Determining the procedure for using residential premises is a matter considered by judges regularly. The lack of opportunities to purchase your own home gives rise to conflicts, and many are wondering how to defend their rights in court?
Source of the problem
Residential premises are property, just like a car and other valuables. The Civil Code has provisions on the use and disposal of common property. The peculiarity of determining the procedure for using residential premises in the absence of a dispute over ownership. The law assumes that people themselves are capable of solving this problem. It can take several forms.
One of the owners occupies an area that is less than his share in the common property. The room or premises occupied by the plaintiff is not isolated, and none of the owners wants to live in it.
With the exception of owners, persons living as family members also have a number of rights. Former spouses also keep them after a divorce when living in a house or apartment owned by one of them.
What do judges do if one of the owners is absent at the time of a dispute on the territory of the common living space?
In judicial practice, the court determines the procedure for using residential premises if it is unrealistic to partition or allocate a share from a residential building or apartment. One of the cases when the court has the right to go beyond the requirements of the claim.
Allocation means reorganizing the property in such a way that each owner has a separate kitchen, bathroom, entrance and other attributes of a separate house or apartment.
Subject of dispute
Determining the order of use of residential premises is possible in the case of several owners. If disputes arise in a communal apartment, where personal accounts and rooms are separated, and the kitchen and other premises remain common, then the dispute concerns exclusively the common premises.
Previously, for a certain period of time, the privatization of housing was carried out without allocating shares to the owners. Then this provision ceased to apply, but even now there are disputes when shares are not allocated. The solution is either an agreement to determine the shares, drawn up and certified by a notary, or filing a lawsuit in court.
Whether or not to include requirements for the use of the premises in the application is up to everyone to decide for themselves.
Conclusion of an agreement
Studying court decisions in such cases, researchers note the expression “established procedure for use.” During the proceedings, judges are interested in how the co-owners or co-owners use the common premises. The agreements were not formalized in any way.
The legislation allows the conclusion of an agreement to determine the procedure for using residential premises.
The agreement determines who uses which premises on an ongoing basis and describes the procedure for using common housing.
The detail of the document depends on the wishes of the parties and the conditions they would like to see. You can draw up the paper yourself or with the help of a lawyer, or contact a notary. Notarial documents have a more significant weight in the minds of citizens.
Does the conclusion of an agreement to determine the procedure for using residential premises exclude the emergence of a legal dispute in the future? No, it can still arise, and besides, the law does not prohibit challenging the legality of the provisions of the contract within the statute of limitations.
If one of the parties does not want to comply with the agreement, then the other co-owners or residents have the right to go to court to protect their rights. In real life, it is rare to see such deals concluded.
Should I send a letter before going to the judge?
A claim to determine the procedure for using residential premises does not require compliance with the pre-trial procedure for resolving the dispute. What are we talking about? If the judge asks whether attempts were made to do without his help, it is enough to say that they were made. The law does not oblige the court to refuse to open a case without documents confirming the use of the pre-trial procedure for resolving the dispute.
It makes no sense to write to the prosecutor's office or the police; determining the procedure for using residential premises is a decision that lies solely within the competence of the court. No other body has the right to decide it.
To which court is the application sent?
In Russia, civil cases are heard by district and magistrate courts. The Civil Procedure Code directly states that disputes about the use of common property fall within the competence of magistrates. A claim that includes claims simultaneously that are subject to trial in both the district court and the magistrate court is heard in the district court.
If the plaintiff supplements the application with a claim that the district court has the right to consider, the magistrate dismisses the case and sends it there. There, the proceedings begin from the very beginning. In this case, we are talking about recovery of damage or a requirement for the allocation or division of an object. The price of the application will be higher than 50 thousand rubles.
A claim to determine the procedure for using residential premises is filed at the location of the property. Which magistrate's office the corresponding address belongs to is indicated on the website of the magistrates or district court.
Drawing up an application
The determination of the procedure for using residential premises in court is made subject to the correct execution of the application. If you miss something, the judge will return the documents or leave them without movement. And what are the requirements imposed by law:
- name of the court where the documents are sent;
- information about the plaintiff (full name, place of residence, zip code, mobile phone number);
- information about the defendant (full name, place of residence);
- a description of what the threat or risk of violation of rights is, how the rights of the plaintiff are violated - the circumstances of the dispute;
- evidence confirming the facts or circumstances described in the claim;
- requirements of the claim (request or indication to whom to allocate which premises);
- attachment (list of copies of documents attached to the claim);
- signature of the plaintiff or his representative and date of filing the claim.
The number of copies of the claim and attached documents depends on the number of parties to the dispute and one set is handed over to the judge.
How to write an application to determine the procedure for using residential premises? A sample is shown above.
Proof
In this capacity, documents, receipts, letters, and emails are attached to the claim, subject to the possibility of confirming their source. Judges regularly resort to the use of witness testimony to understand the established rules of living in an apartment or house.
They are summoned at the request of the parties with the permission of the court. It is necessary to indicate exactly what information the witness can provide. The list of such persons (their full name, place of residence) is indicated in the claim, among the list of demands to the court. It is not prohibited to submit a petition by letter or orally. An application submitted in advance through the office will protect you from the risk of serious violations on the part of the judge.
Among the documents confirming the disputes are police reports and decisions issued by the courts in accordance with the Code of Administrative Offenses.
In such cases, a dispute is resolved over the procedure for paying for housing and communal services. Evidence of the dispute on this matter are copies of responses from the RSO and the management organization.
What are the features of the proceedings?
What circumstances does the court find out in a dispute about determining the procedure for using residential premises? The statement of claim must contain the following information.
- the size of the shares that the owners have;
- the actual procedure for using common housing;
- whether the party really needs this premises;
- How realistic is cohabitation?
It is not difficult for the court to establish either the first or second points. In the first case, documents from Rosreestr on ownership are sufficient. In the second, the plaintiff and defendant themselves talk about the structured scheme of living in a common apartment or common house.
The task of the court is to maintain a balance of the rights and interests of the parties to the dispute. So, for example, it is undesirable to allocate a room for use to the owner, which is much smaller in area than his share.
Regarding need. Some citizens own several properties and live in one of them. Not only ownership rights to other objects are taken into account, but also the right of residence. The possibility of allocating a separate room for each owner to live will be determined.
Right to compensation
Due to objective reasons, it is not always possible to comply with an option that would preserve the possibility of simultaneous residence of all owners in residential premises. In such a situation, the party has the right to receive compensation for its share. The law assumes its insignificance. However, if a person no longer has a place to live, the court should not automatically award compensation.
If one of the co-owners uses more living space than his share of the property right, then he is also paid compensation for use according to the claim.
An application to determine the procedure for using residential premises must contain clauses regarding the payment of monetary compensation. It is permitted to be produced as part of the proceedings.
Some examples from practice
In one of the cases considered, the plaintiff asked to leave a room for his use, and to allocate a second room, which was smaller, to the other party. Moreover, the established procedure for using a shared apartment has been this way for a long time. The defendant lived with his family in another place, which they confirmed to the court, but asked to be given a larger room. The court agreed with the plaintiff's opinion, since he was more in need of this room.
Judicial practice in determining the procedure for using residential premises has developed the following approach to compensation. The owners had equal shares. But it was not possible to allocate premises to each person, and the court decided to order payment of compensation.
The impossibility of living may also be associated with a person’s health condition (illness that necessitates a need for a separate room).
If family members (spouse, other persons) live with one of the owners, then their interests are also taken into account. Disability also, in a number of situations, gives privileges to a larger living space.
Features of a judicial act
The court decision on determining the procedure for using residential premises is written taking into account the norms of the Civil Procedure Code and housing legislation, as well as the provisions of the Civil Code on common property.
The judicial act describes the plaintiff’s demands, the defendant’s arguments, and the facts established by the court. No less important is the motivation and interpretation of the law in relation to a specific situation.
If the court agrees with the demands of the claim, it indicates which premises are allocated to the plaintiff and which to the defendant. The issue of compensation is resolved subject to the formulation of this demand.
The judge either establishes the procedure for use proposed in the claim, or another at his own discretion.
The judge has the right to determine the procedure for paying for housing and communal services by dividing personal accounts, subject to the question being raised in the claim.
In conclusion
A statement of claim to determine the procedure for using residential premises is filed only by the owners or one of them if disputes arise.
The success of the case depends not only on the wording used when writing the claim, but also on the circumstances of the case. For example, how much more space does the plaintiff need, did he request to split personal accounts, etc.
The judge, in his decision, has the right, based on the claim and the circumstances of the case, to either completely refuse the requirements or partially. The procedure for use proposed in the application may be rejected, and the judge will establish a different one, in his opinion, more consistent with the law and the interests of the parties.
“The housing problem ruined them.” This is not only about Muscovites, it is about all Russians.
This is probably why people are increasingly turning to the courts to understand who can use which premises in the apartment.
Disputes between residents and neighbors
Problems usually arise among close relatives. Sometimes these are divorced spouses who are forced to live in the same apartment after the divorce. What else to do if there is nowhere to go?
Another example is heirs who received an apartment in joint ownership. No matter how large this home is, there is still only one kitchen, as well as a bathroom. So the residents start arguing.
Sometimes scandals take the form of a real military conflict. One owner installs a lock on the door of his room, another installs a lock on the toilet, a third changes the locks of the front door, having previously placed the things of his “competitors” on the stairs.
It is better not to bring the matter to the point of absurdity, but in case of shared ownership, offer it to another co-owner resolve the matter amicably by drawing up a written agreement on determining the procedure for using the apartment. It needs to specify which premises are given to you and which to him. To be on the safe side, you can have this document certified by a notary.
If your partner is categorical, the only thing left to do is go to court. Nowadays, cases regarding the determination of the right to use residential premises or its termination are no longer uncommon in judicial practice.
Who can challenge a tenant’s actions in court?
The owner of a share in the apartment has this right. It doesn't matter exactly how many meters he owns- this may be the owner of the smallest number of squares. If other owners violate his rights by their actions, he can file a lawsuit.
If you are not the owner of the property, but there, then you do not have the right to file a claim in court.
Let's imagine that two brothers own an apartment. One of them got married and registered his wife in a shared apartment. If disagreements arise, he can set things in motion. But his wife’s lawsuit will not be accepted in court.
But first you need to think about whether to sue:
- firstly, the decision will not be made tomorrow or even next week;
- secondly, without the help of specialists it will be difficult, and hiring lawyers is expensive;
- thirdly, the trial will certainly leave an imprint on your relationship with your neighbors and there is a possibility that after it you will not be able to coexist in the same apartment, even if just the ideal procedure for using it is determined.
Drawing up a statement of claim
Any statement begins with a “header”:
When working on the text of a claim to determine the procedure for using the residential premises of an apartment, do not forget to include the following information:
- Information about the apartment (address and number under which it is registered in the cadastre).
- The total area of housing and the area of rooms and other premises within it. Which type, whether rooms are walk-through or isolated.
- The area owned by you and the defendant.
- Your requirements. Here you need to describe what procedure for using the apartment seems fair to you. For example, you think that one room should be at your disposal, and the other should be at the defendant’s disposal. And don’t forget to indicate that the defendant must not interfere with your use of the premises.
Preferably in a claim refer to articles of law, on which your requirements are based. To do this, you should first familiarize yourself with articles No. 247, 304 of the Civil Code, articles No. 30, 3 of the Housing Code and Article 35 of the Constitution, on which judicial practice is based in cases of determining the procedure for the use of residential premises
They say:
The claim is printed in several copies. There should be as many of them as there are defendants.
The application requires attach a number of documents:
- receipt of payment of state duty (filing a civil claim costs 200 rubles);
- copies of property certificates according to the number of defendants;
- certificate with a list;
- apartment plan (the court, when considering a case, must imagine the layout of the apartment).
Dispute consideration in court
The court, when making a decision on your case, will take into account the following:
The order of use of the premises that existed before the conflict arose is also taken into account. If he did not infringe on anyone's rights, there is a chance that the court will offer to return to him.
What restrictions may be imposed?
Having accepted the claim and considered it, the court makes a decision. Based on judicial practice, in most cases to determine the procedure for using apartment premises, specific restrictions are established for co-owners.
The exception is one-room apartments, where it is impossible to allocate space to each owner. In this case, the only room will remain for their shared use.
Judicial practice also has many cases when it is decided decision on the loss of the right to use by one of the co-owners of the apartment her living quarters. In this case, one of the tenants moves out, receiving compensation for this from the second.
When it is possible to separate the owners into rooms, they do so.
You should not file a lawsuit if you have no intention of living in the apartment. Such claims are usually not satisfied, for example:
- The case of the Gagarinsky court. The woman tried to get her use of a room in her ex-husband’s apartment, where he lived with his new family. It was established that she and their common child have a place to live, but she does not intend to transport the child to the disputed apartment, and only plans to sometimes spend the night there. That is, the trial was started with one goal - to ruin the life of the ex-husband. The claim was denied.
- A similar decision was made in another case. The man obtained the right to move into the apartment, but did not exercise it. People living in the apartment calmly used all the premises together. And a few years later he went to court demanding that one of the rooms be allocated to him. Since the person had not previously lived in the apartment and had no such plans, the claim was not satisfied.
Video: Disputes with roommates over the use of shared living space
The video discusses the issue of using joint real estate with cohabitants or shared owners.
Recommendations are given for resolving such housing disputes, explaining how to solve the problem peacefully, how to achieve justice in court and what results can be expected based on existing judicial practice.
APPEAL DECISION
Court of Appeal of the Kirovsky District of Omsk
having considered in open court in Omsk on October 11, 2007 the case on the appeal of Yu.A. on the decision of the magistrate of court district No. 51 of the KAO of Omsk in civil case No. 2-3189/2007. according to the claim of Yu.A. to T.K., E.Yu., Zh.Yu. on determining the procedure for using residential premises with the opening of separate financial personal accounts,
INSTALLED:
Yu.A. appealed to the magistrate with a claim against T.K., E.Yu., Zh.Yu. on determining the procedure for using residential premises. In support of the claim, he indicated that he is the tenant of apartment 104 in building 11 on the street. Mill in Omsk. The following apartments also live: T.K., E.Yu. and Zh.Yu. In 1994, his marriage to T.K. was dissolved; from that time on, he did not actually live in the said residential premises due to the fact that former family members put obstacles in his use. By the decision of the Kirovsky District Court of Omsk dated November 29, 2005 year, he was moved into the disputed apartment, but currently he cannot use the housing, since all three rooms are occupied by the defendants and they are unable to vacate at least one of them. In addition, in the absence of a court-established procedure for the use of residential premises, he is not able to pay for the rental of residential premises based on the actual area occupied by them. In this connection, he asks to determine the procedure for using the disputed apartment, establishing that the room has an area of 12.4 sq.m. is in his use, rooms with an area of 18.5 sq.m. and 13.4 sq.m. transfer for use to defendants T.K., E.Yu. and Zh.Yu.
On July 16, 2007, at the court hearing, the plaintiff supplemented the requirements, asking, when determining the procedure for using the disputed apartment, to open a separate financial personal account for a room with an area of 12.4 sq.m. for payment utilities .
Plaintiff Yu.A. at the court hearing he supported the demands in full, he explained to the court that in 1986 he moved into the disputed apartment on the basis of a warrant for a family of 4 people. He has not lived in this apartment since 1994, as he previously went to work in the north and had another family. Currently, he comes to the apartment periodically; he does not have a specific place in the apartment where he could bring his things.
Representative of the plaintiff A.A. supported the claims in full on the grounds set out by his principal and asked to satisfy the claim.
Defendant T.K. did not recognize the claims, explained to the court that Yu.A. has not lived in an apartment since 1989. In 1994, the plaintiff was moved into the apartment by a court decision, but did not move into it or live in it. In 2005, he was moved into the apartment again, the keys were given to him, after moving in he never lived in the apartment, he only brought his dirty things, which they took into the vestibule and put in a box. Since 1998, the apartment has a procedure for use, according to which she lives in a room with an area of 14.1 sq.m., E.Yu. lives in a room of 17.4 sq.m., Zh.Yu. in the room 12.4 sq.m. They use all the rooms, if assigned to Yu.A. rooms, their living conditions will worsen, which will lead to a violation of their housing rights. She does not object to the plaintiff living in the apartment and also using all the rooms.
Representative of the defendant T.K. by proxy N.A. (ld.23), did not recognize the claims, believes that the stated requirements cannot be satisfied, since the determination of the procedure for using residential premises is not provided for by the norms of housing legislation. In addition, determining the procedure for using residential premises is possible only in cases where such a determination does not violate the rights and legitimate interests of other persons and if in the disputed apartment a certain procedure for using residential premises has developed between persons living together. Despite the plaintiff repeatedly moving into the disputed apartment on the basis of court decisions, he did not actually try to move in.
Defendant E.Yu. did not recognize the claims on similar grounds.
Defendant Zh.Yu. did not appear at the court hearing, was duly notified, provided a statement in which she asked to consider the case in her absence, and did not agree with the claim.
The third party, Levoberezhye OJSC, was duly notified and did not send a representative to the court.
The magistrate made a decision: “In the lawsuit of Yu.A. to T.K., E.Yu., Zh.Yu. on determining the procedure for using apartment No. 104 in building 11 on the street. Melnichnaya in Omsk with the opening of separate personal accounts to pay for housing maintenance and utilities, refuse.”
Plaintiff Yu.A. an appeal has been filed against this decision, in which he asks the magistrate’s decision of July 30, 2007 to be overturned, since the decision was made in violation of substantive law and the circumstances of the case were assessed incorrectly.
In the court of appeal, plaintiff Yu.A. and his representative A.A. (copy of power of attorney dated November 12, 2005, reg. No. 4889, for a period of three years, with the right of substitution - ld. 6) the arguments of the appeal were supported. They asked to cancel the decision and satisfy the claim in full, since the plaintiff was actually deprived of the opportunity to use the apartment and had no other housing.
At the court hearing, defendant T.K. and E.Yu. They objected to the satisfaction of the complaint and asked to uphold the decision of the magistrate.
Defendant Zh.Yu. was notified of the day of consideration of the case by the appellate authority, in a written statement she asks to consider the complaint in her absence (case file 8 9).
The third party, OJSC "Levoberezhye", was notified of the day of consideration of the case by the appellate instance (case sheet 83), but did not send its representative to the court.
After listening to the participants in the process and examining the case materials, the court finds the decision of the magistrate to be canceled on the following grounds.
When resolving the dispute, the magistrate incorrectly applied the norms of substantive law, namely housing legislation.
In accordance with paragraph 1 of Article 40 of the Constitution of the Russian Federation, everyone has the right to housing. No one can be arbitrarily deprived of their home.
From clause 4 of Article 3 of the RF Housing Code it follows that no one can be limited in the right to use housing except on the grounds and in the manner provided by law.
According to Art. 5 Federal Law of the Russian Federation dated December 29, 2004. No. 189-FZ “On the entry into force of the Housing Code of the Russian Federation” to housing relations that arose before the entry into force of the Housing Code of the Russian Federation, Housing Code of the Russian Federation applies to the extent of those rights and obligations that arise after its entry into force, with the exception of cases provided for by this Federal Law.
According to the rules of Art. 50 of the Housing Code of the RSFSR (Article 61 of the Housing Code of the Russian Federation), the use of residential premises in houses of state and public housing stock is carried out in accordance with the rental agreement for residential premises and the rules for the use of residential premises.
According to Art. 52 of the Housing Code of the RSFSR (Article 62 of the Housing Code of the Russian Federation), the subject of a rental agreement can only be an isolated residential space, consisting of an apartment or one or more rooms. By virtue of Art. 51 of the Housing Code of the RSFSR, the contract for the rental of residential premises in houses of the state and public housing stock is concluded in writing on the basis of a warrant for residential premises between the landlord and the tenant - the citizen in whose name the warrant was issued.
In accordance with Art. 53 of the Housing Code of the RSFSR, members of the tenant’s family living together with him enjoy, on an equal basis with the tenant, all rights and bear all obligations arising from the rental agreement for residential premises. Adult family members bear joint and several property liability with the tenant for the obligations arising from the specified agreement (Part 1). Members of the employer's family include the employer's spouse, their children and parents. Other relatives, disabled dependents, and in exceptional cases other persons may be recognized as members of the employer’s family if they live together with the employer and maintain a common household with him (Part 2). If the citizens specified in part two of this article have ceased to be members of the tenant’s family, but continue to live in the occupied residential premises, they have the same rights and obligations as the tenant and members of his family (Part 3).
From the case materials it follows that the disputed apartment 104 in building 11 on the street. The mill in the city of Omsk consists of three isolated rooms with an area of 12.4 sq.m., 14.1 sq.m. and 17.4 sq.m. (case sheet 39 - copy of technical passport). This apartment currently retains municipal status, which is confirmed by a copy of the personal account (case sheet 9). The apartment was provided to the plaintiff Yu.A. in 1986, and his wife T.K. and daughters E.Yu. moved into the apartment with him. and Zh.Yu. (copy of order case file 43). The plaintiff is not registered as the owner of the property (certificates of the Federal Registration Service 00 - case file 37, State Enterprise 00 "OTsTIZ" - case file 38).
By the decision of the Kirovsky District Court of Omsk dated December 7, 1994, Yu.A. was moved into the disputed apartment, his demands to determine the procedure for using the residential premises were denied (case files 17-21). By the decision of the Kirovsky District Court of Omsk dated November 29, 2005, Yu.A. was again moved into the disputed apartment (ld. 12-14).
At the same time, from the explanations of the parties it is established that the plaintiff does not actually use this apartment for living, although he has access to it. This is due to the fact that the parties have not reached an agreement on the procedure for using the living quarters in the apartment. In this connection, the plaintiff filed the claim under consideration.
The appellate court cannot agree with the conclusions of the magistrate about the impossibility of using the analogy of law and law to resolve this dispute.
In accordance with paragraph 2 of Article 1 of the Housing Code of the Russian Federation, citizens, at their own discretion and in their own interests, exercise their housing rights, including disposing of them. They are free to establish and exercise their housing rights by virtue of an agreement and (or) other grounds provided for by housing legislation. At the same time, citizens must not violate the rights, freedoms and legitimate interests of other citizens.
According to the provisions of paragraph 3 of the same article of the Housing Code of the Russian Federation, housing rights can be limited on the basis of federal law and only to the extent necessary in order to protect the foundations of the constitutional system, morality, health, rights and legitimate interests of other persons.
Paragraph 1 of Article 7 of the Housing Code of the Russian Federation provides that in cases where housing relations are not regulated by housing legislation or an agreement of participants in such relations, and in the absence of civil or other legislation directly regulating such relations, the law shall be applied to them, unless this contradicts their essence, housing legislation regulating similar relations (analogy of law).
Since there is no agreement on the procedure for using residential premises in the apartment between the parties who, in accordance with Art. 60-61 of the Housing Code of the Russian Federation equal rights of ownership and use of the specified apartment, and Chapter 8 of the Housing Code of the Russian Federation does not directly regulate the procedure for such use in the case of social rental of residential premises. The court considers it possible, in order to protect the rights and legitimate interests of the plaintiff, to apply by analogy the provisions of civil law on the procedure for owning and using residential premises owned by citizens who have equal rights to it.
In this case, the court takes into account the provisions of Art. 15-16 of the Housing Code of the Russian Federation on objects of housing rights, i.e. about living space and its types. The application of the analogy of the law to the relations of use in the social rental of residential premises does not contradict their essence and complies with the provisions of paragraph 4 of Art. 17 of the Housing Code of the Russian Federation, which establishes that the use of residential premises is carried out taking into account the observance of the rights and legitimate interests of citizens living in this residential premises.
According to Art. 244, 247 of the Civil Code of the Russian Federation, property (indivisible things) can be in common ownership with the determination of the share of each participant (shared ownership). In this case, the participants own and use the common property by agreement between them, and if agreement is not reached, in the manner established by the court. A participant in shared ownership has the right to be given possession and use of a part of the common property commensurate with his share, and if this is not possible, he has the right to demand appropriate compensation from other participants who own and use the property falling on his share.
The area of the room claimed by the plaintiff is 12.4 square meters. m, according to the technical passport it is smaller than the other living rooms (case sheet 39). The defendants' reference to the fact that in this case the plaintiff will be allocated a room larger than his share cannot be recognized by the court as justified.
The total area of the apartment is 61.4 square meters. m, residential 43.9 sq. m, the apartment was provided for a family of 4 people, i.e. to the same composition of persons who participate in the trial. Each of them accounts for 15.35 square meters. m of total area and 10.98 sq. m of living space. When the specified room is allocated to the plaintiff, other persons will be assigned for use two isolated rooms with a living area of 17.4 square meters. m and 14.1 sq. m, total 31.5 sq. m, i.e. each person will have 10.5 square meters. m, and the difference is 0.48 sq. m will not significantly worsen the housing rights of the defendants. In turn, the plaintiff’s legal rights to use residential premises on an equal basis with other former members of his family in accordance with Art. 67 of the Housing Code of the Russian Federation under this procedure of use will be restored.
Considering that the court previously satisfied the requirements for the placement of Yu.A. to the disputed apartment, however, there is no agreement on the procedure for using and providing a room for the plaintiff to live in, the appellate court considers it possible to overturn the decision of the magistrate in the case and satisfy the plaintiff’s demands by providing him with the use of the smallest room in the disputed apartment with an area of 12.4 square meters .m. The defendants are to assign rooms with an area of 14.1 sq.m. for use. and 17.4 sq.m.
Since the plaintiff and defendants are not members of the same family, according to the rules of paragraph 4 of Art. 69 of the Housing Code of the Russian Federation, they are independently responsible for their obligations arising from the social tenancy agreement. The court, taking into account the procedure for using the disputed apartment, determined by the court, considers it possible to satisfy the plaintiff’s request to open a separate personal financial account in his name for a room with an area of 12.4 square meters. m to pay for utilities, and for the defendants - for two rooms with an area of 17.4 square meters. m and 14.1 sq. m, also for paying utilities.
Guided by Art. 327-330, 194-199 Code of Civil Procedure of the Russian Federation, the court
To cancel the decision of the magistrate of court district No. 51 of the KAO of Omsk in civil case No. 2-3189/2007. according to the claim of Yu.A. to T.K., E.Yu., Zh.Yu. on determining the procedure for using residential premises with the opening of separate financial personal accounts.
Determine the procedure for using residential premises in apartment 104 of building 11 on Melnichnaya Street in the city of Omsk, assigning to Yu.A. for use of a room of 12.4 sq. m., for T.K., E.Yu., Zh.Yu. - two rooms with an area of 17.4 square meters. m and 14.1 sq. m, with the division of a personal financial account for paying utilities.
The decision of the appellate court comes into force from the date of its adoption.
See this case on determining the procedure for using residential premises occupied under a social tenancy agreement:
Yu.A. filed a claim in court to determine the procedure for using residential premises occupied under a social tenancy agreement.
By decision of the magistrate refusal to determine the procedure for using an apartment occupied under a social tenancy agreement;
District court decision on determining the procedure for use residential premises with the division of a personal financial account to pay for utilities (the decision of the magistrate was cancelled)
02.01.2019
The right to housing is the constitutional right of every person, therefore, if the owners or other persons cannot agree on the conditions of cohabitation, go to court with a statement of claim regarding the procedure for using the residential premises. The legal basis for such claims is Article 247 of the Civil Code of the Russian Federation and Articles 30, 69, 70 of the Housing Code of the Russian Federation.
Such a claim can be filed not only by the owner, but also by other persons (members of his family, including former ones) after consideration of the case. Tenants under a social tenancy agreement can also use the help of the court to determine the procedure for using housing (the tenant must be indicated in the agreement).
Contents of the statement of claim regarding the procedure for using residential premises
An analysis of the norms of legislation and judicial practice allows us to draw a conclusion that must be taken into account when drawing up this type of claim: regardless of the size of the owners’ shares, the court, when considering the claim, will take into account the actual established procedure for using the property and the need for such property. It will also take into account the real possibility of joint use of property without prejudice to each other’s rights and interests.
Therefore, when preparing a claim, it is necessary to indicate the following circumstances:
- address and information about the residential premises: apartment or house, title documents (certificate of ownership, social tenancy agreement, lease, etc.), total and living area, number of rooms, access to rooms, location of the bathroom and kitchen. It would be useful to provide a cadastral passport and a housing plan for clarity;
- the number of persons living in the residential premises, their gender and age, reasons for use. It is advisable to provide documents about family composition and information about registration at the place of residence to the court;
- the established procedure for use and the reasons why it does not suit the plaintiff.
The person who applies to the court must describe the optimal procedure for using the housing: who uses which room and why.
If the co-owners have other housing on the right of ownership, the specified information can be provided independently or stated in a claim in the Rosreestr of the relevant information. The lack of need for housing will affect the determination of the procedure for using the residential premises of other co-owners.
The defendants in the case are the co-owners of the housing (tenants under a social tenancy agreement), and third parties can be interested citizens and organizations (family members of the co-owner, the landlord).
Filing a claim for the procedure for using residential premises
40 comments to “ Statement of claim regarding the procedure for using residential premises”
They contacted me to determine the procedure for using a municipal apartment. I began to look at judicial practice on this issue.
It turned out that the current housing legislation does not provide for the possibility of determining the procedure for using residential premises that are in municipal ownership and occupied by citizens on the basis of a social tenancy agreement.
The housing legislation of the Russian Federation (clause 1) does not provide for the right of a family member of the tenant or a former member of the tenant’s family to demand a change in the rental agreement for residential premises by concluding several agreements instead of a single social rental agreement.
Determining the procedure for using the disputed residential premises, namely, assigning certain rooms to the parties in municipal residential premises is actually a change in the social tenancy agreement for residential premises, and a change in the social tenancy agreement in this case is not provided for by the Housing Code of the Russian Federation.
It must be taken into account that filing a claim to determine the procedure for using residential premises is possible only in relation to owned apartments, i.e. the plaintiff must own the right of ownership or a share in the right of common or shared ownership of the disputed residential premises. Since the legislation does not provide for the possibility of determining the procedure for use in relation to residential premises used on the basis of a social tenancy agreement, it is inappropriate to make such a requirement in relation to such apartments.
This should also be taken into account when making demands to determine the procedure for using the premises of a communal apartment, some of the rooms in which are municipal. Due to the impossibility of determining such a procedure for use in relation to premises provided under social rent, the court may refuse to determine it even for the owner of one of the rooms.
My trustee insisted on going to court even after I explained to her that the decision that would be made by the court might not suit her.
We went to court to determine the procedure for using the 3-room apartment. For a family of 3 people, they were asked to allocate two walk-through rooms with an area of 17.7 sq.m. and 14 sq.m. and an adjacent balcony. The defendant was asked to allocate a room with an area of 9.8 sq.m. for use. For general use leave a corridor with an area of 6.5 sq.m, a toilet with an area of 0.9 sq.m, a bathroom with an area of 1.9 sq.m, a kitchen with an area of 6.1 sq.m, a pantry with an area of 0.8 sq.m.
The court satisfied our demands to determine the procedure for using municipal residential premises.
