Read our article about ways to exchange a privatized apartment. You can also find out how to file a claim in court for the exchange of residential premises on our website.
Forced exchange of municipal housing space through the justice authorities: practice in our article.
Concept
What is a forced exchange of municipal housing through the court?
Hidden behind this is the court's permission to exchange or replace municipal housing, replaced by household members, since one of the responsible tenants (or the landlord) opposes this procedure (Article 74 of the Housing Code of the Russian Federation).
To exchange living space, the documented consent of all family members of the tenant (this also applies to those temporarily absent), as well as the municipality, is required. The latter decides to exchange square meters and people leave.
How does the exchange of a municipal apartment take place through the court? Living next door on the basis of Art. 72 of the Housing Code of the Russian Federation have the right to demand by judicial procedure to replace the existing dwelling with another of equal value.
But requirements are requirements, and the consent of the landlord, that is, the municipality, is of paramount importance.
Which the justice authority does not always cancel - for example, if we are talking about even a probable deterioration in the living conditions of a minor or incompetent citizen.
A transaction involving them occurs only with the participation of the board of trustees . And he, in turn, also does not always agree to the exchange (which will also have to be protested in court).
Find out on our website how to exchange a room, two-room and three-room apartment, what documents are required for the exchange, how to enter into an exchange agreement with an additional payment, and also whether it is possible to exchange living space with a mortgage.
Transactions between homeowners
With surcharge
The procedure for exchanging apartments with an additional payment can be completed in two ways:
- With the help of two counter purchase and sale agreements.
- Using an exchange agreement, which fixes the amount of additional payment.
The last circumstance is extremely important. The barter agreement itself does not imply that one of the participants will transfer to the other not only property, but also money (Part 1 of Article 568 of the Civil Code of the Russian Federation). Therefore, if you do not specify this point in the contract, you will have to go to court and seek termination of the transaction. The likelihood of collecting unpaid money is extremely low.
Legal exchange with an additional payment is possible only in relation to privatized or initially private apartments. You can’t change municipal housing like that.
No additional fees
In the case where the owners consider the apartments to be of equal value, the exchange agreement is carried out without additional payment. In this case, the parties only need to correctly indicate all the essential points in the contract and register the transfer of ownership in Rosreestr.
The essential points of such an agreement are:
- Full names and addresses of participants.
- Description of the exchanged housing: area, address, cadastral number, cost.
- Moment and procedure for transfer of housing.
- Signatures of the parties.
If necessary, the contract also fixes additional points - in particular, those relating to the rights and obligations of the parties to the transaction.
Attention: The transfer of apartments must be carried out by signing a transfer deed. It is an integral part of the contract both in the case of barter and purchase and sale.
Features of real estate agreements between relatives
According to the Civil Code of the Russian Federation, the barter agreement does not imply any additional conditions if the parties to the transaction are relatives. However, tax legislation introduces its own nuances. According to Art. 217 of the Tax Code of the Russian Federation, in transactions involving real estate, a tax of 13% of the cost of housing is paid. However, gift transactions concluded between close relatives are exempt from such tax.
That is why, if the participants in the exchange are relatives of each other, then it makes sense, instead of a purchase and sale or an exchange agreement, to use two gift agreements, according to which the parties give their housing to each other. This option, of course, requires high trust between the exchange participants, but significant savings are evident.
On our website there are other useful articles devoted to the process of exchanging real estate such as:
- residential buildings;
- apartments located in different localities;
- land plots, as well as the rules for drawing up an agreement for such transactions;
- housing exchanged for vacation periods;
- Lease and various real estate exchanged for a car.
Grounds and reasons
As a rule, the reasons for exchanging a non-privatized apartment through the court are: domestic disagreements, systematic quarrels between residents.
Also, if one of the cohabitants deliberately harms others - he acts as a hooligan or leads an antisocial lifestyle, making the lives of others unbearable (or even jeopardizing them).
At the same time, a compromise regarding travel in the household has not been reached and someone is actively opposed (or the landlord has already vetoed it).
You can learn from our articles about whether it is possible to exchange an old home for a new building, a room for a house and a plot of land, and how to do the exchange correctly with an additional payment.
How to deal with taxation of exchange transactions
Mena becomes a very interesting case from a tax point of view. The Tax Code states that taxes are imposed on any form of income, in cash or in kind. But in the case of an exchange, it will not necessarily happen that both parties pay the tax. After all, the parties bear not only income, but also expenses.
How to quickly change an apartment - watch this video:
The transaction is not subject to tax at all if both types of housing are of the same value. In this case, the amount of expenses and income is the same.
If we mean an additional payment, then the tax is paid by the party that offers it. The entire amount of the surcharge becomes the basis for taxation.
Rules of kinship exchange
In this case, the contract assumes a standard set of obligations and rights for both parties. Even if the agreement is between relatives.
When completing a transaction, the set of documents provided is the same as in other cases. And consists of:
- Certificates of marriage or divorce.
- Certificates of registration.
- Passports of each participant.
- Extracts from the house register.
- Copies of personal account.
- Certificates of estimated value.
- Cadastral number.
- Certificates of registration of property rights.
- Documents to prove the legality of property rights.
How to properly conduct a related exchange transaction - read the link.
The consent of the second spouse requires only written documentation.
If it comes to court
What to do in this case? Contact a lawyer. looking for the truth in such a difficult issue as the forced exchange of residential premises under a social tenancy agreement .
The average person cannot see or is completely unaware of numerous nuances that can fatally affect the course of a case, but a qualified specialist in housing law can handle them.
The defense lawyer will not only help with drawing up the application and selecting the evidence base, but will also represent your interests during the proceedings , and will also tell you how to implement the judge’s decision in practice.
The statement of claim is drawn up in the number of copies based on the number of participants in the process. It is filed with the district court of general jurisdiction at the location of the responding party. The claim is written in any form, but must include the following data:
- full name of the judicial department to which you are complaining;
- passport information of the applicant/respondent;
- apartment status;
- information about minors or incapacitated participants;
- Why can't we live together anymore?
- how did you want to settle the issue before the trial (what exchange options were offered and why were they rejected by the defendant?);
- details of the permitting document from the board of trustees;
- requirement;
- date, signature;
- list of attached documents.
In addition to the application itself, you will need the following documents :
- documented consent of the landlord;
- a document authorizing exchange between cities;
- permission from the guardianship authority;
- copy of personal account;
- written consent of family members;
- technical certificates and plans of the apartments to be exchanged;
- pre-trial correspondence;
- document from the registry office on family composition;
- state duty receipt;
- identification documents of all persons involved.
How long the court will take to decide depends on many factors. The decision will indicate “to exchange living space,” as well as information about who is moving in where.
You must apply for a permit to the board of trustees by writing a corresponding application, as well as providing plans for the proposed resettlement.
This is not empty paperwork - the state must know that dependent citizens will not be disadvantaged in their housing conditions . The wait for the document is two weeks.
Forced exchange of residential premises
Legal, offers qualified legal services to individuals. It is possible to pay in stages as the case progresses. Need advice or urgent help? Call tel. ; 8 (4852) 92-23-62.
Forced exchange of residential premises
What is a forced exchange of residential premises?
Forced exchange of residential premises is the division (departure) of citizens living in the same apartment under the same rental agreement, which occurs regardless of their consent by a court decision (Article 68 of the RSFSR Housing Code).
What is preferable for divorced spouses: division of a personal account or forced exchange?
This depends on your specific situation, but you can consider the following:
1. The division of a personal account is possible only in certain apartments, while you can leave from almost any apartment (even if it is a one-room apartment, you can find the option of two rooms in a communal apartment, one of which, for example, will be in the Moscow region).
2. A court case regarding the division of a personal account usually does not last long, since nothing can change, while cases of forced exchange sometimes drag on for years, since not only divorced spouses, but also strangers take part in the exchange. whose plans often change too.
3. After dividing the personal account, the former spouses still continue to live in the same apartment (at least for some time), albeit as neighbors. After the exchange, they leave completely and may not have anything to do with each other at all.
4. In order to become the owner of your part of the apartment after dividing the personal account, you will need consent to privatize the entire apartment of your ex-spouse. If there is such consent, the apartment is privatized into common shared ownership, and the former spouses become co-owners with all the ensuing consequences. When moving into an exchange apartment, former spouses have no obstacles to privatizing their living quarters in the usual manner.
Who can demand a forced exchange of residential premises?
Any of the former spouses can demand a forced exchange, regardless of who is the tenant and who once moved whom into their living space.
When might a forced exchange be necessary?
As mentioned above, it is not possible to divide a personal account in all apartments, and it is not so often that former spouses manage to divide the living space peacefully, that is, separate. In this case, they resort to forced exchange.
QUESTION. I have been trying to separate from my ex-husband through a forced exchange for several months now. Finally I found a good option, however, the apartment that I want to offer to my husband is owned. Will the court allow such an exchange?
Definitely not, since in this case the ex-husband would have to be “forcibly” made the owner of the apartment, and this is contrary to the basics of civil law.
Let us give a specific example based on which a ruling was made by the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation. By the decision of the court of first instance, upheld by subsequent courts, the claim of I. (ex-wife) for the forced exchange of a two-room apartment was satisfied: T. (ex-husband) was moved to a privatized room in a three-room apartment, and I. and his son were moved to a one-room apartment ; V. was moved to the disputed apartment.
The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation satisfied the protest submitted by way of supervision, canceled the court decisions and sent the case for a new trial to the court of first instance on the following grounds.
According to Art. 68 of the Housing Code of the RSFSR, if an agreement on exchange has not been reached between family members, then any of them has the right to demand in court the forced exchange of the occupied residential premises for premises in different houses (apartments). In this case, the worthy arguments and interests of persons living in the exchanged residential premises are taken into account.
Satisfying I.'s claims, the court of first instance (district, city court) indicated that the living space offered to the defendants for exchange does not worsen their living conditions, since the defendants are not deprived of the right to apply to the court to declare the privatization invalid. We cannot agree with this conclusion.
The disputed apartment belongs to the municipal housing stock. The defendants live in the disputed residential area under a rental agreement, the tenant of which is T. The room where the defendant must move as a result of the exchange belongs to B. In accordance with Art. 1 of the Law of the Russian Federation of July 4, 1991 “On the privatization of housing stock in the Russian Federation” (with subsequent amendments), the transfer of housing into the ownership of citizens is carried out on a voluntary basis. Any coercion is excluded.
The court, by its decision, satisfied the claims and moved T. to a privatized room, while the defendant objected to the forced transfer of the living space into his ownership. The reference to the fact that the defendant has the right to apply to the court to declare the privatization invalid is not a basis for satisfying the claim for forced exchange, since it violates the principle of voluntariness of the transfer of housing into ownership.
How does forced exchange occur?
If an exchange agreement has not been reached between family members (in this case, former spouses), then any of them has the right to demand in court a forced exchange of the occupied residential premises for premises in different houses (apartments) (Article 68 of the RSFSR Housing Code).
To do this, the initiator of the exchange must first find suitable options for exchanging the apartment (they are selected in the same way as for a “regular” exchange - see above), and then present these options to the court. Plaintiffs in such cases should always inspect the residential premises proposed for forced exchange themselves in order to avoid going to court with an obviously unsuccessful claim. The issue of the status of persons participating in a forced exchange is resolved in judicial practice depending on the specific situation, therefore citizens participating in the exchange should be warned that this is a situation of forced exchange through the court, since they must participate in the judicial process in as third parties (or co-plaintiffs).
Third parties can confirm their consent to the exchange in two ways: either they appear at the court hearing and verbally declare their intention to exchange residential premises, or they issue a notarized power of attorney to the plaintiff for the right to represent their interests in the court hearing on the forced exchange. In this case, the presence of third parties in court is not necessary.
QUESTION. The court has been hearing a case of forced exchange between me and my ex-husband for several months. Finally, the court, by its decision, satisfied my demands and ordered my husband to move to the apartment offered to him. Suddenly, three days after the decision was made, the citizens with whom we must exchange declare that they have changed their minds because they unexpectedly found a better option for the exchange. Do they have the right to refuse the exchange? Couldn't it be possible to make an obligation from them in advance that they would not refuse our option?
Yes, persons participating in the exchange have such a right. In fact, persons providing their living space for exchange are asking the court to satisfy the plaintiff’s demands according to the option he proposed and thereby protect their right to exchange. Consequently, like plaintiffs, these persons have the right to abandon the claim at any stage of the process, up to the stage of execution of the decision. Moreover, their refusal to exchange due to their connection with the plaintiffs in one exchange option should entail the termination of the proceedings at any stage of the process. Compulsory execution of the decision cannot be applied to these persons. The plaintiff has no way to insure himself in case of such changes, since any obligations and receipts of the persons participating in the exchange have no legal force.
What arguments of the parties does the court take into account when making a decision on forced exchange?
When making a decision on a forced exchange, the court takes into account the arguments and interests of citizens living in the exchanged residential premises that deserve attention (Article 68 of the RSFSR Housing Code), recognizing the following circumstances as such.
1. As a result of the forced exchange under the proposed option, the living conditions of the divorced spouse should not worsen. In this case, only the option that the plaintiff offers to the defendant is considered. For himself, the plaintiff can find an option that even worsens his living conditions, but not so much that the citizen becomes in need of improved living conditions. Such an exchange will not work in court (see above about this).
For example, a two-room apartment is offered for exchange. The ex-husband (plaintiff) finds his wife a good one-room apartment in the same area, and himself a room in a crowded communal apartment. His living conditions are clearly deteriorating, but the court will not be interested in this, since the defendant is offered a suitable option.
2. The living space provided to the defendant cannot be smaller than that previously occupied. In this case, additional living space is also taken into account if one of the spouses, having the right to it, used it. According to the exchange option, an apartment or room of a larger size than previously occupied can be provided, since in this case the citizen’s living conditions do not worsen.
For example, in a two-room apartment with a living area of 34 sq. m live three people: divorced spouses and their minor child, left behind after the divorce from the mother. Thus, the share of each family member in this apartment is 11.1 square meters. m (34 : 3). The initiator of the forced exchange is the husband. This means that he must look for an exchange option in which the ex-wife and child are provided with an apartment with a living area of at least 22 square meters. m.
3. The apartment offered for exchange must have all the essential amenities that were in the original apartment, such as: an elevator, a garbage chute, a balcony, a separate bathroom, and a telephone. However, optional amenities are not taken into account. For example, a built-in closet is replaced by a mezzanine of the same size, a storage room is replaced by a loggia, etc. If the original apartment was not on the first or last floor, and the proposed apartment is located on them, the court may consider these circumstances significant.
At the same time, the condition of the apartment (before or after renovation) is not significant.
4. If a room in a communal apartment is offered for exchange, the number of neighbors should not exceed the number of people living with the defendant in the previously occupied apartment.
For example, a two-room apartment where ex-spouses and their child live is offered for forced exchange. The initiator of the forced exchange is the wife (the child remains with her). If she offers her husband a room in a communal apartment, the number of neighbors in this apartment should not exceed two people (the number of rooms does not matter).
In addition, the following circumstance should be kept in mind. If the communal apartment offered for exchange is inhabited by people who abuse alcohol, cause scandals, or violate the rules of the hostel, this may be recognized by the court as a circumstance that worsens the living conditions of the defendant. Thus, one of the district courts of Moscow considered a case regarding a claim by a wife against her ex-husband for the forced exchange of a two-room apartment. The defendant was offered a room in a communal apartment. At the court hearing, the defendant explained that in the apartment where he was offered to move, one of the rooms was occupied by a neighbor who abused alcohol and caused trouble. The neighbors in the stairwell were forced to go to the police station due to his behavior. During the court hearing, neighbors were questioned and materials from the police department were requested. The facts of the tenant’s misbehavior were confirmed, and therefore the court rejected the claim for forced exchange.
QUESTION. My wife offers me a room in a communal apartment to exchange, although we are exchanging a three-room apartment and it would be possible to find an option for a separate apartment. Can I basically refuse communal services?
According to the clarification of the Plenum of the Supreme Court of the RSFSR dated December 26, 1984, the disagreement of one or more family members living with the plaintiffs (plaintiff) in a separate apartment to move to residential premises located next to the apartment where other tenants live is not in itself grounds to refuse to satisfy the claims, since when the family breaks up, which entails the need for an exchange, the separated families actually no longer use a separate apartment.
5. In case of forced exchange, the distance of the proposed housing from the defendant’s place of work and the given locality is taken into account. For example, by forced exchange it is impossible to resettle a citizen from one city to another or from a city to a region, unless, of course, he himself does not want to do so.
On the other hand, the very fact that the proposed apartment is located in another area of the city does not play a decisive role; here the court will proceed from the specific situation. For example, if a wife offers her ex-husband, who works in the center, an apartment in another area, which is located at the same distance as the previous one, then his objections on this matter will not be taken into account. It’s a different matter when it comes to moving with a child who goes to a music school near home to an area from where it will take an hour and a half to get to this school; here the court is likely to find the defendant's objections convincing.
6. The provided residential premises must meet the sanitary and technical requirements for housing. Such requirements provide conditions under which a person’s residence occurs without harm to his health. Landscape means the presence of public amenities (water supply, sewerage, central heating, etc.). Thus, the premises may meet sanitary and technical requirements, but be poorly equipped. The solution to the issue of livability of residential premises depends on the characteristics of a particular locality. As a rule, a room with all the utilities available in the majority of state, municipal and public housing buildings in a given locality is considered to be well-equipped. Apartments in residential buildings built according to standard designs since 1958 are classified as comfortable, regardless of their layout.
The housing standard per person must also meet sanitary requirements. The minimum size of residential premises provided depends on the characteristics of a particular region.
7. In a forced exchange, the defendant cannot be offered an apartment (room) in an area whose environmental condition is worse than the previous location of the home . It is necessary to take into account indicators such as gas pollution, noise, etc.
Other circumstances that prevent (for example, due to age or health status) the use of residential premises provided by exchange may also be taken into account.
If the apartment offered to the defendant meets all of the above requirements and does not infringe on his housing interests, can you be sure that the court will make a positive decision the first time?
Judicial practice has developed in such a way that the defendant can refuse the first two options offered for exchange, citing formal reasons, often insignificant, which, if desired, can be found in any option. The third time, the court will certainly satisfy the plaintiff’s demands if the apartment “flawlessly” fits into the above requirements for it. Therefore, plaintiffs should look for alternative exchange options in advance. Unfortunately, it is precisely because of this practice that cases of forced exchange sometimes last for years.
Which court should I file a claim for forced exchange?
A statement of claim for forced exchange must be filed with the court at the location of the disputed apartment.
What documents must be submitted when filing a claim for forced exchange?
In this case, you will need the following documents:
— a copy of the divorce certificate;
- a copy of the court decision on divorce, if the divorce took place in court and a decision was made with which parent the child would live with;
— copies of personal accounts from all apartments participating in the exchange (issued by housing and communal services);
— extracts from the house books of all apartments participating in the exchange (issued by housing and communal services);
- floor plan and an explanation of all apartments participating in the exchange (issued by the BTI);
— about the plaintiff’s rights to additional living space (if any);
- other documents relating to the condition of the living quarters or confirming the need to exchange the living quarters (certificate of health or misconduct of the defendant, responses to complaints or statements from the police, prosecutor's office, etc.);
— if we are talking about a forced exchange of a housing cooperative apartment, a certificate from the board of the cooperative is required stating that the share has not been paid in full;
— copies of statements of claim for the defendant and third parties;
- receipt of payment of state duty.
Refusal
When does the court refuse to force the exchange of a municipal apartment? Arbitrage practice:
- the living space is controversial, unsafe or subject to demolition;
- we are talking about moving a seriously ill person into a room in a communal apartment;
- this social rental agreement is in court proceedings for amendment or termination;
- one of the apartments was declared unsuitable for occupancy.
It becomes clear that this kind of dispute is a very difficult matter and does not always end in success .
Before starting any action, you should contact a law firm or lawyer's office for detailed advice, only after that you can start talking about filing an application with the court.
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State registration
In order for a real estate transaction to be legal, the data must be entered into the Unified State Register of Real Estate, otherwise, a transaction concluded without state registration is invalid.
Nuances of the procedure
It is not the purchase and sale or exchange agreement itself that is registered in the Unified State Register of Real Estate, but the ownership rights to housing. However, since contracts are the basis for changing the scope of rights and the circle of persons to whom they belong, they must be submitted to Rosreestr.
The overall procedure looks like this:
- The party registering the right pays a fee and submits an application and accompanying documents to the registration authority.
- The authority makes an entry in the Unified State Register of Real Estate about new rights to real estate.
- The party receives an extract from the Unified State Register confirming its rights.
Where to contact?
You can submit documents for registration in the following ways:
- Apply for an appointment at your local Rosreestr office.
- Submit an application through the MFC using the “My Documents” type.
- Submit an application electronically through the State Services portal (registration and account confirmation there will be required).
What documents are needed?
To register property rights you will need:
- Statement.
- A copy of the agreement, signed by both parties, with the attached deed of transfer.
- Applicant's passport.
- Receipt for payment of state duty.
If necessary, the registration authority may request additional documents.
Timing and cost
According to the Federal Law “On State Registration of Real Estate”, data in the Unified State Register must be registered no later than 7 days from the date of filing the application (if there were no grounds for suspending registration).
However, if the documents were submitted through the MFC, the period is increased by another 2 working days required to transfer the documents to Rosreestr and back. The cost of registration is established by the Tax Code of the Russian Federation. As of 2021, it is equal to 2000 rubles.
