Is it possible to discharge a person from his apartment if he is in prison and how is this done in relation to a convicted person?

Article 40 of the Constitution of the Russian Federation proclaims the right of every Russian to housing. No one can arbitrarily deprive a person of this right. But some categories of citizens can be deregistered in accordance with the procedure established by law. In particular, this applies to people serving sentences in prison. The discharge of a prisoner can be initiated by both relatives and other interested parties (for example, representatives of authorities, if the housing belongs to the municipality). It remains to be seen what the procedure for discharging a person who is in prison is.

Motivation

Why do you need to figure out how to sign a person out of an apartment?
If he is in prison, then there may be a variety of reasons for this. One of the most common reasons is financial. Nowadays, utility bills are quite high and paying for someone who does not currently live here may be too expensive. By achieving the release of a prisoner in prison, people will be able to reduce their utility costs to some extent.

1. Other situations are also possible. For example, the court sentence was for a rather long period. During this time, life circumstances could well have changed a lot. In this regard, there may be a need to sell or exchange housing. When conducting such transactions, the presence of a prisoner registered in this living space who is in prison can significantly affect the circumstances of the transaction. In this case, it may also be that he himself will not object. However, even in this case it will need to be formalized properly. In addition, we must not forget: if a convicted person is discharged from his apartment, then upon returning from prison, such a citizen may, in some cases, demand that the transaction be declared invalid. Such fears are rarely justified, but new homeowners will still have some concern. And this, in turn, can affect the transaction price. If the tenants were not checked out during the sale, this could reduce the transaction price.
2. Another common reason is that the convicted person may not be a very pleasant person to talk to and thus pose some kind of threat to those who live with him. In this case, it is quite expected that they may try to evict him from the living space he occupies.

Of course, these types of reasons may not be limited to the list given here. Only the most typical, most common of them were listed.

Laws

The main document regulating the deregistration of citizens is Order of the Federal Migration Service of September 11, 2012 N 288, as amended on January 19, 2015.

And although the FMS has already been abolished, and its powers have been transferred to the Main Directorate for Migration Issues of the Ministry of Internal Affairs, Order No. 288 itself is still relevant, and the internal affairs bodies rely on it.

Is it possible to discharge a person from an apartment if he is in prison? Yes, deregistration of a person involves two main options:

• with his consent;
• without his consent.

Discharge against the prisoner's wishes

It is not always possible to characterize family relationships as trusting. In addition, it may very well be the case that a prisoner poses a threat for some reason. In this and similar cases, it makes no sense to expect that he will voluntarily check out of this living space. How to discharge someone who lives in it from an apartment?

The overall flow of the procedure will remain broadly similar with one important difference. The right to discharge a convicted person in such a situation will need to be proven in court.

The procedure here can be roughly divided into two stages:

• preparing and conducting an appeal to the court;
• application to the passport office based on a positive court decision.

First, it will be necessary to prepare the appropriate package of documents for going to court:

1. First of all, you need to make an application.
2. At the passport office at your place of residence, obtain an extended certificate about those who live in the apartment in question.
3. Those documents will be required on the basis of which the prisoner lives in this apartment. This may be a municipal rental agreement, or a purchase and sale agreement for this apartment.
4. This package of documents must include a copy of the prisoner’s passport, certified by the prison administration.
5. If possible, it is advisable (but not necessary) to provide a copy of the court verdict on the basis of which the prisoner was convicted. The optionality of such a requirement is due to the fact that this copy is usually requested by the court without the participation of the applicant.

Having submitted the package of documents under consideration to the court, you need to wait for its decision. If the court makes a positive decision on the issue under consideration, based on such a decision, you will have to directly apply for an extract from the apartment to the passport office at your place of residence. In this case, you will also need a package of documents. It will include the following papers.

1. Relevant court decision.
2. Applications from homeowners and copies of their passports.
3. A copy of the convict’s passport, certified by the prison administration.
4. A copy of the court verdict that imposed imprisonment on the convicted person.

After contacting the passport office located at the place of residence, the prisoner’s registration will be cancelled.

✅ Deadlines

Cancellation of a prisoner's registration takes place at the migration authority. The standard processing time for applications is 3 business days, excluding holidays and weekends. But it is quite possible that the time frame will increase. For example, if the applicant submits documents through an intermediary - the MFC “My Documents” or the housing department department. As a rule, this is another plus 2-3 days - in total, it will take about 6-8 days to discharge a convicted person.

Going to court increases the amount of time spent. The first court hearing is scheduled no earlier than 30 days, and hearings extend to 2 months + 3 days for discharge to the Main Department of Migration of the Ministry of Internal Affairs.

Therefore, if you value time, it is advisable to negotiate a discharge with the convicted person. Cancellation of registration in court is extremely unprofitable in terms of timing.

Eviction procedure with voluntary consent

If the prisoner has a fairly close, trusting relationship with his family, then it is quite possible that he will voluntarily want to facilitate this eviction. How to discharge a person who has been imprisoned from an apartment? First you will need to prepare the necessary package of documents. What will it include?

1. First of all, there must be a correctly completed statement from the prisoner stating that he is asking to be released from his living space.
2. A copy of his passport must be attached to it. This and the previous document must be certified by the head of the institution in which the convicted person is serving his sentence.
3. A copy of the court verdict will also be required for presentation. It is usually issued to those who were one of the parties in the process in question.
4. All homeowners must be present when applying.
5. Applications from homeowners and copies of their passports will be required.

After the documents have been prepared, you need to come with them to the passport office at your place of residence and apply for an extract from this resident. Sometimes in such cases the presence of the person being evicted is required. This is not correct. In accordance with Russian legislation, a copy of the court decision allows for the execution of documents without the mandatory presence of the convicted person.

After the period of imprisonment ends, the discharged person will be able to restore his registration and continue to live in this apartment.

Procedure

Below we provide a detailed algorithm of actions that need to be carried out for discharge in two situations - if the convicted person agrees to be discharged and if not.

By consent

When contacting the passport office to terminate the registration of a prisoner, you must submit the following documents to the specialist:

1. Identification document of the person being deregistered. This is a copy of the convict’s passport, certified by the seal of the correctional institution and the signature of the chief.
2. An application filled out on a special form and certified in the same way as a copy of the passport. The form can be obtained from a passport office employee. Anyone can fill out the application directly, but the convicted person must personally sign it. To do this, you will have to visit the institution where he is serving his sentence.
3. A copy of the verdict. The procedure for obtaining a copy is quite complicated. It can be obtained both from the convicted person and from the court that made the decision. It may be difficult to obtain it in court. since the court issues a verdict only to the participants in the process.

All documents are submitted to a single window of the Department of Internal Affairs of the Ministry of Internal Affairs of the Russian Federation for the reception of citizens.

Authority employees may require the personal presence of the person being discharged. Such actions are illegal and should be appealed in court.

After your application, the passport office employees must cancel the registration of a person imprisoned in the MLS within no more than three days.

Without agreement

When applying to the court to unilaterally discharge a person who is in MLS, you need to perform the following series of actions:

1. File a claim. The best option for this would be to contact a qualified lawyer. A specialist will help you fill out your application and advise you on any questions you may have. But you can do this yourself.
2. Attach the necessary documents to it: a copy of the verdict, an extract from the house register, a copy of the passport of the person being discharged, a copy of your passport, a certificate of home ownership or a social tenancy agreement;
3. Appear in court to participate in the hearing. The court, based on the facts presented and the documents provided, will consider the case and make a decision. It can be either positive or not satisfying the plaintiff’s demands.
4. After receiving a satisfactory decision from the judicial authority, contact the department of the Internal Affairs Directorate of the Ministry of Internal Affairs of the Russian Federation at the place of residence of the convicted person to make changes to the register of residents.

How to write a claim?

The form and content of statements of claim are enshrined in Art. 131 of the Code of Civil Procedure of the Russian Federation, which does not allow deviations from the rules. An appeal to the court must be strictly in writing. There is no claim form for the discharge of a convicted person. The claim is drawn up according to the usual template, indicating specific circumstances.

First contact with the MFC or passport office

Even if it is clear in advance that the extract will be refused, you still need to contact the passport office to receive a refusal in writing. Otherwise, the court may refuse to satisfy the claim. They will force you to first try to solve the problem “in an amicable way” and only move on to extreme measures.

Going to court

When going to court, in a normal situation, you need to provide evidence that the plaintiff is right, but in this case, basic documents about the refusal to discharge and condemn the prisoner will be sufficient. In most cases, the court sides with the plaintiff, so if everything is in order with the papers and the situation is standard, then no problems should arise.

If the situation is non-standard and controversial, it is better to immediately seek help from an experienced lawyer. Without it, the likelihood of winning the case and getting the desired court decision will be minimal.

Second application to the MFC or passport office

Only after receiving a court decision can you re-apply to the MFC or passport office. In this case, one decision will be sufficient, on the basis of which the convicted person will be discharged without further questions. In this case, responsibility for deregistration is shifted to the court, so MFC employees will have nothing against it.

Sample statement of claim for the discharge of a convicted person from an apartment 2020

Before filing a claim, the jurisdiction of the case must be determined. Applications for deregistration are accepted in the district court at the location of the property.

Contents of the claim for the discharge of a convicted person:

• name of the judicial authority;
• Full name and contact information of the plaintiff, defendant;
• territorial location of an apartment or private house;
• information about the right to dispose of real estate;
• information about the defendant’s move-in date, as well as family ties (if any);
• the essence of the problem (for example, serving a sentence in a prison);
• an indication of the absence of voluntary discharge on the part of the defendant;
• provisions of law;
• requirement to compulsorily discharge the defendant;
• list of documents;
• date and signature of the plaintiff.

It is important not to miss a single detail. Particular attention is paid to the evidence base, or more precisely to documents (sale and purchase agreement, house register, certificate of ownership, etc.).

Documentation

Let's consider two packages of documents for canceling the registration of a convicted person. The first list of documents concerns discharge with the consent of the prisoner. The second package is for forced discharge in court.

List of documents for the voluntary discharge of a convicted person:

• passport of the apartment owner;
• a written statement from the prisoner (with a mandatory signature) or a statement from the housing manager (owner);
• a copy of the passport of the person being discharged;
• a copy of the sentence imposing a prison sentence.

Difficulties may arise when obtaining a copy of the court verdict . Typically, offices do not hand over such documents to strangers. Therefore, you will need to make a request to the court with a request to provide a copy of the verdict for discharge. In addition, a copy of the verdict can be obtained from the convicted person. According to the law, he has the right to demand the verdict for review. If you are on good terms with the prisoner, ask him to provide you with a copy of the sentence.

List of documents for deregistration in court:

• statement of claim;
• a copy of the convicted person’s passport;
• title documents for the apartment (sale and purchase agreement, deed of gift, certificate of inheritance, certificate of ownership);
• extended copy of the house register (if necessary);
• receipt of payment of state duty.

It is not necessary to obtain a court verdict. During the processing of the claim for discharge, the judge will independently make a request to the archive of verdicts. The plaintiff may be required to provide a birth certificate, marriage certificate, or other documents as proof of family relationships. The burden of proving the legality of the discharge of a convicted person falls on the shoulders of the owner of the apartment (private house).

✅ Legal assistance

The simplicity of discharging convicts from an apartment seems to be such only in words. Practice is complicated by many nuances. Not all prisoners are happy about being released from the apartment. Some of them try to obtain registration for their friends, distant relatives or criminal elements. The emergence of difficulties baffles ordinary people. Lack of legal knowledge and poor assessment of the situation can harm the common cause. It is not recommended to discharge convicts on your own.

Legal assistance from our lawyers will allow you to cope with even the most problematic situations.
The free online consultation is aimed at explaining all the intricacies of housing law. Our portal's lawyers will tell you how to fill out the application and where to get a copy of the court decision. If necessary, we will take on all the work. A professional approach to the matter significantly simplifies the deregistration procedure. Attention!

• Due to frequent changes in legislation, information sometimes becomes outdated faster than we can update it on the website.
• All cases are very individual and depend on many factors. Basic information does not guarantee a solution to your specific problems.

That's why FREE expert consultants work for you around the clock!

1. via the form (below), or via online chat
2. Call the hotline:
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Author of the article

Maxim Privalov

Lawyer. 2 years of experience. I specialize in civil disputes in the field of housing and family law.

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Features of the discharge of convicts from a municipal non-privatized apartment

Solving the issue of deregistering those who lived in a municipal apartment is simple. Having a court verdict that has entered into legal force, you can take it to the Federal Migration Service office and write a corresponding statement .

You will need the applicant's passport, a copy of the court verdict that has entered into legal force, and an application for the FMS employees to make the necessary entries in the documents.

How to get a copy of a court verdict in a criminal case

If you are not a participant in the process, then no one will simply give you a copy of the verdict. To get a copy you can:

• write an application to the court with a request to issue a copy of the decision, where as the reason indicate the need to discharge the convicted person;
• ask the convicted person to give you a copy;
• try to explain to the assistant referee or judge the need for a copy of the decision.

This will allow you to avoid paying utility bills for a person while he is in prison. When he returns home, he can just as easily register again.

How to discharge a convicted person from an apartment with his consent

If the convict himself wishes to be discharged, then he gives the owner his application, a copy of his passport, certified by the head of the camp or commandant. Having these documents will allow you to contact the Federal Migration Service office and have the citizen in the colony discharged.

From the history of the issue

In the Soviet Union the problem was solved simply . Article 60 of the RSFSR Housing Code asserted the right of a tenant to be absent for six months. If he was absent longer, the housing was subject to alienation .

There were, of course, exceptions to the rules, but they concerned persons serving military service, or those whose long-term absence was caused by work.

The convicts did not enjoy this privilege, and it turned out that many of them simply lost their housing.

At some point, this law was considered contrary to the Constitution. In fact, it was an additional punishment for a person who had already served his sentence, which led to the Resolution of the Constitutional Court of the Russian Federation No. 8-P of July 23, 1995. It stated that from now on, deprivation of liberty cannot be a basis for deprivation of housing.

This is also reflected in the Housing Code, Article 71 of which states that the temporary absence of the tenant of the living space does not entail loss of the right to use.

Changes in legislation

In 2014, a draft law that proposed registering convicts at the place where they were serving their sentences, without deregistering them at their main place of residence.

The law has not yet been adopted , but the attempt to do so is very significant.

A convicted person, in order to protect himself from unwanted actions of relatives, must write a statement that he retains the right to living space. This document must be sent to the municipal administration .

The fact is that a person serving a sentence will be deregistered, but information about this is usually stored only in the passport and visa service , so relatives can hide and register in other people’s apartments.

Changes in legislation have largely protected convicts. Now they can legally defend their right to housing , even if relatives managed to use the apartment at their discretion during their absence. But what about relatives who also have the right to their own interests, and these sometimes run counter to the interests of the convicted?

Discharge methods

The most successful and simplest way is at the convict’s own request .

a trusting relationship between him and his relatives and he does not intend to oblige the family to pay his share of utility costs, then the convicted person will be required to submit an application for deregistration and a copy of his passport , certified by the administration of the correctional institution.

These documents must be submitted to the passport office. When the term of imprisonment comes to an end, the former convict will be able to return home and restore registration .

Deregistration against the will of the convicted person

This is already more difficult, since you will have to seek an extract through the court , since, in accordance with Article 7 of the Law of the Russian Federation No. 5242-1 of June 25, 1993, it is the court decision that is the basis for removing the convicted person from the registration register.

According to FMS Order 208 of 2007, this is possible without the personal presence of the person serving the sentence.

However, a huge number of nuances are possible here, which depend on the type of housing (own or municipal) and on the status of the convicted person (owner or non-owner).

Required documents

If the convicted person agrees to deregistration, the following will be required:

• statement of the convicted person;
• a copy of his passport certified by the administration;
• statement from the owner of the property (if the convicted person is not one);
• homeowner's passport;
• a copy of the verdict as a basis for deregistration.

Usually, difficulties arise in obtaining the last document, since the court can only issue a copy of the verdict to the parties to the case. The easiest way is to get it from the convicted person himself, but you can write a statement to the court asking for the papers to be issued and explaining the reasons for the need.

Sometimes it is possible to speak personally with the judge or his assistant and obtain the necessary documents .

If the convicted person refuses to be discharged, the following will be required:

• a statement of claim to the court, which sets out a request to remove the convicted person from the register;
• a copy of the convicted person’s passport, certified by the administration;
• extended extract from the house register;
• certificate of ownership of the apartment or social tenancy agreement.

Usually in such cases the court itself requests a copy of the verdict, but just in case you can be on the safe side and attach it too.

Extract from a privatized apartment

There are possible options here.

did not take part in the privatization and refused in favor of the home owner.

Citizens who refuse the privatization of housing in favor of other persons receive the right to use it even if the owner changes. This is guaranteed by the Housing Code, Art. 31, paragraph 4.

A convicted person can leave such housing only with his own consent . You will need to obtain a special form from the passport office, hand it to the person serving your sentence to fill out, and then have it certified by the administration of the institution.

If a convicted person does not want to voluntarily be deregistered for the duration of his imprisonment, this can be achieved by going to court.

Only after returning will he be able to restore registration and continue to use the apartment without ownership rights.

The convict participated in privatization and is the owner of a share in the apartment. it will not be possible to make any transactions with housing without his consent .

There is also one important point here: even if you manage to take a power of attorney for the sale , he will be able to subsequently challenge the transaction, saying that, for example, he was pressured.

Of course, this may not happen, but apartment buyers are unlikely to want to take risks .

The apartment was privatized already at the time the person was in the colony, and he refused privatization.

In this case, the convicted person can be discharged for the duration of his imprisonment, but he will still have the right to use the apartment

✅ Other nuances

The removal of a convicted person from an apartment is associated with property and non-property interests. Deregistration is aimed at terminating the right to use real estate. It will not be possible to simply discharge a convicted person from an apartment, thereby depriving him of a roof over his head, under any circumstances.

Let's consider the remaining nuances:

• Buyers of an apartment must check whether the convicted person is listed in the apartment. In other words, does the apartment have any encumbrances? Even if the seller assures that everything is clean, in practice the opposite may occur. Let's say a prisoner who is discharged from an apartment continues to have a share of housing. Upon returning from the colony, he will restore his registration, making life difficult for the new owner and his family (see “How to check the purity of the transaction yourself before purchasing”).
• The exact number of registered and temporarily absent persons can be established on the basis of the apartment or house register. This is a kind of archival certificate about family composition (form No. 9). Compared to a regular certificate, it has an expanded form. The document shows who is listed in the apartment and has rights to the living space. Even if the convict was discharged, the buyer will see that the rights to the apartment have not gone away.
• Relatives of the convicted person can provide the latter with separate housing. Then, after returning from prison, the convict will not disturb the family with his presence. Having an alternative place of residence, he will be able to register at a new address.

Each case is individual - therefore, before discharging a person serving a sentence, it is advisable to consult with a specialist.

Convicted against deregistration

In this case, feel free to contact the magistrate’s court at the location of your home with a statement of claim for deregistration. Documents you will need:

• receipt of payment of state duty;
• a document confirming your ownership with a notarized copy;
• extract from the house register;
• a copy of the ZK’s passport, visaed by the camp administration;
• a copy of the statement of claim in two copies.

The court itself will request a copy of the verdict.

There are other publications on our website devoted to the nuances of discharge from residential premises in various situations. From them you can find out what documents you may need, where you need to go, whether you can be discharged while in another city and how to do this with the help of State Services, how forced discharge occurs through the court, as well as how to discharge a deceased person.

How to file a claim?

Indicate your full name and passport details, address of the living space, what rights you have to it, what documents confirm these rights.

State the full name and passport details of the defendant and tell us on what basis he received his residence permit.

Explain that he lives in MLS (places of deprivation of liberty), but due to his registration in your apartment, you are forced to bear additional costs for utility bills.

You can quote the Civil Code of the Russian Federation:

• Article 209, paragraph 1: “The owner has the right to own, use and dispose of his property.”
• Article 304: “The owner has the right to demand the elimination of any violations of his rights, even if these violations were not associated with deprivation of possession.”
  Art. 304 Civil Code of the Russian Federation

  The owner may demand the elimination of any violations of his rights, even if these violations were not associated with deprivation of possession.

REFERENCE: In this case, your right to pay only for actually provided utilities is violated

If the court’s decision is positive, then there are two options:

1. the convicted person has no property rights. By a court decision, you will discharge the person and will be able to sell the premises or carry out any other transactions with him.
2. The convicted person has a share in the apartment.

It is possible to discharge the owner from his house while serving his sentence, but no transactions with this apartment will be possible without his consent.

Upon release from prison, the legal owner will register on his territory again.

Theoretically, of course, you can go to the colony and get the prisoner’s consent to sell, but such a deal will later be easy to challenge: upon release, the former owner will declare that he signed the consent under pressure.

ATTENTION: Smart buyers will not want to deal with such living space, or will offer a price below the market price. It is better to wait to sell until the end of the term.

Statement of claim for recognition of the loss of the right to use residential premises and deregistration

The convicted person refused privatization in favor of other owners (before or during imprisonment)

According to the Housing Code of the Russian Federation, Article 31, paragraph 4, in this case a person receives the right to lifelong use of housing, regardless of the change of owner. In other words, he does not have a share in the apartment, does not receive profit from its sale or rental, but he can live in it as long as he wants.

As in the previous paragraph, a prisoner can be deregistered only for the duration of his stay in the MLS. The law does not prohibit selling such an apartment, but it will be difficult to find buyers. After all, in a few years, a vacated roommate will come to the new owners, and they will not be able to kick him out.

It is extremely unprofitable for the state for former criminals to leave the colonies “to nowhere.” This will lead to an increase in homelessness and increase the likelihood of recidivism. Therefore, laws are adopted in such a way that it is very difficult to deprive prisoners of housing. But if your goal is just to reduce your utility costs, then nothing is impossible.

De-registration options

There are two options:

• in agreement with the person serving his sentence;
• without approval.

The first method is quite realistic and is suitable for those who maintain normal human relations with the person in custody, but want to pay utility bills only for citizens who are actually currently living in the residential premises.

The second option is possible if the housing is in municipal ownership, and the trial has already taken place and the decision has gained legal force.

In this case, the registration will be canceled, but only for the period of the prison term.

In general, there are a lot of situations, and the subtleties of legal procedures depend on the status of the convicted person (in relation to property rights to housing and the degree of relationship), as well as on whether the person participated in privatization or refused it, etc.

In the vast majority of cases, discharge is possible only through the court (Article 7 of the Law of the Russian Federation No. 5242-1 of June 25, 1993).

You can learn about how to apply for an extract from an apartment through the MFC or the State Services portal, as well as what documents are required for the procedure.

How to apply?

First of all, you should find out what papers will be needed and where it is best to apply. If a person is in prison, then the procedure is allowed to be carried out without presence (FMS Order No. 208 of 2007).

You can complete this procedure in one of the institutions:

• FMS;
• MFC;
• passport department at the housing department.

The only difference is the timing: the fastest result will be obtained if you go directly to the territorial division of the FMS, since in this case time will not be wasted sending papers to the migration service and back.

Required documents

The mere consent of those in the camp for those serving time is not enough, although it is precisely the determining factor for success. The following documents will be needed:

• application in form No. 6;
• passport;
• court sentence.

The application form can be downloaded from the Internet or from a passport officer, you can even fill it out, but the person who has violated the law must put his own signature.

The passport is usually confiscated upon arrest, and it is kept by the administration of the institution.

Therefore, a copy of the prisoner’s passport and a signed application must be certified by the head of the zone or a substitute person with his signature and seal of the institution.

A more difficult task is to obtain a copy of the judgment . You can pay a visit to the office of the court where the trial was held, or directly to the judge, or to the secretary with a request for the issuance of this document.

Usually, indirect participants in the process are denied a copy of the court decision, but, as a last resort, the person serving the sentence himself has the right to receive such a document upon his request and will be able to give it to his family member.

Timing and cost

For the convenience of citizens, the work of the bodies authorized to carry out registration actions is structured in such a way that documents are accepted in a single window , and this is where a set of papers should be submitted.

The period for processing the cancellation of registration cannot last more than 3 days after submitting the application (clause 22 of the Administrative Regulations).

Since the service for terminating the validity of a residence permit is a state service, when it is provided by bodies specially authorized for this purpose payment for the provision of such a service is not required , and in this case there is no state duty.