How can an imperfect daughter be discharged from an apartment. How to discharge a minor child from a privatized apartment if he does not live there
A child's rights to a roof over his head are described in the Civil Code, the Housing Code, the Basic Law of the Russian Federation, and the UN Convention on the Rights of the Child.
V current legislation RF there is no ban on the discharge of minors, just as there is no permission to leave children without housing.
Each case in court will be considered individually. How difficult all this will be and how long it will take depends on all the nuances. Principal points:
- is the child owner;
- who owns square meters, municipality or individual;
- whether consent was obtained from the guardianship;
- does the child have where to go.
By the way, according to the current norms, in the latter case, even an adult will not be discharged, giving him a reprieve.
Conditions for discharge and legal basis
If you want to deregister a boy or girl as non-residents, you will have to collect evidence for this. It will be possible to do this only in court.
At the same time, keep in mind that the child cannot be discharged at the request of the defendant simply "under the fence" (at least according to the letter of the law). If you envision a new dwelling for him, keep in mind that the conditions there for the little citizen should be no worse than in his previous dwelling (Article 20 of the Civil Code).
Proof that a person does not live in an apartment may be:
- the act of not living in the apartment (drawn up by the district police officer);
- witness's testimonies;
- pre-trial correspondence.
If the parents are discharged, then for their offspring this automatically means the inability to use the apartment. The son or daughter will be registered at the address where the father or mother is registered (Article 20 of the Civil Code).
Moreover, even if they (or one of them) are deprived of parental status, this does not mean for the law that the child no longer has the right to their home.
Where is it done? Where will you need to go?
The district court at your place of residence is served statement of claim with a package of documents confirming the fact that the child is not living. However, no one claims that you have no chance of doing it out of court - maybe the child's parents will hear your arguments and remove him from the register themselves.
This happens more often, especially if the applicant makes it clear that the law is on his side and that the court will satisfy his requirements. Not many people want to sue.
If proceedings are pending, you will first have to visit territorial body guardianship and trusteeship. Without their consent, the child will not be discharged, and even if this happens, the defendant can challenge such a decision in court and the discharge of the little person will be canceled.
What documents do I need?
- statement on the number of participants;
- passports;
- child's metric, i.e. wit. about birth (or passport);
- documents confirming the right to use the apartment;
- permission from the guardianship authorities;
- receipt of payment of state duty (according to latest changes legislation - 300 rubles, ch. 25.3 of the Tax Code).
In order to obtain the consent of the board of trustees, it is required:
- registration certificates for the old and new apartments;
- certificate of the number of residents;
- identity cards.
How and what you have to do
If it so happens that neither the child nor his parents have been living with you for a long time, and the child's registration is still hanging on you, tying your hands in matters of disposing of your own living space, first try to resolve the issue peacefully.
Unable to talk - send a certified letter with notification, which sets out your requirements and an indication that you will have to go to court. Maybe the parents will come to their senses and decide on their own the issue of registration of their child. Be sure to keep all letters, paper and electronic - if, after all, your case comes to trial
If this does not work, contact the district court where you live. You will be the plaintiff, the defendant - the parents or legal representatives of the little citizen. The third party will be involved in this with a prosecutor.
In a month, the court decision will come into force and a departure sheet will be issued.
Hello. In my previous articles I wrote that I met a passport officer from the management company in Khimki. I helped her sell the apartment, and now I am consulting with her about registration / discharge from the apartment.
It is possible to dismiss a minor child from an apartment only by providing a new place of residence, because they will not be allowed to discharge the child to “nowhere” (to leave him without a registration). Therefore, before being discharged from the previous place of residence, it is necessary to provide the child with a new place of registration. Moreover living conditions the new place of registration should be no worse than the previous one.
A small addition: For a long time there are no such concepts as registering or leaving an apartment. And only - registration at the place of residence / stay or deregistration. But they ask me exactly the old concepts. Therefore, I indicate them in the article. It's easier and more understandable for readers.
How to discharge a minor child from a privately owned apartment
I presented the checkout process itself using the example of selling an apartment. But the statement may differ, depending on whether the child is the owner (or has only a share) of the apartment being sold or not.
If the child is one of the owners of the apartment
- Obtain written permission from the authorities and guardianship for the sale and purchase of an apartment, without this consent, the child will not be discharged or registered.
To obtain this consent, you must:
- Take a certificate from the passport office from the previous place of residence (apartment for sale) about the persons registered in it.
At the passport office of the previous place of residence, one of the child's parents (guardians, adoptive parents) provides the employee with:
- passport;
- child's birth certificate or passport (if you are 14 years old);
- a document confirming the child's ownership of the apartment. Since 2017, the legal document for real estate is an extract from the USRN about the real estate object (in our case, for an apartment). Registration certificates are now canceled and have not been issued since July 2016. Here is a link to instructions for obtaining this statement.
If there are no documents confirming the ownership of the apartment, then the foundation agreement will do. A founding agreement is a document on the basis of which there is a title to real estate. This document can be: a contract of purchase and sale of an apartment; transfer agreement; certificate of inheritance; an annuity or investment agreement
Then the employee of the passport office will provide a certificate of registered persons in the apartment for sale, where it is indicated that the child is registered in it.
- Further, both parents (even if they are divorced, but not deprived of parental rights; or guardians, adoptive parents) together with the child (if he is not 14 years old, then his presence is optional) must contact the guardianship and guardianship authorities and provide a package of documents (all documents are served both in originals and photocopies):
- certificate of registered persons from the previous place of residence (apartment for sale);
- documents confirming the ownership of the apartment being bought and sold;
- technical passports of real estate for sale and purchase;
- birth certificate or passport of the child (if he is 14 years old);
- passports of both parents.
- Parents (guardians, adoptive parents) and the child himself (from 14 years old) in the guardianship authorities write applications for the sale of old and purchase of new real estate.
- The guardianship authorities consider the applications within 14 days, checking whether the child's rights have been infringed, and issue a written permission for the sale and purchase of the property specified in the application.
- Take a certificate from the passport office from the previous place of residence (apartment for sale) about the persons registered in it.
- After obtaining permission from the guardianship authorities, execute a deal for the sale and purchase of new real estate in UFRS.
- After registering ownership of the purchased property, now discharge a minor child from the previous apartment.
For this:
- One of the parents (adoptive parent, guardian) together with the child (if he is 14 years old, if not, then the parent comes alone) must go to the passport office of the previous place of residence and fill out an application of the established form for the discharge of the child, each his own. The application form will be provided by the passport officer.
- Attach documents to the application:
- passport;
- birth certificate or passport of the child;
- new certificate of ownership of the child's name;
- permission from the guardianship and guardianship authorities.
- Fill in the departure form, in which you indicate your new place of residence.
- The passport officer will pick up the documents listed above, which must be received within 7 days, along with the departure sheet. The child has now been discharged.
- Now it is necessary register a child in a new home:
- Contact the passport office at the new place of residence and write an application for registration of the child, each on his own behalf (if the child is not 14 years old, then his presence is not required).
- Attach to the application:
- passport of one of the parents (guardian, adoptive parent).
- departure sheet from the previous place of residence;
- permission of the guardianship authorities;
- a child's birth certificate or passport (if the child is over 14 years old);
- documents confirming the ownership of housing (purchased, donated and bequeathed real estate) in the name of the child.
- Fill out the arrival form and return everything Required documents to the passport office employee.
- Further, the employee appoints the day when you can pick up the documents.
- On the appointed day, you pick up the documents at the passport office. Now the child is registered at the new place of residence.
The child is not the owner of the apartment
If the minor is not one of the owners, but is simply registered in the apartment, then for his discharge no permission from guardianship authorities is needed.
Children's rights are protected by the Housing and Civil Codes RF. The state structure - guardianship and trusteeship bodies - protect his property rights. A real estate transaction will be declared null and void if it is not approved by the guardianship authorities. In any situation, the authorities are on the side of the minor.
Important! You cannot dismiss a child "to nowhere." He must be given a new place of residence. Moreover, the conditions in another place must be equal or better than in the previous one.
The application for the deregistration of a minor is considered by the court. The relevant documents are attached to it.
- Completed application. Its form can be found on the resources of the FMS. The required fields to fill out are: full name, registration address, passport information, new registration address.
- Identity card for the applicant (passport) and minor (birth certificate for children under 14 years old and passport if his age is over 14 years old);
- Documents confirming ownership of real estate.
The list of documents may differ in different regions. Detailed information about him can be found on the official website of the FMS.
If the applicant cannot independently apply to the FMS, then he has the right to transfer his powers to an authorized person who will defend the interests of the interested party in the presence of a notarized power of attorney.
The term for consideration of the application is three working days. If the court satisfies the application, the applicant will receive a departure sheet. According to it, registration is carried out at a new place of residence. It is not worth delaying with it: the legislation provides for fines for violation of the registration deadlines.
How to discharge a minor child from an apartment upon sale
The deregistration procedure depends on whether the person is the owner of the apartment or not. There are two possibilities here.
Child is the owner of the property being sold
The transaction can be carried out only with the approval of the guardianship authorities. The seller or his representative must obtain permission from the state authority for the sale of real estate. This must be done before registration. preliminary contract purchase and sale.
Important! The child's share in new housing should be equal. That is, if he was the owner of 12 sq. meters in three-room apartment, then in new housing its share should not be less than this standard. The total footage of the new facility and the number of residents in it are not taken into account.
If the sale of real estate is not accompanied by a transaction for the acquisition of new housing, then the share, expressed in cash, must be transferred to his personal account. If this condition is not met, the transaction may be invalidated and each of its parties will have to return to their original position: the seller should return the money, and the buyer - the property.
Algorithm of actions: how to discharge a minor child from an apartment and register in another (upon sale)
The first step is to contact the passport office to get a certificate of all registered persons in the apartment. It can be obtained by a legal representative - parents or guardians. To do this, it is enough to provide identity documents and evidence of the minor's ownership of housing.
With the received certificate, you must contact the guardianship authorities. In addition to it, the following documents will be required:
- passports of both parents, legal representatives;
- certificate of ownership of the housing sold;
- new object;
- technical passports for the old and new apartment.
Important! Both parents must be present when visiting guardianship authorities, even if they are divorced. An application with a request to authorize the sale of an apartment for the purpose of acquiring a new one is written by each party, including the incapacitated person (if he is 14 years old).
The application is considered within 14 days. Then the guardianship authorities make their decision. It contains specific conditions for the implementation of one object for the acquisition of another.
After receiving a positive decision, transactions can be registered in Companies House... An extract is possible only upon receipt of a certificate of ownership of a new object.
For registration, legal representatives must apply to the FMS at their new place of residence. In addition to the departure sheet, they must provide documents:
- a document confirming the ownership of the new real estate;
- representative's passport;
- birth certificate (or passport);
- permission of the guardianship authorities.
If the incapacitated person is not the owner of the sold object
If the minor is not the owner of the housing being sold, then the transaction can be carried out without the permission of the guardianship authorities. In order for it to be recognized as valid, it is necessary to register it at a new place of residence with parents or with one parent (Article 20 of the Civil Code of the Russian Federation).
Algorithm of action
- It is necessary to contact the passport office with a package of documents and write an application for deregistration. The presence of an incapacitated person is mandatory if he or she is 14 years of age or older. One of the parents can accompany him. The list of documents for deregistration includes: technical passport of new housing; applicant's passport; identity document of a minor.
- Write an application for deregistration. It must be in two copies: the first is to be filled in by the owner of the home, the second by a minor. For children under 14 years old, it is filled in by parents.
- The procedure is carried out within seven days. Then the applicant is invited to the FMS to receive a release sheet; children may not visit the passport office again.
How to discharge a minor child from an apartment after a divorce
Divorce of parents is not a ground for termination of the right to use living quarters their children. Let's consider cases that are often encountered in practice.
Option number 1 - the father is against the eviction of children from his living space
As statistics show, after a divorce, most of the children remain to live with their mother. If they are registered with the father, but live with the mother, then there will be no questions about how to discharge a minor child from the apartment without the consent of the father. The court will approve the application for deregistration. The other side will not be able to challenge it.
Option number 2 - the mother is against the eviction of children from the father's living space
In this case, the law will be on the father's side if the children actually live with the mother. He files a claim for the eviction of minors. When considering it, the court takes into account the conditions at the previous and new place of residence.
Extract from grandmother's apartment
Each of the parents has the right to register their child on the occupied living space, even if it does not agree. When divorcing or relocating to a new place, most owners wonder how to discharge a minor child from the apartment of a grandmother, grandfather or other relative.
It is important to understand the circumstances on the basis of which the children were registered and the age of the minors. Since the place of residence of children is the place of residence of their parents or one of them, the deregistration of minors is possible only upon their written application.
Important! If the parents are deregistered, then their children will automatically lose the right to use the apartment. His new place of residence is determined by the new place of registration of the parents (or one of them).
If the child owns a share of the housing, then it can only be discharged with the permission of the guardianship authorities. Parents, guardians or trustees can receive it (if there is a notarized power of attorney).
The owner of the apartment himself, grandmother, grandfather or other relatives, can only evict a minor through a court. To do this, they need to collect evidence that he does not live in their living space. The court will take into account the technical characteristics of the new housing. This discharge process can take several months.
Deregistering from municipal housing: subtleties
Key points:
- Extract from municipal housing is possible if the child is provided with an equivalent place of residence - article 20 of the Civil Code of the Russian Federation.
- The procedure is carried out with the permission of the guardianship authorities.
- Extracting a minor from public housing to communal apartment impossible (99% of courts refuse such a claim).
Instructions
First, you need to take a certificate of living in the apartment at the passport office and a personal account - in the accounting department of the passport office.
Further, the consent of the guardianship authorities will be required. Parents, together with an incapacitated person (if he is 14 years old), must visit this structure and write a statement. To consider it, the following documents will be required:
- certificate of registration in municipal housing;
- parents' passport;
- birth certificate;
- contract social recruitment(or order);
- personal account;
- a document confirming the right to use the new housing: a lease agreement or a certificate of ownership;
- technical passports of the old and new accommodation facility.
- The application is written by each parent with their own hand, indicating the place of their new residence. If the child is 14 years old, then he independently fills out his application form. In other cases, the parents do it for him.
- The appeal is considered for 14 days. During this period, the guardianship authorities check him for signs of infringement of the interests of the incapacitated party. If they were not found, then a positive decision is made, that is, a written permission is given to deregister.
- With this document, you must contact the passport office. In addition to it, you will need a social employment contract or a certificate of ownership of a new object, parents' passports, documents for a minor. Within seven days, the FMS authorities check the accuracy of the data provided and issue a departure sheet.
Eviction of a minor is a complex process. Such a decision is carefully weighed by both the guardianship authorities and the court. The law always protects the rights of children, it will not work to write them out for a mercenary purpose.
Can a minor be discharged from the owner's apartment? Yes. does not contain any prohibition on the discharge of children... Restrictions on that and restrictions that allow them, if not to be circumvented, then to be interpreted in different ways.
Not co-owner
How to discharge a minor from the owner's apartment? If a small citizen is not a co-owner, then for his discharge the parents' statement is enough.
In the paragraph of the application, the future address should be indicated valid rather than fictional.
To discharge a minor who is not the owner of the living space, the mother or father (and from the age of fourteen - and the offspring himself together with them) are sent to FMS or passport department Housing department and provide a package of papers:
- passports (for a child - a birth certificate or passport);
- departure sheet;
- application for registration.
If dad and mom were temporarily registered at this address, then the end of their registration period automatically means termination of the right to live with a child(Article 20 of the Civil Code).
Find out on our website what will be required to discharge the child from the apartment, as well as how to get them to another living quarters.
Is it possible to deregister a minor who is the owner of a dwelling?
Co-owner
Is it possible to dismiss the child - the owner of the apartment? It will be somewhat more difficult if it comes about the small owner (or co-owner) of the apartment.
Let's say you need sell or exchange an apartment and cancel the registration of the minor owner.
Without mediation board of trustees the deal cannot be done. Therefore, if such an operation is supposed, it is necessary to act according to the following algorithm:
- Both parents (it does not matter whether they are spouses or not) apply to the territorial department of guardianship and trusteeship, where they provide their identity cards, an extract from the house book and registration certificate for the old and new apartments where the child will be registered. Permits usually wait two weeks.
- After that, it prepares draft transaction agreement.
- The signed documents are sent to Rosreestr.
- After it is documented that the child does not just disappear to nowhere and on new holdings, it will be deregistered.
To the passport office Management company or at the Federal Migration Service the following papers are provided:
- departure sheet;
- parent and child identity cards;
- document from the board of trustees;
- title documents for a new living space;
Then you will have to wait from three to seven days and the little person will be deprived of a residence permit. Registering it in a new location will be carried out on the basis of a statement by the parents (or himself, if he is already 14 years old), title papers and all the same custody permission.
It takes about a week. Information about the new resident is entered into the house book.
If the transaction is to bypass the board of trustees (some real estate offices take on such cases), it can subsequently be canceled by a court decision.
When is it forbidden?
When under no circumstances is it possible:
- it is planned to write out the co-owner without providing an equivalent living space in the property or with worse conditions or without providing a cash equivalent;
- the apartment is municipal, and the child is a participant in privatization;
- the claim is filed by the interested person.
Owner's right to deregister
Can the owner discharge a minor from the apartment? Yes. As already stated, Housing Code does not contain an age limit for the discharge of unnecessary tenants(and 36).
Does the landlord have the right to cancel the registration of a minor?
The owner has the right to discharge everyone who is not a member of his family, and this also applies to children if the father new family, and in relation to the child, alimentary obligations arose. Kinship cannot be canceled, and the status of a family member - yes.
How to discharge a child from an apartment without his consent to the owner of the living space? To do this, the owner initiates a procedure in relation to the parents living with him (files a lawsuit), termination of their registration automatically means the termination thereof for the child.
If, for example, there is such a situation that the child is registered separately from the parents (for example, the grandmother decided to sell the apartment), then she, together with her parents and the child, goes to the passport office, where the procedure is drawn up.
This is done if the relatives have reached a consensus on the matter. If not, then the road is again to court.
The court will side with the owner if you make sure that:
- the child will not be discharged to an empty place;
- deregistration is justified (for example, the sale of an apartment is pending).
In such situations, it is best to enlist the support of a qualified lawyer.
Is it possible to discharge a child to nowhere when selling an apartment? We will help you figure it out.
Check out to nowhere
This option is valid in the following cases:
- at the request of the parents... For example, my mother indicated in the documents the address where she is not going to live;
- By the tribunal's decision(there was a change in the owner of the dwelling or the apartment was put up for auction for mortgage debts).
Such a situation is possible, but it should be remembered that in this case, if the previous apartment is sold, the rights of the person written out in it will not be exercised - Art. 292 Civil Code.
Exception makes up municipal housing, where, when making a deal with the participation of minors, the mediation of the board of trustees is mandatory, as well as the option when the little citizen is the owner of the dwelling.
The main thing in such procedures is act according to the law... How to achieve this and not let your interests suffer? Consult with a lawyer specialized in housing law. This will allow you to avoid unpleasant moments with the court, and if the case did come to trial, then win.
Extract from the child's apartmentIs a rather complicated process. Moreover, in order to discharge a child from the apartment, not only compliance with all formalities is required, but also documentary evidence that the child's rights are not violated in this case.
Extract from the child's apartment. General rules
First, let's define the term "statement". The fact is that with the adoption of the new legislation, it was recognized as archaic and replaced by the terms "registration at the place of residence" and "registration at the place of stay", however, in everyday life, the concepts of "discharge" and "registration" are still used.
In order for the discharge from the child's apartment not to turn into an endlessly drawn-out chain of complex actions, you must remember a few simple rules:
- A minor child must be registered and removed from registration together with his parents or legal representatives.
- If a minor is the owner of a dwelling or has a share in it, then his discharge when selling an apartment is possible only with the consent of the guardianship and guardianship authorities. Moreover, the consent of the guardianship authority is required not only in the case of transactions with real estate, where he was registered, but also in the case of his abandonment of his property rights (for example, when a refusal to participate in the privatization of an apartment is made on behalf of a child). If, upon receiving a refusal from the guardianship authorities, the parents or legal representatives of the child believe that the refusal is unlawful, they can apply to the court with a corresponding statement.
- If the child's parent for some reason does not live together (for example, after a divorce), then an extract from the apartment of a minor citizen can be carried out only with their consent.
- If the child does not live in the apartment, then he can be discharged on the basis of a court decision.
- Even if the parents (or one of the parents) have been deprived of parental rights, the minor child still retains his right to use the apartment in which he is registered.
- It is impossible to write out a child anywhere - there must be an address of a future registration. At the same time, living conditions in a new place should be no worse than in the previous one. That is, if earlier the share of the child accounted for 18 sq. m, then in new apartment this share should not be less.
Extracting a minor child from an apartment
Let us consider two options for an extract from a child's apartment: when he is the owner of the premises and when he is not, but is simply registered in it.
If the child is the owner of the dwelling:
- We go to the guardianship and guardianship authorities to obtain their consent to discharge the child. To obtain this document, you need to take a certificate from the passport office about the persons living in the apartment (meaning the apartment that is for sale), and also submit:
- certificate of ownership of real estate;
- technical passports of apartments (sold and purchased);
- parents' passports;
- the corresponding statement.
Within 14 days, the guardianship authorities consider all documents and issue consent or refuse to issue it.
- If permission is received, a deal for the sale of the apartment is drawn up. Next comes state registration transfer of ownership of real estate.
- The next stage is the discharge from the child's apartment. To do this, parents or legal representatives must come to the passport office with the following documents:
- application for deregistration;
- passports;
- a child's birth certificate;
- the permission of the guardianship authority;
- certificate of ownership of the apartment.
A statement on behalf of a minor under 14 years old is written by his parents or legal representatives; upon reaching the age of 14, the child writes the application himself. After that, we fill in the departure sheet and wait. Within 3 working days, the FMS authorities check the documents and remove the citizen from the registration register (that is, write it out).
- Now we must register the child in a new apartment. To do this, we again turn to the passport office at the location of the property with a statement, to which we attach:
- parent's passport;
- birth certificate of a child;
- certificate of ownership of a new apartment;
- permission of the guardianship authority;
- departure sheet from the previous address.
At the same time, we are filling out the arrival sheet and waiting for the verification of documents. Registration will be completed within 3 days.
If the child is not the owner of the dwelling:
- In this case, the consent of the guardianship and trusteeship authority is not required, so we just go to the passport office and hand over:
- statement;
- parent's passport;
- birth certificate of a child;
- technical passport of the new apartment.
An application for a minor is written by the parent or, if the child has reached the age of 14, by himself. A departure sheet is attached to the application.
Extract from the apartment of a minor through the court
A minor can be discharged from an apartment by a court decision in the event that he has lost the right to use the dwelling or the right to use the apartment has not been acquired or the right to use the apartment has been terminated. An application to the court is filed at the location of the defendant. A prerequisite in this case will be the participation of the guardianship and guardianship authorities as third parties. Also, when making a decision, the court takes into account the opinion of the child if he has reached the age of 10.
It is also important to know that the discharge of a child from an apartment by a court decision is not allowed in the following cases:
- if he is registered as a participant in the privatization of housing of the municipal housing stock;
- if the child is the owner of the apartment from which he is going to be discharged;
- if the claim is filed by a person who is interested in the disputed premises.
The court is rather skeptical about cases of eviction of minors, trying not to violate their rights by its decision, although there are some typical cases that still need to be considered. For example, if the parents file an application for the eviction of a child who is registered with one of the parents, but actually lives in another place (for example, with a grandmother). In this case, the court must find out the place of residence of the child's legal representatives and may well approve the registration at the new address. Most difficult situations usually occur when they want to register a child from a larger apartment to a smaller one.
Extracting a child from a municipal apartment
Extract from municipal apartment can be carried out subject to two conditions:
- Discharging a child is possible if he is registered in a new apartment together with one of the parents or legal representative.
- You can register a child only in an apartment, the living conditions in which are not worse than at the previous place of residence.
The discharge procedure is as follows:
- We request from the passport office a certificate of residents in the apartment and a copy of the personal account. To do this, we present a passport, a child's birth certificate and a social employment contract.
- With the received certificate, we go to the guardianship and trusteeship authority for permission and submit the following package of documents:
- personal account,
- certificate of residents of the apartment,
- parents' passports,
- birth certificate of a child,
- technical passports for apartments (old and new),
- certificate of ownership of the apartment,
- social employment contract.
We are waiting: the guardianship authority reviews the documents within 14 days.
As you can see, there are many options for discharging a child from an apartment, and in each case an individual approach is required. But the main thing to always remember is that government bodies stand up for the protection of children's rights and, in the event of disputes, always prioritizes the legitimate interests of a minor child.