Registration (registration) is one of the basic concepts in housing law. It allows a citizen to legally reside in an apartment with the permission of the owner. But it happens that as a result of a conflict, the latter has a desire to eject the non-owner from the apartment without consent. Is it possible to discharge a person without his consent? In what cases and on what grounds? What is the procedure for checking out of an apartment without the tenant’s consent? Who cannot be evicted from the apartment? All these questions are relevant for many who are faced with them.
How to be discharged from a municipal apartment
Municipal housing is non-privatized, that is, state-owned housing. The state has the right to actually dispose of it, and therefore it will be possible to discharge a tenant from a municipal apartment without his consent only through the courts.
All the grounds on which the owner can demand the discharge of a tenant are listed in Article 83 of the Housing Code of Russia. Here is who can be forcibly evicted from a municipal apartment according to the law:
- violators of community norms (hooligans, rowdies);
- citizens who have lost parental rights, and with them the right to live with the child;
- those who do not comply with sanitary standards, disturb the peace of neighbors , and pose a social danger;
- a citizen who has not lived at his place of registration for a long time;
- people who engage in illegal redevelopment, endanger the building or worsen its condition: for example, destroy walls and partitions, destroy plumbing, gas and other equipment, and damage the finish.
- persistent defaulters who have arrears on utility bills for a period of six months;
- citizens who use their living space for other purposes, that is, not as housing;
- citizens who live under a lease or social tenancy if the agreement has expired.
For reference. Before trial, the initiators of the case - family members, neighbors, guardians or other interested citizens - must contact local authorities.
It is municipal officials who will draw up and submit the statement of claim. If the court satisfies their request, then the initiator of the case will only have to draw up an application for forced deportation (the form can be found on the Internet) and, together with the court decision, take it to the district department of the Federal Migration Service.
Can I expel my husband from the apartment without his consent if I am the owner?
Article 31 of the Housing Code does not apply to persons registered in the apartment at the time of privatization and who renounced it in writing. It is simply impossible to deprive such residents of the right to use housing, even in the event of divorce. You can get out of such a delicate situation by drawing up a gift agreement in favor of a third party. After which the new property owner can legally remove the registered residents through the court. But there is one “but” here too. The court does not always rule in favor of the property owner. If the person who is planned to be evicted is, for some reason, unable to provide himself with other housing, then the outcome of the case may be decided in his favor. Moreover, in some cases, such persons may retain the right to lifelong use of housing, even if part of the apartment was acquired by third parties on a legally valid basis.
In a statement written by hand or typed on a computer, in addition to the initials of the person - the owner, as well as the name of the court, the meaning of your claim must be disclosed. You must clarify why you want to discharge the tenant, and most importantly, on what basis you rely .
How to discharge from a privatized apartment
Privatized housing is housing that does not belong to the state and is the private property of a citizen. As an owner, the owner of a privatized apartment has the right to eject a non-owner from there without his consent.
However, we must not forget about property rights. For example, if a woman wants to write out her ex-husband, but the former spouses once purchased the housing itself under a mortgage agreement, then the matter will become more complicated. The unpaid mortgage debt is considered a common obligation of the former spouses, and they will also have common rights to housing.
To remove a tenant from registration, you must be the full owner of the property and have an extract from the Unified State Register of Real Estate or other papers that confirm ownership: deed of gift, purchase and sale agreement, certificate of inheritance or privatization. You will also need to legally sever family ties with the evicted person and obtain a certificate of divorce.
According to Article 292 of the Civil Code of the Russian Federation, family members of the owner have the right to live with him. However, if the residential premises were privatized after marriage, then it will be considered jointly acquired property, and the evicted person will be able to claim a share.
Here is a general list of cases when a tenant can be discharged from an apartment without his consent:
- Severance of family ties (divorce), except in cases like those mentioned above.
- Long absence from the place of registration. Since eviction from a privatized apartment also usually takes place in court, the owner, after filing a lawsuit, will have to prove that the person does not live in his apartment.
- Acquiring housing as a result of purchase or inheritance. In this case, the applicant is not required to report to the court the reasons for his decision. He only needs to report that the residents refuse to leave the living space voluntarily after the housing is transferred to the new owner.
- Disturbance of public peace. In addition to the owner, the initiators of forced deportation in this case are often neighbors.
- Use of housing for purposes other than its intended purpose.
- Illegal redevelopment, destruction of load-bearing structures and deliberate deterioration of living conditions.
Grounds for expelling a cohabitant from an apartment without consent
The reasons for wanting to discharge a cohabitant may vary. But there are a number of typical situations that are often repeated in Russian judicial practice:
- the relationship between people has ended and there is no longer a need or opportunity to live together;
- one of the partners has not lived in this living space for a long time, but does not want to leave the apartment;
- one of the cohabitants does not pay utilities and is not discharged;
- one of the partners is trying to deliberately ruin the life of the second person.
How to expel a cohabitant from an apartment without consent, in which he is not the owner, is written in Article 4, Article 31 of the Housing Code of the Russian Federation. At the request of the owner, a common-law spouse can be written out on the basis that this person is not a family member . This can be proven using paragraph 11 of the Resolution of the Plenum of the Supreme Court of July 2, 2009 No. 14.
How to discharge a person from a donated apartment
The gift agreement unconditionally confirms the owner’s right to own the residential premises. If one of the spouses received it as a gift, then it will not be considered jointly acquired property and in the event of a divorce it will go exclusively to the owner of the apartment. The full owner can expel a person from the apartment without his consent, if this does not contradict other laws.
It happens that when donating, someone remains registered in the apartment. Then the new owner has the right to expel all residents from it in court if they refuse to leave voluntarily.
And yet, in what situations can you do without a trial?
• If the registered person has died (here, a death certificate will help you) • If the tenant has gone missing (you will need a court order confirming that the person is really missing); • If a person is drafted into the army - for military service (this will require a document from the military commissariat on conscription), after the end of service, the previously discharged tenant has the personal right to register in the apartment again; • If the previously registered person is in prison (a copy of the verdict will be needed for confirmation);
In many other situations, judicial intervention will be required. What reasons could there be for going to court to further remove a person’s identity from an apartment without his consent, and what documentary evidence would be needed? • A minor child is registered in the apartment, but lives at a different address (you will need to document the child’s residence at a different address); • The registered person has not appeared for quite a long time and does not live at his place of registration; • The person registered in the apartment refuses to pay utility bills, and at the same time he has additional housing (receipts paid by you are suitable for confirmation); • The registered person violates the order and silence in the apartment, which is contrary to public order and disturbs the neighbors (confirmation from neighbors and the district police officer about the violation of order); • The owner of the apartment has dissolved the marriage relationship with the tenant who does not have a share in this apartment (a document on the dissolution of your marriage, a document confirming that you are the sole owner); • The owner received as a gift or inherited from a relative an apartment in which, unfortunately, an unknown and stranger is registered (deed of gift); • An agreement was concluded for a certain number of years on the rental of an apartment, the term of which has expired (a copy of the agreement concluded with the landlord).
The easiest way is to quarrel to smithereens and sue, but still try to agree on a settlement.
How to discharge citizens of various categories from an apartment
The issue of an extract is resolved for each category of citizens with their own characteristics. For example, how can you compare the discharge procedure for an adult and a child who is not yet able to even evaluate his own actions?
For this reason, before you start moving, you should understand your situation well and think through all your steps, down to the possible consequences.
How to forcibly expel a person from an apartment if he has been deprived of parental rights
If a citizen fails to cope with parental responsibilities, the court may deprive him of the right to raise children. When this happens, the relationship between the unscrupulous parent and the child is formally terminated. Therefore, the owner can remove such a tenant from the apartment without consent.
Important. The child remains to live with the remaining parent or guardian. If there are none, the court sends him to a shelter.
How to discharge a child from an apartment
From a legal point of view, children are citizens who have not reached the age of majority, that is, 18 years of age. Is it possible to discharge a person from an apartment if he has not yet crossed this age threshold?
According to Article 20 of the Civil Code of Russia, a child has the right to live in the same apartment with his parents. If parents are deregistered, then the child is automatically deregistered along with them.
Attention! However, the law prohibits forcibly evicting families with children from their apartment if the family then has nowhere to live.
That is, if after discharge the child loses a roof over his head, it will be impossible to evict him and, therefore, his parents. It is also impossible to deprive the registration of a child who owns a home or a share in it.
It is possible to transfer a minor from a municipal apartment to a privatized apartment if the latter belongs to one of the parents. This is permitted only if the new living conditions are no worse than the previous ones. Typically, issues of eviction of children are dealt with by guardianship authorities. They also evaluate living conditions.
How to discharge a convicted person from an apartment
Citizens who have been sentenced to imprisonment for a crime committed by a court are considered convicted. If a criminal is sent to prison, the owner of the apartment can remove him from the register. To do this, you do not need to resolve the issue in court; you just need to contact the passport office with a copy of the verdict.
But there is a nuance. When the convicted person returns from prison, he will be able to demand that his rights be restored and registered in the same apartment again. If during his stay in prison the apartment is sold or exchanged, then he will subsequently be able to cancel this transaction in court.
How to discharge a young man if he joined the army
When a conscript is drafted into the army, he has the right to temporarily register at the address where he will serve. You can discharge a person from an apartment if he has joined the army in the usual manner.
For reference. To do this, the housing manager must contact the district military commissariat for a certificate stating that the citizen has been drafted into the army. After serving, the conscript will be able to restore his previous registration.
How to discharge a tenant from an apartment if he goes missing
If a citizen does not appear for a long time where he is registered, then this gives grounds to consider him missing. It can only be recognized as such in court, so family members of the disappeared will have to write a statement. When the owner of the property receives a judge's order, to discharge the tenant, he will only need to contact the Migration Department under the Ministry of Internal Affairs.
The procedure for recognizing a citizen as missing is regulated by Article 45 of the Civil Code of the Russian Federation. It also determines the timing of recognition. Officially, people are recognized as missing at least six months from the date of disappearance, and dead - no earlier than five years later.
If the absent person returns after the court has made the appropriate decision, the court decision can be reversed. Also, the returnee will be able to challenge all transactions related to this apartment.
Important. He will be able to claim restoration of his rights only if it does not turn out that he deliberately, for selfish reasons, changed his place of residence in order to hide his own whereabouts.
Features of eviction of a child owner
It happens that a child is the full owner of an apartment or a share in a residential building. Regardless of the fact of concluding a purchase and sale agreement, its deregistration is carried out according to special rules.
Monitoring the observance of the rights of a minor is carried out by the guardianship and trusteeship service. It is its employees who are authorized to ensure that the child does not end up discharged “to nowhere” or that his living conditions do not worsen.
Therefore, before discharging children from square meters, parents will have to obtain the consent of the guardianship authorities. The whole procedure will look like this:
- The child’s legal representative comes within the passport deadline and takes an extract from the current place of registration (at the location of the sold property).
- Passport officers need to present a passport, the baby’s birth certificate and a document confirming that the child is the owner.
- In a couple of days you can come back for a completed extract from the house register.
- Now we have to apply for guardianship. Parents’ passports, as well as a registration certificate for the property, must be attached to the existing documentation. One of the parents writes a statement indicating the new address where the child will live.
- Social service representatives study the appeal within 2 weeks and give a reasoned response.
- If everything is fine, the parents go back to the passport office with a ready-made permit. Based on the documents provided, the minor owner is removed from the place of registration.
Thus, the entire process of discharging a child falls on the shoulders of the parents. New homeowners cannot influence either the duration of the procedure or the decision of the guardianship workers.
Do I need to go to court?
If a tenant refuses to voluntarily leave the apartment, most often they have to go to court. But litigation is a last resort, and first you should try to resolve the issue differently:
- write and send to the tenant an official proposal to check out voluntarily;
- also demand in writing to eliminate all violations that caused the conflict;
- report to the police if the tenant violates public peace, damages other people's property and commits other illegal actions.
For reference. Contacting the police is often sobering and forces the offender to change behavior or leave the premises voluntarily. If all attempts to influence the tenant prove unsuccessful, the conflict will have to be resolved in court.
Which court hears eviction claims?
City and district courts deal with such cases. Magistrates' courts will not accept the application in this case. It would be best to go to court at your place of residence.
It should be remembered that the courts do not directly deal with the discharge, but only issue a ruling on it. You can deregister:
- in the Multifunctional Center;
- in housing department or homeowners association;
- on the Unified Portal of State Services;
- in the department of the Federal Migration Service at your place of residence.
What does it take to discharge a person from an apartment through the court?
The procedure for going to court is established by law. This means that when filing a claim you will need to follow a certain algorithm of actions. Here he is:
- drawing up and filing a statement of claim;
- collecting evidence of one’s own innocence;
- payment of state duty;
- receiving a judge's ruling;
- contacting one of the above organizations with an application for discharge.
- contacting the bailiff service if the defendant refuses to comply with the order.
For reference. The time frame for consideration of such claims in the district court is stipulated in Article 154 of the Civil Code. The law allows the trial from five days to two months. The court makes a decision based on the evidence presented, so consideration of the case is possible without the participation of the evicted person.
What documents need to be collected in order to deregister a non-owner from an apartment?
To file a claim for forced eviction, the apartment owner will need the following documents:
- photocopy of a general passport;
- certificate of those registered in the residential premises (including minors);
- documents confirming the ownership of the apartment;
- certificate of absence of debts on utility bills;
- receipt of payment of state duty in the amount of 300 rubles;
- evidence that confirms the legitimacy of the plaintiff’s demands (testimony of witnesses, protocols of offenses, information about the availability of other housing at the evicted person, etc.)
Statement of claim
For the court to accept a claim, it must contain the following information:
- the exact name of the judicial authority;
- last name, first name, patronymic of the plaintiff and defendant, their contact information;
- a detailed statement of all the circumstances of the case;
- list of grounds for eviction;
- specific demands of the plaintiff (in this case - forced discharge);
- list of applications;
- plaintiff's signature and date.
Attention. When drawing up a statement of claim, the plaintiff is not required to refer to specific laws, but knowledge and understanding of them will increase the chances of a successful outcome. Therefore, if possible, it is better to enlist the support of a lawyer. He will tell you in detail how to discharge a tenant from the apartment in each specific case.
Arbitrage practice
Cases of forced deportation have certain specifics. There are many cases when the judge refuses to accommodate the applicant, even if he has serious arguments in his favor. The refusal is usually due to the defendant's lack of alternative accommodation. Since it is unacceptable to leave him without a roof over his head, the court may offer an alternative and discharge the defendant with the condition that the owner of the residential premises will provide or pay for him other housing.
Important! If the reason for the deregistration is the defendant’s debt on utility bills, then it is necessary to ensure that the debt is repaid before deregistration, otherwise the debt obligations will fall on the shoulders of the owner.
Discharge of relatives permanently residing in the premises
Important! Can the owner of the apartment sign out a registered relative who is using the living space permanently? Yes, but it’s more complicated, because the rights to use the real estate have not been lost.
How to discharge a registered person who has the right to permanent use of real estate from an apartment? The decision on this issue is made by the court. Since a citizen can use the living space permanently, the subject of proof in this case will be broader. The plaintiff will have to prove that the tenant is abusing the right to use the provided territory.
For example, how can you expel your son from an apartment without his consent and force him to register separately? The child, being a close relative, has the opportunity to permanently use the living space, and, of course, he will have the question: “Why am I being discharged?” The court makes a decision regarding permanent residents in favor of the plaintiff if one of the following facts can be proven:
- a temporarily registered citizen does not make utility payments or rent for more than six months,
- a person who does not want to register, but does not have rights to real estate,
- a person can be evicted without his presence if he is absent from his place of registration for a long period of time (usually eviction occurs after a six-month absence of a person),
- a relative causes the premises to become unusable by his actions,
- housing is not used in accordance with its intended purpose,
- There is a systematic violation of the interests and rights of surrounding citizens on the part of the cohabitant.
How can you prove the above facts? In order to discharge a relative through the court, it is allowed to use various methods of proof. Typically, the judge makes a decision based on testimony from neighbors and relatives. In addition, certificates can be attached to the claim, which will indicate who paid for utilities. The district police officer helps prove the conduct of an immoral lifestyle.
Can the owner expel a registered person from the house without his consent? Yes. Issues regarding evictions from the private sector are resolved in a similar way. In order for an owner to be evicted from a private home without the person’s consent, one must also go to court.
