I bought an apartment, but the former owners are not checking out. How to solve the problem if there is a registered person?

○ Features of purchasing such an apartment.

The presence of people registered in the premises does not prevent the sale of real estate, but it does introduce some restrictions (encumbrances) on the ability of the owner to dispose of such an apartment. Often, the presence of registered people does not scare buyers, and they agree to this type of transaction, because the price is adjusted downwards by 15-20%.

I will not tell you the entire procedure for purchasing real estate. Let’s just talk about the differences between buying an apartment with registered people and buying “clean” housing.

1. As with any real estate transaction, a written agreement is concluded between the buyer and seller according to the general rules given in Art. 549-558 Civil Code of the Russian Federation. Particular attention should be paid to the requirements of paragraph 1 of Art. 558 Civil Code:

“An essential condition of the contract for the sale of a residential building, apartment, part of a residential building or apartment in which persons live who, in accordance with the law, retain the right to use this residential premises after its acquisition by the buyer, is a list of these persons indicating their rights to use the residential premises being sold. »

Thus, the essential terms of the agreement are its subject matter, price and - unlike a real estate transaction without an encumbrance - a list of persons registered in the apartment.

2. Not only the ownership of real estate is subject to registration in Rosreestr, but also the encumbrance itself. Clause 1 art. 131 Civil Code of the Russian Federation:

“Ownership rights and other real rights to immovable things, restrictions on these rights, their emergence, transfer and termination are subject to state registration in the unified state register by the bodies carrying out state registration of rights to real estate and transactions with it.”

Clause 1 art. 8.1 of the Civil Code of the Russian Federation: “Rights establishing the ownership of an object of civil rights to a certain person, restrictions on such rights and encumbrances on property (rights to property) are subject to state registration.”

Thus, when buying an apartment with registered people, we carefully read the contract and check the information entered in Rosreestr. If the owner promises to check out of the property in the near future, the agreement should specify the time frame for deregistration of him and his relatives.

Advice : when buying an apartment, take an extended extract from the House Register from the passport office employee or through the MFC. It will indicate exactly the number of registered persons and the reasons for their registration in the premises.

I bought a house, and a person was already registered there. Can I discharge him without his consent?

Good afternoon. I bought a house, and a person was already registered there. Can I discharge him without his consent?

Lawyer Antonov A.P.

Good afternoon

Deregistration (“extract”) without the consent of a person is possible only if this person does not have a share in the ownership of the apartment. But even in the absence of a share, this is only possible in court if there are the following grounds (clause 31 of the Decree of the Government of the Russian Federation of July 17, 1995 N 713 “On approval of the Rules for registration and deregistration of citizens of the Russian Federation at the place of stay and at the place of residence within Russian Federation": Removal of a citizen from registration at the place of residence is carried out by the registration authorities in the event of: a) change of place of residence - on the basis of a citizen’s application for registration at a new place of residence or an application for deregistration at the place of residence (in writing or in the form of an electronic document). When registering at a new place of residence, if the citizen has not de-registered at his previous place of residence, the registration authority is obliged to send a corresponding notification to the registration authority at the citizen’s previous place of residence within 3 days to deregister him; ... d) recognition as missing - on the basis of a court decision that has entered into legal force; e) death or declaration of death by a court decision - on the basis of a death certificate issued in the manner prescribed by law; f) eviction from an occupied residential premises or recognition as having lost the right to use residential premises - on the basis of a court decision that has entered into legal force; g) detection of untrue information or documents that served as the basis for registration, as well as unlawful actions of officials when deciding the issue of registration - on the basis of a court decision that has entered into legal force; h) changes by the citizen specified in paragraph 26(1) of these Rules of nomadic routes, as a result of which such routes began to pass beyond the boundaries of the municipal district at the address of the local administration of the settlement of which he is registered at the place of residence - based on the citizen’s written application with the attachment of a document confirming that the citizen maintains a nomadic and (or) semi-nomadic lifestyle; ... j) revealing the fact of fictitious registration of a citizen at the place of residence in the residential premises in which this citizen is registered - on the basis of a decision of the registration authority in the manner established by the Ministry of Internal Affairs of the Russian Federation. According to Art. 31 of the Housing Code, family members of the owner of a residential premises include his spouse living together with this owner in the residential premises belonging to him, as well as the children and parents of this owner. Other relatives, disabled dependents and, in exceptional cases, other citizens may be recognized as members of the owner’s family if they are settled by the owner as members of his family. Family members of the owner of a residential premises have the right to use this residential premises on an equal basis with its owner, unless otherwise established by an agreement between the owner and members of his family. Family members of the owner of a residential premises are obliged to use this residential premises for its intended purpose and ensure its safety. Members of the family of the owner of a residential premises who are capable and limited by the court in their legal capacity are jointly and severally liable with the owner for the obligations arising from the use of this residential premises, unless otherwise established by agreement between the owner and members of his family. 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, unless otherwise established by an agreement between the owner and the former member of his family. If a former family member of the owner of a residential premises has no grounds for acquiring or exercising the right to use another residential premises, and also if the property status of a former family member of the owner of a residential premises and other noteworthy circumstances do not allow him to provide himself with another residential premises, the right to use the residential premises owned by the specified owner may be retained by a former member of his family for a certain period based on a court decision. In this case, the court has the right to oblige the owner of the residential premises to provide other residential premises for the ex-spouse and other members of his family, in whose favor the owner fulfills alimony obligations, at their request. Upon expiration of the period of use of residential premises established by a court decision taken taking into account the provisions of Part 4 of this article, the corresponding right to use the residential premises of a former family member of the owner is terminated, unless otherwise established by agreement between the owner and this former member of his family. Before the expiration of the specified period, the right to use the residential premises of a former family member of the owner is terminated simultaneously with the termination of the ownership right to this residential premises of this owner or, if the circumstances that served as the basis for maintaining such a right have ceased, on the basis of a court decision. A former family member of the owner who uses residential premises on the basis of a court decision made taking into account the provisions of part 4 of this article has the rights, bears the duties and responsibilities provided for in parts 2 - 4 of this article. A citizen who uses residential premises on the basis of an agreement with the owner of this premises has rights, bears duties and responsibilities in accordance with the terms of such agreement. According to Art. 292 of the Civil Code, members of the owner’s family living in residential premises belonging to him have the right to use this premises under the conditions provided for by housing legislation. Members of the owner's family who are legally capable and have been limited in their legal capacity by the court and who live in the residential premises belonging to him are jointly and severally liable with the owner for the obligations arising from the use of the residential premises. 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, unless otherwise provided by law. Family members of the owner of a residential premises may demand elimination of violations of their rights to residential premises from any persons, including the owner of the premises. Alienation of residential premises in which members of the family of the owner of this residential premises who are under guardianship or trusteeship or minor members of the owner’s family left without parental care live (which is known to the guardianship and trusteeship authority), if this affects the rights or legally protected interests of these persons, is permitted with the consent of the guardianship and trusteeship authority. Thus, when selling an apartment, the new owner can forcibly deregister all registered persons.

Sincerely, lawyer Anatoly Antonov, managing partner of the law firm Antonov and Partners.

Still have questions for your lawyer? Ask them right now here, or call us by phone in Moscow +7 (499) 288-34-32 or in Samara +7 (846) 212-99-71 (24 hours a day), or come to our office for a consultation (by pre-registration)!

○ What to do if someone is registered in the purchased apartment?

What to do if you did not know about the presence of registered people? Although encumbrances in the form of registered citizens are subject to registration in the Rosreestr of rights to real estate, not every apartment owner declares them to the registrar. This is what happens in practice when “dead souls” or even real occupants are acquired along with the premises. What to do if the contract has already been concluded and the apartment has become your property?

Here is what the Civil Code says about such transactions (Clause 1, Article 460 of the Civil Code of the Russian Federation):

“The seller is obliged to transfer the goods to the buyer free from any rights of third parties, unless the buyer agreed to accept the goods encumbered by the rights of third parties.

Failure by the seller to fulfill this obligation gives the buyer the right to demand a reduction in the price of the goods or termination of the purchase and sale agreement, unless it is proven that the buyer knew or should have known about the rights of third parties to this product.”

That is, if you purchased an apartment without knowing that people live there, you should proceed as follows.

✔ Agree with tenants on voluntary eviction

Residents who were relatives of the former owner lose the right to use the premises, since the owner changes (Clause 2 of Article 292 of the Civil Code of the Russian Federation).

How to negotiate eviction with people living in an apartment under an open-ended lease? In this case, the agreement between the landlord and the tenant does not terminate (clause 1 of Article 617 of the Civil Code of the Russian Federation). The new owner should give tenants three months' notice to move out. In paragraph 2 of Art. 610 of the Civil Code of the Russian Federation says:

“If the lease term is not specified in the agreement, the lease agreement is considered to be concluded for an indefinite period.

In this case, each of the parties has the right to cancel the agreement at any time, warning the other party one month in advance, and in the case of leasing real estate, three months in advance.”

If you do not know how to negotiate an eviction, try to have a constructive conversation with the tenants and point them to the above provisions of the Civil Code, on the basis of which you have every right to force unwanted persons to move out.

The situation becomes more complicated if the lease agreement is concluded for a certain period. All that remains is to wait for it to end or agree with the tenant to leave the premises at a time convenient for him.

Remember: termination of the agreement ahead of time may entail additional expenses associated with a significant violation of the terms of the agreement (the tenant in this case has every right to file a claim in court on the basis of clause 5 of Article 453 of the Civil Code of the Russian Federation).

✔ Recognize the transaction as invalid and return the money

Based on significant violations of the buyer’s rights, a person who did not know that the property was encumbered has the right to demand that the transaction be declared invalid. The legal basis for the appeal is clause 2 of Art. 179 Civil Code of the Russian Federation:

“A transaction made under the influence of deception may be declared invalid by the court at the request of the victim.

Deliberate silence about circumstances that a person should have reported with the conscientiousness required of him by the terms of the transaction is also considered deception.”

The claim is filed in a court of general jurisdiction within a year after the buyer learned about the registration of other persons in the apartment (clause 2 of Article 181 of the Civil Code of the Russian Federation). During the consideration of the case, the plaintiff must prove that he did not know and could not know about the citizens registered on the premises.

Recognition of the transaction as invalid is the basis for returning the money to the buyer. Clause 2 Art. 167 Civil Code of the Russian Federation:

“If the transaction is invalid, each party is obliged to return to the other everything received under the transaction.”

✔ Go to court regarding the discharge of tenants

If you do not want to part with the apartment, and are thinking about how to forcibly evict the tenants, you should contact the court at the location of the property.

The right of the owner allows the buyer to dispose of the property at his own discretion, including requiring other persons not to interfere with his use of the property.

The claim is drawn up in writing according to the rules of Art. 131, 132 Code of Civil Procedure of the Russian Federation. The claim must:

• Indicate on what basis the applicant owns the property.
• Provide a list of persons registered in the apartment who refuse to move out voluntarily.
• Make a request for the forced eviction of unwanted citizens.

The claim is accompanied by a passport, documents for the apartment, an extract from the Unified State Register of Real Estate, an extract from the house register and other materials related to the case. Before going to court, a state fee is paid, its amount is 300 rubles (clause 3, clause 1, article 333.19 of the Tax Code of the Russian Federation). The receipt must be attached to the claim.

We bought an apartment, but the former owners won’t check out: what to do?

The new owner of the living space has several options:

1. Deregister without trial. This is possible if the seller agrees to sign out voluntarily.
2. Discharge the former owner or his relatives through the court. For example, if they don’t answer calls, they don’t want to check out themselves.

To deregister, the former owner needs to submit an application through the MFC or State Services, or directly to the Department of Internal Affairs of the Ministry of Internal Affairs, the department that deals with registration issues. In other cases, the new owner may demand termination of the right to use and deregistration through the court.

How to discharge former owners from an apartment through the MFC?

If the owner sold the apartment, but did not check out before registering the transaction with Rosreestr, he can do so afterwards. All he needs to do is collect documents and submit them through the MFC.

Step by step everything looks like this:

1. The old and new owners agree on the timing of deregistration. Ideally, if they are indicated in the policy.
2. The previous owner makes an appointment at the MFC and submits documents on the appointed day. The new one does not need to be present.
3. A few days later, the applicant receives a passport with a registration mark at the new place of residence.

Important! Extract through the MFC is possible with re-registration at a new address. Old registration is canceled automatically. You can also be discharged to nowhere if the person being discharged is over 18 years old. If registration is made at another place of residence, the presence of the owner and the consent of adult members of his family are required.

Contents and sample application

Most often, people are discharged through re-registration at another place of residence. To do this, fill out and submit an application in Form No. 6 containing the following data:

1. Name and address of the registration authority.
2. Full name, passport details, dates of birth of the person being registered and the owner of the property.
3. The document on the basis of which a person moves in: rental agreement, social lease.
4. Details of the extract from the Unified State Register of Real Estate.
5. Signatures of the applicant and the owner who provided the housing.

For deregistration, a second application is filled out - about deregistration. It contains information about the applicant, old and new registration addresses.

Sample application

Documentation

To check out of a sold apartment and register at a different address, the former owner must submit:

• Application (form and sample will be provided on site).
• Passport (surrendered while documents are being reviewed, returned with a registration stamp).
• Extract from the Unified State Register of Real Estate.
• Written consent of family members of the property owner over 18 years of age, if the housing does not belong to the applicant.
• The agreement on the basis of which the applicant moved into the premises.

Deadlines and costs

The documents are reviewed for about 10 days, after which the applicant is issued a passport with a stamp confirming the new registration. There is no charge for the service.

How to discharge previous tenants through State Services?

The former owner can also submit an application through State Services. It is enough to have a verified account on the portal and 10 minutes.

How it's done:

1. Go to the “Registration of Citizens” section.
2. Choose registration at a new address or deregistration.
3. Fill out the application and submit it for verification.
4. Receive a notification from the Department of Internal Affairs of the Ministry of Internal Affairs.

The notification will be sent to your personal account and by email. It will indicate the date and time of personal submission of documents to the department. At the appointed time you need to come with your passport and get a stamp.

How to discharge former tenants from a purchased apartment through the court?

If the old owner does not check out of the apartment and the new owner does not know where he is, he will have to go to court. The plaintiff does not need to know where the defendant lives: documents are submitted to the district court at his registered address, i.e. housing from which you need to be discharged.

How to discharge the former owner in court:

1. Collect documents.
2. Draw up a statement of claim in at least three copies.
3. Send the defendant one copy of the application and one copy of each prepared document.
4. Receive notification that documents have been served on the defendant.
5. Submit an application and documents to the court.
6. Receive a determination on acceptance of materials for production.
7. Come to the preliminary hearing (interview).
8. Wait for the decision to assign the case to trial.
9. Participate in legal proceedings. It is advisable to come to every meeting in order to quickly resolve the issue with the extract. If an attorney or lawyer is hired, the plaintiff does not have to be present.
10. Get a court decision.

By a court decision, claims may be satisfied in full or in part, or rejected. It comes into force in a month, a default judgment – ​​7 days from the date the defendant receives a copy.

When the decision comes into force, the plaintiff must come with it to the Department of Internal Affairs of the Ministry of Internal Affairs and discharge the defendant. This is done in one day.

Note! If the court refuses to satisfy the requirements, you can appeal the decision before it enters into legal force through the appellate procedure.

Contents and sample of the statement of claim

When drawing up a statement of claim, special attention must be paid to the requirements. If the defendant is registered but does not live in the apartment, a demand is made for termination of the right to use and deregistration. If he refuses to move out, an additional demand for eviction is indicated, but the prosecutor will participate in the consideration of the case.

What information will be needed when filling out the application:

1. Name, address of the court.
2. Full name, date of birth, passport details, address of the plaintiff.
3. Full name, registered address of the defendant.
4. Date and details of the policy.
5. Date of registration of ownership.
6. Details of the extract from the Unified State Register of Real Estate.
7. The grounds on which the defendant should be discharged.
8. Claim.
9. Description of submitted documents.
10. Signature and date of compilation.

Documentation

The plaintiff must submit the following documents to the court:

• Statement of claim.
• Passport.
• Certificate in form No. 9 about registered persons.
• PrEP.
• Extract from the Unified State Register of Real Estate.
• Receipt for payment of state duty.

Copies are made of the originals and remain in court. The documents themselves are returned to the plaintiff.

○ Advice from a lawyer:

✔ It is impossible to live normally with registered tenants. Is it possible to sell this apartment to another person?

Yes, such a transaction is provided for in Art. 460 Civil Code of the Russian Federation. A mandatory requirement when concluding a purchase and sale agreement is to warn the buyer about the presence of an encumbrance in the form of tenants. The contract specifies all citizens registered in the apartment (Article 558 of the Civil Code of the Russian Federation).

✔ The real estate company intentionally hid the fact that there were other registered residents in the apartment, the deal was terminated and the money was returned, can the realtor be punished?

Yes, an unscrupulous realtor can be held financially liable by going to court. In court, it is possible to compensate for all direct and indirect losses associated with the recognition of a transaction as invalid. For example, if you have nowhere to live due to a failed transaction and have to rent an apartment, these expenses can be reimbursed on the basis of Art. 15 Civil Code of the Russian Federation. If the actions of a realtor caused you moral distress, you can file a claim for compensation for moral damage. It is advisable to attach medical certificates from a psychiatrist to it.

Video

Lawyer Vladimir Bakhvalov talks about what to do if you bought an apartment with a “registered” person.

Published by: Vadim Kalyuzhny , specialist of the TopYurist.RU portal