Thanks to Art. 31 of the Housing Code of the Russian Federation provides a clear understanding of all possible rights, obligations, functions performed and other features of residence a large number people in a given area. In general, it simply legally establishes the ability to negotiate and resolve their disputes in an adequate way, however, if necessary, the case can go to court, where, after careful consideration, the right and wrong will be determined. Usually, after such a further joint life becomes at least uncomfortable, although, perhaps, more correct from the point of view of laws. In the overwhelming majority of cases, this method is resorted to already in situations where the resolution of the problem is impossible on its own for a number of reasons, such as divorce, a serious conflict of interest, money problems, and the like, which do not imply concessions from one side or the other.
Art. 31 of the Housing Code of the Russian Federation regulates the process of relations that arise between the direct owner of the premises, as well as all the people who live there. And this applies to both family members and other potential tenants. They have their own duties, rights and opportunities, which should be separately negotiated.
Agreements can have any accessible form, up to oral ones, however, if this is most often relevant for close people, then it is recommended to conclude a separate agreement with an outside tenant, in which you list everything that he can or is obliged to do, all requirements, conditions, and the like. elements. In some cases, this helps to successfully resolve the dispute in favor of the tenant, but most often under Art. 31 of the Housing Code of the Russian Federation, judicial practice is such that the owner still turns out to be right.
Nevertheless, a detailed understanding of the characteristics of relationships during cohabitation has a positive effect on everyday life and can prevent a number of unpleasant situations that can significantly harm both relationships and the very life of all people who are constantly in the same room.
P. 1 Art. 31 of the Housing Code of the Russian Federation describes the circle of persons who may relate to the owner's family. In the future, understanding this will allow you to more accurately navigate the features of the legislation. So, the wife or spouse, as well as the children and parents of the owner, are unambiguously considered members of the family. For example, the child of the second half from another marriage does not already belong to this list, like her mother and father.
Nevertheless, any other (both close and distant) relatives and other citizens, one way or another related to the owner, can be considered part of a large family if the owner agrees to this and initially settled them in the premises under this status. For example, the spouse's mother, according to part 1 of Art. 31 LC RF, may not be included in this composition. However, if she permanently resides in the owner's dwelling with his consent, then she can also be counted as one of the family members.
It should be borne in mind that the same can be done with respect to absolutely strangers such as best friends, colleagues and similar individuals, but the owner must be sure of them, these citizens must have great confidence, and so on. Otherwise, complex, controversial or even dangerous situations may arise, which must be avoided using the information from the LC RF Articles 1-31.
This section is just a consequence of the previous one, as it indicates what they can or cannot do exactly So, in accordance with Part 2 of Art. 31 of the Housing Code of the Russian Federation, by default they have the same duties and rights that the owner has, they can use everything that he uses, provided that the safety of the living quarters is ensured and there are no other agreements.
That is, for example, the owner's children can do everything that he himself can do. At the same time, the possibility of concluding additional agreements, which can regulate the features of life in more detail. by the most simple example a verbal agreement between the spouses that he is responsible for cleaning the apartment and she washes the dishes can be considered. Naturally, this is rarely recorded on paper according to all the rules, but even a simple conversation about this may be quite enough for the court.
There are also more complex variants of relationships, when people, officially being members of the same family, are actually strangers to each other, this is Art. 31 of the LCD of the Russian Federation also provides. There may already be rules regarding the use of the kitchen, toilets, a ban on visiting the room of a person without his presence, and so on. In such a situation, drawing up contracts in paper form is no longer a rarity, since everyone considers himself entitled to protect his own rights (they rarely remember obligations).
This part of the law is not particularly kind. Its essence lies in the fact that regardless of whether a person who is part of the family is capable, he still has the same rights and obligations as any other. In general, the right decision, however, subject to an adequate unit of society. If everything is normal and correct with the rights, then here are some duties that, according to Part 3 of Art. 31 of the LC RF, must be complied with, may simply be inaccessible to an incompetent person. As a rule, no one requires a disabled person to act in exactly the same way as a healthy person, but this moment does not play a special role for the court.
In general, in practice, certain concessions are taken into account, but here a lot depends directly on the owner. An example of this can be considered one of the parents, who, due to advanced age, simply does not have the opportunity to do some specific household work, or at least do it as often as necessary. A normal owner will be sympathetic to the problem and the fact that he will have to do all this. But some owners can, referring to the law, force an incapacitated person to fulfill all duties, regardless of whether he can do it or not.
P. 3 Art. 31 of the Housing Code of the Russian Federation also takes into account the possibility of concluding additional agreements on the distribution of all the possibilities of such citizens. For example, a face with handicapped can do more of exactly the work that is available to him, and the rest will be evenly distributed among the rest of the family. That is, the same grandfather can constantly wash dishes, but will never participate in cleaning the room.
This is the most discussed part of the law, as it regulates the relationship of the parties, which, due to certain circumstances, have ceased to be one family. The simplest example is divorce. In such a situation, according to paragraph 4 of Art. 31 of the Housing Code of the Russian Federation, that person who is no longer part of this unit of society, but previously lived in the same living space with the rest of the family, in theory, should be evicted. But there are many caveats here.
So, by mutual agreement, often in writing, a person can continue to stay in the same apartment as before. This is quite a rarity, because most often the former spouses do not get along very well with each other in order to try to at least conditionally establish a future life.
In any case, if no longer a family member has the opportunity (financially or otherwise) to acquire a separate apartment or other housing, a court order may even be required to prevent him from being evicted. This is part 4 of Art. 31 LCD RF also takes into account. Usually it has a definite period of validity and cannot be indefinite. It is understood that during the specified time a person will be able to find an opportunity to purchase real estate or rent it for use as a further place of residence. Usually this happens in situations where the spouse is the owner of the property, since otherwise, alimony may be assigned by law, under which the former spouse undertakes to purchase a separate property. living space so that the second half can move there. Not entirely fair in terms of tolerance, but it's a common fact.
Most often, such a requirement to comply with Part 4 of Art. 31 of the LC RF arises in situations where children remain with the person who is being evicted. Theoretically, alimony can also be paid by a woman in favor of a man if he is left with nothing and with their common offspring, but this is a very rare thing that practically does not occur in practice.
This paragraph describes the situation in which the person referred to in the previous paragraph is deprived of the right to use the premises. So, the simplest and most understandable situation is when the period of temporary residence has expired.
For example, a certain citizen, by a court decision, was allowed to live in the same apartment as before, for a year. During this time, he had to find his own property or the possibility of renting it. 12 months are over and he has to leave. Nobody cares where. There is also a caveat. He can independently negotiate with the owner of the property on the conditions under which further residence will be possible, and stay there. This person can pay for the right to use the apartment, perform certain types of work in exchange for maintaining his status as a tenant, and so on.
There are two more options in which the right to use the premises is terminated prematurely. One consists in the disappearance of the obstacles that were at one time the basis for judgment. That is, Art. 31 of the Housing Code of the Russian Federation implies that there are certain circumstances due to which a person simply does not have the opportunity to move out. For example, quarantine in the city, the conduct of hostilities in his homeland, and so on. The last option is full owner. The simplest example is the apartment is sold. Regardless of other other circumstances, all those who previously lived in it, for any reason, are required to move out within the time period agreed with the new owner.
This paragraph is one of the two shortest in this article. According to Art. 31 of the LC RF, judicial practice implies that the status of a former family member should in no way affect his rights and obligations. That is, you cannot force a person to perform certain types of work forcibly for the right to be in this apartment, unless this is agreed between the owner and the tenant in a separate agreement and is part of the rules of residence. All these features are indicated in paragraphs 2 to 4 of the described article of the law.
For example, you cannot force a person to wash dishes both for himself and for the owner simply because he lives here. But if you agree that the dishes will really be completely on his conscience, and in return the owner will wash the floors everywhere, this already looks like a mutually beneficial deal that is acceptable. However, there may be other types of arrangements in which one person does all the housework, but does not pay rent or receive any other type of reciprocal advantage over other tenants.
This is the second short point, which mostly deals with rental housing options. He points to the obligatory fact of compliance with the agreement concluded between the owner and the tenant in all its points. It follows from this, if we take the letter of the contract and the law as a basis, that the tenant is obliged to perform only those actions that are described in the agreements, and has only those rights that are included in them.
The most common option is the full use of all benefits with certain exceptions such as not visiting the owner's room, the inability to perform repair work, rejection of redevelopment and so on. That is, everything that is not required for a comfortable stay, but may be needed in rare situations. Also, it happens that the wishes of the tenant on a reimbursable basis are taken into account.
For example, he can independently purchase one or another technique (for simplicity, a microwave oven), which will be used by himself and the rest of the inhabitants. In return, his pay is reduced for a certain period, the person is released from any duties, and so on. Here everything is completely based on existing agreements, which are recommended to be discussed at the stage of initial negotiations.
Art. 30, 31 of the Housing Code of the Russian Federation also regulate the capabilities of the owner of the premises. In particular, most of all about them is written in the 30th article. In short, the owner has the right to live in the premises, to move other people into it, but at the same time he is obliged to take into account the interests of neighbors (not to make noise, not to litter, and so on), to pay utility services in a timely manner, and the like. For the most part, these are reasonable requirements, to which no adequate person has any claims, because everyone would like to live in such a way that the neighbors do not interfere and everything happens on time. But, unfortunately, in many situations, other residents of the house behave as if no one else lives here except them. In such a situation, it may even be necessary to call the police, although under certain conditions it is enough to simply ask them to behave as they should.
To summarize all of the above, we can conclude that in most cases, in order to establish comfortable relationships between different people, it is enough just to conclude some agreements in writing or verbally. Provided that both parties understand all the responsibility, this is enough to normalize life. Otherwise, you will have to use the services of the court, which, having considered all the features of the case, will make the only right decision that is binding on all parties to the conflict.
This is a relatively rare situation, if you do not take into account the process of divorce, which involves some kind of conflict. Nevertheless, it must be taken into account and understood by persons living in the same residential area. Many recommend even in personal relationships to draw up and sign mutually beneficial agreements in advance, in which all the features of everyday life will appear. This may seem strange or even unacceptable, but in fact, although the process is not very pleasant psychologically, it resolves a lot of possible conflicts before they even begin, thus preserving the unit of society.
Housing Code, N 188-FZ | Art. 31 ZhK RF
1. The family members of the owner of a dwelling include his spouse living together with this owner in the dwelling belonging to him, as well as the children and parents of this owner. Other relatives, disabled dependents and, in exceptional cases, other citizens may be recognized as members of the owner's family if they are moved in by the owner as members of his family.
2. Family members of the owner of a dwelling have the right to use this dwelling on an equal footing with its owner, unless otherwise established by an agreement between the owner and members of his family. Family members of the owner of the dwelling are obliged to use this dwelling for its intended purpose, to ensure its safety.
3. Members of the family of the owner of the living quarters, who have legal capacity and have been limited in their legal capacity, shall be jointly and severally liable with the owner for the obligations arising from the use of this living quarters, unless otherwise established by an agreement between the owner and members of his family.
4. In the event of termination of family relations with the owner of residential premises, the right to use this residential premises shall not be retained by the former family member of the owner of this residential premises, unless otherwise established by agreement between the owner and the former member of his family. If the former family member of the owner of the dwelling has no grounds for acquiring or exercising the right to use another dwelling, and also if the property status of the former family member of the owner of the dwelling and other noteworthy circumstances do not allow him to provide himself with another dwelling, the right to use the dwelling owned the specified owner, may be retained by a former member of his family for a certain period on the basis of a court decision. At the same time, the court has the right to oblige the owner of the residential premises to provide the former spouse and other members of his family with other residential premises, in whose favor the owner fulfills maintenance obligations, at their request.
5. Upon the expiration of the term for the use of residential premises, established by a court decision adopted subject to the provisions of part 4 of this article, the corresponding right to use the residential premises of a former family member of the owner shall be terminated, unless otherwise established by agreement between the owner and this former member of his family. Before the expiration of the specified period, the right to use the living quarters of the former family member of the owner shall be terminated simultaneously with the termination of the right of ownership to this living quarters of this owner or, if the circumstances that served as the basis for the preservation of such a right have disappeared, on the basis of a court decision.
6. A former member of the owner's family who uses the residential premises on the basis of a court decision made taking into account the provisions of part 4 of this article, has the rights, bears the obligations and responsibilities provided for in parts 2-4 of this article.
7. A citizen who uses residential premises on the basis of an agreement with the owner of this premises has rights, bears duties and responsibilities in accordance with the terms of such an agreement.
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1. The rights and obligations of the family members of the owner of a dwelling in relation to the use of this premises are determined by Art. 31 LCD RF. Article 292 of the Civil Code of the Russian Federation provides that 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. According to the mentioned article of the Civil Code of the Russian Federation, family members of the owner of housing may demand the elimination of violations of their rights to housing from any person, including the owner of the premises.
2. Family members Art. 31 names the spouse of the owner, his children and parents, if they live together with the owner in the living quarters belonging to him.
Other relatives, disabled dependents and, in exceptional cases, other citizens may be recognized as family members if they are instilled by the owner in this capacity.
It must be admitted that the wording is more than vague, there is no clear concept of family members. Based on this, difficulties may arise regarding evidence - in the event of a dispute on the recognition of the persons moved into the dwelling as members of the owner's family. Recall that the previous legislation was more intelligible in this matter: the decisive factor for recognizing a citizen as a family member of the owner of a dwelling was cohabitation and management of a common household (the evidence was, in particular, the existence of a common budget).
3. The right of use, which the members of the owner's family have, may not coincide with the right of use of the owner himself. According to part 2 of the commented article, family members of the owner have the same right of use as the owner, unless otherwise established by agreement between them. The agreement may provide for (for example) a restriction on the use of a room occupied by the owner himself; it is established that family members can use certain rooms, etc.
4. Capable members of the family of the owner of a dwelling shall be jointly and severally liable with the owner for the obligations arising from the use of the dwelling (unless otherwise established by an agreement between the owner and members of his family).
The joint and several liability of capable family members means that, for example, a claim for payment of housing, utilities can be addressed both to all family members, and to any of them individually (Article 323 of the Civil Code of the Russian Federation).
5. Family members of the owner of a dwelling are obliged to use the given premises for their intended purpose, to ensure its safety, to comply with the rules for the use of the dwelling.
The Housing Code does not contain a provision that would regulate relations between the owner of a dwelling and members of his family in the event that a member of the owner's family violates the rules for using the dwelling.
In accordance with Part 1 of Art. 7 of the Housing Code of the Russian Federation, in these cases, housing legislation governing similar relations is applied.
The Supreme Court of the Russian Federation has given the following clarification on this issue.
Article 35 of the Housing Code of the Russian Federation provides grounds for the eviction of a citizen whose right to use residential premises has been terminated, who violates the rules for using residential premises.
Based on the foregoing and taking into account the provisions of h. 1 Article. 7 of the Housing Code of the Russian Federation, a family member of the owner of the dwelling, violating the rules for using the dwelling, in accordance with Part 2 of Art. 35 of the Housing Code of the Russian Federation may be evicted on the basis of a court decision at the request of the owner. (Review judicial practice Armed Forces of the Russian Federation for the IV quarter of 2005)
6. Part 4 of Art. 31 regulates relations between the owner of housing and former members of his family in terms of the use of this housing.
Former members of the owner's family lose the right to use the dwelling, unless otherwise provided by an agreement between them and the owner (for example, a marriage contract). In other words, when family relations are terminated, former members of the owner's family must vacate the premises; otherwise, they may be evicted by court order.
The Supreme Court of the Russian Federation provided clarifications on a number of issues related to the loss of the right to use housing by former family members of the owner of the residential premises (given below).
The provisions of Art. 31 of the Housing Code of the Russian Federation are not made dependent on the moment when family relations were terminated between the owner of the dwelling and a former member of his family. Therefore, regardless of when family relations were terminated (before or after the enactment of Housing Code) the provisions of the LC apply to former family members. (Review of the judicial practice of the Armed Forces of the Russian Federation for the III quarter of 2005)
According to part 4 of Art. 31 of the Housing Code of the Russian Federation, in the event of termination of family relations with the owner of the residential premises, the right to use this residential premises is not retained by the former family member of the owner of this residential premises, unless otherwise established by agreement between the owner and the former member of his family.
At the same time, in accordance with the Family Code of the Russian Federation, a child has the right to protection of his rights and legitimate interests, which is carried out by parents (clause 1, article 56). Parents are responsible for the upbringing and development of their children, they are obliged to take care of the health, physical, mental, spiritual and moral development of their children (clause 1, article 63 of the RF IC).
The rights of the child and the obligations of his parents shall be preserved even after the dissolution of the marriage of the child's parents.
Based on this, depriving a child of the right to use the living quarters of one of the parents - the owner of this premises may entail a violation of the rights of the child.
Therefore, by virtue of the provisions of the Family Code of the Russian Federation on the obligations of parents in relation to their children, the right to use a dwelling owned by one of the parents must be retained by the child even after the dissolution of the marriage between his parents. (Review of the judicial practice of the Supreme Court of the Russian Federation for the III quarter of 2007)
According to part 1 of article 31 of the Housing Code Russian Federation The family members of the owner of the dwelling include his spouse living together with the owner in the dwelling belonging to him, as well as the children and parents of this owner...
1. The family members of the owner of a dwelling include his spouse living together with this owner in the dwelling belonging to him, as well as the children and parents of this owner. Other relatives, disabled dependents and, in exceptional cases, other citizens may be recognized as members of the owner's family if they are moved in by the owner as members of his family.
2. Family members of the owner of a dwelling have the right to use this dwelling on an equal footing with its owner, unless otherwise established by an agreement between the owner and members of his family. Family members of the owner of the dwelling are obliged to use this dwelling for its intended purpose, to ensure its safety.
3. Members of the family of the owner of the living quarters, who have legal capacity and have been limited in their legal capacity, shall be jointly and severally liable with the owner for the obligations arising from the use of this living quarters, unless otherwise established by an agreement between the owner and members of his family.
4. In the event of termination of family relations with the owner of residential premises, the right to use this residential premises shall not be retained by the former family member of the owner of this residential premises, unless otherwise established by agreement between the owner and the former member of his family. If the former family member of the owner of the dwelling has no grounds for acquiring or exercising the right to use another dwelling, and also if the property status of the former family member of the owner of the dwelling and other noteworthy circumstances do not allow him to provide himself with another dwelling, the right to use the dwelling owned the specified owner, may be retained by a former member of his family for a certain period on the basis of a court decision. At the same time, the court has the right to oblige the owner of the residential premises to provide the former spouse and other members of his family with other residential premises, in whose favor the owner fulfills maintenance obligations, at their request.
5. Upon the expiration of the term for the use of residential premises, established by a court decision adopted subject to the provisions of part 4 of this article, the corresponding right to use the residential premises of a former family member of the owner shall be terminated, unless otherwise established by agreement between the owner and this former member of his family. Before the expiration of the specified period, the right to use the living quarters of the former family member of the owner shall be terminated simultaneously with the termination of the right of ownership to this living quarters of this owner or, if the circumstances that served as the basis for the preservation of such a right have disappeared, on the basis of a court decision.
6. A former member of the owner's family who uses the residential premises on the basis of a court decision made taking into account the provisions of part 4 of this article, has the rights, bears the obligations and responsibilities provided for in parts 2-4 of this article.
7. A citizen who uses residential premises on the basis of an agreement with the owner of this premises has rights, bears duties and responsibilities in accordance with the terms of such an agreement.
Article 31 of the Housing Code of the Russian Federation refers to the rights and obligations of those people who live together with the owners in their premises. In accordance with Article 31 of the LC RF, these citizens have the right to live together with the owner in this room, as well as to use it. Their responsibilities include maintaining the premises in a proper and habitable condition. The owner is responsible for disabled family members.
COURT DOCUMENTS
Generalization of Part 4 of Art. 31 of the Housing Code of the Russian Federation
In the Leninsky District Court of Cheboksary, a generalization of judicial practice on housing disputes resolved using Part 4 of Art. 31 of the Housing Code of the Russian Federation on cases considered in the second half of 2008.
Dwelling, according to the provisions of Art. 25 of the Universal Declaration of Human Rights is included in the standard of living of a person as an obligatory component necessary to maintain the health and well-being of himself and his family.
The inalienable right of every person to housing is also enshrined in the International Covenant on Economic, Social and Cultural Rights (Article 11).
Taking into account the provisions of international legal acts, Article 40 of the Constitution of the Russian Federation enshrines the right of everyone to housing.
The constitutional right of citizens to housing is one of the fundamental human rights and consists in ensuring by the state the stable, permanent use of housing by persons who legally occupy it.
Section 11 of the Housing Code of the Russian Federation regulates issues of ownership and other real rights to residential premises. Chapter 5 of this section (11) discloses the rights and obligations of the owner of the residential premises and other citizens living in the premises belonging to him (Article 30-Article 35).
Article 31 of the Housing Code of the Russian Federation (Part 1) provides that family members of the owner of a dwelling include his spouse living together with the owner in the dwelling owned by him, as well as the children and parents of this owner. Other relatives, disabled dependents and, in exceptional cases, other citizens may be recognized as members of the owner's family if they are moved in by the owner as members of his family. According to the previous legislation, the family members of the owner of a dwelling included the owner's spouse, their children and parents. Other relatives, disabled dependents, and, in exceptional cases, other persons could be recognized as family members of the owner of the dwelling, if they lived with him and worked with him common household(part 2 of article 127, as well as part 2 of article 53 of the RSFSR LC). The latest legislation has narrowed the circle of family members. It can be noted a clear division of the citizens named in it into two groups: firstly, the family members of the owner of the dwelling include the spouse, his children and his parents. Unlike the previous legislation, family members do not include the spouse's children, for example, from a previous marriage, and his parents. Only a marriage registered in the prescribed manner has legal significance. In order to recognize these persons as members of the family of the owner of the dwelling, it is required to establish only one fact - cohabitation with the owner. It doesn't matter whether these people run a common household, whether they provide each other with mutual support; secondly, other relatives, disabled dependents, and, in exceptional cases, other persons, if they are moved in by the owner as members of his family, may be recognized as family members of the owner of housing, the degree of relationship does not matter. Dependents of the owner (disabled dependents) may be classified as family members. Other persons may be recognized as family members only in exceptional cases.
Determining the circle of family members of the owner of the dwelling is extremely important.
According to part 4 of Art. 31 of the Housing Code of the Russian Federation, in the event of termination of family relations with the owner of the dwelling, the right to use this dwelling for the former family member of the owner of this dwelling is not retained, unless otherwise established by agreement between the owner and the former member of his family. If the former family member of the owner of the dwelling has no grounds for acquiring or exercising the right to use another dwelling, and also if the property status of the former family member of the owner of the dwelling and other noteworthy circumstances do not allow him to provide himself with another dwelling, the right to use the dwelling owned the specified owner, may be retained by a former member of his family for a certain period on the basis of a court decision. At the same time, the court has the right to oblige the owner of the residential premises to provide the former spouse and other members of his family with other residential premises, in whose favor the owner fulfills maintenance obligations, at their request.
The said norm (Part 4, Article 31 of the LC RF) indicates an approximate list of criteria that the court should be guided by. Thus, a former family member, by a court decision, may retain the right to use housing if:
There are no grounds for acquiring the right to use another dwelling, for example, a former family member is ready to acquire ownership of another dwelling, but cannot do this due to the lack of offers;
There are no grounds for exercising the right to use another dwelling (the former family member does not own another dwelling, has not retained the right to use the dwelling in which he previously lived under social tenancy);
The property status of the former family member does not allow him to provide himself with other living quarters (no Money).
The court may decide to retain the right of use only for a specified period. It is unacceptable to retain the right, indicating that it exists "indefinitely", for example, "until the acquisition of housing" by a former family member, the period must be indicated in the court decision.
By general rule the mere fact of termination of family relations entails the termination of the right to use the living quarters by former family members. An agreement between the owner and a former member of his family may establish otherwise. This may be an agreement (in writing or verbal form) that the former family member will live in the residential premises for a certain or indefinite period, free of charge or for a fee, will use only a certain part of the residential premises. If the former family member continues to use the housing and the owner does not object, then this indicates the existence of an agreement. A former family member of the owner of the dwelling, who has been retained by the court the right to use the dwelling for a certain period, shall use the dwelling on an equal footing with the owner, unless otherwise provided by the agreement, must use the dwelling for its intended purpose, ensure its safety. He shall be jointly and severally liable with the owner for the obligations arising from the use of the residential premises, unless otherwise provided by the agreement. During the course of the period determined by the court or after its expiration, the owner of the dwelling and the former member of his family may conclude an agreement providing for the retention of the right of use by the former member of the family. But as a general rule, at the end of the established period, the right to use is terminated. The former family member of the owner of the dwelling must vacate the premises. In addition, the right to use is terminated in the event of termination of the right of ownership. The right to use may be terminated by a court decision if the circumstances that served as the basis for maintaining the right to use have ceased to exist. Termination of the right to use within a period specified by the court is possible by agreement of the parties. The court may impose on the owner of the dwelling the obligation to provide the former members of his family with another dwelling, but only if the owner bears maintenance obligations to these persons.
The provision (final) of part 4 of article 31 of the HC RF is designed, first of all, primarily for the former spouse and children of the owner of the dwelling, it is no coincidence that this article (article 31) refers to former family members, and in part 4 - about providing housing for "the former spouse and other members of his family". Children cannot become former family members if they live with the owner, just like parents. It follows from the text of the law that this provision applies to all former family members, and if we are talking about providing housing for the former spouse and minor children will live with this former spouse, then the court may oblige to provide housing for children, although they are not "former family members". ". Secondly, the rules on maintenance obligations are concentrated in the RF IC (Articles 80-120). Parents are required to support their minors, as well as disabled adult children. Able-bodied adult children are obliged to support their disabled parents who need help. A disabled needy spouse, a wife during pregnancy and within three years from the date of birth of a common child, a needy spouse caring for a common disabled child until the child reaches 18 years of age or for a common disabled child since childhood can demand payment of alimony from the other spouse. groups. In some cases, the ex-spouse is entitled to receive alimony after the dissolution of the marriage. The owner may be obligated to provide housing for former members of his family if he bears maintenance obligations in respect of these persons. Thirdly, a court decision establishing the obligation of the homeowner to provide former family members with other housing may provide for the provision of housing to these former family members under commercial lease agreements or free use. Moreover, this can be housing owned by both the owner (who evicts former family members) and third parties. The court may oblige the owner of the residential premises to purchase other housing for former family members in their common property, etc. Fourth, when making a decision, the court must take into account the specific circumstances. The decision must be executable. So, if the owner does not have sufficient funds and there is no way to get them, then no matter how many decisions are made (on the purchase of housing for former family members, etc.), they will not be executed. The court can make such a decision only if a corresponding request is made.
Highly important rule on the application of the rules included in Part 4 of Art. 31, contained in Art. 19 FZ "On the Enactment of the Housing Code of the Russian Federation". These norms do not apply to former family members of the owner of the privatized residential premises, provided that at the time of privatization of this residential premises, these persons had equal rights to use this premises with the person who privatized it, unless otherwise provided by law or contract. From which it follows that the termination of family relations of such persons with the owner of housing does not entail the termination of their housing rights. Accordingly, there is no need to establish a period for which the right of use is retained, as well as to oblige the owner to provide former family members with other housing. The right to use residential premises in such cases does not depend on the existence of family relations. But the owner of the dwelling may sell it, donate it or dispose of it in any other way, entailing the termination of the right of ownership. In such situations, former family members are defenseless. Their right to use is terminated.
Housing disputes on the termination of the right to use the residential premises of a former family member of the owner of this residential premises, on the preservation of the right to use the residential premises for the former family member of the owner of this residential premises, based on the provisions of Articles 23 and 24 of the Code of Civil Procedure of the Russian Federation, are considered at first instance by the district court and in accordance with the rules of Art. . 30 of the Code of Civil Procedure of the Russian Federation on exclusive jurisdiction are considered by the court on whose territory the disputed object real estate (residential premises).
In the second half of 2008, the Leninsky District Court of the city of Cheboksary, Cheboksary, resolved housing disputes using Part 4 of Article 31 of the Housing Code of the Russian Federation, and the court considered such cases - 22 (of which, on recognizing the right to use residential premises from a former family member as terminated and on the removal him from the registration register; on the eviction of a person in connection with the termination of family relations, etc.). In most cases, the stated claims were satisfied, there are cases of refusal of claims, about leaving the claim without consideration according to the rules of par. 7, 8 art. 222 Code of Civil Procedure of the Russian Federation.
The legislator provided that the basis of the right to use residential premises of persons living in a residential premises owned by a citizen is their family relations with the owner, therefore, in the event of termination of family relations, as a general rule, the former members of the owner’s family also terminate the right to use the property owned the owner of the dwelling.
When considering the case, the court determined the legally significant circumstances in the dispute, the main ones when considering this category are the following: the grounds for the emergence of ownership of the disputed residential premises, the existence of family relations with the owner of the residential premises, as well as the establishment of other circumstances indicating the possibility of preserving the former family member of the owner the right to use the premises for a certain period.
So, for example, while satisfying V.’s claim against V.’s ex-wife for recognizing the right to use the residential premises as terminated and for deregistration, the court proceeded from the following: It follows from the case materials that the apartment belongs to the plaintiff on the basis of a contract of sale. According to the materials of the case, the marriage between the plaintiff and the defendant was registered on January 14, 2006. The defendant moved in and was registered as a family member in the said residential premises on February 22, 2006, i.e. after the claimant's right of ownership arose. This fact is not disputed by the respondent. Due to the above circumstances, the disputed premises do not apply legal regime joint property of the spouses. At the court session, the representative of the plaintiff explained that the parties had ceased to be members of the same family since 2006 and from that moment on they did not conduct a common household, there were no contractual obligations to use the disputed apartment between them. Defendant did not present any evidence to refute these allegations. Analyzing the totality of the evidence collected in the case, the court came to the following conclusion: since the defendant did not acquire an independent right to the disputed residential premises, her right to use the said residential premises is derived from the rights of the owner, therefore, when family relations are terminated, her right to use the disputed residential premises is terminated by the rules of paragraph 4 of Art. 31 of the Housing Code of the Russian Federation, the provisions of which are cited by the plaintiff in support of the stated requirement. The grounds that give the court the right to decide on the preservation of the defendant's right to use the disputed residential premises for a certain time, the court does not see. From the provisions of paragraph 4 of Art. 31 of the LCRF, it follows that the legislator, giving the court the right to retain the right to use the dwelling for a certain period of time for the former family members of the owner, at the same time establishes a list of criteria from which the court should proceed when deciding whether to retain the right to use the dwelling. Among them, the legislator includes the absence of a basis for acquiring or exercising the right to use another dwelling by the former family member of the owner, the property status of the former family member of the owner of the dwelling and other noteworthy circumstances do not allow him to provide himself with another dwelling. Such circumstances were not established by the court. In addition, the court also took into account the fact that the defendant left the disputed apartment in connection with the termination of family relations with the plaintiff and did not live in it for a sufficiently long time.
When considering the claim of O. on recognizing the contract for renting a dwelling with his son, O., as terminated, on recognizing O. as having lost the right to use the dwelling in the specified apartment and on imposing on the passport and visa control authorities the obligation to remove the defendant from the register at the address of the disputed residential The Court found the following:
The justification of his claims, the plaintiff indicates that he lives in the disputed apartment together with his wife. At the address of the disputed apartment, the defendant who has not lived in the disputed apartment for more than fifteen years and does not maintain family relations with them is also listed as registered. At the same time, the plaintiff points out, the defendant did not create any obstacles to the use of the disputed residential premises, the defendant did not take any actions indicating a desire to retain the residential premises. The defendant never paid for housing and utilities, the burden of housing maintenance, including for the defendant, was borne by the plaintiff and his wife. The defendant currently lives in another apartment. In addition, the defendant owns a house in Kozmodemyansk. Based on the actual circumstances of this case, the court established that the dispute between the parties arose in relation to a dwelling located in the house of a housing construction cooperative. Issues of the legal status of a member of a housing cooperative who has paid in full share savings are regulated by the provisions of part 4 of Art. 218 of the Civil Code of the Russian Federation, according to which a member of a housing, housing-construction, dacha, garage or other consumer cooperative, other persons entitled to share savings, who have fully paid their share contribution for an apartment, dacha, garage, other premises provided to these persons by the cooperative, acquire ownership of said property. From the moment of payment of the share, the said property becomes the property of the member of the cooperative, and the subsequent execution of documents for this property is only of a legal nature.
The plaintiff submitted to the court a certificate certifying that he paid the share in full for the apartment in September 1990, and on this basis, the court applied the provisions governing relations based on the right of ownership of the dwelling to the disputed legal relations. The court considered the defendant's arguments that he was registered in the disputed residential premises as a family member and his temporary absence is not a basis for recognizing him as having lost the right to use the residential premises based on a misinterpretation of substantive law.
The basis of the right to use residential premises of persons living in a residential premises owned by a citizen is their family relations with the owner, therefore, in the event of termination of family relations with the owner, as a general rule, the former members of his family also lose the right to use residential premises ( Clause 1 and Clause 4 of Art. 31 LCD RF). Written evidence confirms that that the claimant's ownership of the disputed apartment arose in 1990 on the grounds provided for in paragraph 4 of Art. 218 of the Civil Code of the Russian Federation. Ownership of a dwelling in a housing cooperative is conditioned by the obligatory presence of two conditions: membership in a cooperative and full payment of a share. When resolving this dispute, the defendant did not provide the court with evidence proving his membership in the cooperative and participation in the payment of share contributions, therefore, he cannot be recognized as a participant common property on the disputed residential premises, therefore, his right to use the specified residential premises is derivative. From the explanations, the plaintiff confirms that, despite the presence of close family relations, he and the defendant do not maintain family relations for a long time and do not live together. This fact is not disputed by the respondent.
The court concluded that since the defendant did not acquire an independent right to the disputed residential premises, and his right to use the said residential premises is due to the presence of family relations with the owner, the absence of family relations is considered as a legal basis for terminating the right to use the residential premises (paragraph 4 article 31 ZhKRF). According to the case file, the defendant does not live in the disputed apartment for a long time, he left it long before the dispute arose. In this connection, the grounds that give the court the right to decide on the preservation of the defendant's right to use the disputed residential premises for a certain period, the court did not see. The requirement for deregistration, as arising from the first requirement, was also satisfied by the court.
The court, resolving the claim, S., P. to terminate the right of S. - S.'s ex-husband to use the living quarters and to deregister the defendant at the indicated address, proceeded from the following: The plaintiffs indicated that the disputed apartment is the subject of a common fractional ownership, where P. owns 1/3 of the share in the right, and S. 2/3 of the share in the right. Subsequently, S.'s share in the right of common shared ownership of the disputed apartment was increased by inheritance under the law. The defendant was registered in the said apartment in 1995. According to the plaintiffs, since 2002 they have terminated family relations with the defendant and since that time he has not lived in the disputed apartment, does not take part in the costs of maintaining housing and paying utility bills, and does not provide them with any assistance. unknown.
The legal status of the owner's family members is regulated by the norms of civil and housing legislation.
In accordance with Art. 292 of the Civil Code of the Russian Federation, 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.
According to paragraph 2 of this norm (as amended by Federal Law No. 213 of December 30, 2004), the transfer of ownership of a residential building or apartment to another person is the basis for terminating the right to use the residential premises by family members of the former owner, unless otherwise provided by law.
The provisions of paragraph 1 of Art. 31 of the Housing Code of the Russian Federation provides that family members of the owner of a dwelling include his spouse living together with the owner in the dwelling belonging to him, as well as the children and parents of this owner. Other relatives, disabled dependents and, in exceptional cases, other citizens may be recognized as members of the owner's family if they are moved in by the owner as members of his family.
In accordance with paragraph 4 of Art. 31 of the Housing Code of the Russian Federation, in the event of termination of family relations with the owner of the residential premises, the right to use this residential premises is not retained by the former family member of the owner of this residential premises, unless otherwise established by agreement between the owner and the former member of his family.
The plaintiffs' ownership of the disputed apartment arose on the basis of a transfer agreement and a certificate of inheritance under the law of September 2008, issued for 1/3 share of S. after the death of her father - P. The court also established that the defendant was not included in the order for the disputed residential premises and at the time of the conclusion of the transfer agreement did not live in the disputed apartment, was moved into it in 1995, the defendant had equal rights with the tenant to use the disputed residential premises at the time of privatization, he did not possess and was moved and registered in the said residential premises after the claimants had the right to own property. Despite the fact that the defendant was in a registered marriage with S., they do not maintain family relations for a long time and do not live together. They do not know where the respondent actually lived and lives since the moment of departure. The court did not have evidence to refute these arguments. The court concluded that the defendant's move-in was conditioned by the presence of other, not based on equality of rights, relations regarding the use of the disputed residential premises, and since the defendant did not acquire independent rights to the disputed residential premises, and his right to use the said residential premises was conditioned by the presence of family relations with the owner and is derived from the rights of the owner, then the termination of family relations in a controversial legal situation is considered by the court as a basis for the termination of the right to use the premises according to the rules of paragraph 4 of Art. 31 LCD RF.
The decisions made by the court in the 2nd half of 2008 of the cassation instance were not canceled, they were left in force.
For the specified period judicial acts on the preservation of the right to use the dwelling for a certain period by the former family member of the owner of the dwelling due to the fact that the former family member of the owner of the dwelling does not have grounds for acquiring or exercising the right to use another dwelling (i.e. the absence of the former family member of the owner of another dwelling in the property, lack of the right to use another dwelling under a rental agreement; a former family member is not a party to the agreement equity participation in the construction of a residential building, apartment or other civil legal contract for the purchase of housing), as well as on the grounds that the former family member of the owner is unable to provide himself with other residential premises (buy an apartment, conclude a contract for hiring residential premises, etc.) due to the property status and other noteworthy circumstances (state of health, disability due to age or health status, the presence of disabled dependents, job loss, study, etc.) were not taken out.
When determining the duration of the period for which the former family member of the owner of the residential premises retains the right to use the residential premises, the decision of the Plenum of the Supreme Court of the Russian Federation (No. 14 of July 02, 2009) states that the court should proceed from the principle of reasonableness and justice and particular circumstances of each case, taking into account financial situation former family member, the possibility of cohabitation of the parties in the same living quarters and other noteworthy circumstances.
During this period of time, disputes on the claim of a former family member of the owner on imposing on the owner of the dwelling the obligation to provide another dwelling to the ex-spouse or other former members of his family, in whose favor the owner fulfills maintenance obligations, were not resolved.
When resolving the issue of the possibility of imposing on the owner of a dwelling the obligation to provide a former member of his family with another dwelling, the Plenum Supreme Court The Russian Federation in its decision indicates that the court must proceed from the specific circumstances of the case, taking into account, in particular: the duration of the state of the spouses in marriage; the duration of cohabitation of the owner of the dwelling and the former member of his family in the dwelling; age, state of health, financial situation of the parties; the period of time during which the owner of the residential premises has fulfilled and will be obliged to fulfill maintenance obligations in favor of a former member of his family; the owner of the dwelling has funds to purchase another dwelling for a former member of his family; the owner of a dwelling, in addition to the dwelling in which he lived with a former member of his family, owns other dwellings, one of which may be provided for residence by a former family member, etc. If the court comes to the conclusion that it is necessary to impose on the owner of the residential premises the obligation to provide the former member of his family with another residential premises, then the court decision must determine: the time period for the owner of the residential premises to fulfill such an obligation, the main characteristics of the other residential premises provided and its location , and also on what right the owner provides the former member of his family with another dwelling. With the consent of the former family member of the owner of the residential premises, another residential premises provided to him by the owner may also be located in another locality; minimum area. Taking into account that in part 4 of article 31 of the HC RF there is no indication in what order, under what conditions and on what right the owner of the residential premises must provide the former member of his family, in respect of whom he fulfills maintenance obligations, with other residential premises (on the right ownership, right of tenancy, right of gratuitous use), the court must decide this issue, based on the specific circumstances of each case, guided by the principles of reasonableness, justice, humanism, the real possibilities of the owner of the dwelling to execute the court decision. Therefore, the court has the right to oblige the owner of the dwelling to provide the former member of his family with another dwelling, both under a lease or gratuitous use agreement, and on the right of ownership (i.e. buy a dwelling, donate, build, etc.).
The Leninsky District Court of the city of Cheboksary of the Chechen Republic considered a civil case on the claim of K. on the recognition of the ex-wife and their minor child K. and P. - the son of K. as having lost the right to use the residential premises and on deregistration in connection with the termination of family relations with the owner of the residential premises. By a court decision, K.'s claims were satisfied in full. K.'s counterclaims for the provision of other housing and the obligation not to obstruct the use of the disputed housing were dismissed.
By the decision of the Judicial Collegium for Civil Cases of the Armed Forces of the Chechen Republic, the decision of the Leninsky District Court, adopted in this civil case, was canceled in terms of recognizing the minor son of the parties (former spouses K. and K.) V., born in 2002. who lost the right to use the disputed residential premises owned by the father of the child - K. and on deregistration, with the issuance of a new decision on him to refuse to satisfy K.'s claims in this part, for a minor K., born in 2002, a judicial panel decided to retain the right to use the residential premises belonging to the father of the child until he reaches the age of 14 until June 09, 2016, based on the fact that, firstly, the minor at the mother’s place of residence in the grandfather’s house did not acquire the right to use the residential premises (not registered, not included in the household book, i.e. there is no data on the acquisition of an independent right to living space in his grandfather's house), and also on the grounds that K., by virtue of Art. 80-81 of the Family Code of the Russian Federation in relation to the child is obliged to fulfill maintenance obligations, but is not able to provide the child with other living quarters based on the property status (size wages does not allow). The Judicial Board made a new decision on the counter claim of K. and determined: to oblige K., the father of the child, not to repair K., born in 2002. for the period of retaining the right to use the residential area of the obstacles to living in the disputed apartment.
Chairman of the Lenin
District Court of CheboksaryG. G. Trynova
Aksakova I. N.
Prepared using materials on the “Generalization of judicial practice on housing disputes resolved using Part 4 of Art. 31 of the Housing Code of the Russian Federation on cases considered in the second half of 2008”.
1. The family members of the owner of a dwelling include his spouse living together with this owner in the dwelling belonging to him, as well as the children and parents of this owner. Other relatives, disabled dependents and, in exceptional cases, other citizens may be recognized as members of the owner's family if they are moved in by the owner as members of his family.
2. Family members of the owner of a dwelling have the right to use this dwelling on an equal footing with its owner, unless otherwise established by an agreement between the owner and members of his family. Family members of the owner of the dwelling are obliged to use this dwelling for its intended purpose, to ensure its safety.
3. Members of the family of the owner of the living quarters, who have legal capacity and have been limited in their legal capacity, shall be jointly and severally liable with the owner for the obligations arising from the use of this living quarters, unless otherwise established by an agreement between the owner and members of his family.
4. In the event of termination of family relations with the owner of residential premises, the right to use this residential premises shall not be retained by the former family member of the owner of this residential premises, unless otherwise established by agreement between the owner and the former member of his family. If the former family member of the owner of the dwelling has no grounds for acquiring or exercising the right to use another dwelling, and also if the property status of the former family member of the owner of the dwelling and other noteworthy circumstances do not allow him to provide himself with another dwelling, the right to use the dwelling owned the specified owner, may be retained by a former member of his family for a certain period on the basis of a court decision. At the same time, the court has the right to oblige the owner of the residential premises to provide the former spouse and other members of his family with other residential premises, in whose favor the owner fulfills maintenance obligations, at their request.
5. Upon the expiration of the term for the use of residential premises, established by a court decision adopted subject to the provisions of part 4 of this article, the corresponding right to use the residential premises of a former family member of the owner shall be terminated, unless otherwise established by agreement between the owner and this former member of his family. Before the expiration of the specified period, the right to use the living quarters of the former family member of the owner shall be terminated simultaneously with the termination of the right of ownership to this living quarters of this owner or, if the circumstances that served as the basis for the preservation of such a right have disappeared, on the basis of a court decision.
6. A former member of the owner's family who uses the residential premises on the basis of a court decision made taking into account the provisions of part 4 of this article, has the rights, bears the obligations and responsibilities provided for in parts 2-4 of this article.
7. A citizen who uses residential premises on the basis of an agreement with the owner of this premises has rights, bears duties and responsibilities in accordance with the terms of such an agreement.
