Eviction of former family members of the owner from the apartment

I have reasons!

A person who is faced with the problem of evicting a former spouse from their home certainly wonders whether there are enough grounds for this.

In this case, it is necessary to refer to the articles of the Housing Code, which indicate that the grounds for eviction of the former spouse are the recognition of the invalidity of the marriage by the court, or the dissolution of the marriage in the registry office.

But it is worth noting that in this case, the eviction of the spouse takes place only if he is not a co-owner of the property , but only lived in the apartment without ownership rights. But if housing was purchased by both spouses during marriage, then it is already joint property, and it will no longer be so easy to evict a former relative from the apartment.

Reasons

Evicting an ex-husband or wife from an apartment after an official divorce must be based on a number of conditions:

• is the apartment privatized or not (if yes, then did the ex-spouse privatize his part);
• housing was acquired by one of the parties before entering into a marriage, transferred to him as a gift or by inheritance;
• the ex-husband or wife is a co-owner of the property;
• accommodation was carried out under a social tenancy agreement.

When one of the parties to the marriage relationship is a co-owner of the property, it will not be possible to expel the ex-husband or wife from the apartment after a divorce - according to the law, this living space is jointly acquired property, and both have rights to it.
In this case, you can solve the problem peacefully - for example, by exchanging real estate. You can also sell the apartment and divide the money in equal parts. If the owners cannot come to a mutual decision, they need to contact a judicial authority.

Facts that the court will take into account when considering such a case:

• residential premises were purchased with a mortgage loan or with the participation of maternity capital;
• whether it was purchased by two people, and only one spouse invested money for major repairs.

These points may affect the decision made by the judge. The division of jointly acquired property is complex; its consideration by the court can take more than six months.

What conditions must be met?

If the spouse is not the owner of the corresponding apartment, then upon divorce, he is obliged to independently leave the living space. If the ex-spouse has nowhere to go, then it is worth knowing that the court can enter into his position and postpone the eviction for a certain period.

If this is jointly acquired property , then the court may order the plaintiff to provide other housing for the defendant, after which he will be obliged to evict. (see eviction from the owner’s apartment)

Eviction methods

It would seem easy to evict an ex-wife or husband from your own apartment. The person should be reminded of his rights and responsibilities and enjoy the spectacle of furiously packing his suitcases. But if all former partners realized the truth and voluntarily left their home after a divorce, then you would not now be looking for the answer to the question of how to drive away an uninvited neighbor. So, there are two ways to evict former spouses from an apartment:

1. Voluntary. Constructive dialogue and a farewell slam of the door - this is the ideal eviction of an ex-partner. After this, it’s not a sin to throw a party, but there are not many cases of voluntary departure of an ex-husband or wife. All decent and conscientious people run away on their own without talking or reminding. And those who are more insolent do not want to lose their free place of residence and look for a new one. And it’s too expensive to remove a corner these days. Therefore, we want to warn you that you should not hope for such a favorable outcome of events. And whoever is forewarned is forearmed.
2. Forced. If the ex-husband prefers not to listen to his wife’s monologues about a speedy eviction, and still watches TV casually, scattering sandwich crumbs around, then it’s time to bring in the heavy artillery. Contact the court with a request to forcibly evict the person from your apartment. The ex will receive a couple of reminders from the court, and if he doesn’t get it, gentle bailiffs will come and lead him away.

See also:
Division of maternity capital during divorce

Remember that you can only try to evict your spouse from the apartment if you are its rightful owner. If the housing belongs to both of you, you need to divide the property and decide what to do with the property - sell it and divide it, or you will give the value of your spouse’s share in cash.

The procedure itself

If the housing was purchased by one of the spouses before marriage, or is an inheritance, then after the divorce, in most cases, this property will be the property of this particular spouse. And according to the Housing Code, after a divorce, the second spouse is obliged to move out due to the loss of the right to use the living space.

Filing a claim to evict a spouse from housing acquired during marriage is possible only after the expiration of a three-year period after the divorce, provided that the defendant has not presented any relevant demands regarding this housing.

Let's draw up an approximate algorithm of actions with the help of which we can achieve our goal, namely, the eviction of the ex-spouse.

Collection of documents

First of all, before going to court, you need to collect all the necessary documents that must be attached to the claim. The package of documents may vary depending on the situation. And for the best result, it is still better to contact a lawyer specializing in such cases at the first stage.

Here is an approximate list of documents:

1. A copy of the created claim.
2. A copy of the purchase and sale agreement for the relevant housing (social tenancy agreement).
3. A document confirming the place of registration.
4. Technical passport.
5. A copy of documents confirming family relations with the former spouse (birth certificate of children, document confirming marriage).
6. A copy of the marriage contract (if one was created).
7. A copy of the divorce certificate.
8. Extract from the house register and the Unified State Register.
9. Receipts for payment of utilities.
10. Receipt for payment of state duty.

It would also be a good idea to collect additional evidence, which will be presented in court and will help in making the decision we need. This could be testimony, a protocol on the former spouse’s violation of the rules of peaceful cohabitation.

We will pay the state duty

According to the Tax Code of the Russian Federation , the state duty for individuals in case of filing an eviction claim is 200 rubles. Details for paying the fee can be found directly in the relevant court in which you plan to file a claim, or you can look at their website.

Drawing up a statement of claim

The statement of claim being drawn up must be drawn up in accordance with the Civil Procedure Code.

In the header of the application, you must indicate the name of the court to which the application will be filed, the full names of the plaintiff and defendant, as well as their residential address. Next, you should proceed to the main part of the statement of claim, in which you need to describe the current situation and the reason for the disagreement between the two parties.

It is also necessary to indicate the person who is subject to eviction, the residential property from which the eviction should be carried out, information about the owner, as well as the basis for the eviction.

Next, write a request to evict the specified person from the municipal apartment. After this, you must sign and date, and attach the necessary documents prepared in advance to the statement of claim. Next, we submit a statement of claim to the court at the location of the relevant apartment or house. It is worth noting that you can only go to court in this case once.

The sample can be downloaded from here.

Arbitrage practice

The court will analyze your case, and then either accept it for consideration (in this case, a court date will be set), or the application will be left without progress or returned.

The pretext for returning an application , or leaving it without consideration, can only be compelling reasons. Such grounds may include incorrect filing of the claim, lack of certain documents, or incorrect determination of the jurisdiction of the dispute.

Deadlines

When making a decision on the timing of the husband’s eviction from the home, the court is guided by various factors. If the former family member has a sufficient financial situation, or owns other real estate, the court will order the eviction of the spouse as soon as possible (up to seven days).

But sometimes there are situations when a spouse does not have the opportunity to evict from an apartment due to the lack of other housing, or the inability to purchase it (see eviction without the provision of housing).

In this case, the court, as a rule, takes the person’s position and gives him some time to solve housing problems. At this time, he can live in this apartment.

As a rule, this period ranges from approximately 2 months to a year. But, the court may extend this period in the future, depending on the circumstances.

Arbitrage practice

In certain situations, the court allows the ex-wife to temporarily stay in the apartment until the child reaches adulthood.

There is no direct prohibition on eviction of a pregnant spouse.

And yet, according to Article No. 17 of the RF IC, it is prohibited to terminate a marriage with a pregnant wife; accordingly, there is no objective possibility of eviction.

What legislative grounds are provided for applying to the courts?

In a situation where the former spouse, who lost the opportunity to live in the living space due to divorce, does not want to be voluntarily expelled from the apartment, its owner has the right to evict the person through the court.

What documents are required

Duplicates of documents must be attached to the statement of claim. The only certificate that must be provided in the original is a receipt confirming payment of the state duty.

In general, you need:

1. Evidence in the case, presented in writing.
2. A document confirming the termination of the marriage.
3. Extract from the Unified State Register.
4. Extract from the house register.
5. Title documentation - certificate for the apartment (donation agreement, purchase and sale agreement, etc.).

Filing a claim

The rules for filing a claim are described in Articles No. 131, No. 132 of the Russian Code of Civil Procedure.

The claim must be made in writing and must be submitted to a judicial authority of general jurisdiction.

Is it possible to evict an unregistered person from an apartment, see the article.

The document has the following structure:

Video: How to expel your ex-spouse from your own apartment:

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There are features!

Privatized apartment

Eviction from an apartment that has been privatized will be considered if:

• it was acquired by the plaintiff before the marriage;
• acquired during the marriage, but the defendant was not registered in it.

According to the law, if the property was privatized by the plaintiff before marriage, or during marriage, but at the same time the defendant was not registered in it, then the apartment will be owned by the person who participated in the privatization.

But, if both spouses took part in privatization , then eviction will be almost impossible. Since this will already be joint property, and it will belong not only to the plaintiff, but also to the defendant. And if at least a small part of this home belongs to the spouse, then it is his personal property, and it is not possible to deprive him of this property.

If the spouse is not the owner, but is only registered in the apartment, then you can evict him due to a long absence. It is quite easy to do this if the ex-spouse is also hiding from paying alimony. In this case, it is necessary to collect the relevant certificates to draw up a report on his absence at the place of residence and file a claim in court to remove him from registration.

If the ex-spouse is registered in the apartment , but does not have ownership rights, and does not want to be evicted, then it is necessary to prepare a claim for eviction in court, preferably with incriminating evidence (antisocial behavior, rowdy behavior, alcoholism, etc.).

The apartment was provided under a social rental agreement

If the former spouse did not move into the relevant apartment, but remained registered in it as a member of the plaintiff’s family (i.e., the tenant), it is necessary to file a lawsuit in court, which will indicate the plaintiff’s request to remove the defendant from the register, as well as recognize the non-acquisition the right to use the living space by the defendant.

And if the spouse moved into the apartment, but does not currently live in it for a long time, then the application must indicate the deregistration of the spouse and the recognition of the loss of the right to use the living space. If the defendant’s departure from the apartment is temporary and short-lived, then obtaining a positive court decision will be very problematic and, in principle, unlikely.

Inherited

The law states that property transferred by inheritance is exclusively the property of the recipient. And in this case, upon termination of the marriage, in accordance with the general rule, the spouse loses the right to use the relevant real estate.

An exception can only be if a marriage contract was concluded, in which other nuances of the outcome of the actions were indicated.

How to evict your ex-wife/husband from your own apartment after a divorce?

Before thinking about this issue, you need to think about the legality of his residence in this living space.

The following is important:

1. whether the ex-spouse owns a share of the apartment or whether it is his individual property;
2. whether the ex-lover is registered in the given living space or not.

The following also plays a big role:

1. Is the apartment privatized or not?
2. who bought it?
3. was the living space donated?
4. Is the house or apartment used under a social rental agreement?

Please note that grounds for eviction do not apply to offspring.

Under certain circumstances, the court may shift responsibility to only one person while providing housing to another. For example, if children remain living with one of them.

If he/she is registered

Few people suspect that after the official dissolution of the relationship, once-happy spouses lose the right to use the living space in which they lived with their other half.

It is not even taken into account that the couple ran a joint household. This procedure is regulated by article thirty-one of the Housing Code, which is in force on the territory of our state.

Eviction of an ex-husband (wife), if he is registered in a house or apartment, can be carried out in all sorts of ways that do not go beyond the limits of current legislation. Not all lovers can live their entire lives without squabbles, quarrels, misunderstandings and separations. Couples often break up even if there are no serious problems on the horizon.

This is explained by the fact that the spouses are tired of each other, they want new emotions and experiences, passion and fire in the relationship. That is why, if they were in an officially registered marriage, they will have to dissolve it. Moreover, not every married couple can separate in a civilized manner without going to court.

The division of property will be especially problematic. The question often becomes relevant: who will live in a shared apartment? Very often, after a divorce, scandals play out that resemble “military clashes.”

After the official dissolution of the union, the former lover can be evicted from the house or apartment either voluntarily or through the court.

In this case, the date of registration in a given residential area, the total period of residence in the disputed house, as well as the date of divorce will be of no small importance. If the ex-wife solely owns the housing in question, and she took ownership before marriage, then she is unlikely to have serious problems with the eviction of her former beloved man.

In other cases, she will have to go through many unpleasant situations to get what she wants. There are many court hearings ahead of her. But what to do if the former spouse was registered in the apartment? In this case, after the divorce is formalized, the woman will not have any problems with eviction.

The ex-wife should contact a lawyer who will help understand this situation and clarify all unclear issues. He will give advice and recommendations regarding the preparation of an application for filing with the court.

But this should only be done if the ex-spouse refuses to voluntarily leave the premises. As a result, the court will issue an appropriate decision on the forced eviction of the former lover

It is important to note that a sample claim for eviction from a wife or husband’s apartment can be found on the Internet.

If there is no registration

If the ex-man is not registered, then there will be no problems with eviction.

Owned by the other spouse

If all or part of the living space is the property of the ex-spouse, then it will be practically impossible to evict him from there. Not a single court will agree to deprive the defendant of his property. The only exception can be if the spouse has debt obligations; only in this case is it possible to evict for debts.

Let us conclude that it is quite possible to evict a former spouse, unless he is the owner of the relevant living space.

In any case, you should be patient and collect all the necessary documents and evidence so that the court makes a positive decision. And it is still worth contacting a specialist who specializes in such cases in order for the case to have a guaranteed positive outcome.

When the ex-spouse is registered in the apartment

In such a case, the decisive factor will be whether he has title to the residential area. It is almost impossible to evict the owner from the apartment. If a person is registered in the premises, this shows his right to use and reside.

If you have a temporary registration, you can wait until it loses its effect and ask the resident to vacate the premises. With permanent registration, the ex-wife will have to file a lawsuit demanding forced eviction if the man refuses to leave the apartment of his own free will.

Reasons for refusing to accept an application

The judge rejects the claim or returns it to the applicant for the reasons provided for in Articles 134 and 135 of the Civil Code of the Russian Federation.

Predominant excuses for refusal:

1. There is a court ruling on the subject of the dispute that has entered into force and is binding on the plaintiff and defendant.
2. A settlement agreement has been reached between the parties to the dispute regarding the subject of the claim.
3. The pre-trial procedure for resolving the conflict has not been followed.
4. The petition was submitted by an incapacitated person.
5. The dispute described in the filed claim is already being considered in this or other courts.
6. The application was not signed by the plaintiff.

Important! Returning the application does not preclude resubmission after correction of the noted violations.

Voluntary eviction of a former spouse is the final optimal solution for members of the former family after a divorce. The final separation will take place without scandals with mutual concessions and taking into account mutual benefits or inconveniences.

Involvement of the court requires careful preparation of evidence of the legality of the claims. The completeness and thoroughness of the attached papers will direct the judges to adopt the ruling expected by the plaintiff.

Are you interested in the issue of eviction of citizens from residential premises? Read our other articles on this topic:

• Step-by-step procedure for eviction of illegally residing persons from an apartment.
• Rules for eviction of a registered person from an apartment if he is not the owner.
• Eviction without provision of other housing.
• Grounds and procedure: how to evict a person from an apartment?
• How does eviction from a municipal apartment for non-payment of utilities proceed?
• Is it possible to evict from the only home?

Sequencing

Without reaching a voluntary agreement, the owner must go to court. Such claims are considered by courts of general jurisdiction at the place of registration of the defendant.

The plaintiff will have to reproduce the following sequence of actions:

1. If there are grounds, the owner tries to resolve the issue peacefully.
2. If no verbal agreement has been reached, a written eviction notice should be prepared and formally served on your ex-spouse.
3. Refusal to comply with the required or complete disregard of the notice is grounds for going to court.
4. Prepare a statement of claim. This document can be drawn up independently or with the help of a lawyer.
5. A package of documents is being collected to support the claim.
6. State duty is paid.
7. All papers are submitted to the court secretariat for registration.
8. It takes from 5 to 30 days to consider the claim, after which the parties will receive notification of the date of the hearing.
9. You can attend the hearing yourself or through a representative.
10. After the decision is announced, you will have to wait until it comes into force.
11. A copy of the decision is submitted to the territorial body of the Ministry of Internal Affairs to remove the person from the registration register.
12. Physical eviction is carried out with the help of the bailiff service if the ex-spouse refuses to leave the premises on his own.

The procedure will take a lot of time, and even more nerves and effort. It is more profitable for the plaintiff to contact a qualified lawyer who will take on some of these problems and reduce the number of difficulties to a minimum.

Preparing a claim

The most important part of going to court is drafting the claim.

Although this document does not have a unified form, it must be written according to the strict canons of the civil law code. Its design and meaning must be precisely verified and comply with all judicial requirements. In addition, the claim must briefly but accurately state the entire essence of the case.

The statement of claim must include the following items:

1. The name of the judicial authority and its address.
2. Information about the plaintiff - full name, registration and residence address, telephone numbers, email address.
3. Information about the defendant’s ex-spouse – full name, address, telephone.
4. Document's name.
5. Information about the owner and where the right to own the property came from.
6. The reason why the plaintiff decided to go to court.
7. Grounds for eviction, here, in addition to divorce, references to the terms of the marriage contract or rental agreement can be given.
8. Information about pre-trial conflict resolution.
9. Links to legislative norms – Housing and Civil Code of the Russian Federation.
10. The plaintiff's demands to evict the defendant and deregister him.
11. List of copies of documents attached to the application.
12. Date of filing the claim.
13. Plaintiff's signature.

When drafting a claim, it is extremely important to set out all the key facts and claims. When considering an application, the judge is guided solely by what is written in it and the available evidence. An incorrectly completed application may result in a negative result.

Collection of documents

The statement of claim must be supported by documentary evidence of the facts stated in it. Therefore, before going to court, the plaintiff will need to collect the following list of papers:

1. Plaintiff's passport.
2. Documents on ownership of a house or apartment.
3. Social tenancy agreement for municipal housing.
4. Extract from the house register.
5. Divorce certificate.
6. Notification of pre-trial resolution of the issue. It is accompanied by evidence of delivery of the paper to the defendant - this may be a signature on the notification itself that the ex-spouse received the letter or a postal inventory and notification of its delivery.
7. Marriage contract.
8. Receipt for payment of state duty.

As necessary, the list can be supplemented with other forms. Please note that all documents are submitted in copies, but it is important to have the originals with you in order to be able to confirm the data provided.

Going to court

Having completed the documents and prepared the claim, the plaintiff can go to court. Before submitting papers, check whether the state fee has been paid, as well as the number of sets of the specified list. By law, copies are prepared according to the number of participants in the trial. In this case there are three of them:

1. Judicial authority.
2. Plaintiff.
3. Defendant.

All forms are sent to the secretariat, where they are checked for completeness and correctness. After this, all that remains is to wait for notification of the trial date.

If desired, the plaintiff may not take part in the hearings. He has the right to send another person for his representation. The main thing is to draw up a power of attorney to represent this person in court.

Getting a solution

The climax of the court session is the court's decision on the decision made. Unfortunately, for the applicant himself, this is more likely the beginning of the eviction procedure than a point in resolving the conflict.

The court decision is announced orally at the hearing, but you can receive its written version much later. In addition, the defendant always has the right to challenge the decision, which he can do within 30 days. If no re-trials are initiated, then the applicant receives the decision in hand at the court secretariat or waits for it by mail, but the second path is much longer.

Having a court ruling in hand, you must first of all contact the territorial body of the Ministry of Internal Affairs. There, the property owner writes an application to remove the citizen from the register. Documents on ownership are attached to the application, and the owner’s passport is presented.

It is not difficult to remove a former spouse from registration if there is a court order, but the actual eviction is carried out with the assistance of other services.

Appeal to the bailiffs

You can evict a person from an apartment, if there is a reason for this in the form of a court decision, through the bailiff service. These specialists are precisely called upon to ensure the execution of court orders.

You should contact the bailiffs only if, even after the decision is made, the ex-spouse refuses to leave the apartment. In this case, the owner contacts the FSSP, where he writes an application to begin production. A copy of the resolution is attached to the application. The bailiff who is handling the case sets a date for eviction. The defendant is notified in writing of the date and time of the bailiffs' arrival.

On the appointed day, the bailiffs come along with the police and carry out physical expulsion if the ex-spouse has not left before that. The procedure is that all things are removed from the apartment, and the person being evicted is notified that he no longer has any rights to reside.