Judicial practice: forced exchange of municipal housing. How does the forced exchange of a municipal apartment through the court occur in practice? Forced exchange of apartments through court practice
30. Conditions under which exchange is not allowed. Invalidity of the exchange. Forced exchange.
Exchange of residential premises is not allowed:
1) if a claim is brought against the tenant for termination or modification of the rental agreement for residential premises;
2) if the exchange is mercenary or fictitious in nature;
3) if the house (residential premises) is in danger of collapse, is subject to demolition or refurbishment for use for other purposes, or is transferred for state or public needs;
4) if the house is subject to major repairs with reconstruction and redevelopment of residential premises;
5) if the premises are official or located in a dormitory;
6) excluded;
7) if, in connection with the exchange, the living conditions of one of the exchanging parties significantly deteriorate, as a result of which citizens become in need of improved housing conditions.
An exchange of residential premises may be declared invalid by a court:
1) if it was produced in violation of the requirements provided for by this Code;
2) on the grounds established by civil law for declaring a transaction invalid.
If the exchange is declared invalid, the parties are subject to relocation to previously occupied residential premises.
In cases where an exchange is declared invalid due to unlawful actions of one of the parties, the culprit is obliged to compensate the other party for losses incurred as a result of the exchange.
If an agreement on exchange is not reached between family members, then any of them has the right to demand in court a forced exchange of the occupied premises for premises in different houses (apartments). In this case, the compelling arguments and interests of persons living in the exchanged premises are taken into account.
31. Temporary residents and subletting of residential premises.
The tenant of a residential premises under a social tenancy agreement and members of his family living together with him, by mutual agreement and with prior notice to the landlord, have the right to allow free residence in the residential premises they occupy under a social tenancy agreement to other citizens as temporary residents (temporary residents). The landlord has the right to prohibit the residence of temporary residents if, after their occupancy, the total area of the corresponding residential premises for each resident is less than the accounting norm for an individual apartment, and less than the provision norm for a communal apartment.
2. The period of residence of temporary residents cannot exceed six consecutive months.
3. Temporary residents do not have the independent right to use the corresponding residential premises. The tenant is responsible for their actions to the landlord.
4. Temporary residents are obliged to vacate the corresponding residential premises upon the expiration of the period of residence agreed upon with them, and if the period is not agreed upon, no later than seven days from the date of presentation of the corresponding demand by the tenant or a member of his family living with him.
5. In the event of termination of a social tenancy agreement for residential premises, as well as in the event of temporary residents’ refusal to vacate the residential premises after the expiration of the period of residence agreed upon with them or the presentation of the requirement specified in Part 4 of this article, temporary residents are subject to eviction from the residential premises in court without providing another living space. The tenant of residential premises provided under a social tenancy agreement, with the consent in writing of the landlord and members of his family living with him, has the right to transfer part of the residential premises occupied by him, and in the case of temporary departure, the entire residential premises for sublease. A sublease agreement for residential premises provided under a social tenancy agreement can be concluded provided that, after its conclusion, the total area of the corresponding residential premises per resident is no less than the accounting norm, and in a communal apartment - no less than the provision norm.
2. To sublease residential premises located in a communal apartment, the consent of all tenants and members of their families living with them, all owners and members of their families living with them is also required.
3. The subtenant does not acquire an independent right to use the residential premises. The tenant remains liable to the landlord under a social tenancy agreement.
4. The sublease of residential premises is not permitted if a citizen suffering from one of the severe forms of chronic diseases specified in the list provided for in paragraph 4 of part 1 of Article 51 of this Code, as well as in others provided for by federal laws, lives in this residential premises or moves into it. cases.
The housing issue has always been one of the most pressing and problematic issues. It is not only an indicator of a person’s success in society, but also has a serious impact on relationships between members of society and even an individual family.
Purchasing your own home is a cherished and extremely expensive dream, unattainable for the majority of the population, who have a fairly low income, and sometimes even belong to the low-income category. In this case, the state, represented by authorized bodies, comes to the aid of citizens by providing them with housing under a social tenancy agreement.
This agreement is interesting in that the citizen (tenant) receives possession and use of residential premises for living in it under the conditions established by the Housing Code of the Russian Federation, without being able to dispose of it. A family may live with the tenant, the members of which are any persons who have been installed by the tenant as such, run a joint household with him and at the same time have equal rights and obligations with the tenant.
The Housing Code regulates in sufficient detail the relationship between the tenant and his family members when concluding a social tenancy agreement, but what to do if the family breaks up, or if relatives living together in a common living space becomes unbearable? As noted above, all residents have equal rights with the tenant and, even if they cease to be relatives, have the right to live in the residential premises.
How is this issue resolved? The Housing Code provides for only one option - an exchange. But in this case there is one caveat - the exchange is made with the consent of everyone living together with the tenant.
Naturally, everyone wants to live in the most comfortable conditions, and often the exchange options offered by the employer are rejected, and then the issue is considered by the court in a claim for forced exchange of residential premises.
It should be said right away that the number of decisions containing a refusal to satisfy claims significantly exceeds the number of those in which the claim is satisfied. Why is this happening?
Reason one: The option proposed by the tenant does not comply with the requirements of housing legislation. There are several options here.
1. In the first case, the court, when making a decision on the case, takes into account such a circumstance as the standard of living space, which is established by law at the municipal level.
For example, the Decision of the Akhtubinsky City Court of the Astrakhan Region in the case dated July 17, 2012.
P.D.V. appealed to the court with a demand for a forced exchange of residential premises. Due to hostile relations that had developed between the former spouses, living together in the occupied apartment became impossible, and therefore the plaintiff offered the defendant the option of exchanging the occupied apartment. According to the proposed exchange option, an apartment located at ... is subject to exchange for a communal apartment located at ..., with an offer to the defendant and children to occupy a room measuring 17.2 sq.m., and to the plaintiff — room size 12 sq.m., third parties, B.D.V. and Ch.L.M., must move to apartment No. .... However, an agreement between the plaintiff and the defendant on the exchange of their apartment was not reached. Third parties with exchangeagree.
At the court hearing it was established that, on the basis of the Administration Resolutionhomeowners association "Mikroraion-No. entered into a social rental agreement for residential premises of apartment No. house No.... with P.D.V. for a family of three with an area of 52.1 sq.m. Currently, the tenant P. is registered in the disputed apartment.D.V., former wife of employer S.E.S., daughterFull name5, daughterFull name7,the marriage between the P. spouses is terminated.
As can be seen from the plaintiff’s statement, between the former spouses after the divorcehostile relationships have arisen, which makes it impossible for them to live together. In this regard, he filed a claim for the forced exchange of this occupied area.
According to the proposed exchange option, the size of the room where the plaintiff asks to be moved is 12 sq.m. (according to the submitted warrant 14, 3 sq.m.), located in a communal apartment at..., ownership is registered in the nameFULL NAME13, and asks the defendant with minor children to move into a room with a living area of 17.2 sq.m., located in the same communal apartment.
In its decision in the case, the court pointed out the inconsistency of the proposed exchange option with the Resolution of the head of the administration of the Moscow Region “On the establishment of an accounting norm and norm for the provision of residential area”, according to which the minimum size of residential area provided under a social tenancy agreement for one member of a family consisting of of two or more people is 14 sq.m. total area. The claim was denied.
2. Residential premises must meet the requirements of sanitary standards.
By its decision in case No. 2-1474/11 dated September 19, 2011, the Stupino City Court of the Moscow Region dismissed the claimFull name18 kFull name19,FULL NAME20 and acting in the interests ofminor childFULL NAME1 about the forced exchange of residential premises and the obligation of the property management committee to terminate previously concluded social contracts and conclude new social rental contracts.
Thus, the court indicated that withaccording to the act (conclusion) of the inspection of the residential premises located at the address..., compiled by the department of guardianship and trusteeship for the Stupino municipal district, it follows that the electrical wiring in the residential premises is open. Common areas: kitchen, corridor, separate bathroom have an unsightly appearance and require cosmetic repairs, there is an unpleasant smell. There is open wiring running along the walls of the corridor, covered with gray cobwebs. It is necessary to re-lay the floorboards and replace the joists.
According to sanitary standards, living conditions do not correspond to the accommodation and recreation of young children. Here there is a violation of Article 73 of the Housing Code of the Russian Federation, which does not allow an exchange if the exchanged residential premises are recognized in the prescribed manner as unfit for habitation.
Reason two: the tenant offers exchange options not provided for by the Housing Code of the Russian Federation.
Decision of the Akhtubinsky District Court of the Astrakhan Region dated June 15, 2012.
T.E.L. filed a lawsuit against T.M.V. on the forced exchange of residential premises located at…. In support of the stated requirements, he indicated that further living together in the same living space with the defendant was impossible, since hostile relations had developed, a marriage between him and T.M.V. terminated. No agreement has been reached on the exchange of living space. Asks the court to make a forced exchange of the said apartment, relocating the defendant and her minor sonFull name4to a one-room apartment belonging to V.V.S., located at…, his— to a one-room apartment belonging to V.V.S., located at the address ..., a third party, V.V.S., to their apartment located at the above address, since he agrees to the exchange, and oblige military unit 15650 to issue exchange warrants.
Plaintiff T.E.L. at the court hearing supported the stated requirements, while indicating that the apartment located at..., consists of two rooms, with a total area... sq.m., the apartment has cold water, a balcony, heating, separate toilet and bathroom, proposes to move the defendant and her minor son to a one-room apartment with a total area... sq.m. with similar amenities.
In making a decision in this case, the court pointed to a significant circumstance, which in this case makes the exchange impossible in principle, namely, the court found that two one-room apartments located at ... and ..., proposed by the plaintiff for exchange to the defendant, belong to the right of ownership of V.V.S., and the possibility of such an exchange is not provided for by Article 72 of the Housing Code of the Russian Federation.
Reason three: living in the disputed residential premises of minor children.
The procedure for exchanging residential premises becomes significantly more complicated if minor children live in the apartment, since in this case, in accordance with Article 72 of the Housing Code of the Russian Federation, consent to the exchange is required from the guardianship and trusteeship authorities. The absence of such permission or the disagreement of the guardianship and trusteeship authorities does not allow the court to make a decision in favor of the plaintiff.
Decision of the Ostrovsky City Court of the Pskov Region dated July 1, 2010.
The claim was brought against S.S. on the grounds that defendant S.I., as a former member of the plaintiff’s family, objects out of court to the exchange of residential premises— two-room apartment No. in house No. on street... of the city of Ostrov, Pskov region, provided to the plaintiff for the family ** person under a social tenancy agreement dated... 2006 No. based on a petition from the State Administration ** ** in connection with his service in the Armed Forces strength.
At the court hearing, the plaintiff supported the claims, explaining that the marriage with the defendant was terminated in ** years. Their minor children, after the divorce, live in the disputed apartment with the defendant. On the day of the consideration of the case, the plaintiff was registered in the disputed apartment, actually living at a new place of service in the city....
Defendant S.I. objected to the claims, since under the exchange option, she and her two minor children of different sexes are provided with a one-room apartment, which is contrary to the interests of the children.
In this case, the court found that both in pre-trial proceedings and at the trial, the representative of the municipal unitary enterprise ** as a lessor under a social tenancy agreement, the Territorial Administration of the Ostrovsky District of the Main State Administration for Social Protection of the Population of the Pskov Region as a representative of the guardianship and trusteeship authority in the interests of minor children plaintiff and defendant, defendant S.I. In the interests of themselves and their two minor children, they object to the option of exchanging apartments proposed by the plaintiff as infringing on the housing rights and interests of minor children. The claim was denied.
Reason four: The reason for refusal of a claim may also be the establishment of the fact that a person with certain diseases or disabilities lives in the apartment. In this case, the exchange should not worsen his position.
Here it is necessary to point out one nuance that is of significant importance when making a decision by the court. The fact is that the list of diseases for which additional living space is required is established by Government Decree, and the absence of a disease on the list allows the court not to take into account the defendant’s arguments when challenging the claims.
As an example, we can cite the decision of the Bologovsky City Court of the Tver Region in case No. 2-817/2011 dated July 25, 2011.
T.A.L. filed a lawsuit against the full name for the forced exchange of residential premises, the plaintiff motivated his demands as follows. Since January 2006, the plaintiff, defendant and their children, on the basis of a social rental agreement for residential premises No., concluded on January 11, 2006 with the Municipal Unitary Enterprise for Housing and Communal Services of ZATO..., have been living in an apartment at the address... with a living area of 43.5 sq.m. and a total area 72.1 sq.m., consisting of three isolated rooms with centralized heat supply, hot and cold water supply, and sanitation. Living together with the defendant in the same apartment is impossible, since in fact the plaintiff and defendant have created new families; living together leads to numerous scandals, which negatively affects the psyche of children. The plaintiff offered the defendant the following exchange option: a comfortable apartment under a social tenancy agreement with a living area of 27.5 sq.m., a total of 43.7 sq.m., consisting of two isolated rooms with centralized heat supply, hot and cold water supply, sewerage, located at address...; and a comfortable apartment under a social tenancy agreement with a living area of 11.0 sq.m., a total area of 30.89 sq.m., consisting of one room with centralized heat supply, hot and cold water supply, sanitation, located at... Agreement between the plaintiff and defendant have not reached an exchange. Third parties agree with the exchange. Based the plaintiff asks the court to make a forced exchange of residential premises and, according to the presented exchange option, to move him from the apartment at the address... with a living area of 43.5 sq.m. and a total area of 72.1 sq.m. to an apartment with a living area of 11.0 sq.m., total 30.89 sq.m., at the address.... The defendant's full name with minor children A. and D. be moved from the apartment at the address... with a living area of 43.5 sq.m. and a total area of 72.1 sq.m. apartment with a living area of 27.5 sq.m., a total of 43.7 sq.m. at the address.... Third parties, full name2, living in the apartment at the address... with a living area of 11.0 sq.m., total 30.89 sq.m., andFull name1, living in the apartment at... with a living area of 27.5 sq.m., a total area of 43.7 sq.m., move to an apartment at... with a living area of 43.5 sq.m. and a total area of 72.1 sq.m. Oblige the administration of the ZATO... to conclude social rental agreements for residential premises at the above addresses.Representative of the defendant A.E.S. did not admit the claims and showed the following to the court. DefendantFull name is not satisfied with the exchange option proposed by the plaintiff, since the house into which the plaintiff and the children are offering to move is older than the year of construction than the one in which she and the children currently live. In addition, according to a certificate from the medical advisory commission dated February 16, 2011A.suffers from moderate bronchial asthma, she needs additional living space, which must be provided during a forced exchange by the plaintiff. Near the house into which the plaintiff is asking to move the defendant and his children, there are poplar trees growing, which will cause the child to have an allergic reaction to poplar fluff. Also, the condition of the proposed apartment does not meet the requirements of SanPiN; the air temperature and humidity in the apartment are increased. Besides,Full name objects to this exchange option, since the apartment is not renovated, the parquet flooring in the living room has dried out, the bathroom requires repairs, the bathroom needs to be replaced. The apartment where the children live has been renovated, and each child has a separate room. The apartment in which the defendant and the children live was provided to the plaintiff for the family, taking into account the child’s illness, namely, upon receipt of the apartment, he was provided with additional living space for the sick child. The exchange option proposed by the plaintiff does not take this circumstance into account, since additional living space is not implied in this exchange option. Also a basis for refusing the claim is the fact that as a result of a forced exchange, children of different sexes aged 9 and 14 will live in the same room, which is unacceptable according to the norms of the Housing Code of the Russian Federation. The defendant does not completely refuse the exchange, but asks the plaintiff to find an apartment with at least 50 square meters of total area in a newer building. The defendant does not prevent the plaintiff from living in the apartment, but the plaintiff does not want to live in the apartment with her and the children.
After hearing the plaintiff, the representative of the defendant, the representative of the guardianship and trusteeship authority, who gave an opinion on the satisfaction of the claim for forced exchange, having studied the case materials, the court considers the claims of T.A.L. subject to satisfaction on the following grounds.
When resolving the stated claims, the court, guided by the provisions of Part 3Article 72 of the Housing Code of the Russian Federation, having established the equivalence of the residential premises provided to the defendant with those currently occupied, came to the conclusion that there were grounds to satisfy the stated requirements.
Arguments of the representative of the defendant A.E.S. the fact that the apartment, according to the exchange option provided by the plaintiff, is located in a house that is older than the year it was built, which significantly worsens the living conditions of the defendant and her children, and also that poplars grow near the residential building, which can cause an allergic reaction in a child to poplar fluff, is in no way confirmed. On the part of the defendant, the court was not presented with evidence to support the arguments that these circumstances could in any way affect the health of the child and the housing rights of the defendant and minor children.
Argument of the representative of the defendant A.E.S. regarding the fact that since, according to the certificate of the medical advisory commissionA.suffers from moderate bronchial asthma, she needs additional living space, which must be provided during a forced exchange by the plaintiff, is not based on the law. The disease bronchial asthma is not included in the “List of diseases that give disabled people suffering from them the right to additional living space”, approved by Decree of the Government of Russia dated December 21, 2004 No. 817.
The claim was satisfied.
An analysis of judicial practice allows us to identify a fairly large number of disputes about the forced division of housing due to personal hostile relationships between former family members. The following conclusions can be drawn from the above analysis. Claims for forced division are satisfied in most cases if the parties nevertheless reach an agreement. If an agreement has not been reached, the court, when making a decision, takes into account the factual circumstances of the case and the requirements of the law. In this case, one of the main conditions is the absence of circumstances that could worsen the position of the parties in the event of an exchange.
What is forced exchange of housing through court?
Actually, this is a conversation about something that does not exist.
Forced exchange of living space does not exist as such from a legal point of view.
If housing belongs to several people, then everyone has equal rights to dispose of it.
You can't force others without their desire to exchange or perform other actions with square meters.
In the case of public housing, the term “forced exchange” is alive and well.
Claim for forced exchange of residential premises.
Division of private property
When is a forced exchange of an apartment necessary? What to do if privately owned apartment? There are two options here:
- negotiate with relatives (which is what they usually do) about the sale and dividing the money for everyone, then everyone goes their own way.
- allocate your share and then sell or exchange.
Why do they do this? As a rule, for one of two reasons - one of the cohabitants is rowdy, hooligan, drunk, and threatens the safety of those living in the neighborhood.
Or - an all-out quarrel between household members. In a word, these are situations where further living under one roof is impractical, impossible, and often dangerous.
After this, the owner is obliged to officially offer the cohabitants buy her back(Article 250 of the Civil Code of the Russian Federation).
All documents, including the refusal of relatives, must be certified by a notary. Only after this the owner can sell your share or exchange her.
Some the situation is more complicated with registered residents. The allocation and sale of a share involves a change in the owner of the property, which means (Article 292 of the Civil Code of the Russian Federation) the right to use it is terminated for the people registered there (not co-owners).
- dependents;
- voluntarily refused privatization (the corresponding act certified by a notary must be provided).
You can learn about how to live in a hostel or communal apartment, as well as an apartment, and how to make one from our articles.
Exchange of marital housing
In this case, the square meters will have to be divided first.
The shares will be equal, unless there are any circumstances allowing the court to consider otherwise.
One way or another, you first need to sign an agreement defining size of shares former family nest.
This can be done either peacefully, if an agreement is reached between the ex-husband and wife, or through the courts.
After this, the ex-spouses sell the apartment and split the money, or each disposes of his own share.
You can find out how a privatized apartment can be divided after a divorce from the video:
How is the procedure carried out?
How to exchange an apartment through the court? First of all need to contact a lawyer specializing in housing law.
In no case should you take on the matter on your own, because each situation is individual and the average person may simply not see all the nuances that may be decisive for the matter.
The process initiator then contacts to the district court at the location of the defendant. In addition to the statement of claim itself, he is obliged to provide the following papers to the office:
- identity cards of all participants in the transaction;
- notification of the exchange to the board of trustees (if the transaction occurs with the participation of a child);
- title documents for the share;
- cadastral passport;
- extract from the house register;
- a copy of the financial and personal account.
The court makes a decision within a month. But it should be remembered that the judge is not a broker and will not sell or exchange anything. The servant of Themis can only give the “green light” for the exchange of an apartment in court and other legal actions.
This will be reported in the decision. All subsequent legal procedures with square meters of former members of a single household already produce it themselves.
Or through real estate office, which is preferable.
Thus, it turns out that the forced exchange of private housing is the very case when it is much easier on paper than in practice.
The plaintiff must enlist the help of a housing lawyer, only in this case the chances of a successful outcome will be high.
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Legal opinion on the issue of forced exchange of residential premises and the grounds for registration for improvement of living conditions
Ownership of real estate is the assignment of this real estate to someone. The Civil Code interprets the concept of the right to real estate through three powers: possession, use and disposal. The owner can delegate his powers to other persons, without losing 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 he owns 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 ability to operate real estate, extract income from it, live in it, cultivate a plot of land, etc. You can live in the apartment yourself, or you can rent it out. The right of use is usually based on the right of possession. But the one who rents an apartment uses it, but does not own it.
The power of disposal 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, rental, pledge and other cases.
After all, the owner can transfer to another person his powers regarding the real estate he owns, while remaining its owner, for example, renting or transferring real estate to trust management. In this case, ownership of the property does not pass to the manager or tenant.
In addition to the “benefits” of owning real estate (the right to real estate) and receiving income from its use, the owner also bears the “burden” of associated costs, expenses and risks. For example, the owner of the property is obliged to pay taxes, repair and maintain in good condition, pay utility bills, and bear the risk of loss or damage to the property in the absence of anyone’s fault. The “burden” can be transferred to another person under an agreement (for example, a lease).
In accordance with the norms of the current civil legislation, the Owner exercises the rights of ownership, use and disposal of residential premises belonging to him in accordance with its purpose.
Residential premises are intended for the residence of citizens. A citizen who owns a residential premises can use it for personal residence and for the residence of his family members.
Residential premises can be rented out by their owners for living on the basis of an agreement.
The placement of industrial production in residential buildings is not permitted.
The placement by the owner of enterprises, institutions, and organizations in the residential premises he owns is permitted only after the transfer of such premises to non-residential premises. 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 residential premises belonging to him have the right to use this premises under the conditions provided for by housing legislation.
The transfer of ownership of a residential building or apartment to another person is not grounds for termination of the right to use residential premises by family members of the previous owner.
Family members of the owner of a residential premises may demand elimination of violations of their rights to residential premises from any persons, including the owner of the premises.
Alienation of residential premises in which minor members of the owner’s family live is permitted with the consent of the guardianship and trusteeship authority.
Thus, since the ownership of the apartment is registered in the name of your daughter, therefore, only she is the owner of the residential premises.
It should be immediately noted that residential premises that are in state or municipal ownership and that are occupied by citizens under a social tenancy agreement are subject to forced exchange (Article 68 of the Housing Code of the RSFSR).
Housing legislation provides for the possibility of exchanging residential premises owned by cooperatives (Article 119 of the Housing Code of the RSFSR). However, given that the majority of people living in houses of housing construction 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 shared ownership of citizens are not subject to forced exchange, since in accordance with civil law, termination of ownership is possible only in the manner prescribed by civil law, and it does not allow for the forced alienation of property, except in certain cases established by law.
Residential premises owned by citizens cannot be offered for exchange, since it is impossible to forcibly become the owner of a residential premises.
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 property you own. You will share with the losses that are natural in such a development of the case.
Forced exchange is possible, as a rule, only in relation to 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. e. about the departure.
Housing legislation allows the only exception when a person who occupies residential premises under another social tenancy agreement can be required to make a forced exchange. This is in accordance with the procedure provided for in Article 98 of the Housing Code of the RSFSR. In this case, the person faces the risk of being evicted from the residential premises without the provision of another residential premises, but the court, instead of eviction without provision, may oblige the tenant to exchange the occupied premises.
A forced exchange is not allowed if one of the premises involved in the exchange is official or located in a dormitory.
The above indicates that the apartment belonging to your daughter is not subject to forced exchange.
Registration for improvement of living conditions
There are several ways to improve your living conditions in Moscow, the list of which is quite large today. One of these methods is to obtain an apartment (housing) under a social tenancy agreement, that is, essentially free municipal housing. You can get an apartment in Moscow under these conditions, in particular, by getting on the waiting list to improve your living conditions.
The procedure for placing on the waiting list for improvement of living conditions.
In order to get in line to improve 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 sensitivity of this issue, is popularly referred to as qualification settlement, that is, living in Moscow for a certain amount of time.
Thus, there is a rule according to which registration for improvement of housing conditions is possible only after permanent residence in Moscow for a total of at least 10 years. This means nothing more than that to be placed on the waiting list, continuous residence in Moscow during this time is not necessary; the citizen’s place of residence may change during his life, it is possible to move to another city and return to permanent residence in Moscow, The only thing that remains unchanged in practice is that residence for a 10-year period must be confirmed by a registration record at the place of residence, or the so-called permanent registration (propiska).
The issue of living in Moscow for 10 years to be placed 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 previously existing norm in the Moscow legislation on 10 years of residence in Moscow as inconsistent with the constitution and federal legislation. Previously, in the Moscow legislation on improving housing conditions (Resolution of the Moscow City Duma of January 31, 2001 No. 12 “On the regulation on the procedure for improving the living conditions of citizens in Moscow”) there also existed such a condition, which was canceled by the Determination of the Investigative Committee for Civil Cases of the Armed Forces of the Russian Federation from October 05, 2001 No. 5-GO1-117.
In the new Moscow Law No. 22 “On improving the living conditions of Moscow residents” 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 according to permanent registration, because the law speaks only about residence and does not mention anywhere that residence must take place precisely by registration (registration). From this point of view, there are judicial prospects for establishing in court the fact of residence for a 10-year period in Moscow in accordance with special proceedings in Articles 264-268 of the Code of Civil Procedure of the Russian Federation, given that for several years judicial practice has been considering registration at a permanent place of residence not as a basis, but as just one of the proofs of permanent residence in a certain 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 of the 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 total space for 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. For citizens living in communal apartments or hotel-type apartments, a different rule applies, namely, the provision of such citizens with common living space must be slightly 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 a communal apartment is considered to be an apartment consisting of one or more residential premises owned by 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 considered 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 are privatized. The issue of classifying an apartment as a communal apartment on the right of common shared ownership, even with a certain procedure for use, is decided negatively by the courts due to the lack of separate rights to isolated residential premises in such apartments.
If different families live in an apartment that is not subject to communal occupancy due to adjacent 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), placing on a waiting list is also possible if there is a common 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 placing on a waiting list to improve housing conditions is carried out regardless of the number of meters allocated to each family member, namely:
1). 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 even if kinship relations between citizens are preserved.
2). If citizens occupy residential premises that are duly recognized as unsuitable for permanent residence. A residential premises is considered unsuitable for permanent residence if it: a). emergency b). is in dilapidated condition c). if exposure to harmful environmental factors has been identified in the residential premises. The procedure for recognizing residential premises and houses as unsuitable for permanent residence is regulated by the Regulations on the procedure for recognizing residential premises and residential buildings as unsuitable 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) with 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 (energy supply, running water, bath or shower, gas or electric stove, hot water supply or gas water heater, regardless of the wall material).
4). If citizens occupy residential premises in dormitories, including hotel-type dormitories, with the exception of cases where Moscow is the place of stay for citizens (they have temporary registration).
5). Regardless of the registration norm, citizens living in communal apartments are also accepted for registration if among the residents there are patients suffering from severe forms of some chronic diseases and, according to the conclusion of the health authorities, living together with them is impossible.
6). Residential premises where patients suffering from certain forms of chronic diseases live, the layout of which does not allow for the use of isolated residential premises for these citizens. Moreover, 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 in Moscow, can also be recognized as in need of improved housing conditions, a) if they have been living in communal apartments for the last 10 years if you have the full total work experience required to assign a labor pension b). the last 5 years in the presence of disability of the first or second group. Long-term residents of Moscow living in communal housing conditions have the right to priority housing, and even if they live in families in need of improved housing conditions, they are included in separate lists of those in need from other waiting lists.
Accounting for other living space owned by citizens with the right of independent use
When determining the size of living space per each family member, all residential premises belonging to citizens living in the apartment and members of their families with independent use rights are taken into account. The concept of the right of independent use is very broad and includes both ownership of residential premises and ownership of housing under another right (use under a social tenancy agreement, an apartment in a housing cooperative with an incompletely paid share and other legal grounds for owning housing). At the same time, the right of residence granted under a sublease agreement for residential premises, a short-term rental agreement or an agreement on moving in temporary residents is not a right of independent use. The question of who is a member of the resident family is resolved as follows: spouses and their minor children in any case are members of the same family, regardless of their place of residence.
If adult children of spouses live in the apartment, then the question of whether they belong to the same family is resolved 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 Administration 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 there are different families in the apartment.
A very common practice 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 improvement of housing conditions (for each resident there are 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 to be placed on a waiting list 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 improved housing conditions
Registration of citizens in need of improved 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 his place of work and his place of residence. The fact of permanent residence in a particular area is confirmed by a registration record at the place of residence or a court decision establishing the fact of permanent residence.
To be placed on the waiting list for improving housing conditions, you must contact the housing department of the Administration with a written application, which indicates:
1. The family’s living conditions at the time of filing the 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 benefits for priority or priority provision of housing for individual family members.
4. If the application is submitted at the place of work, the length of service at the enterprise and 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 registration:
1). Passport of a citizen who wishes to register for improvement of living conditions
2). Extract from the house register and a copy of the financial personal account
at the place of residence of those wishing to get on the waiting list
3). Apartment plan from BTI
4). Certificate from Mosregistration about the presence or absence of property
for housing.
5) If necessary, certificates from health care institutions are attached.
The 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 accepting them for registration is submitted for consideration to a specially created public housing commission, which makes a decision on acceptance or non-acceptance for registration, which is of a recommendatory nature. The issue of registration is finally resolved by the Resolution of the Head of the District Administration, which the citizen who filed the application must be informed about in writing within a month from the date of filing the application.
Thus, consideration of a citizen’s application should take no more than one month, after which he should be given a written response. If the issue of registration for improvement is resolved positively, a special accounting file is opened, and records are also kept in the citizens’ register. A refusal to be placed on the waiting list for improving housing conditions can be appealed to the Office of the Department of Housing Policy and Housing Fund for the District 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 wishing to improve their living conditions. Actions related to the deterioration of living conditions include:
1). Changing the procedure for using residential premises, which includes, in particular, the section of the personal account in a municipal apartment.
2). Exchange of living space for a smaller living space.
3). Failure to comply with a residential lease agreement, resulting in eviction through a court order. Thus, for failure to pay rent for 6 months, a citizen can be evicted by court to a less comfortable living space according to hostel standards.
4). A change in the composition of the family as a result of the move-in of other persons, the dissolution of a marriage, that is, in essence, the registration of additional residents in the apartment.
5). Determination of shares, allocation of shares or change of shares by the owners of residential premises.
6). Alienation (that is, transfer under any transaction by the owners of residential premises) of residential premises belonging to them or shares in the ownership of residential premises.
The following actions are not considered to be actions that led to the need to improve living conditions:
1). Actions to move into the place of residence of spouses, children, parents, other citizens united by signs of kinship or property, if they a). did not have independent right to use residential premises at their previous place of residence; b). had an independent right of use at their previous place of residence, but were not provided with the provision standard (that is, they were not provided with the necessary 18 meters of total area); V). occupied, with the right of independent use, a residential premises recognized as unsuitable for permanent residence, that is, recognized as unsafe, in a dilapidated condition, or if the harmful effects of environmental factors were identified in it.; G). if their residential premises 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 a life annuity agreement or lifelong maintenance with a dependent on the initiative of the annuity recipient.
3). Actions related to the refusal of the recipient to accept the gift and the refusal of the donor to fulfill the gift agreement.
4). In the event that the court has declared the transaction with residential premises invalid.
If the above grounds exist, you can be registered for improvement of living conditions.