the law. This rule was derived by the Supreme Court of the Russian Federation as a result of the interpretation of the norms of housing and civil legislation. And he formulated it in paragraph 18 of Plenum Resolution No. 14 of July 2, 2009 “On some issues that arose in judicial practice when applying the RF Housing Code.” The Supreme Court of the Russian Federation, in particular, indicated: in the event of subsequent alienation of residential premises after privatization, the rights of “refuseniks” from privatization are preserved, since, by giving consent to privatization without their participation, they proceeded from the fact that their right to use this residential premises will be for they are of an indefinite nature.
The logic here is as follows. In Art. 19 of the Law on the entry into force of the Housing Code of the Russian Federation states that “refuseniks” are not subject to the rule established in Art. 31 of the Housing Code of the Russian Federation (according to Article 31 - if a person ceases to be a member of the family of the owner of the housing, his right to use this residential premises is terminated).
Therefore, the owner who privatized the housing with their consent and has now decided to sell the apartment does not have the right to evict “refuseniks” from their residential premises. This means that the new owner (when the ownership of this residential premises is transferred to him) should not have such a right.
Thus, the rule that persons who refuse to participate in privatization retain the right to use residential premises in the event of its subsequent alienation was actually “created” (or, if you prefer, “logically derived from the law”) by the Supreme Court of the Russian Federation. However, having “created” this norm, the RF Armed Forces forgot to explain under what conditions and on what basis the right of indefinite use of residential premises by “refuseniks” is terminated.
— In connection with death?
— This indefinite right to use residential premises should not be confused with a lifelong right.
— Then in what cases is this right of “refuseniks” terminated and you can sell your apartment without fear?
— This is a very difficult legal issue. Let's look at the nuances here.
First. If we proceed from the fact that “refuseniks” should be guaranteed the same indefinite right to use residential premises as previously, before privatization (upon hiring), then, therefore, if they voluntarily change their place of permanent residence, this right should cease (Article 83 Housing Code of the Russian Federation).
But here the following nuance comes into force. Indeed, in case of a change of permanent residence, a citizen is obliged to register there. But re-registration at the place of residence in itself does not create or terminate any housing rights (according to the Law of the Russian Federation on the right of citizens to freedom of movement). Re-registration merely confirms the citizen’s place of residence until proven otherwise.
In addition, the move itself may be forced, and the change of residence may be temporary rather than permanent.
In general, in connection with all of the above, I do not recommend buying apartments where “refusers” of privatization were registered at the time of sale. It will be simply impossible to evict them from the apartment and/or deregister them if they refuse to do this voluntarily.
— Is the seller obliged to stipulate in the contract that people who have the right to unlimited use of the residential premises are registered in the apartment?
- Yes. In accordance with Art. 558 of the Civil Code of the Russian Federation, a list of such persons (with an indication of their right to perpetual use of residential premises, which remains after the sale) is an essential condition of the contract for the sale and purchase of residential premises. Without agreement on this condition, the contract may be recognized as not concluded. And remember: by signing this clause, the buyer agrees to purchase an apartment, encumbered with the right of perpetual use by “refuseniks”.
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Consequently, the buyer will then not be able to make a claim to the seller due to the fact that such persons do not vacate the apartment or are not deregistered. They cannot be deregistered at the will of the seller-owner. And if the seller makes you such promises, remember: they are absurd.
The fact is that “refuseniks” are not parties to the purchase and sale agreement, so they do not sign the agreement. If there are statements-obligations separate from the purchase and sale agreement from such family members, where they undertake to voluntarily deregister and vacate the apartment after the sale, then they are considered by the courts only as a demonstration of their intentions, which does not terminate their perpetual right to use residential premises and does not create any civil obligations for “refuseniks”.
— What if the “refuseniks” are already registered at their new place of residence?
- In this case, I recommend that before purchasing an apartment, you find them and get written confirmation from them that they voluntarily changed their permanent place of residence, understanding that in this regard they will lose all housing rights in relation to the alienated apartment.
Otherwise, the door to legal dispute is always left open. After all, it is impossible to exclude the possibility that later everything will be presented in such a way that the “refusenik” was forced to change his place of residence (and temporarily) due to conflictual relations with the owner of the apartment.
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What risks does a real estate buyer take with a refuser?
Buying an apartment after privatization can be dangerous, since it is possible that among the residents there are refuseniks, that is, the apartment has not been privatized by all owners. Therefore, before making a transaction, you should carefully study the property you are interested in and its owners, ideally collecting a detailed “dossier” on a potential future apartment, exposing all its “pitfalls”. After all, if it turns out that a person who refused privatization lives in the living space, then the risks during the purchase increase many times over, because this will be considered an encumbrance, which will be quite difficult or even impossible to remove after the transaction is completed.
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The practical significance of the right of a conscientious objector to live in an apartment
When accompanying apartment purchase and sale transactions, we repeatedly come across situations where the owner’s child from his first marriage, or an ex-wife (former mother-in-law, father-in-law), etc. is registered in the apartment being purchased. Moreover, these persons do not live in the apartment. But legally, such citizens retain the right to use the apartment.
Sellers and their realtors often assure the buyer that after registering ownership of the apartment, the seller will remove such persons from the apartment (remove them from registration at the place of residence in the purchased apartment), and if they do not want to, the seller will remove them through the court.
Sometimes, citing personal hostile relationships with their “ex,” sellers convince the buyer to sign out the exes himself, since the buyer is the new owner and has the right to sign out family members of the previous owner of the apartment.
In such situations you need to be careful.
If one of the former family members of the seller refused to privatize this apartment, the new owner (buyer) will not be able to remove them from the apartment. Even if he files a lawsuit for eviction.
The buyer may also face the problem of eviction of registered citizens, even if these residents have nothing to do with privatization. For example, if it is a minor and one of his parents or guardians.
There are court decisions when the court refused to terminate the registration of a child before he came of age.
The situation is a little easier when a conscientious objector lives in the apartment being purchased. There were cases when, after the sale of an apartment, a refusenik for one reason or another refused to be discharged to another.
Therefore, the buyer needs to establish in advance, when preparing the transaction, the status of each person living in the apartment. It is necessary to identify the presence of refuseniks in advance. The next stage is to take care of the correct registration of the “release of the apartment from the refusenik.”
A simple technique will help eliminate such situations: before making a transaction, such persons must be registered at a different address, and the apartment must be vacant. At the same time, such a discharge may be considered illegal if there was abuse and the refusenik was discharged “to nowhere”, or to a obviously unsuitable premises, etc.
Proper preparation of a transaction with an apartment will prevent you from encountering the situations described - a mandatory legal inspection of the apartment, during which the persons registered in the apartment and their rights are identified.
There are cases when sellers are silent about absent persons - military personnel serving criminal sentences, etc. These persons also retain the right to reside in the apartment.
But all of this is abuse by the parties to the purchase and sale transaction, which can and should be identified in preparation for the transaction with the apartment.
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Is it possible to renounce a share in a privatized apartment?
If a citizen owns a share in a privatized apartment, he can formally renounce his share of housing at any time (Article 236 of the Civil Code of the Russian Federation). The right of ownership gives a person the opportunity to make any decisions regarding the property he owns. Giving up a share in a privatized apartment is no exception.
The only situation in which any transactions with property are not allowed is the seizure of this property (ban on registration actions). There is a nuance with municipal and service apartments - voluntary renunciation of the share can only be carried out during the privatization process or after such housing becomes privatized.
At the same time, a citizen will be able to take part in the privatization of this apartment in the future, but the law allows this to be done only until the moment of free transfer of state or municipal housing to a private owner.
A citizen can refuse a share in a privatized apartment in order to transfer his part to another owner. Methods of refusal in this case depend on the current ownership status of a particular home, which can be checked in the current extract from the Unified State Real Estate Register (USRN). The need for refusal may arise when another owner already has a certain share, but it needs to be re-registered (increased), or when a share in a privatized apartment is formed after privatization or receipt of an inheritance.
Causes
There are many reasons why people refuse the part of real estate they are entitled to own. But in most cases, citizens resort to such action for the following reasons:
- desire to register an apartment for a specific family member;
- desire to improve living conditions;
- unwillingness to fulfill the responsibilities of the owner of a residential premises (payment of annual tax, contributions for major repairs, etc.)
Attention! The reason for the alienation of one’s own share of residential property does not in any way affect the subsequent actions of the owner aimed at fulfilling his intentions.
