Forced privatization of an apartment through the court in 2021

28.01.2017
A. Gordon

Lawyer Gordon Andrey Eduardovich

When purchasing apartments, after asking about the characteristics of the apartment (location, area, number of rooms, kitchen size), you should ask: what documents? The best answer is considered to be a privatized apartment, owned for more than 3 years. It is believed that a privatized apartment is a transparent history of the apartment, it is safe, and there are no surprises.

We have to disappoint: There are always risks when buying an apartment! There may be more or less. Privatized apartments are no exception.

Privatized apartment risks

Risks when purchasing a privatized apartment can be divided into several types: 1) Violations during privatization, 2) The presence of “refuseniks”.

Refuseniks are persons who refused to participate in the privatization of an apartment and did not become owners. When buying and selling an apartment, refuseniks should not participate in the transaction, but they are the ones who can present the buyer with a surprise.

Moreover, problems may arise for the buyer even if the privatized apartment is purchased at auction, from a bank, etc.

The fact is that a refusenik has the right to use the apartment for life, and after a while he can claim his rights to live in the apartment you bought.

According to the law on the privatization of the housing stock in the Russian Federation, residential premises are transferred either to the common ownership of all residents of a given living space, or, by agreement between them, to the ownership of one or only several of them (Article 2 of the law).

If one of the residents does not want to participate in privatization, then to privatize the apartment the following is required: Refusal to participate in privatization and Consent to the privatization of the apartment by another person. These documents become crucial. Without such a refusal, the apartment will not be privatized - that is, transferred into ownership. By refusing to participate in privatization, the refusenik actually acquires the right to lifelong residence (use) of a privatized apartment.

Since 2004 such a right of a refusenik is directly enshrined in the law - in Article 19 of the introductory law on the implementation of the Housing Code of the Russian Federation and in Article 31 of the code itself. The sale of an apartment in which a refusenik lives (registered) does not terminate his rights to live in the apartment. Moreover, this rule also applies to former family members of the apartment owner.

The practical significance of the right of a conscientious objector to live in an apartment

When accompanying apartment purchase and sale transactions, we repeatedly come across situations where the owner’s child from his first marriage, or an ex-wife (former mother-in-law, father-in-law), etc. is registered in the apartment being purchased. Moreover, these persons do not live in the apartment. But legally, such citizens retain the right to use the apartment.

Sellers and their realtors often assure the buyer that after registering ownership of the apartment, the seller will remove such persons from the apartment (remove them from registration at the place of residence in the purchased apartment), and if they do not want to, the seller will remove them through the court.

Sometimes, citing personal hostile relationships with their “ex,” sellers convince the buyer to sign out the exes himself, since the buyer is the new owner and has the right to sign out family members of the previous owner of the apartment.

In such situations you need to be careful.

If one of the former family members of the seller refused to privatize this apartment, the new owner (buyer) will not be able to remove them from the apartment. Even if he files a lawsuit for eviction.

The buyer may also face the problem of eviction of registered citizens, even if these residents have nothing to do with privatization. For example, if it is a minor and one of his parents or guardians.

There are court decisions when the court refused to terminate the registration of a child before he came of age.

The situation is a little easier when a conscientious objector lives in the apartment being purchased. There were cases when, after the sale of an apartment, a refusenik for one reason or another refused to be discharged to another.

Therefore, the buyer needs to establish in advance, when preparing the transaction, the status of each person living in the apartment. It is necessary to identify the presence of refuseniks in advance. The next stage is to take care of the correct registration of the “release of the apartment from the refusenik.”

A simple technique will help eliminate such situations: before making a transaction, such persons must be registered at a different address, and the apartment must be vacant. At the same time, such a discharge may be considered illegal if there was abuse and the refusenik was discharged “to nowhere”, or to a obviously unsuitable premises, etc.

Proper preparation of a transaction with an apartment will prevent you from encountering the situations described - a mandatory legal inspection of the apartment, during which the persons registered in the apartment and their rights are identified.

There are cases when sellers are silent about absent persons - military personnel serving criminal sentences, etc. These persons also retain the right to reside in the apartment.

But all of this is abuse by the parties to the purchase and sale transaction, which can and should be identified in preparation for the transaction with the apartment.

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Which residential address to indicate?

Here I will answer the following questions: “I don’t know where the “refusenik” lives now, what address should I indicate in the statement of claim? And if it is known, then indicate the actual address?”

According to judicial practice, the defendant’s residential address is considered to be his registration address - paragraph 63 of the Resolution of the Plenum of the Supreme Court of June 23, 2015 N25. Therefore, in the statement of claim, we enter the residence address of the “refusenik” as the address of registration - the apartment from which we want to discharge him. The plaintiff is not required to know where the defendant actually lives. Often he doesn't even know about it.

As a result, all subpoenas will be sent to the defendant to the apartment address - Art. 113 Code of Civil Procedure of the Russian Federation. If he does not receive them (because he does not live there), the court will still consider him notified. According to the law, the court did everything in its power to notify the defendant. Receiving correspondence is a citizen's responsibility. If he does not appear in court, the case will be considered without him (in absentia) - clause 4 of Art. 167 Code of Civil Procedure of the Russian Federation. This is to the advantage of the plaintiffs, because he will not be able to protect his interests.

How to issue a refusal?

To formalize the refusal, you must prepare an application and collect the necessary package of documents .

Depending on the requirements of the municipality, notarization may be required.

What will you need?

The package of documents includes:

Notarized refusal
Certificates from the passport office
Extracts from the Unified State Register
Technical passport with cadastral number
Documents of all persons participating in the procedure
Order and social tenancy agreement.

When a minor participates in the procedure, a decision from the guardianship authorities may be required.

There is no single application form. The document can be written by hand or typed on a computer. The form reflects the personal data of the “refuser”. Residential address. The person writes that he refuses to receive a share of the privatized housing, this is agreed upon with other people living in the apartment (house).

It is stated that the refusal was carried out on a voluntary basis and without pressure.

Step by Step Actions

Collection of documents
Notarized certification of the refusal for maximum security of the procedure
Submission by other residents of documents with a “refusal” for privatization to the BTI, Department of City Property Management
Entering data into Rosreestr
Issuance of certificates of ownership

Certification of the contract

An application with a refusal does not need to be certified unless required by government agencies. But lawyers recommend certifying the document for the safest execution of the entire procedure.

Who has the right to refuse privatization?

, people registered in municipal housing, which is rented under a social tenancy agreement, can refuse privatization .

The law provides for cases when refusal can be made by people who, for good reason, do not live in the apartment:

prisoners in prison;
soldiers ;
people working on a rotational basis in the Far North.

People living in such housing temporarily do not participate in the registration of property.

In favor of whom?

Refusal from privatization occurs in favor of a specific person (adult or minor) or all residents of the house (apartment). Depending on the circumstances and the property, the nuances of the transaction may vary.

In favor of another person

Typically, the procedure of refusal in favor of a specific person is carried out in order to transfer the property to him in full.
The owner of a share is often driven by a reluctance to deal with privatization documents, pay taxes, or a person simply wants to transfer all rights to the property to another person. People who have already privatized housing once and have given up their share in favor of someone cannot refuse. It is not allowed to carry out a refusal if a person has private ownership of housing or a share. The received part of the housing cannot be given to a specific person according to the standard scheme. According to the law, part of the apartment (house) is divided among the remaining participants in the privatization. To transfer rights to a specific person, it is necessary to privatize the apartment in full, and then draw up a purchase and sale agreement or donate housing.

In favor of parents

A child can renounce his share in favor of his parents if he does not want to own part of the apartment.
This is best done if only parents and a child live in the house.

If someone is additionally registered in the apartment, then according to the law, part of the municipal housing will have to be divided between them.

But upon the death of the parents, the abandoned child has the same rights as other heirs.

Housing is divided by will or by law if a will has not been drawn up.

In favor of a minor child

Initially, according to the law, children under 18 years of age could not participate in the procedure.
Amendments have now been made: children have the same rights as their parents. The law protects minors, and their participation in the privatization process has become mandatory. When parents and registered persons renounce shares in a municipal apartment, the child becomes the sole owner of the property. Applications for children under 14 years of age must be submitted by guardians and parents. Children over 14 years of age have the right to sign documents independently.

The application must indicate the details of the birth certificate or the grounds for guardianship, the address of the house, the reasons for the refusal, and the details of the applicant.

Refusal from privatization

The refusal is made on a voluntary basis, the application is certified by a notary . Depending on the property, there are different nuances of the procedure.

Apartments

The procedure is partly regulated by the Housing Code . To transfer municipal property to private property, everyone living in the apartment must agree. If one of the residents does not agree, then privatization of housing is not carried out.

People believe that they can refuse in favor of another person, but legally the procedure looks like this: the person does not participate in privatization, and his share is divided by other home owners, according to an agreement or in equal shares.

When it is decided to renounce his share in favor of a specific person, the owner privatizes the apartment in his name, makes a deed of gift to the required person and registers the transaction with Rosreestr. You can replace the deed of gift with a purchase and sale agreement , but this is more labor-intensive.

You can refuse privatization without specifying the person to whom the share is transferred.

The application is written in accordance with the administrative regulations on privatization. It indicates a list of residents who will participate in the privatization of the apartment. But this does not mean transferring the share to an individual.

If a child under 18 years of age renounces his share, then the parents must write an application and obtain permission from the guardianship authority. Children over 14 years old can sign the document with their own hands. Until this age, the application is signed by the parents. It states the reason for refusing privatization. If the guardianship authorities authorize the procedure and find no violations, official permission is issued within 10 days.

When an adult refuses on his own, he can submit an application on his own if an administration employee is present in the premises. In cases where the person is not present in person, the refusal is certified by a notary.

Some administrative regulations allow the acceptance of a certified application from a notary.

At home

The privatization of houses is also partially regulated by the Housing Code. When transferring municipal property to private property, the consent of all people living in the house is also required .

A person can refuse his share, but he must think about the consequences . The owner who gives his share can continue to live on this area, enjoy all the benefits, but does not have the right to vote on the sale. will not receive even part of the money received under the purchase and sale agreement . If the privatization of the house has already been carried out, then a person will no longer be able to refuse his share. He can lose ownership of his shares only by selling his part or giving it as a gift to a specific person.

People who refuse to privatize their home can live in the premises even after the sale. Such a basis is an encumbrance and is noted when registering property.

If a person registers in another housing purchased to replace the old one, then the right of unlimited use is transferred to the new housing.

Land plot

In cases where there are no obstacles to refusal, the owner may renounce ownership of the land plot. This can be done when there are no buildings and structures belonging to him on the land, and there are minor encumbrances. Often the reason for refusal is long-term non-use of the site for its intended purpose due to remoteness, infertile soil, or small area. All this time, the owner pays taxes, and the property can only be abandoned officially.

Refusal of privatization is prohibited when there are buildings and structures on the land owned by a person. They are not allowed to refuse if the plot is part of an inheritance. Then the person must completely alienate the entire inheritance, and not just the land.

To refuse privatization of a plot, the owner must contact Rosreestr and write an application for termination of ownership. Upon purchase, it is considered by the regional department of Rosreestr, and upon inheritance by the municipality. Review period : month. If permission has been received, then the government body that becomes the owner submits the necessary documents for registration with Rosreestr, notifies the State Cadastre and the tax office. The land is transferred to the municipality's land fund.

Ownership rights can be restored within 12 months if the owner changes his mind.

What are the risks when buying an apartment with “refuseniks”?