How is the forced exchange of a municipal apartment through the court. Forced exchange of public housing Forced exchange of public housing jurisprudence
Legal opinion on the forced exchange of residential premises and the grounds for registration for the improvement of living conditions
Ownership of real estate is the assignment of this property to someone. The Civil Code interprets the concept of the right to real estate through three powers: possession, use and disposal. The owner can transfer his authority to other persons, while he does not lose ownership of the property.
The owner exercises these powers at his own discretion, regardless of other persons. The owner can perform any actions in relation to the real estate belonging to him that do not contradict the law and do not violate the rights and legally protected interests of others (clause 2 of article 209 of the Civil Code of the Russian Federation).
The right to own real estate is a documented right to own real estate with the ability to use and dispose of it (the right to real estate).
The right to use is the possibility of exploiting real estate, deriving income from it, living in it, cultivating land plot etc. You can live in the apartment yourself, or you can rent it out. The right to use is usually based on the right to own. But, the one who rents an apartment uses it, but does not own it.
The authority to dispose is the ability to take measures to take actions in relation to this property. An example of the disposal of real estate (the right to real estate) can be: sale, lease, pledge and other cases.
After all, the owner can transfer to another person his powers regarding the property belonging to him, remaining its owner, for example, rent or transfer real estate v trust management. In this case, the ownership of the property does not pass to the manager or tenant.
In addition to the “benefit” of owning real estate (the right to real estate) and receiving income from the use, the owner also bears the “burden” of the costs, costs and risks associated with this. For example, the owner of real estate is obliged to pay tax, repair and maintain in good condition, pay utility bills, bear the risk of loss or damage to real estate in the absence of anyone's fault. The “burden” can be shifted to another person under a contract (for example, a lease).
In accordance with the norms of the current civil legislation, the Owner exercises the rights of possession, use and disposal of the residential premises belonging to him in accordance with its purpose.
Residential premises are intended for the residence of citizens. A citizen - the owner of a dwelling may use it for personal residence and residence of members of his family.
Residential premises can be rented out by their owners for living on the basis of an agreement.
Accommodation in residential buildings industrial production is not allowed.
Placement by the owner in the residential premises belonging to him of enterprises, institutions, organizations is allowed only after the transfer of such premises to non-residential. The transfer of premises from residential to non-residential is carried out in the manner determined by housing legislation.
Article 292 of the Civil Code of the Russian Federation defines the rights of family members of the owners of residential premises.
In particular, members of the owner's family living in the residential premises belonging to him have the right to use this premises on the conditions provided for by housing legislation.
The transfer of ownership of a residential building or apartment to another person is not a basis for terminating the right to use the residential premises by family members of the former owner.
Family members of the owner of the dwelling may demand the elimination of violations of their rights to the dwelling from any person, including the owner of the dwelling.
Alienation of residential premises in which minor members of the owner's family live is allowed with the consent of the guardianship and guardianship authority.
Thus, since the ownership of the apartment is registered in the name of your daughter, then, therefore, only she is the owner of the dwelling.
It should be noted right away that residential premises that are in state or municipal ownership and which are occupied by citizens under an agreement are subject to forced exchange. social recruitment(Article 68 of the Housing Code of the RSFSR).
The housing legislation provides for the possibility of exchanging living quarters that are in cooperative ownership (Article 119 of the Housing Code of the RSFSR). However, given that the majority of persons living in houses of housing cooperatives have fully paid the share contribution and become owners of residential premises, the issue of forced exchanges in these houses is currently not relevant.
Residential premises that are in the shared ownership of citizens are not subject to forced exchange, since, in accordance with civil law, the termination of the right of ownership is possible only in the manner prescribed by civil law, and it does not allow forcible alienation of property, except in individual cases established by law.
Residential premises owned by citizens cannot be offered for exchange, since it is impossible to become the owner of residential premises forcibly.
Therefore, if you have hostile relations with relatives or neighbors who are participants in shared ownership of residential premises, then you should know that it is impossible to force them to exchange the occupied residential premises and you need to negotiate with them or sell it yourself or change the owned You share with the natural losses in such a development of the case.
Forced exchange is possible, as a rule, in respect of only the entire occupied residential premises under a social tenancy agreement, when an agreement has not been reached between the tenant and members of his family (or former members of his family) on the exchange of premises for premises in different houses or different apartments, i. e. about the departure.
The housing legislation allows for the only exception when it is possible to oblige a person who occupies a dwelling under another social tenancy agreement to make a forced exchange. This is in the manner prescribed by Article 98 of the Housing Code of the RSFSR. In this case, the person is threatened with being evicted from the dwelling without being provided with another dwelling, but instead of being evicted without being provided, the court may oblige the tenant to exchange the occupied premises.
It is not allowed to provide a forced exchange if one of the premises participating in the exchange is service or located in a hostel.
The foregoing indicates that the apartment belonging to your daughter is not subject to forced exchange.
Registration for the improvement of living conditions
Improve your living conditions in Moscow there are several ways, the list of which is quite large today. One of these ways is to obtain an apartment (housing) under a social contract, that is, in essence, free municipal housing. You can get an apartment in Moscow under these conditions, in particular, by joining the queue for improving housing conditions.
The procedure for placing on the waiting list for the improvement of living conditions.
In order to get on the waiting list for improving housing conditions, it is necessary that a number of circumstances be observed that are associated with the very need for improvement, as well as with a circumstance that, due to the relevance and soreness of this issue, is popularly referred to as the qualification settled, that is, with residence in Moscow for a certain amount of time.
So, there is a rule according to which registration for the improvement of living conditions is possible only after permanent residence in Moscow for a total of at least 10 years. This means nothing more than the fact that continuous residence in Moscow during this time is not necessary to be put on the waiting list, the place of residence of a citizen during his life may change, it is possible to move to another city and return to permanent residence in Moscow, what remains unchanged in practice is that residence for a period of 10 years must be confirmed by a record of registration at the place of residence, or the so-called permanent registration (propiska).
The issue of living in Moscow for 10 years to be put on the waiting list turned out to be very painful, and led to numerous appeals from citizens to various courts in defense of their constitutional rights, primarily the right to freedom of movement, choice of place of stay and residence. The result of the judicial struggle of citizens for their rights was the recognition of the norm that existed in the previous Moscow legislation on 10 years of residence in Moscow as not in accordance with the constitution and federal law. Earlier, the Moscow legislation on improving housing conditions (Resolution of the Moscow City Duma dated January 31, 2001 No. 12 “On the regulation on the procedure for improving the living conditions of citizens in Moscow”) also had such a condition, which was canceled by the Determination of the Investigative Committee for Civil Cases of the Armed Forces of the Russian Federation dated October 05, 2001 No. 5-GO1-117.
In the new Law of Moscow No. 22 "On improving the living conditions of residents of Moscow" dated January 15, 2003, this period appeared again, which caused bewilderment on the part of the public and some representatives of the judiciary.
The question also remains controversial that residence for 10 years in Moscow should be taken into account precisely by permanent registration, since. the law speaks only of residence and nowhere mentions that residence must take place precisely by registration (registration). From this point of view, judicial prospects have an establishment in judicial order the fact of residence for a 10-year period in Moscow in accordance with the special proceedings of Articles 264-268 of the Code of Civil Procedure of the Russian Federation, given that for several years arbitrage practice considers registration at a permanent place of residence not as a basis, but as just one of the proofs of permanent residence in a particular place. That is, to confirm the fact of permanent residence, other evidence can be used, namely, evidence obtained from other sources of evidence listed in paragraph 1 of Art. 55 Code of Civil Procedure of the Russian Federation, including from witness testimony.
Another condition for registering those in need of housing is that the provision of the total area of each family member should not exceed the norms established by law.
So, for example, it is required that for each person living in a residential building who wants to register for improvement, there should be no more than 10 meters in the total area. With regard to citizens living in communal apartments or in apartments of a hotel type, another rule applies, namely, the provision of such citizens with common living space must be somewhat higher for registration, that is, according to the law, it must not exceed the norm of 15 meters.
At the same time, the concept of communal housing (communal apartment) is given in Article 15 of the Moscow Law “Fundamentals of Moscow Housing Policy” dated March 11, 1998 No. 6, according to which an apartment is considered communal if it consists of one or more residential premises belonging to two or more users (owners) who are not members of the same family on the basis of separate agreements, transactions or other actions provided for by law. From this point of view, a) is recognized as communal. municipal apartment, where there are separate personal accounts for isolated residential premises b). a former municipal apartment, with different personal accounts, where one or more rooms have been privatized. The question of referring to a communal apartment on the right of common shared ownership, even with a certain procedure for use, is decided by the courts negatively due to the lack of separate rights to isolated living quarters in such apartments.
If different families live in an apartment that is not subject to communal settlement due to the adjacency of rooms or due to the fact that the apartment is one-room, as well as for a number of other reasons (Appendix No. 1 to Law No. 22), scheduling is also possible provided that the general with an area of less than 15 meters, that is, the norm established for communal apartments (Article 3 of the Law).
At the same time, there are a number of cases when the placement on the waiting list for improving housing conditions is carried out regardless of the number of meters per each family member, namely:
one). If citizens occupy one-room apartments or apartments consisting of adjacent non-isolated rooms and there are no family relations between them. The point here, in contrast to the case discussed above, is that there are no kinship relations between citizens, and the presence of different families in an apartment is possible while maintaining kinship relations between citizens.
2). If citizens occupy residential premises recognized in accordance with the established procedure as unsuitable for permanent residence. A dwelling is considered unsuitable for permanent residence if it: is a). emergency b). is in a state of disrepair c). if exposure to harmful environmental factors is detected in the dwelling. The procedure for recognizing residential premises and houses as unsuitable for permanent residence is regulated by the Regulation on the procedure for recognizing residential premises and residential houses as unfit for habitation, approved. Decree of the Government of the Russian Federation of September 4, 2003 No. 552. and is specified at the level of Moscow legislation.
3). If they occupy residential premises in apartments (houses) of a corridor layout, as well as in houses with limited amenities that do not meet the standards of improvement, that is, in houses (apartments) that lack one of the following amenities (power supply, running water, bath or shower, gas or an electric stove, hot water supply or gas water heater, regardless of the material of the walls).
4). If citizens occupy living quarters in dormitories, including hotel-type dormitories, with the exception of cases when Moscow is a place of stay for citizens (they have temporary registration).
5). Regardless of the registration rate, citizens living in communal apartments are also registered if there are patients among the residents who suffer from severe forms of certain chronic diseases and, at the same time, cohabitation with them is impossible according to the conclusion of the health authorities.
6). Residential premises where patients suffering from some forms of chronic diseases live, the layout of which does not allow allocating isolated residential premises to these citizens for use. At the same time, these citizens, by law, have the right to use isolated residential premises.
Regardless of the number of meters per resident, citizens who have lived in Moscow for a total of at least 40 years, that is, who are long-livers of Moscow, can also be recognized as in need of improved housing conditions, a) if they live in communal apartments for the last 10 years with full general seniority necessary for the appointment of a labor pension b). the last 5 years in the presence of a disability of the first or second group. Long-livers of Moscow living in communal settlements have the right to priority housing, and even if they live as part of families in need of better housing conditions, they are included in lists of those in need, separate from other waiting lists.
Accounting for other housing owned by citizens on the right of independent use
When determining the amount of living space for each family member, all residential premises belonging to citizens living in an apartment and members of their families on the basis of independent use are taken into account. The concept of the right of independent use is very broad and includes both the ownership of a dwelling and the ownership of housing on a different basis (use under a social tenancy agreement, an apartment in a housing cooperative with an incompletely paid share, and others legal grounds home ownership). At the same time, the right of independent use is not the right of residence granted under a residential sublease agreement, a short-term rental agreement or an agreement on moving in temporary residents. The question of who is a member of the family of residents is decided as follows: spouses and their minor children in any case are members of the same family, regardless of their place of residence.
If the adult children of the spouses live in the apartment, then the issue of their belonging to the same family is decided taking into account the provisions of paragraph 3 of Article 2 of the Law, which states that adult family members of citizens living in the residential premises can be recognized as a separate family (separate families), if they run a separate household, have their own sources of income and have expressed their will to be registered as a separate family (families). In practice, this looks like submitting an application to the housing department of the Council to register the relevant persons as a separate family, attaching certificates of financial independence as confirmation of a separate source of income, as well as attaching other documents confirming the fact that different families have formed in the apartment.
A very common case in practice is when spouses and their adult children live in an apartment, and at the same time one of the spouses owns a living space, the presence of which does not allow the family as a whole to register for the improvement of living conditions (each resident accounts for more than 10 or 15 meters of total area). One of the ways out of the situation for children who have become adults is, in this case, to submit an application to the housing department for placing on the queue as a family or families separate from their parents (the area of the parents will not be taken into account).
The procedure for registering those in need of better housing conditions
Registration of citizens in need of better housing conditions in Moscow is carried out by the housing departments of district administrations at the place of residence of citizens, and can also be carried out at their place of work. A citizen has the right to be registered in two places - at the place of work and place of residence. The fact of permanent residence in a particular area is confirmed by a record of registration at the place of residence or a court decision establishing the fact of permanent residence.
In order to be placed on the waiting list for the improvement of living conditions, it is necessary to apply to the housing department of the Council with a written application, which indicates:
1. Housing conditions of the family at the time of application.
2. Time of residence in Moscow, as well as the presence of registration at the place of residence.
3. It should be indicated whether there are privileges for extraordinary or priority housing for individual family members.
4. If the application is submitted at the place of work, the length of service at the enterprise and the position are indicated.
5. The application also makes a note that citizens who wish to register give their consent to receive information about them in order to check their living conditions.
The following documents are attached to the application for enrollment
one). Passport of a citizen who wants to register for the improvement of living conditions
2). Extract from the house book and a copy of the financial personal account
at the place of residence of those wishing to stand in line
3). Plan of the apartment from BTI
4). Certificate from Mosregistration about the presence or absence of property
for housing.
5) B necessary cases certificates of health care institutions are attached.
An application for registration is registered in the journal of incoming documents in the housing department, after which an inspection of the living conditions of citizens is carried out, based on the results of which an inspection report is drawn up and the issue of registering them is submitted for consideration by a specially created public housing commission, which decides on acceptance or rejection on an advisory basis. Finally, the issue of staging is resolved by the Resolution of the Head of the District Council, about which the citizen who applied with the application must be informed in writing within a month from the date of submission of the application.
Thus, consideration of a citizen's application should take place no more than one month, after which a written answer should be given to him. In the case of a positive decision on the issue of registration for improvement, a special accounting file is started, and accounting is also kept in the register of citizens. The refusal to put on the waiting list for the improvement of housing conditions can be appealed to the Office of the Department of Housing Policy and housing stock by the County or to the court.
Actions that led to the deterioration of living conditions.
Placement on the waiting list may be delayed for 5 years if there has been a deterioration in living conditions by citizens who wish to improve their living conditions. Actions related to the deterioration of housing conditions include:
one). Changing the procedure for using residential premises, which includes, in particular, the section of a personal account in a municipal apartment.
2). Exchange of a dwelling for a smaller dwelling.
3). Failure to comply with a tenancy agreement, resulting in eviction in court. So, for non-payment of rent within 6 months, a citizen can be evicted by court order to a less comfortable living quarters according to the norms of a hostel.
4). A change in the composition of the family as a result of the move in of other persons, the dissolution of the marriage, that is, in essence, the registration of additional tenants in the apartment.
5). Determination of shares, allocation of shares or change of shares by the owners of residential premises.
6). Alienation (that is, the transfer by any transaction by the owners of residential premises) of their residential premises or shares in the ownership of residential premises.
The following actions are not considered actions that led to the need to improve living conditions:
one). Actions for the settlement at the place of residence of spouses, children, parents, other citizens, united by signs of kinship or property, if they are a). did not have an independent right to use the dwelling at the previous place of residence; b). had an independent right of use at their previous place of residence, but were not provided with the provision rate (that is, they were not provided with the necessary 18 meters of the total area); v). occupied, on the right of independent use, a dwelling that was recognized as unsuitable for permanent residence, that is, recognized as emergency, in a dilapidated state, or if the harmful effects of environmental factors were revealed in it .; G). if their living quarters were transferred by them to the ownership of the city of Moscow, or were seized by state authorities. authorities for state and municipal needs.
2). Actions related to the termination of the contract for life annuity or life maintenance with a dependent at the initiative of the recipient of the annuity.
3). Actions related to the refusal to accept the gift by the donee and the refusal of the donor to fulfill the gift agreement.
4). In the event that the court declared the transaction with the residential premises invalid.
If you have the above grounds, you can be registered for the improvement of living conditions.
If a voluntary exchange agreement has not been reached between the tenant of the residential premises under a social tenancy agreement and the members of his family living together with him, any of them has the right to demand that the occupied residential premises be forcibly exchanged in court of the occupied apartment for premises in different houses (apartments). At the same time, noteworthy arguments are taken into account and legitimate interests persons living in the exchanged residential premises (part 3 of article 72 of the LC RF).
It is necessary that the housing offered for resettlement does not worsen the living conditions of family members who object to the exchange. In addition to the requirements for residential premises (footage, number of storeys, availability of an elevator, central heating, hot water supply and other amenities, in relation to the locality in which the apartment is located), there are other circumstances that may be the reason for the court to refuse a claim for compulsory exchange.
The residential premises offered for exchange must be located within the city or settlement where the exchanged residential premises are located. The region in which it is located also matters. living space. The relocation of a person from one area to another, as a rule, is not considered a deterioration in housing conditions. However, in judicial practice there are cases when relocation to another area was recognized by the court as a circumstance worsening living conditions, and on this basis the claim was dismissed.
If the living space offered for exchange is a room or several rooms in communal apartment, then the number of neighbors in such an apartment should not exceed the number of members (or former members) of the family that is moving away. The court may refuse a claim for a forced exchange if persons who abuse alcohol, make scandals, or violate the rules of the hostel live in a communal apartment. This circumstance can be recognized by the court as worsening housing conditions.
It is widely believed (even among lawyers) that a forced exchange claim can be brought to court with two or more exchange options. This is nothing more than just a delusion, since the legislation does not impose such requirements. If a suitable exchange option is found in the singular, interested persons may apply to the court, which must accept statement of claim for consideration.
From judicial practice * (22)
By a court decision, I.'s claim for the forced exchange of a two-room apartment was satisfied: T. and K. were moved to two privatized rooms three-room apartment, and I. with his son - in one-room apartment; Moved to the disputed apartment by V.
Judicial Collegium for Civil Cases Supreme Court The Russian Federation satisfied the protest filed by way of supervision, canceled the court decisions and sent the case for a new trial to the court of first instance on the following grounds.
The court, having satisfied the claims of I., in the decision indicated that the living space offered to the defendants for exchange does not worsen their living conditions, since they are not deprived of the right to apply to the court with a claim to invalidate the privatization. However, such a conclusion is contrary to the requirements of the law. The defendants live in an apartment belonging to the municipal housing stock, the tenant is T. The rooms into which the defendants are to move as a result of the exchange belong to B. In accordance with Art. 1 of the Law of the Russian Federation of 04.07.1991 N 1541-1 "On the privatization of the housing stock in Russian Federation"(as amended on December 29, 2004) the transfer of housing to the ownership of citizens is carried out on a voluntary basis. Any coercion is excluded.
The court, by its decision, satisfied the claims and moved T. and K. to privatized rooms, while the defendants objected to the forced transfer of their living space to their ownership. The reference in the decision to the right of the defendants to apply to the court with a claim for the recognition of privatization as invalid is not a basis for satisfying the claim for a forced exchange, since it violates the principle of voluntary transfer of housing into ownership.
Since the reasons for the refusal of defendants in claims for a forced exchange may be different, in each case, the court, when considering this category of cases, is obliged to take into account and verify the reasons why the defendant objects to the exchange.
How is the forced exchange of public housing through the court? Does this happen often? According to official statistics, about 20% of all housing stock on the territory of Russia has not yet been privatized, that is, it belongs to the state.
A large part of these residential premises is provided to needy citizens by the state. In this case, housing is municipal and the principles of owning it are quite different from the same actions with private property.
However, the actual owners - residents registered in a municipal apartment or house, are not deprived of the right to exchange living space under conditions that will be convenient for all of them. As a rule, such a procedure does not suit at least one of the owners of the described housing, therefore, the decision to carry out the exchange is made by the judicial authority.
We will discuss this event in more detail in the material below.
The main legislative act that will help you understand the issues of housing exchange is the Housing Code of the Russian Federation
Considering the forced exchange of public housing through the courts, it is important to refer to the main legislative acts in our country, which fully cover this topic.
All issues related to residential premises and transactions over them are resolved through consideration Housing Code(LCD) RF.
In the topic we are considering, all the provisions of the code are important, which regulate the basic concepts, procedure and process for providing this type of housing and exchanging it.
First of all, it is important to define the concept of “public housing”. In accordance with Article 49 of the Housing Code of the Russian Federation, such housing is a housing facility provided to needy citizens from a local municipality (region, territory, region, etc.) for living.
The use of an apartment or house received from the state must be carried out in compliance with all the conditions and legislative rules specified in the Housing Code of the Russian Federation (chapters 7, 8, 8.1, 8.2).
According to the same code, the tenant (the actual owner of the housing under the contract) has the right to exchange living space. But if all other tenants and the landlord (municipality) that provided him with housing agree to this. Main legislative provisions for this type of exchange are presented in articles from the 72nd 75th LC RF.
Difficulties in exchanging municipal living space
Summarizing the legislative act information may include the following:
- The exchange of housing provided under a social tenancy agreement can be carried out only with the written consent of all tenants of housing, the landlord and guardianship authorities (if there are minor tenants). In other cases, the exchange can be achieved only through the court.
- In the exchange procedure there is no limit on the number of participants participating in it.
- The exchange of municipal living space can be carried out both peacefully and through the courts.
- It is possible to carry out an exchange of housing only if, after its completion, the rights of none of the tenants are violated. Otherwise, the exchange may be declared invalid in court.
- In a number of situations specified in Article 73 of the Housing Code of the Russian Federation, the exchange of municipal housing is not allowed.
- Tenants have every right to refuse to exchange housing. But their refusal must be justified. Otherwise, it may be challenged in court.
- The exchange agreement is writing and in compliance with all legal and legislative nuances of this procedure.
- An agreement concluded with violations of the rights of tenants, the provisions of the Civil Code of the Russian Federation and the Housing Code of the Russian Federation, will be declared invalid in court. After the agreement is declared invalid, all municipal tenants will be relocated to the originally provided housing. The culprit, who provoked the invalidity of the contract by his illegal actions, is obliged to bear some responsibility both before the legislator and other participants in the exchange transaction.
Do not forget that each individual case may require a more in-depth appeal to the legislation of the Russian Federation, so sometimes you cannot do without the help of a professional lawyer. The above are only the main legislative provisions that relate to the exchange of municipal housing.
Forced exchange of public housing through the court
The difference between voluntary and forced exchange
Forced exchange (exchange) municipal apartment- This is a legal transaction between social hiring, the implementation of which is aimed at dividing a large and common dwelling into several small, but separate ones.
This type of exchange can be carried out both voluntarily (through the consent of all tenants) and forcibly (through the court).
It is important to understand that when providing such housing to several tenants who register in it, they are all endowed with equal rights. Therefore, each employer can act as the initiator of the exchange.
First of all, the initiator needs to apply to all other tenants with a proposal for a voluntary exchange of housing. If the employers do not agree to act this way, then you will have to prove the need for the exchange in court.
If there are good reasons for the exchange, the state represented by the court has every right to force all tenants to exchange. Compulsory exchange of residential premises is allowed for the following reasons:
- employers and, accordingly, cohabitants often conflict, it is impossible to achieve a peaceful solution to the problem;
- one of the employers does not conflict with cohabitants, but leads an antisocial lifestyle or a hooligan;
- one of the residents has a serious illness that can be dangerous not only for him, but also for his cohabitants.
It is possible to carry out the exchange of municipal housing in a voluntary or judicial manner only if the landlord, the local municipality, agrees to this (as a rule, there are no problems). Regardless of the choice, the opinion of all registered tenants is taken into account, even those who do not live in it.
Since the described housing is the property of the state, the procedure for its exchange is very different from the similar one, but already with private property, and is considered more complex in legal terms.
General requirements for compliance with the forced exchange procedure
When deciding to conduct an exchange through the court, it is worth understanding that it is very problematic to do without the help of a professional lawyer. Often, even the most legally savvy citizens have problems in defending their rights in such situations.
The general procedure for the procedure is regulated by the LC RF and has the following form:
- As noted earlier, before going to court, it is necessary to offer all tenants to exchange housing peacefully. If at least one of them does not agree, then one cannot do without going to court.
- Before going to court, it is equally important to make sure that the landlord who provided the housing agrees to the exchange or not. In most cases, the local municipality gives permission for the procedure, but not always. Any refusal of the landlord, the tenant has the right to appeal in court.
- Having received permission to exchange this housing from the landlord, you can go to court. V Judicial authority it is necessary to file a claim in which the plaintiff's request for a forced exchange of housing is expressed. In the statement of claim, it is important to indicate all the arguments that are significant in your opinion, which certify the expediency of exchanging a home. Having considered the claim and all the arguments of the defendants, the court will issue a verdict on the confirmation or refusal of the forced exchange.
- Having received an official refusal to exchange, you can continue litigation, but often they do not give a result. If the court forced the rest of the tenants to exchange, then it is necessary to start searching for municipal housing in which they will be relocated. When selecting new housing facilities, it is important to consider that they have a municipal status and satisfy the wishes of all tenants. total area new housing facilities for exchange must be equivalent to the previous place of residence.
- Having found suitable options for exchange, an exchange agreement is concluded, which officially confirms the fact of the procedure. The contract is concluded with the participation of the local municipality and all tenants of such housing in writing. After that, the original contract is provided to each landlord of the new housing.
In general, the procedure for exchanging municipal housing through the court has many nuances that are important to consider at all stages of its implementation. In most cases, it is almost impossible to do without the help of a professional lawyer, do not forget about it.
Complaint form and required documents
How to file a lawsuit in court for the forced size of an apartment?
Based on the fact that today's material examines in detail the procedure for the forced exchange of a municipal apartment through the court, it will not be superfluous to consider the correct form of the claim and Required documents to file a lawsuit.
It should be understood that whether you will be able to achieve your goals in the lawsuit largely depends on the legal literacy of the drawn up claim.
Correct claim in without fail must contain the following information:
- Full name, address, year of birth and contacts of the plaintiff (the employer who initiates the exchange);
- Full name, address, year of birth and contacts of the defendant or defendants (employers who do not agree to the exchange);
- information about the marriage or its dissolution (if any between the employers);
- information about children (if any among employers);
- address of housing and period of residence in it;
- description of housing (apartment or private house, floor, rooms, state, etc.);
- housing stock;
- the plaintiff's arguments pointing to the need for forced exchange;
- offer exchange options;
- information that the defendant or defendants did not agree to voluntarily conduct an exchange;
- a request to the judiciary to carry out a forced exchange.
In the process of defending your rights in court, you may need the following documents:
- a copy of the written consent from the landlord for the exchange;
- the consent of the local executive or administrative state body for long-distance exchange (when deciding to move to another locality and receive municipal housing there);
- a copy of the title document for housing;
- certificate of registration from the place of residence;
- certificate of family composition (if the employers are a family);
- a copy of the certificate of divorce or marriage (if any);
- a written statement of refusal or consent to the exchange from all tenants of the described housing;
- receipts for payment of all necessary state duties.
By adhering to the above rules for filing a claim and collecting the necessary documentation, you can significantly increase the chances of a successful outcome of legal proceedings.
In what cases will the court refuse to exchange?
What can prevent you from making a forced exchange of living space?
Compulsory exchange of housing through the court is a rather complicated legal procedure. Even after collecting all the necessary documents and competently drawing up a claim, the employer cannot guarantee himself success in achieving his goals in the lawsuit.
This is due to the potential presence of any factors that may force the court to refuse to exchange.
One part of them is enshrined in the LC RF, and the other is formed based on the individual characteristics of each case. Given the presence of such factors, the judge makes the final verdict.
In accordance with Article 73 of the Housing Code of the Russian Federation, the exchange of municipal housing is not allowed if:
- the landlord sued the tenants to terminate the agreement or to change its terms;
- housing rights are already being challenged in court in another case;
- the dwelling, which is a potential object of exchange, is recognized as unfit for habitation or will be demolished / converted;
- as a result of the exchange, any employer will have to live with a citizen suffering from one of the diseases specified in paragraph 4 of Article 51 of the RF LC.
In the presence of any of the above factors, the judicial authority will refuse to force the exchange of public housing.
In addition to the legally established reasons for refusing to exchange, when issuing a verdict, the judge must take into account the specifics of each case individually.
In accordance with the legislation of the Russian Federation, after the exchange of housing, the housing conditions for each tenant should not be worsened and their rights cannot be infringed. In deciding a case, the judge often considers the following factors:
- legal capacity of individual employers;
- proximity to the place of work / study of each tenant;
- the presence of serious illnesses in employers;
- family status of residents.
Based on the information presented above, it is important to state that it is far from always possible to succeed in court when deciding to forcibly exchange public housing.
So, for example, the claim is guaranteed to be rejected if, as a result of the exchange, a wheelchair user from an apartment on the 1st floor is relocated to a room on the 4th, located, moreover, in an entrance without an elevator.
Nuances of the event
Nuances to consider when preparing a claim for forced exchange
The whole process of exchanging municipal housing is quite confusing and difficult to implement.
Even having considered and carefully studied the material presented above, not every person will be able to fully understand the essence of this procedure. One way or another, you will have to deal with the legislative and legal aspects of the exchange.
To simplify the process of understanding all the intricacies of the exchange of public housing, our resource highlighted a number of important nuances for consideration of this event:
- Any tenant or, more simply, a registered tenant has every right to initiate an exchange.
- Do not forget that it is necessary to carry out an exchange through the court only if the other employers or some of them have refused the voluntary procedure and the holding of the event is justified on your part.
- Before you go to court to file a claim, be sure to consult with a professional lawyer about the appropriateness of such a practice in your case.
- Draw up a statement of claim with clarification of all the details of your situation and in accordance with the form presented earlier. Also, don't forget to take care of collecting some documents.
- When deciding to go to court, remember that in the process of resolving contentious issues, you will have to bear some financial expenses. Without fail, you will have to spend money on paying the necessary state duties, obtaining certificates and processing other documents. In addition, participants in the trial often spend a lot of money on the help of lawyers and lawyers.
- Even having achieved in court the forced exchange of the described housing, do not rush to rejoice. The fact is that not in all regions of the country the municipal housing stock is rich enough. As a result, it can be very difficult to find suitable housing for exchange. At this stage, you need to be prepared for a long and hard search for housing for exchange, which will meet all the necessary requirements.
As you can see, litigation over the forced exchange of public housing is not an easy task. In the course of the trial, new problems may appear, which will complicate the life of its participants. Is it worth it or not - decide for yourself.
When resolving such issues through the courts, do not forget to use the material presented above and turn to professionals for help.
You can find out more about the exchange of an apartment by watching the video:
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