What prompted me to take on this matter was a feeling of blatant injustice. A large family (four children, the eldest 12 years old) lives in a rented apartment; in 2021 they purchased an eight-meter room in a communal apartment for the sake of permanent registration at the place of residence (living on 8 meters for six of them would somehow not be enough).
The family’s attempts to register as those in need of housing did not lead to anything; in 2021, the district administration refused to register. Knowing the judicial practice in such cases, I twice refused to take on this case, but having learned about two unsuccessful attempts to file a lawsuit (due to the fault of hired lawyers), I felt how much this woman had suffered and how much she needed my help.
Registration of citizens as those in need of residential premises
In each region, this issue is regulated by a special regional law. The region was St. Petersburg, therefore the Law of St. Petersburg dated July 19, 2005 No. 407-65 “On the procedure for keeping records of citizens as those in need of residential premises and the provision of residential premises under social tenancy agreements in St. Petersburg” was subject to application. This law was also referred to by the district administration, which considered the application of my client.
In refusing to register the applicant as needy, the district administration indicated the only reason for the refusal, it was written as follows: “documents confirming the residence of you and your family members in St. Petersburg for a total of at least 10 years have not been submitted.” In the same letter, it was explained to the applicant that such documents are a registration certificate (F-9) or a court decision establishing the fact of the citizen’s residence in St. Petersburg for a total of at least 10 years.
It would seem that the district administration itself indicates a way to solve the problem - if there is no registration at the place of residence, then it can be replaced by a court decision.
Preparing for a court case - collecting evidence
There was so much evidence that after sorting and selecting the most suitable documents, their volume amounted to about 300 sheets. Priority was given to residential lease agreements, certificates of registration at the place of residence, birth certificates of children (all four were born in St. Petersburg), marriage registration (also in St. Petersburg), medical records, school and kindergarten certificates.
Documents were also collected, issued in St. Petersburg, on maternity capital and a large family, on the work activities of both applicants (spouses), on tax payments, on a vehicle (passenger car) and its insurance, on numerous loans and payments from banks. And all this for the entire period of permanent residence in St. Petersburg without registration at the place of residence - from June 2001 to February 2021.
The purpose of going to court was one - to establish the legal fact of permanent residence in St. Petersburg. Without such a court decision, registration as those in need of residential premises was impossible. The existence of a dispute about the right required consideration of the application in court in the manner of claim proceedings. The lawsuit was filed in July 2021.
Hand a copy of the act to the apartment owner or make a note indicating his refusal to receive it.
The task of drawing up such an act is not easy in itself: it is unlikely that the owners of “rubber” apartments will willingly allow representatives of the management organization or HOA to visit them for inspection. But if, after all, the MA succeeded, then it is worth strictly following the requirements of RF PP No. 354 for such an act, so that the efforts are not wasted due to a technical error.
The importance of following all the requirements of RF PP No. 354 to the act on establishing the number of consumers living in the premises in September 2021 was emphasized by the RF Supreme Court, summing up court case No. A56-102775/2018.
The management organization was able to draw up an act in which it was recorded that unregistered persons lived in the apartment, where individual meters were not installed. Based on this document, the management authority began to calculate utility bills.
The owner of the apartment with inflated charges did not agree and filed a complaint with the State Housing Property Authority. The agency, having conducted a documentary check of the management, issued an order to the company to stop the violation and recalculate consumers without taking into account the data specified in the act.
The management organization filed a lawsuit demanding that the order of the GZHN body be declared invalid, since it acted in accordance with paragraphs. 56, 57 RF PP No. 354.
How to draw up an act on unaccounted consumption so that it is not challenged by the court
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Legal position of the plaintiff in the case of establishing the fact of permanent residence
1. Lack of registration at the place of residence does not exclude the possibility of establishing the fact of residence in court.
2. The presence of registration cannot be the only acceptable and possible evidence of residence in a certain territory.
3. Explanations of the Constitutional Court of the Russian Federation with references to the relevant decisions that:
— registration is a method of recording citizens within the Russian Federation, which is of a notification nature and reflects the fact that a citizen is at the place of stay or residence, which cannot serve as a basis for restriction or a condition for the implementation of the rights and freedoms of citizens provided for by the Constitution of the Russian Federation, federal laws and legislative acts of constituent entities of the Russian Federation (Resolution of the Constitutional Court of the Russian Federation dated April 25, 1995 No. 3-P, dated February 2, 1998 N 4-P),
- registration itself or the absence thereof cannot serve as a basis for restriction or a condition for the exercise of the rights or freedoms of citizens (Resolution of the Constitutional Court of the Russian Federation dated 04.04.1996 No. 9-P, dated 15.01.1998 No. 2-P),
- lack of registration does not exclude the possibility of a court establishing the fact of a citizen’s residence in a certain area on the basis of other data ; a person’s specific place of residence can also be established by a court of general jurisdiction on the basis of various legal facts, not necessarily related to its registration by the competent authorities (Resolution of the Constitutional Court of the Russian Federation dated 02.06 .2011 No. 11-P),
— the concept of place of residence is disclosed in Article 20 of the Civil Code of the Russian Federation, according to which place of residence is understood as the place of permanent or primary residence of a citizen (Resolution of the Constitutional Court of the Russian Federation dated April 4, 1996 No. 9-P),
- the mechanism for using such a legal means as registration should not serve purposes that are incompatible with its notification nature, since otherwise it leads to excessive restriction of the rights and freedoms of citizens in the field of civil, housing, family and other legal relations (Resolution of the Constitutional Court of the Russian Federation dated 02.02.1998 No. 4-P),
- registration authorities are authorized only to certify the act of free expression of a citizen when choosing his place of stay and residence. That is why registration cannot be of a permissive nature and should not lead to a restriction of the constitutional right of a citizen to choose a place of stay and residence (Resolution of the Constitutional Court of the Russian Federation of 02.02.1998 No. 4-P).
4. Failure to fulfill the obligation of citizens to register at their place of residence cannot serve as a basis for refusal to establish the fact of residence.
5. In the Law of St. Petersburg dated July 19, 2005 N 407-65 “On the procedure for keeping records of citizens as those in need of residential premises and the provision of residential premises under social tenancy agreements in St. Petersburg” there is no condition on the mandatory registration of citizens place of residence.
Who can draw up this document
The owner himself has the right to draw up an act (if he needs a recalculation of utilities or intends to rent out the premises).
In case of official need, it can be drawn up by representatives of the authorized bodies listed in the previous paragraph - representatives of the migration service, district inspector, bailiffs, housing office employees.
It happens that the act is drawn up by neighbors. We will discuss this option in a separate paragraph.
In order for the document to have legal force, it is necessary to draw up a commission. The commission usually includes neighbors, housing office workers, police officers or a local inspector. One representative from each body. They jointly draw up a deed and sign it.
Certificate of residence, form
You can write it manually or fill out a ready-made form.
No special form of the document is fixed anywhere, but it, like all official documents, is subject to generally accepted requirements:
- details (last name, first name, patronymic, registration or actual location address) of the applicants and the person being inspected;
- information confirming or refuting the residence of the person being inspected in this territory;
- evidence (if available);
- data of commission members;
- signatures of all those present.
If the owner refuses to sign, this is noted in a separate column.
You can attach data from a survey of witnesses, who are neighbors.
Download the form for the act of actual residence from this link. ⇐
How to write an act of residence from neighbors, features of drafting
If the owner illegally rents out an apartment, and the tenants disturb the silence or do not comply with sanitary and hygienic standards, neighbors can draw up a certificate of occupancy.
The emphasis should be on the fact that the owner of the apartment himself does not live in it. You can contact the Housing Office. There they will confirm the fact of non-residence of the owner and issue a corresponding certificate.
You can now contact the police with these documents. And they will continue to act in accordance with the law.
Sample certificate of residence from neighbors
When filling out an act from your neighbors, you must indicate the passport details and exact addresses of the applicant neighbors, a detailed description of the situation and the signatures of all those present.
The document can be certified by a representative of the management company or a local inspector.
You can download a sample act. ⇐
Legal position of the defendant - the district administration
The district administration rightly pointed to the articles of the Constitution of the Russian Federation on the right to housing and freedom to choose a place of residence (Article 40 and Article 27), to the Law of the Russian Federation of June 25, 1993 No. 5242-1 “On the right of citizens to freedom of movement, choice of place of residence and residence within the Russian Federation”, to the norms of the Housing Code of the Russian Federation (Articles 1, 13, 52, 57), to the Law of St. Petersburg No. 407-65 “On the procedure for keeping records of citizens as those in need of residential premises and the provision of residential premises under social rental agreements in St. Petersburg.”
Particular mention was made of the Rules for registration and deregistration of citizens of the Russian Federation, approved by Decree of the Government of the Russian Federation of July 17, 1995 No. 713.
As a result, a “combined interpretation of the above provisions” was formulated, which crossed out the entire meaning contained in them. The defendant stated that the certificate of registration at the place of residence has the status of the only acceptable evidence of the fact of permanent residence of a citizen in a certain area. In exceptional cases, when registration for a citizen was impossible due to objective reasons, the plaintiff must provide the court with evidence of the existence of such reasons.
All other evidence, including certificates of temporary registration, rental agreements for residential premises, medical records, etc., presented by the plaintiffs, do not indicate the legally significant fact of permanent residence in St. Petersburg for at least 10 years.
I quote the respondent:
The absence of permanent registration at the place of residence in the absence of evidence of the objective impossibility of such registration does not allow us to assess the legality of their presence on the territory of St. Petersburg, as well as the choice of the specified place as their permanent place of residence.”
Collect a commission to confirm the residence of unregistered persons in the apartment
Failure to forward the act to the internal affairs bodies, which draw up a protocol on an administrative offense under Art. Art. 19.15, 19.15.1, 19.15.2 of the Code of Administrative Offenses of the Russian Federation most often becomes the reason for declaring the actions of the administrative authority illegal. A similar position of judges is found, for example, in cases No. A54-4279/2015, No. A50-22264/2015, No. A13-7749/2014.
When drawing up an act, the management authority may take into account the recommendations given in the “Methodological recommendations for identifying individuals using residential premises.” The document was approved by the Department of Housing and Public Utilities and Improvement of the City of Moscow on June 14. 2013 No. 05-14-182/3.
The authors of the document recommend carrying out an inspection to draw up an act at least twice during the billing period, and doing this by a whole commission. Such a commission should include representatives of the management unit/homeowners' association and the council of the apartment building, the local police commissioner, and at least two independent witnesses. Such precautions will help the contractor prove in court the accuracy of the information specified in the act.
What's next? Then we go to the end - a complaint to the Supreme Court of the Russian Federation
The law must be executed and applied as it is written. An interpretation that changes the text and meaning of the law cannot be applied. You cannot demand from the plaintiff something that is not prescribed by law.
Why do you need to go to court to establish the fact of permanent residence if the courts consider registration at your place of permanent residence to be the only proof? If this registration does not exist, then it will not appear as a result of the trial!
Let's see what the Supreme Court of the Russian Federation says.
Draw up an act on the identification of temporary residents for apartments without individual property rights
The question of how long a person actually lives in an apartment is important for management organizations, HOAs and RSOs. The number of residents affects the calculation of fees for the corresponding housing or utility service, if it is made taking into account the number of consumers registered in the premises.
Payments for most housing and communal services today are calculated based on the area of the apartment owned by the owner or according to the readings of individual/communal metering devices. However, the actual number of consumers in the premises is important if the payment for utility services is calculated based on the standards: in the absence or failure of the IPU.
Management organizations and homeowners associations are interested in knowing the true number of consumers living in the apartment. If, according to the information provided by the utility contractor, there are only 1-2 people in the room, but in fact a large family consumes utility resources, then the volumes not taken into account in the standard will end up in the Kyrgyz Republic on SOI.
The issue is not so acute in apartments where IPU could be installed, but the owners did not do so. Then an increasing factor is applied to the standard, and this can significantly compensate for incorrect calculations due to inaccurate data on the number of consumers.
But if it is technically impossible to install utility meters in the premises, and a report has been drawn up about this, then the management organization and the HOA may incur large expenses when paying for the bill for public utilities, because the value of the consumption standard directly depends on the number of people living in the apartment:
Electricity consumption standards in Karelia
