Extract from an apartment through the court: grounds for going to court, documents, statement of claim

Extract from an apartment through the court is often the only solution in situations when a citizen who formally or actually occupies the premises cannot be expelled voluntarily. Questions like:

• you can discharge a person from a non-privatized apartment;
• Is it possible to leave your own home?

regulated by the Housing Code of the Russian Federation, the Civil Code of the Russian Federation, and the Family Code of the Russian Federation.

The need to discharge a citizen in the absence of consent arises when:

• divorce and division of property of spouses;
• long-term evasion of paying utility bills;
• behavior that interferes with the lives of family members and neighbors;
• systematic damage to the apartment and property;
• absence for a long period of time;
• transfer of an apartment into the ownership of another citizen, whose family member the citizen is not;
• exploitation of residential premises for industrial, commercial or other purposes different from its direct purpose.

Extract from an apartment without the consent of the citizen registered in it is possible only if there is evidence confirming your rights to submit an application and complete disposal of the apartment. As well as documents that indicate the loss of all rights to residential premises by the defendant. Read about the rules for registering in an apartment here

The procedure for deregistration from a living space may vary depending on who is considered the owner and what type of housing stock this living space involves.

Grounds for expulsion from the apartment

You can discharge a person against his wishes from a municipal or private apartment.

1. Grounds for discharge from municipal housing:

• failure to pay utility bills for more than 6 months in a row;
• long absence from the address;
• gross disturbance of neighbors (hooliganism, systematic violation of the silence regime);
• use of the apartment for other purposes (organization of production, warehouse, animal shelter);
• failure to comply with sanitary and hygienic standards;
• the impossibility of the tenant and the tenant living together (hostile relationships, scandalous and conflict situations);
• damage to the apartment (destruction of structures, utilities);
• expiration of the period for providing an apartment for residence (sublease agreement, lease agreement has been completed);
• preparing a house for demolition as dilapidated or in disrepair;
• illegal registration (concluding a social tenancy agreement in violation of the law, illegal registration).

The tenant, members of his family and others living in the municipal apartment can be evicted.

2. Grounds for deregistration from a privatized apartment:

• severance of family relations with the owner of the apartment (divorce, lack of common household management and joint responsibility in the housing sector);
• improper use of the apartment (not as residential);
• violation of sanitary, fire safety and other mandatory requirements;
• antisocial lifestyle;
• expiration of the term of use of the apartment by the tenant (rent, rental, subletting, temporary residence);
• change of owner of housing (donation, exchange, sale of apartment);
• the emergency condition of the house and its preparation for demolition;
• illegal registration and residence (fictitious registration, illegal entry into housing).

The owner and his tenants can be evicted from a privatized apartment.

Each option has its own characteristics, but they are all closely related to the right to use housing. In order to remove an unwanted tenant from registration and subsequently evict him, it is necessary to prove in court that the person did not have housing rights or lost them.

Example 1: A person receives an apartment as a gift, but cannot move into it due to the residence of a third party. The new owner must go to court and ask that the violation of property rights be corrected by deregistration and eviction of the stranger.

Example 2: A citizen appealed to the court with a request to evict her sister, who has been considered missing for 5 years.
To do this, you first need to obtain a court order stating that your sister is missing. And then a claim is filed for deregistration.

Pre-trial dispute settlement

You should never neglect the possibility of a peaceful solution to the issue. This saves money, time and nerves. In the pre-trial process, it is necessary to explain orally (or in writing) to the opponent about all the consequences of the dispute, possible options for satisfying his desires in a form other than through the court.

Their arguments are supported by documents confirming the ownership of the housing, as well as the loss of the tenant’s right of residence. It is better to entrust this to a lawyer who will professionally argue that going to court is not the best option for the future defendant. The same lawyer will be able to advise the person about options for voluntary discharge from the apartment or even help him.

Required documents

The outcome of the case in court directly depends on whether there are legal grounds for the discharge and what documents support them.

What documents are needed to check out of an apartment through the court? General package of papers that need to be collected and submitted to the court by the applicant:

1. Receipt for payment of state duty.
2. Passport or other identification document.
3. Documents confirming the applicant's rights to the apartment:

• certificate of divorce;
• extract from the house register;
• law enforcement reports on recorded violations by the tenant;
• an extract from the personal account confirming the lack of payment for utilities;
• witness statements.

To correctly draw up and submit a claim , you must indicate the following information:

• name of the judicial authority to which the document is submitted;
• Full name and contact details (address and telephone number) of the plaintiff;
• Full name and contact details (address and telephone number) of the defendant;
• grounds for discharge, listed with reference to legislation;
• a requirement to recognize the defendant as having lost the right to reside in the apartment;
• a list of supporting documents that are attached to the claim;
• date and signature.

The completed claim and all other necessary documents are submitted by the plaintiff to the district or city court at the location of the apartment or the actual residence of the defendant (if it is known to the plaintiff).

We talked in more detail about what documents may be required to register yourself or another person in a separate article, but here you can find out what papers you need to collect to register a non-owner without his consent.

Action plan for going to court

• collection of necessary documents;

• collection of evidence, petitions;
• payment of state duty;
• drawing up a statement of claim;
• filing a claim in court;
• participation in meetings;
• obtaining a court decision;
• contacting the bailiffs (for actual eviction), the migration department of the Ministry of Internal Affairs (for deregistration);
• control the execution of the court decision.

How to deregister through court?

The procedure for forced deregistration through going to court is completely different from the usual procedure for deregistering citizens. You will have to spend a lot more time and money, and it is not a fact that the court will ultimately make the decision you need.

Procedure

Appeal to the court is possible only if the reasons for the discharge correspond to those listed in Government Decree No. 713. In addition, it is necessary that the claim be prepared taking into account all the requirements specified in the Civil Procedure Code and submitted to the required authority.

For forced discharge:

1. Prepare a statement of claim for deregistration to the district court at your place of residence. The claim is filed in person at the district court office or sent there by registered mail.
2. Pay the state fee for filing a claim.
3. Wait until the court date is set.
4. Get a court decision. Submit it along with other documents to the department of the Main Department of Migration of the Ministry of Internal Affairs or the MFC (“My Documents”).
5. Receive confirmation of the person's deregistration.

The date of the first court hearing is usually set 1-3 weeks after the case is accepted into proceedings. During this period, it will be necessary to collect the missing evidence (for example, photo, video material of the tenant’s antisocial lifestyle). All this will be useful for defense in court.

Refusal to accept a claim is possible only in strictly defined cases. For example, if the application is submitted not by the owner/co-owner, but by an outsider.

After receiving a court decision, a writ of execution is prepared, and bailiffs carry out forced eviction within several months.

Procedure

After a decision is made by the court, deregistration is carried out in the branches of the Main Department of Migration of the Ministry of Internal Affairs or the MFC (“My Documents”). This can be done by the plaintiff himself or his representative by proxy.

Deregistration procedure:

1. Contacting the registration authority. A court decision on eviction and a package of necessary documents are presented.
2. Discharge occurs within 3-8 days.

Who can apply for compulsory discharge?

• An extract from a privatized apartment through the court can only be initiated by the owner or co-owner of the apartment.
• People are discharged from a municipal apartment at the request of the residents of the apartment or the landlord (municipal authority).
• In some cases, neighbors, management companies, and homeowners associations can also file a claim.
  Example: If a person leading an immoral lifestyle is evicted, which makes it impossible for other registered persons to live, then an application to the court for ejection can be filed by 1) neighbors in the apartment, 2) the owner of the building in which the premises are located.

The initial stage of a person’s discharge is the collection of documents

At the initial stage, an evidence base is prepared. These documents support the claim and the legality of the request to deregister the defendant. Each case is individual and the list of evidence is varied:

• Documents on the right of ownership or use of the apartment (social tenancy agreement);
• Information about registered persons. Must be attached to the claim - an extract from the house register
• Divorce. To discharge a former family member, a copy of the divorce decree or certificate will be required;
• Long absence. It is necessary to draw up a report and endorse it with the service company about the absence of the person at the place of registration, indicating the period of absence;
• Impossibility of living together. You will have to submit at least two written statements to law enforcement agencies and receive answers that conversations have been held with the person responsible, and measures have been taken to stop the violations;
• Lease contract. When the lease agreement has ended, you will need to submit a copy of such agreement;
• Witnesses. It would be nice to have their support. The best list of such persons are neighbors on the landing, relatives, employees of control bodies. But the presence of witnesses does not guarantee victory in the case.

Arbitrage practice

Judicial practice is quite clear - if there are sufficient grounds for discharge, then the decision will be in favor of the plaintiff. The most common cases when former relatives are required to be discharged are:

Example. After the death of Gordeev V.P. the apartment was inherited in equal shares by his adult daughter Gordeeva N.V. and son Gordeev V.V. Since the apartment was municipal, the children were registered in it and included in the social tenancy agreement, re-issuance of this document was not required. However, a year later, the daughter initiated a genetic examination, which showed that Gordeev V.V. is not the biological son of the deceased. On this basis, she filed a lawsuit to recognize her ex-brother as illegally residing in the apartment and her demands were satisfied.

An equally common situation is when a person who has not lived there for a long time needs to be discharged from an apartment. After all, often the plaintiff does not even know the place where the defendant is located.

Example. Ivanova D.V. For a long time she cohabited with I.G. Gavrilov, but they did not enter into an official marriage. Gavrilov owned an apartment in another city, but in order to get a job, he needed registration in the apartment of D.V. Ivanova, which she allowed to do. After 10 years of living together, Gavrilov began to abuse alcohol and Ivanova kicked him out of the apartment. He left for his hometown and never returned. Ivanova had to file a claim in court to remove Gavrilov from registration. The defendant did not appear in court, the decision in favor of the applicant was made by the court in absentia.

Drawing up a statement of claim

The text of the claim must include:

• names of the parties and their contact details;
• justification of requirements;
• reference to the necessary regulations;
• pleading part, which indicates specific requirements. This is the most logical part, since incorrectly stated requirements will lead to the impossibility of satisfying the claim.

The text of the claim must be “dry” and without emotions, with an accurate listing of the circumstances. If a lawsuit is filed due to the immoral behavior of the defendant, then the court's discharge from the apartment will not be without emotions, just like the lawsuit itself. A correctly drafted application, supported by evidence, significantly increases the chances of a request for discharge being granted.

Institutions for appeal

To start the process, you need to create:

Only actions in accordance with the established regulations will allow the office of the authority to accept an eviction request.

The main mistake that many applicants make is incorrectly indicating the name of the department. The Civil Code insists that the application must take place at the place of registration.

A statement of claim for the discharge of non-resident but registered citizens must also be filed at the residence address, even if the owner’s family is located elsewhere.

Note: it is not recommended to go to the first court you come across. Territorial affiliation must be respected - this is stated in Art. 24 and art. 28 Code of Civil Procedure. In megacities there are district courts, and in small settlements there are city courts.

Features of the eviction procedure in various situations

Eviction of a stranger

It happens that the apartment is nominally or actually occupied by a citizen who is not a member of the owner’s family.

Who are they:

• former relatives (ex-spouse, relatives of the former spouse);
• a tenant (not a relative), who was previously a member of the family, that is, together with the owner of the apartment, he ran a common household, contributed to the family budget, and had common household items. Then he began to avoid general family events. He ceased to be part of such a family and turned into a stranger.

The owner of a private apartment gets rid of a former family member. In court, it is necessary to show the fact that there are no family ties.

Evidence may include:

• divorce certificate;
• testimony of witnesses 1) about the evicted person’s evasion of participation in the maintenance of the apartment and payment of utilities, 2) about the absence of friendly relations between the owner and the evicted person, 3) about the management of his own household and the presence of a separate budget for the former family member, 4) his absence from the place of residence , 5) about membership in another family;
• an extract from Rosreestr about the availability of another home for the evicted person;
• payment receipts for rent on behalf of the apartment owner.

The owner of a privatized apartment can discharge a tenant under the title “former family member”. In this case, the court, on the initiative of the discharged person or independently, may reserve for the defendant the privilege of free use of the apartment for a certain period. Or oblige the owner to provide the former family member with other housing (for rent, for ownership). This issue can only be resolved if the owner is obligated to provide alimony in relation to the former member.

For example , if the owner divorced his wife and pays her alimony, then upon discharge, the court may raise the issue of the ex-husband buying another apartment for his ex-wife. If the former family member is, say, a nephew, then no alimony is due to him. Therefore, the court will not force the apartment owner to buy housing for his nephew.

In a municipal apartment, the former member of the tenant's family retains the right of residence. However, if living together becomes impossible on an emotional and moral level, then the tenant is authorized to force a forced exchange of housing.

There is also provision for the eviction of a tenant after a change of ownership. Namely, the new owner, upon discovering a tenant registered under the old landlord, has the power to file a claim to terminate the right to use the premises by this tenant. If the latter uses the premises for life (for example, due to refusal of privatization), then the citizen cannot be discharged in this way. Discharge is possible only by mutual consent.

Eviction for immoral behavior

If a tenant, whoever he is the owner, tenant or a member of their families, violates the housing rights of his neighbors, he can be evicted from the occupied area. In this case, neighbors can be not only people living in neighboring apartments, but also in the same apartment with the offender (if they are not the same family as the evicted person).

As a rule, violations are recognized:

• hooliganism (disorderly conduct, fights, drunkenness, indecent behavior);
• violation of silence from 23.00 to 6.00 hours;
• systematic insult to personality, slander, threats.

To go to court you will need the following evidence:

• witness statements;
• materials from the police about systematic violation of the law by the guest;
• characteristics from management companies, homeowners' associations, housing departments, management companies.

Procedure for going to court:

Eviction for misuse, violation of sanitary and hygienic standards established for residential premises, destruction of the apartment

Inappropriate use of residential premises:

• for commercial purposes (for a warehouse, production workshop);
• organization of a shelter (overexposure) for pets;
• conversion into a sports hall.

Violation of sanitary and hygienic standards for housing, which contributes to the emergence and development of infections, diseases and interferes with the comfortable living of citizens:

• specific unpleasant odors;
• litter and pollution.

Violation of other requirements:

• fire regulations;
• rules for the use of communications and energy resources.

Destruction of living quarters:

• intentional damage to walls, windows, doors, communications (water pipes, electrical cables, ventilation), floors and ceilings, balcony railings;
• mismanagement of housing, leading to its deterioration (examples: constant flooding due to faulty plumbing or rupture of risers in winter due to their cooling due to the lack of glass in the windows).

Procedure for going to court:

Eviction for illegal registration at the place of residence

Citizens are sometimes registered in both a privatized apartment and a municipal one without legal grounds:

• registration without the consent of the landlord, owner, tenant and members of their families, other persons legally residing in the apartment;
• on the basis of fictitious documents (for example, a fake consent of a resident for registration is presented);
• by mistake of employees of the migration department of the Ministry of Internal Affairs, MFC.

The discharge of such persons can be carried out in two ways:

1. Cancellation of registration by the Migration Department of the Ministry of Internal Affairs. That is, when the owner or tenant learned about the facts of “black registration” (usually the registered person is only listed, but does not live in the apartment), this is reported in the form of a statement to the Ministry of Internal Affairs, which conducts an inspection and, upon confirmation of the facts, eliminates the violation - cancels the registration.
2. Appeal to the district (city) court with a demand to evict a person who did not have the legal right to housing.

Eviction for non-payment of utility bills

If there is no payment for more than 6 months, the landlord has the power to evict the tenant and his household from the occupied apartment to another housing of a smaller area (standards established for dormitories).

Often one of the tenants takes advantage of the fact that others are paying for him. How does this happen? The employer is responsible for all members of his family. And he cannot not pay or pay less for utilities (otherwise he himself will be evicted). But it’s impossible to simply explain that someone doesn’t pay for themselves. Therefore, you have to pay for everyone.

You can solve this problem as follows:

• the employer recognizes the unwanted tenant as a former member of his family;
• contacting the landlord to change the social tenancy agreement by excluding the former family member from the text of the agreement;
• put forward to the landlord a proposal to submit separate payment documents for the rent for the tenant and for the former family member. Or an agreement is concluded with the former member on the rules of residence and mandatory payments. When such an agreement cannot be concluded due to the reluctance of the former family member, it is concluded by force through the court.

After this, the employer can only pay his own bills. And a former family member of the tenant may be subject to eviction if they fail to pay rent for themselves for a long time (more than 6 months).

Eviction for prolonged absence from a municipal apartment

Sometimes tenants cannot privatize an apartment or exercise other housing rights due to the absence of a person registered in the apartment.

For example, it is impossible to register a relative, since the consent of all those registered is required. And one of them does not actually live at the address and his whereabouts are unknown.

Who may be absent (who may be evicted):

• employer;
• any member of his family;
• former family member and other stranger.

Who can evict:

• employer;
• family members of the employer;
• landlord.

The law does not establish what period of absence is considered long. The main thing is that the following conditions are met:

• absence is not temporary (army, study, business trip, treatment, conflict relationships);
• your belongings have been removed from the apartment;
• there are no obstacles to normal living in the apartment from other residents;
• other circumstances (marriage, living with another family, traveling to another city).

What is the claim being made?

• loss of the right to residential premises;
• termination of a social tenancy agreement (if the landlord goes to court).

At the trial it is necessary to prove:

• the guest does not pay for housing;
• has another place of residence (including owning or renting an apartment);
• there are no belongings of the person being evicted in the apartment;
• the defendant has other housing in the area where he has work, study, hobbies and other facts.

Evidence may be:

• testimony of witnesses - neighbors;
• ownership documents;
• certificate of inspection of the apartment with the participation of representatives of the HOA, management company;
• certificates from the employer regarding the new place of residence (this is especially important if the work is in another city).

The procedure for going to court is simple. You should first contact the landlord. Subsequently, to the city (district) court at the location of the apartment, and to bring the landlord as a third party.

Legal consequences of deregistering a person without consent

Jurisdiction may be overturned. Owners do not always rightly try to expel a citizen from the premises in which he is registered. In this case, the person can file a counterclaim within ten days after the decision on discharge and placement is made or during court proceedings.

How to file an objection to an eviction claim

When drawing up an objection, you need to take into account the position of Article No. 131 of the Code of Civil Procedure of the Russian Federation. Such a document can be submitted by the defendant himself or the shared owner who does not agree with the eviction claim. However, this will be a separate application that requires separate collection of documentation.

The main thing is to present reasons proving disagreement.

Details about filling out the application:

1. In the body of the message you don’t need just water, but write essentially. Support statements with legislation, facts, and certificates.
2. The application can be submitted by a lawyer using a notarized power of attorney.
3. A reference to Article No. 31 of the RF Housing Code and Art. No. 56 Code of Civil Procedure of Russia.
4. Information about the claim to which the objection is being written, as well as the data of the parties, is written down.
5. A list of the complete list of documentation provided is indicated.

Courts accept objections free of charge. There is no state duty for such actions. The papers are submitted exactly to the department where the paperwork is opened - they can be sent through the secretary or sent by registered mail by Russian Post.

Cases when it is impossible to discharge a person

Initially, an illegal requirement to remove a person from an apartment can be in three cases.

• It is impossible to forcibly deregister the owner or co-owner of the property

And also a person who contributed at least part of the share for the cooperative apartment. The owner has the right not to live in the premises, but the right to use always remains with him.

• You cannot discharge a person if he is absent from the place of registration of residence for a valid reason

Example: It would be illegal to request a discharge from a person who is called up for military service or is temporarily absent due to study or treatment.

It is also impossible to deregister a person who is serving a sentence in a special institution for a crime, but other family members of the person remain registered in the apartment. If the specified circumstances cease to exist, then the person is deregistered after six months from the date of termination of the valid reason for absence.

• If such a condition is in the marriage contract

It is impossible to evict from a residential premises if a marriage contract has been concluded between the spouses. In its text there is a reference to the lifelong residence of the spouse on the square meters of the second. Only after the death of one of the spouses, the question of the discharge of the second spouse may arise if the new owner raises such a question.

• the rentee, if the living conditions are specified in the rent agreement.

Who can be discharged by court order and who cannot?

When going to court, the applicant needs to be prepared for the fact that the claim will not be satisfied, because in some cases it is impossible to evict citizens from an apartment.

Categories of citizens whose discharge will not cause problems:

• former spouses who are not the owners of the apartment;
• persons serving sentences in places of deprivation of liberty;
• citizens who serve in the army;
• people actually living elsewhere;
• rowdies, hooligans or alcoholics;
• parents of a minor child who have lost their right to live with him;
• persons who are not relatives of the owner (you will find out whether the owner himself will be able to write out relatives if there is such a desire).

But citizens who belong to these groups are unlikely to be evicted from their apartment even if they go to court :

• apartment owner;
• minor child;
• a citizen who was registered in the apartment before its privatization and during this procedure renounced his rights to housing;
• persons who do not have other housing and the funds to buy or rent it (read whether it is possible to discharge a person “to nowhere” here).

In the latter case, the court may grant the tenant a delay in eviction for a period of one year - after which the owner will have to apply to the court again.

Discharge of a minor

A child (under 14 years of age) can be discharged only together with his parents.

• By law, children must be registered in the same premises with at least one parent. Accordingly, it is illegal to expel a parent from the apartment without a child. But such circumstances sometimes happen.

Example: A person inherited a house, and a child and his mother are registered in it. In order to deregister both of them, in the pleading part of the claim it is necessary to ask for an extract, first of all, of the mother and separately of the child. If you ask only the mother to be discharged, then the court has the right to refuse such a statement of claim.

• You cannot simply de-register a child; a mandatory condition is to indicate the new place of registration.
• The discharge by decision of the juvenile court must necessarily take place with the participation of the guardianship and trusteeship authority. The absence of such a third party in the case will lead to the cancellation of the court decision.

How long does it take

When citizens apply to the passport office with the above documents in the case of a regular discharge, such a procedure will take 3 days from the date of submission of documents. If the places of previous and new registration are in the same city, then when registering at the new place of residence, the person will automatically be discharged from the previous address. This procedure will take from two to four weeks. If a person registers in another region, the period increases to three months.

Having applied to the Federal Migration Service for discharge “to nowhere”, the person will be given a departure slip, which is valid for thirty days. Processing the data that a person submits online for discharge takes three days.