Will a single mother be evicted from her apartment for non-payment of the mortgage: how does it all happen and what can be done?

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Published: December 23, 2019

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Buying an apartment with a mortgage means bearing the credit burden for many years. When applying for a mortgage, the payer cannot know how the circumstances in his life will turn out in a few years. Often, a job loss or a significant decrease in income makes monthly payments unaffordable. What can we say about the situation when we are talking about a single mother.

Opportunity to evict a single mother from a mortgaged apartment
What if there is only one place to live?
What if part of the apartment belongs to a minor?
What can you do if you can't pay?
The eviction process: how it all happens

By law, failure to pay a mortgage loan results in the property being put up for auction and the defaulter being evicted from the premises. The status of a tenant is not taken into account even if we are talking about a woman raising a minor child alone.

Eviction from residential premises

Eviction from a residential premises is possible voluntarily, out of court or by court decision.

A citizen must leave the premises in the following cases:

expiration of the tenancy agreement;
termination of the rental agreement in cases provided for by law;
expiration of the temporary registration period;
sale of premises to another person;
other reasons excluding the right to use residential premises.

If a person does not want to leave the premises, it is necessary to prepare documents for the court. To file a claim you will need:

a statement of claim for eviction in simple written form indicating all the circumstances;
certificate form 9 with a period of at least 30 days;
documents confirming housing rights;
the evidence base on which you must convince the court of the need to evict the defendant;
receipt of payment of state duty.

The claim is filed at the place of residence of the defendant, therefore the plaintiff has the right to choose a court at the place of registration or at the place of actual residence of the evicted person.

Can a mother sign her son out of the apartment?

I am 23 years old. My own mother wants to sign me out of the apartment where I am registered and live with my brother, grandmother and stepfather. The mother is the sole owner of the home. My relationship with her deteriorated when I married a girl from out of town. The mother is afraid that her wife will claim her apartment. They ruin my life in every possible way: my mother and stepfather forbid me to use the bathroom and toilet, they moved me into a small room where my grandmother lives. Tell me: can I be discharged without my consent? And can I legally demand the allocation of my share in my mother’s apartment?

Thanks in advance. With respect, Roman.

First of all, keep in mind: according to housing legislation, you have the status of “family member of the apartment owner.”

! According to Art. 31 of the Housing Code, spouses, parents and children living with the owner are recognized as family members, regardless of age (even after adulthood).

According to the law, family members have the right to use residential premises EQUALLY with its owner, unless otherwise established by a special agreement of the parties (Part 2 of Article 31 of the Housing Code).

Thus, the mother has no right to evict you or limit your natural needs for using the housing (visiting the bathroom, toilet, kitchen, etc.).

If you don’t agree to live in “grandmother’s little room” and think that this is clear discrimination (let’s say there is another free room and you are not allowed there), then you can go to court. The basis for this, in addition to the Housing Code, is an important rule of the Civil Code of the Russian Federation (clause 3 of Article 292 of the Civil Code): members of the owner’s family can demand elimination of violations of their rights to residential premises from any person, including the owner himself.

In court, you can raise the question of determining the procedure for using housing, in particular, about allocating a specific room for you to live.

There is no talk of allocating your share in the ownership of housing, since the mother is the only owner, and you, as a family member, only have the right to use the living space (that is, the right of residence).

As for deregistration at the place of residence (as “extracting” from an apartment is now correctly called), this procedure is a consequence of the loss of the right to use living space and (or) eviction. Since your mother has no right to evict you, she cannot “discharge” you on her own.

Advice: before taking the matter to court, try again to conduct “peace negotiations” with your mother. The following arguments will be useful to you:

first, calmly, confidently, but without aggression, explain that the law is on your side - tell us about your rights to full use of the living space and maintaining registration (see above);

secondly, reassure your mother: according to the law, your spouse cannot in any way lay claim to living space. The very fact of your marriage does not allow her to move into the apartment or register - this is only possible with the consent of the mother-owner. Moreover, if you have a child, then according to Moscow rules, even a baby cannot be registered with you in the apartment unless your mother agrees.

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How to evict relatives (husband, wife)?

The owner of the apartment can file a claim to evict a registered person (with permanent or temporary registration). In this case, all sides of the case are always considered. First of all, it is necessary to find out the grounds for eviction (violation of established norms, lack of family ties or simple unwillingness of the owner to live with another relative), whether the relative has the opportunity to live in another place, how the apartment was acquired and other reasons.

The easiest way is to evict temporarily registered relatives from an apartment - after the expiration of the registration period at the place of stay, you can evict even a minor child.

If a person is registered in an apartment permanently, it is necessary to provide a lot of evidence to confirm the fact that the person does not have the right to reside in this territory. Such evidence may be:

termination of family relationships (deprivation of parental rights, divorce);
impossibility of living together;
violation of public order;
violation of the rules for using residential premises, resulting in its destruction.

Evicting a family member is a rather complicated matter, but if there is evidence that he threatens the life and health of other people living with him, behaves inappropriately, or destroys other people’s property, the presence of a relationship will not be an obstacle to eviction.

The owner's desire to evict his former relative is not always grounds for eviction. For example, in practice there are often cases when, after a divorce, a wife filed to evict her husband from an apartment that was purchased before marriage. But if it is proven that the second spouse participated in the purchase of this apartment before the official registration of the marriage, or sold his apartment in order to make repairs in the disputed apartment, or the money went to the treatment of the owner-spouse, the court in this case always refuses to evict.

Reasons required to evict a relative from an apartment

As you know, any eviction process in our country is possible only through the court. Otherwise, no one under any circumstances can deprive a person of the right to live in an apartment. In order for the court to accept an eviction application and consider it, sufficiently compelling reasons are required. Depending on the current legal situation, they can be different: - A threat to the life or health of residents living in the same apartment, due to the fault of one of them; — Violation of public order and rules of residence; — Waiver of the obligation to pay for housing maintenance; — Long-term absence from the occupied living space without good reason; — The intention of the owner of the apartment to sell it or give it to another person. In addition, in the case of social housing, the basis for eviction may be the termination of family ties with the tenant, according to the norms of Part 4 of Article 31 of the Housing Code of the Russian Federation. Therefore, upon termination of family relations with the tenant of a residential premises, for example, divorce of spouses, the right to use this residential premises for the former family member is not retained, unless otherwise established by a separate agreement between the tenant and the former member of his family. The argument “I no longer want to live in the same apartment with this person” will clearly not be enough for the court. Everything must be confirmed by documents and testimony. The stronger the evidence, the greater the chances that the court will decide to evict an inconvenient relative from your apartment. If the reason is threats or even actions aimed at causing harm to the health or threatening the lives of household members, then to prove it, it is necessary to contact the police about this and testify from neighbors. The same evidence is needed to prove the facts of rowdy behavior and violation of the rules of residence. To prove the fact of non-participation in utility bills, you must provide receipts for payment of housing and communal services and obtain a certificate from the Criminal Code or Housing Department.

Is it possible to evict from a privatized apartment?

Eviction from a privatized apartment of a non-owner of the premises is possible in the above cases. But there is one exception - eviction by court of a citizen who at one time refused to privatize an apartment in favor of other persons is almost impossible . Even if the owner sold the privatized apartment to other persons, the person who refused privatization has the right to continue to live in the apartment for life.

For example, there are often cases when an apartment was received by spouses under a social tenancy agreement, but was privatized for only one spouse, let’s say the wife. If the spouse decides to sell the apartment, it is impossible to evict the husband, who has no other home.

The court made a decision to evict the relative from the apartment. What's next?

After the court has made a decision to evict a relative from the apartment and it has entered into force, you must contact the executive service of bailiffs. There they will open proceedings on the case and take all necessary measures to evict the relative from the apartment. If necessary, bailiffs have the right to involve the police for forced eviction. In addition, on the basis of a court decision, the person who has lost the right to use this residential premises will be deregistered. We must remember that minor children, incapacitated persons and citizens who previously refused to participate in the privatization of this apartment are not subject to eviction.

How to evict from a municipal apartment?

A citizen can be evicted from a municipal apartment in two cases (Articles 84 and 85 of the Housing Code of the Russian Federation):

if there is a certain need (in this case, the tenant is provided with other comfortable housing);
in case of violation of the law (without provision of housing).

Eviction without the provision of housing occurs only on the basis of a court decision made in the event of a violation by the tenant of the following conditions:

failure to pay rent for housing and/or utilities for more than six months;
destruction or damage to housing by the tenant or other persons for whose actions he is responsible;
systematic violation of the rights and freedoms of other residents;
use of the premises for other purposes;
deprivation of parental rights and impossibility of further residence with the child.

In this case, the violator must be given pre-trial time to eliminate these violations.

Eviction with provision of other premises may occur in the following cases:

if the house is subject to demolition;
if the housing is unsuitable for living;
if residential premises need to be converted to non-residential premises;
if it is necessary to carry out major repairs or reconstruction of the house, as a result of which the premises will lose their properties or its total area will change;
if the residential premises are subject to transfer to a religious organization (Federal Law of November 30, 2010 “On the transfer to religious organizations of property for religious purposes that is in state or municipal ownership”).

Can a homeowner be evicted?

Evicting a homeowner is an extremely difficult matter . How can you evict a person from his own property? The law provides only a few options for this possibility:

constant violation by the owner of fire safety, construction, sanitary and hygienic and other standards that violate the rights and interests of other persons, contribute to the destruction of the premises and especially threaten the life or health of others;
seizure of a house or land plot for state or municipal needs (with payment of the market value of the premises and other expenses, or with the provision of equivalent housing);
eviction for debts (followed by the sale of the apartment and return of the remaining funds, or with the provision of housing with a smaller area or less comfortable).

How to evict a tenant (tenant)?

If the tenancy agreement expires or is terminated, tenants must leave the premises. Early termination is possible in case of violation by the tenants of certain obligations specified in the contract or enshrined in the law, including:

for failure to pay rent or utility bills within the terms stipulated by the contract;
for using the apartment for other purposes;
for mismanagement of residential premises;
for violating public order;
for violation of essential clauses of the contract.

In the case of eviction of tenants due to really serious violations, judges calmly make a decision on eviction “to nowhere ,” especially in cases where, before filing a lawsuit in court, they were given warnings to eliminate the violations, to which they did not respond.

Background of the issue

Several people who were related to each other lived in the municipal apartment. The responsible tenant lived there with his wife and three children. Everyone was registered except his wife and youngest child. However, she was introduced legally, with the consent of her husband’s relatives. After his death, the relatives registered in the apartment filed a lawsuit with the district court to evict the widow and children, since she does not have the right to use the living space, and in addition, she and her youngest child are not registered in the apartment.

At the court hearing, the defendant filed counterclaims to determine the period of residence in the disputed apartment until her youngest child reaches the age of majority, as well as to recognize her right to use the living space. In support of her claims, the woman pointed to the fact that her two children are registered in the dwelling in question, and she has been living in the apartment for more than seven years, during which she conscientiously bears the burden of its maintenance - pays taxes and utility bills. She presented the written consent of her relatives for her to move into the apartment, drawn up after the registration of her marriage with the responsible tenant.

Important information for you: My husband beat me or is beating me. Where to go and how to punish for beatings. What to do if your spouse beat you. How to properly remove a beating.

The court of first instance, and subsequently the court of appeal, rejected the counterclaim of the mother of three children, but satisfied the claims of the relatives of her deceased husband. The courts' conclusions are based on the fact that the defendant has her own apartment, the area of which exceeds the area of the room she currently occupies in the disputed apartment. Under such conditions, according to the court, the woman and her youngest child are living in the apartment illegally. Relocating the defendant and her children to another apartment does not affect her rights or the rights of her child.

Difficulties and nuances of eviction

There is a certain category of persons whose eviction is significantly limited by law. You cannot evict:

a minor child from a municipal apartment without housing;
a minor who does not have parents or guardians without the consent of the guardianship and trusteeship authorities (from any apartment);
a person who voluntarily refused to privatize housing;
a person who is a dependent or alimony support of the owner until the termination of maintenance obligations.

In addition, if the evicted person does not have his own home or the opportunity to rent another room, most often the court grants a deferment for the execution of the decision from 3 months to 1 year. Also, a greater deferment may be provided to mothers of minor children until they reach 18 years of age.