A statement of claim for recognition as having lost the right to use is filed with the district (city) court, based on the exclusive ones - at the location of the disputed apartment or house. When filing such a claim, you must pay the state fee for claims of a non-property nature - 200 rubles.

IN __________________________
(name of court)
Plaintiff: ______________________
(full name, address)
: ____________________
(full name, address)

STATEMENT OF CLAIM

on recognition as having lost the right to use residential premises
and deregistration

I am the owner of a residential premises at the address _________ (region, city, street, house, apartment), on the basis of _______ (specify the document: purchase and sale agreement, exchange, privatization, certificate of inheritance, etc.). The ownership right is registered in the Unified State Register.

Since ____, defendant _________ (indicate specific relationships) has been moved into the apartment as a member of my family; with my consent, the defendant is registered at his place of residence in .

Since ____, our relationship has deteriorated, the defendant left for another permanent place of residence _________ (indicate where, reasons for leaving), took out all his belongings, since then he has not lived in the apartment, and has not fulfilled his obligations to pay for housing and utilities. The defendant had no obstacles to the use of residential premises. In fact, our relationship with the defendant was terminated; from the moment of leaving, he ceased to be a member of my family.

The defendant refuses to voluntarily deregister from my apartment. Having registration creates obstacles for me when selling an apartment.

In accordance with clause 31 of the Rules for registration and deregistration of citizens of the Russian Federation, deregistration of a citizen at the place of residence is carried out by the registration authorities if the citizen is recognized as having lost the right to use residential premises - on the basis of a court decision that has entered into legal force.

Based on the above, guided by Articles 17, 31 of the Housing Code of the Russian Federation, Articles 131-132 of the Civil Procedure Code of the Russian Federation,

1. Terminate the right of use by the defendant _________ (full name) of residential premises at the address _________ (region, city, street, house, apartment).
2. Remove the defendant _________ (full name) from registration in the apartment at _________ (region, city, street, house, apartment).

List of documents attached to the application (copies according to the number of persons participating in the case):

1. Copy of the statement of claim
2. Document confirming payment
3. A copy of the purchase and sale agreement (or other document confirming ownership)
4. Copy of registration certificate of right
5. Certificate of registration at place of residence
6. Documents confirming the departure of the defendant, loss of family relationships

Date of application “___”_________ ____ Signature of the plaintiff ________

Download a sample application:

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Discussion is closed

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, when considering the claim, the court will take into account the actual 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, this information can be provided independently or stated in a claim in 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

The case is determined by its merits: the claim is filed at the location of the residential premises. Such cases, according to the direct instructions of clause 7. Part 1, are considered by magistrates, the claim arises from non-property claims, therefore the state duty is 300 rubles.

When considering the case, the court will necessarily take into account the opinion of all residents on the issue of determining the procedure for using housing. If, as a result of consideration of the claim, it is established that joint use by co-owners is difficult: due to conflictual relationships, negative impact on minors, lack of need to live in this particular residential premises, etc., the claims will most likely be denied. In this case, it is necessary to remember: a participant in shared ownership has the right to demand from other participants who own and use the property falling on his share, corresponding to the size of the share of compensation.

Sample statement of claim for the procedure for using residential premises

IN _________________

(name of court)

Plaintiff: _____________

(full full name, address)

Respondent: __________

(full full name, address)

STATEMENT OF CLAIM

on determining the procedure for using residential premises

We live together with the Defendant, _____________ (indicate the full name of the defendant), at the address: _____________________ (region, city, street, house, apartment). This residential premises belongs to the plaintiff and defendant on the right of common shared ownership. The Claimant's ownership in the amount of ____ (indicate the size of the share) is confirmed by: ___________________________________ (name of the title document), certificate of state registration of property rights series ____ No. _________, issued on __ _______ ____ (date of issue of the certificate) _________________ (by whom issued). The Defendant's ownership in the amount of _____ (specify the defendant's share) is confirmed by: ______________________ (name of the title document), certificate of state registration of property rights, series ____ No. _________, issued on __ _______ ____ (date of issue of the certificate) _________________ (by whom issued).

The residential premises belonging to us consists of ___________________ (indicate the number of rooms), the total living area is _______ sq. m. m, living area – _____ sq. m. The area of ​​each room is: _____ sq.m., kitchen – ____ sq.m., in the specified living space ___ (number) of bathrooms. Living rooms are isolated (adjacent).

We lived in the specified residential premises together with ________ (indicate the exact date or year). Currently, the Defendant is preventing me from living in the residential premises: _______________________________________ (what actions of the Defendant violated the right to use the premises).

Members of the Defendant's family currently live in the disputed residential premises: _____________________________________ (indicate the full name, relationship of the Defendant, gender and age, which premises are allocated by the owner).

In accordance with paragraph 1 of Art. 247 of the Civil Code of the Russian Federation, ownership and use of property in shared ownership is carried out by agreement of all its participants, and if an agreement is not reached, in the manner established by the court.

Based on the above and guided by paragraph 1 of Art. 247, art. 304 Civil Code of the Russian Federation, clause 1, art. 30 Housing Code of the Russian Federation,

1. Determine the procedure for using residential premises - _____ (indicate the type of residential premises) at the address: ____________________ (address in full), with a total area of ​​_____ sq. m, assigning to the Defendant, _____________ (full full name of the co-owner), room ________ sq. m. m; common areas, for the Plaintiff - a room ______ sq.m., a toilet, a bathroom, a kitchen, a corridor, a storage room to be left for the common use of the owners.
2. Oblige the Defendant not to interfere with the Plaintiff’s use of the residential building.

List of documents attached to the application (copies according to the number of persons participating in the case):

1. Copies of the statement of claim
2. Document confirming payment
3. Copies of title documents for residential premises
4. Copies of certificates of state registration of property rights
5. Cadastral passport of residential premises
6. Certificate of family composition
7. Extract from the house register
8. Other documents confirming the grounds for filing a claim

Date of application “___”_________ ____ Signature: _______

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Discussion is closed

In ________________ District Court of Moscow

Plaintiff:
Full name
______________________________________

Respondent:
______________________________________
Full name
______________________________________
Residence address, telephone

Third party:

DGI Moscow
Address: 115054, Moscow, st. Bakhrushina, 20.

Cost of claim: not assessable
State duty: 300 rubles

Statement of claim

on recognizing a person as having lost the right to use

living space

The disputed residential premises is a ____ one-room municipal apartment located at the address: _________________________________.
The following are permanently registered in the apartment: __________________________________________.

The defendant __________________, since _____________, has not lived in this apartment, which is confirmed by: _______________________________________________________.
Also, this fact is confirmed by the defendant’s refusal to pay utility bills, carry out routine repairs of the premises, and perform other duties of a family member of the tenant of the residential premises.

According to Part 3 of Art. 83 of the Housing Code of the Russian Federation, in the event of the departure of the tenant and his family members to another place of residence, the social tenancy agreement is considered terminated from the date of departure.
The basis for terminating a social tenancy agreement for residential premises with a member of the tenant’s family is the fact of his voluntary departure from this residential premises to another permanent place of residence, as well as refusal to bear the costs of maintaining the residential premises.

According to paragraph 1 of Art. 20 of the Civil Code of the Russian Federation, the place of residence is recognized as the place where the citizen is permanently orpredominantly resides. By virtue of Art. 1 of the Law of the Russian Federation of June 25, 1993 N 5242-I "On the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and residence within the Russian Federation" every citizen of Russia has the right to freedom of movement, choice of place of stay and residence within Russian Federation.

In Art. 2 of this Law defines that the place of residence is a residential building, apartment, service residential premises, specialized houses (dormitory, hotel-shelter, house of maneuver fund, special house for single elderly people, boarding house for the disabled, veterans and others), as well as other residential premises in which a citizen permanently or primarily resides as the owner, under a lease (sublease), lease agreement or on other grounds provided for by the legislation of the Russian Federation.

In the ruling of the Constitutional Court of the Russian Federation of May 29, 2003. No. 209-O, the court indicated that the institution of registration was introduced in order to ensure the necessary conditions for citizens of the Russian Federation to exercise their rights and freedoms, as well as to fulfill their obligations to other citizens, the state and society, and therefore the citizen notifies the registration authorities of his place of residence and residence, in accordance with the established procedure, is not only his right, but also his obligation.

There are no obstacles for the defendant to live in the disputed apartment. The defendant did not make any demands for occupancy on the plaintiff in accordance with the procedure established by law. This fact is confirmed by witness testimony.

The ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated March 4, 2008 N 5-B07-165 established that the mere fact of G.’s registration in the specified apartment does not give rise to the right to this living space, it is an administrative act.A legally significant circumstance in resolving a dispute is G.’s voluntary departure from this apartment to another place of residence, where he lives for a long time, renouncing his rights and obligations in relation to the disputed apartment

In the review of legislation and judicial practice of the Supreme Court of the Russian Federation for the second quarter of 2007 "approved by the Resolution of the Presidium of the Supreme Court of the Russian Federation dated 01.08.2007 as well as the Resolution of the Supreme Court of the Russian Federation dated 16.09.2008 N 5-B08-98, it is clearly stated that in the case unilateral refusal to execute the said agreement, this agreement in relation to it is considered terminated from the day of departure. In this case, the person who left the residential premises loses the right to it, the persons remaining to live in the residential premises retain all rights and obligations under the social tenancy agreement.

Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 2, 2009 N 14 “On some issues that have arisen in judicial practice when applying the Housing Code of the Russian Federation” states that if the court establishes circumstances indicating the voluntary departure of the defendant from the residential premises to another place of residence and the absence obstacles in the use of residential premises, as well as his unilateral refusal of rights and obligations under the social tenancy agreement, the claim to recognize him as having lost the right to residential premises is subject to satisfaction on the basis of Part 3 of Article 83 of the Housing Code of the Russian Federation in connection with the termination of the social tenancy agreement by the defendant in relation to himself.

The absence of a citizen who voluntarily left a residential premises for another place of residence, in a new place of residence, the right to use residential premises under a social tenancy agreement or the right of ownership of residential premises cannot in itself be a basis for recognizing the absence of this citizen in the disputed residential premises as temporary , since, according to Part 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. A citizen’s intention to refuse to use residential premises under a social tenancy agreement can be confirmed by various evidence, including certain actions, collectively indicating such an expression of will of the citizen as a party to the residential tenancy agreement.

Considering the voluntary nature of leaving for another permanent place of residence, prolonged non-residence in the disputed residential space, lack of attempts to move in, unilateral refusal to fulfill obligations under the social tenancy agreement, the defendant’s right to use the disputed residential premises is subject to loss.

Based on the above and guided by paragraph 1. Part 1 Art. 10, clause 1 of article 20 of the Civil Code of the Russian Federation, part 3 of art. 83 of the Housing Code of the Russian Federation, by the ruling of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated March 4, 2008 N 5-В07-165, by the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 07/02/2009 N 14, by the ruling of the Supreme Court of the Russian Federation dated 09/16/2008 N 5-В08 -98, by the ruling of the Constitutional Court of the Russian Federation of May 29, 2003. No. 209-O

I ASK:

Recognize the defendant as having lost the right to use the following residential premises located at the address: _______________________________________________________________. Indicate the legal consequence that the decision is the basis for deregistration of ________full name________ from the residential premises at the address: __________________________.

Applications:

1. Copies of the statement of claim and documents attached to it to the defendant.
2. A document confirming payment of the state duty.
3. Power of attorney of the representative dated "___"_________ ____ city N ______ (if the statement of claim is signed by the representative of the plaintiff).
4. A copy of the residential lease agreement dated "___"_________ ____ city N ______., or a copy of the order.
5. Extract from the house register.
6. A copy of the financial personal account.
7. Receipt for payment of utility bills.
8. Other documents confirming the circumstances on which the plaintiff bases his claims

Plaintiff (representative): _________________/________________________________/

Date: _______________ 201__

Plaintiff G.S.I. (the defendant in the initial claim) filed a claim against the Defendant (G.Yu.A.) for recognition of the right of lifelong residence in apartment No. ** owned by the Defendant, located in the village ** on Olimpiysky Prospekt in Moscow (hereinafter referred to as - “apartment”, “disputed apartment”). The Plaintiff justifies these requirements with the provisions of Art. 40 Constitution of the Russian Federation, art. 118 of the Housing Code of the RSFSR, by resolution of the Constitutional Court of the Russian Federation No. 455-O dated November 3, 2006, regarding the principle identified by the Constitutional Court of the need to ensure a balance of interests of owners of residential premises and tenants when transferring ownership of residential premises, as well as paragraph 8 of the resolution of the Plenum of the Supreme Court of the Russian Federation No. 14 of July 2, 2007 and other judicial practice.

In our opinion, the arguments set out in this statement of claim do not correspond to the actual circumstances of the case, the Plaintiff’s position does not follow from the indicated judicial practice, the legal norms cited by the Plaintiff are not subject to application in the case under consideration, and the claims stated by the Plaintiff cannot be satisfied for the following reasons.
1. The Claimant’s alleged right of residence is justified by him with the provisions of a normative act that is not subject to application in the situation under consideration.
The plaintiff justifies his right to live in the disputed apartment by the norm of Art. 118 of the Housing Code of the RSFSR, which was in force at the time the apartment was provided to the original owner G.A.A., who was previously the spouse of the Plaintiff. This assumption is not based on the law and is not confirmed by currently existing judicial practice.
Stated claims by G.Yu.A. as a plaintiff in the original claim are based on the provisions of paragraph 4 of Art. 31 of the Housing Code of the Russian Federation, which provides for the loss of the right to use residential premises by a former member of the owner’s family after the termination of family relations. The norms of Part 4 of Article 31 of the Housing Code of the Russian Federation on the rights of the owner of residential premises in relation to a former member of his family are subject to application to those housing legal relations that arose before the entry into force of the Housing Code of the Russian Federation. This provision follows from Art. 5. Federal Law dated December 29, 2004 N 189-FZ “On the entry into force of the Housing Code of the Russian Federation” and is confirmed by clause 5 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated July 2, 2009 N 14, which states that “the norms of part 4 of article 31 of the Housing Code RF on the rights of the owner of residential premises in relation to a former member of his family are subject to application to those housing legal relations that arose before the entry into force of this Code.” A similar provision is contained in paragraph 18 of the said Resolution, which explains that “if legal relations for the use of residential premises are of a continuing nature, then the provisions of Part 4 of Article 31 of the RF Housing Code, by virtue of Article 5 of the Introductory Law, can also be applied in the event that family relations between the owner residential premises and a member of his family living together with the owner in the residential premises belonging to him, were terminated before the entry into force of the Housing Code of the Russian Federation.”
Thus, the provision to be applied in the situation under consideration is the norm of Part 4 of Article 31 of the RF Housing Code, which provides for the termination of the right of residence of a former family member of the owner after the termination of family relations, and not the norm of Art. 118 Residential Complex of the RSFSR.

2. The plaintiff erroneously indicates as a substantiation of the stated claims the legal position of the Constitutional Court of the Russian Federation, set out in Resolution No. 455-O of November 3, 2006, regarding the principle identified by the Constitutional Court of the need to ensure a balance of interests of owners of residential premises and tenants when transferring ownership of residential premises . The given resolution formulates a legal principle to be applied in regulating relations between the owners of residential premises and persons using the premises on the basis of a rental agreement. It should be noted that in the case under consideration there is no employment relationship between the Plaintiff and the Defendant, since there is no will of the Defendant to create such a relationship. A similar situation developed between the Plaintiff and the previous owner of the premises (G.L.G., who is the mother of the original owner), which follows, in particular, from the decision of the Meshchansky District Court of Moscow dated November 6, 2008, attached to the case materials, in case No. 2-889/2008. As for the relationship between the Plaintiff and her former spouse (the original owner), these relationships also cannot be presented as a rental relationship, since they are based on family relationships with the owner, the termination of which, as a general rule, terminates this right of use.
It should be noted that this clarification of the Constitutional Court relates to rental relations that arise during the hiring and privatization of residential premises that were not initially classified, unlike the disputed apartment, as part of the housing stock of housing cooperatives. This circumstance is of independent importance, since the scope of rights of persons living in an apartment upon the termination of family relations and the transfer of ownership of residential premises in apartments, the ownership of which was registered through privatization and through registration on the basis of full contribution of a share, has significant differences and, due to independent their significance for the case at hand will be discussed below in section 4.
Thus, the provision indicated by the Plaintiff is aimed at protecting the tenant of a residential premises when the owner of such premises changes and is not subject to application in the case under consideration.
3. In addition to what is indicated in the statement of claim on the initial demand as the basis for termination of the right to use the Plaintiff’s residential premises (in this claim), clause 4 of Art. 31 of the Housing Code of the Russian Federation, in the case under consideration, the norm of clause 2 of Art. 292 of the Civil Code of the Russian Federation, which establishes the procedure for terminating the right to use residential premises by family members of the previous owner in the event of a transfer of ownership of the residential premises. In this case, the version of the law that is in force at the time the inheritance is opened, and not at the time the former family member of the former owner moves into the apartment, is to be applied. The inheritance case, according to which the ownership of the disputed apartment was transferred to the Defendant, was opened on the day of the death of the Defendant’s mother (G.L.G) - April 17, 2009. As of the specified date, the wording of clause 2 of Art. 292, according to which: “The transfer of ownership of a residential building or apartment to another person is the basis for termination of the right to use residential premises by family members of the previous owner.” This provision is an independent basis for both the termination of the Claimant’s ownership rights and the refusal to satisfy his claims for recognition of the right of residence, since at present there are no other statutory consequences of the transfer of ownership of the residential premises in relation to the case under consideration.

4. The Plaintiff’s statement that the transfer of ownership rights to the Defendant (the Plaintiff in the original claim) does not entail the termination of the Plaintiff’s right to use the disputed apartment does not comply with the current legislation, since at the time of registration of ownership the Plaintiff had an equal right to use this property with the original owner living space. This position is also not based on law enforcement practice. At the same time, the Claimant erroneously cites the rules to be applied in the event that the original owner acquires ownership of an apartment as a result of the privatization of municipal housing if a former member of his family refuses to participate in privatization.
In fact, legal relations related to the legal status of family members of the person who privatized the apartment and the legal status of family members of the person who acquired ownership of the apartment in the housing cooperative have significant differences. In relation to the case of acquisition of ownership rights as a result of full payment of a share by a member of the cooperative (clause 4 of Article 218 of the Civil Code of the Russian Federation), other rules should be applied to the rights of former members of the owner’s family, due, in particular, to the difference in the grounds for the emergence of ownership rights, the peculiarities of the procedure for registering this rights and the need to obtain consent for privatization of all persons living in the apartment.
At the same time, in the event of the emergence of ownership rights to an apartment as a result of full payment of a share by a member of the housing cooperative, in contrast to the emergence of ownership rights as a result of privatization:




For these reasons, in the situation under consideration, Art. 19 of the Introductory Law to the Housing Code of the Russian Federation, ensuring the protection of the rights of persons who refused to participate in privatization. This position is confirmed by law enforcement practice.
Thus, the fact that the Claimant lived in the disputed apartment at the time of registration of ownership is not the basis for recognizing his right of residence, since the ownership in the case in question was acquired by G.A.A. August 1, 1992 as a result of the payment of a share, and not as a result of privatization. Separately, it is worth paying attention to the fact that by the time the ownership of the disputed apartment was acquired (August 1, 1992), the original owner G.A.A. was no longer in a family relationship with the Plaintiff since the dissolution of the marriage on May 5, 1987.

5. Taking into account the existing law enforcement practice, legally significant circumstances when considering this case are the issues of establishing the size of the share paid at the time of divorce, the shares of jointly acquired property received by the former spouses during the divorce, as well as the facts of registration of property rights by one of the spouses and not challenging her for a long time.
It should be noted that at the time of the divorce of the Plaintiff and the original owner of the apartment (G.A.A.), the share for the disputed apartment was paid in an insignificant amount (approximately 30%). The main part of the share was paid by the original owner after the divorce (after May 05, 1987). This issue was previously the subject of consideration in the Meshchansky District Court of Moscow, which, in a decision dated November 6, 2008, established the absence of the Claimant’s rights to the disputed apartment.
This issue is of significant importance for the case under consideration, since the presence (absence) of the rights of a former member of the owner’s family to a share in the right (or a share in the accumulation) is fundamental to establishing the right of his residence in the apartment of the housing cooperative. In the case under consideration, the absence of both proprietary and obligatory rights of the Plaintiff in conjunction with
- insignificant size of the share paid during the marriage;
- after the divorce, the original owner provides him with almost all the property acquired during the marriage (interior items, etc.);
— the Plaintiff’s use of the disputed apartment for a long time to the detriment of the interests of the original owner, his heir, as well as the present Defendant and members of his family;
- the fact of registration of property rights by the original owner, repeated transfer of this right to other persons, as well as the failure of the Plaintiff to challenge these rights for a long time indicate the loss of his right to reside in the disputed apartment.
Moreover, the fact of full payment of the share after the dissolution of the marriage in the absence of division of joint property in court and the ex-spouse’s claim to the apartment more than 20 years after the dissolution of the marriage independently confirms the Plaintiff’s lack of rights to the apartment.

6. Family members of the former owner, who were moved into the apartment before the full payment of the share, are subject to eviction at the request of the new owner, who received the apartment under a gratuitous agreement, since the terms of the will, which is the basis for the Defendant’s right of ownership, do not contain conditions regarding the Plaintiff’s right to live in the disputed apartment and the obligations of the Defendant to ensure this right (testamentary refusal), and the Plaintiff is not a family member of either the new owner or the previous one. At the same time, as stated earlier, the fact of registration of family members of the first owner in the apartment does not mean the indefinite nature of use of the apartment in the event of legal alienation of the apartment.
Thus, the fact of transfer of ownership of the apartment to the new owner on a basis that does not provide for the preservation of the right of residence for the former family member of the original owner (G.A.A.) is the basis for termination of the Plaintiff’s right of residence.

7. It should also be noted that the registration of a former family member of the previous owner of the apartment violates the rights of the owner in terms of paying utility bills, which, in accordance with Art. 35 of the Constitution of the Russian Federation, 209, 292, 304 of the Civil Code of the Russian Federation, 31 (clause 4.) of the Housing Code of the Russian Federation is the basis for termination of the rights to use the apartment by the former spouse. The fact that the Plaintiff periodically pays for utilities in the case under consideration is not of fundamental importance, since it does not exclude the owner’s obligation to bear these expenses, and also does not exclude the filing of a claim for compensation for these expenses by the Plaintiff to the Defendant in the future.

In conclusion, it seems appropriate to draw the court’s attention to the following main conclusions:
1. The position of the Plaintiff, substantiating the stated requirements of Art. 118 LC RSFR, cannot be applied in the case under consideration, since in accordance with Art. 5. Federal Law of December 29, 2004 “On the entry into force of the Housing Code of the Russian Federation” and taking into account the position of the Plenum of the Armed Forces of the Russian Federation, reflected in paragraph 5 and paragraph 18 of Resolution No. 14 of July 2, 2009, to the relations of the owner of residential premises and of a person living in this premises due to the termination of family relations is subject to the application of Part 4 of Article 31 of the RF Housing Code, which provides for the termination of the right of use of the resident.
2. Also, in the situation under consideration, the legal position of the Constitutional Court of the Russian Federation, set out in Resolution No. 455-O of November 3, 2006 and cited by the Plaintiff in support of the arguments used, is not subject to application. The impossibility of applying this position follows from the peculiarities of the legal regime of the disputed apartment, which is an apartment in a housing cooperative building and not related to that provided under a lease agreement and, accordingly, the basis for the emergence of the Plaintiff’s right of residence, which is based on family relations with the owner, the termination of which, as a general rule, terminates and this right of use. The provision cited by the Plaintiff is aimed at protecting the tenant of a residential premises when the owner of such premises changes, and, accordingly, cannot be applied in the case under consideration.
3. In reality, the relationship between the Plaintiff and the Defendant should be regulated by the norm of paragraph 2 of Art. 292 of the Civil Code of the Russian Federation, which establishes the procedure for terminating the right to use residential premises by family members of the previous owner in the event of a transfer of ownership of the residential premises. In this case, the version of the law that is in force at the time the inheritance is opened, and not at the time the former family member of the former owner moves into the apartment, is to be applied.
4. The Plaintiff’s argument regarding his retention of the right to use the residential premises during the transfer of ownership cannot be applied to the legal relations under consideration due to the emergence of his right of residence until the registration of ownership. The impossibility of applying the provision specified by the Plaintiff follows from the legal regime of housing cooperative property and the resulting features of the relevant housing legal relations, which are expressed in the fact that:
— the basis for the emergence of ownership rights is the full payment of the share (i.e., a paid consideration), and not the gratuitous transfer of property by the state in the event of privatization;
— the right of ownership arises for a member of the housing cooperative in any case, and not only in the event of his expression of will to exercise the right to privatization;
— the very possibility of the emergence of ownership rights is provided by law only to a member of the housing cooperative, and not to other persons registered in the apartment;
— to formalize (register) the ownership of a housing cooperative apartment, the consent of all adults living in this apartment is not required.
For these reasons, in the situation under consideration, Art. 19 of the Introductory Law to the Housing Code of the Russian Federation, ensuring the protection of the rights of persons who refused to participate in privatization. This position is confirmed by the above law enforcement practice.
Accordingly, the fact that the Claimant lived in the disputed apartment at the time of registration of ownership rights is not the basis for recognizing his right of residence, since the ownership rights in the case under consideration were acquired as a result of the payment of a share, and not as a result of privatization.
5. The insignificance of the size of the share paid during the marriage, its full payment by the original owner after the divorce, as well as the use of the apartment by the Plaintiff for a long time to the detriment of the interests of the original owner, his heir, as well as the real owner (Defendant) and his members family, the fact of registration of property rights by the original owner, the repeated transfer of this right to other persons, as well as the failure of the Plaintiff to challenge these rights for a long time, indicate the loss of his right to reside in the disputed apartment.
6. The transfer of ownership of an apartment to a new owner on a basis that does not provide for the preservation of the right of residence for a former family member of the original owner is grounds for termination of the Plaintiff’s right of residence.
7. Registration of a former family member of the previous owner of the apartment violates the rights of the owner in terms of incurring expenses for paying utility bills, which, in accordance with Art. 35 of the Constitution of the Russian Federation, 209, 292, 304 of the Civil Code of the Russian Federation, 31 (clause 4.) of the Housing Code of the Russian Federation is the basis for termination of the rights to use an apartment by a former family member of the previous owner.
To summarize the above, it should be noted that:
1. Art. 19 of the Federal Law of the Russian Federation of December 29, 2004 N 189-FZ “On the implementation of the Housing Code of the Russian Federation”, taking into account the following:
- ownership of the disputed apartment by the original owner (G.A.A.) arose on August 1, 1992 as a result of the payment of a share to him, and not as a result of privatization,
- at the time of registration of ownership by the original owner (G.A.A.), the Plaintiff did not have equal rights to use the disputed apartment, because at the time of registration of ownership, the Plaintiff was not a member of the family of the original owner (since the divorce on May 5, 1987)
2. The norm of clause 4 of Art. is subject to application to the legal relations under consideration. 31 of the Housing Code of the Russian Federation, which provides that in the event of termination of family relations with the owner of a residential premises, the right to use this residential premises for a former family member of the owner of this residential premises is not retained.
3. Even if we do not take into account the fact that the Plaintiff was not a member of the family of the previous owner (G.L.G.), paragraph 2 of Art. 292 of the Civil Code of the Russian Federation as amended in force at the time of opening the inheritance case, according to which the ownership of the disputed apartment was transferred to the Defendant (April 17, 2009). In accordance with this provision: “The transfer of ownership of a residential building or apartment to another person is the basis for termination of the right to use residential premises by family members of the previous owner.”
4. Registration of the Plaintiff violates the rights of the Defendant in terms of incurring expenses for paying utility bills, which, in accordance with Art. 35 of the Constitution of the Russian Federation, 209, 292, 304 of the Civil Code of the Russian Federation, 31 (clause 4.) of the Housing Code of the Russian Federation is the basis for termination of the rights to use the apartment by the Plaintiff.
Thus, the claims made by the Plaintiff appear to be unfounded and inconsistent with current legislation. Accordingly, the Plaintiff currently lives in the disputed apartment without any legal basis. The only basis for the Plaintiff’s residence is administrative registration at the place of residence, which does not in itself create the right to use the residential premises. Based on the above, we ask the Court to refuse to satisfy the Claimant’s stated demands in full, and also to satisfy the Claimant’s demands in the original claim regarding the recognition of G.S.I. (Defendant in the original claim) who lost the right to use residential premises (disputed apartment), termination of her registration at the place of residence and eviction from the disputed apartment.