Moving into a municipal apartment

Moving into a municipal apartment belongs to the category of disputes that are important for the well-being of everyone: both those who are moved in and those who do not agree with the move-in. Although moving into a municipal apartment is an intangible dispute, its significance nevertheless exceeds even material litigation. A person without an apartment is forced to spend money on renting other housing, while someone is thriving on his square meters or in an apartment, to which the person forced to live outside also has rights.

The main problems of moving into a municipal apartment are the lack of consent from the owner (in Moscow this may be the Department of City Property, in the Moscow Region - structural divisions of local administrations) or the lack of consent of one of the citizens previously registered in the apartment, who themselves are in the specified apartment do not actually live. Below are the rules governing these legal relations in general. But this is not an algorithm of actions. Each case is individual. When moving into a municipal apartment, it is advisable to understand what the plaintiff’s rights are based on:

In accordance with Art. 69 of the Housing Code of the Russian Federation, family members of a tenant of residential premises under a social tenancy agreement include his spouse living with him, as well as the children and parents of this tenant. Other relatives and disabled dependents are recognized as family members of the tenant of the residential premises under a social tenancy agreement if they are settled by the tenant as members of his family and run a common household with him. In exceptional cases, other persons may be recognized as family members of the tenant of a residential premises under a social tenancy agreement in court. Family members of the tenant of a residential premises under a social tenancy agreement have equal rights and obligations with the tenant.
In accordance with Art. 70 of the Housing Code of the Russian Federation, the tenant, with the written consent of his family members, including temporarily absent family members, has the right to move into the residential premises he occupies under a social tenancy agreement his spouse, his children and parents, or with the written consent of his family members, including temporarily absent members of his family, and the lessor - other citizens as members of his family living with him. The landlord may prohibit the move-in of citizens as family members living with the tenant if, after their move-in, the total area of the relevant residential premises per family member is less than the accounting norm. The consent of the other members of the tenant's family and the consent of the landlord are not required to move in with the parents of their minor children.
In accordance with paragraphs. 26-27 Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 2, 2009 No. 14 “On some issues that have arisen in judicial practice when applying the RF Housing Code”: within the meaning of the provisions of Art. 69 Housing Code of the Russian Federation and Part 1 of Art. 70 of the Housing Code of the Russian Federation, persons moved into the residential premises by the tenant under a social tenancy agreement as members of his family acquire equal rights and obligations with the tenant, provided that they are moved into the residential premises in compliance with the provisions of Part 1 of Art. 70 of the Housing Code of the Russian Federation of the procedure for the exercise by the tenant of the right to move other persons into the residential premises as members of his family. At the same time, for a tenant to move other citizens into the residential premises as members of his family living with him, the tenant must obtain written consent not only from his family members, but also from the landlord. The landlord has the right to prohibit the move-in of other citizens if, after their move-in, the total area of occupied residential premises per family member is less than the accounting norm. The landlord's refusal to give consent to move into the apartment can be challenged in court. At the same time, the reasons why members of the tenant’s family refuse to give consent for other persons to move into the residential premises do not have legal significance, and therefore their refusal of such consent cannot be declared unlawful by the court.
The Constitutional Court of the Russian Federation in Resolution 8-P of June 23, 1995 indicated that a person’s temporary non-residence in residential premises cannot in itself indicate improper exercise of his housing rights and obligations and serve as an independent basis for deprivation of the right to use residential premises.

Claim for moving into a municipal apartment

A claim for moving into a municipal apartment and eliminating obstacles to use can be filed by a person who is not the owner (in fact, during a judicial review of forced moving into a municipal apartment, the plaintiffs are citizens who are not owners). Before going to court with a claim, you must contact law enforcement agencies with a statement that there are no obstacles to use. The claim for moving into a municipal apartment is based on the following rules: Art. 304 Civil Code of the Russian Federation, Art. Art. 69 and 70 Housing Code of the Russian Federation. Contents of a standard claim for moving into a municipal apartment:

The pre-trial procedure for a claim for moving into a municipal apartment is filing an application with the internal affairs bodies against the persons living in the apartment about their obstruction in moving in. The goal is to obtain a decision to refuse to initiate a criminal case in view of a civil dispute that needs to be resolved through a court decision (without this, the requirement not to obstruct you will not be satisfied).
In the header of the claim for moving into a municipal apartment, you indicate the name of the plaintiff (minimum - full name, address), the name of the defendant (depending on the status of the apartment - either an individual or a legal entity, for example, DGI of Moscow or the Administration of such and such a city in the Moscow region, etc.) etc.), names of third parties (their circle depends on the marital status of the parties to the dispute - children, grandchildren living with the plaintiff, defendant, other municipal bodies)
In the body of the claim for moving into a municipal apartment, you must indicate in a simple form the chronology of the history of your receipt of the right to live in the apartment, the facts of violation of your right and your actions out of court in an attempt to resolve your right. Links to legislation depend on the apartment status of your status in this apartment.
The pleading part of the claim for moving into a municipal apartment: to move the plaintiff and his family members into an apartment at such and such an address, and (or) register them, and (or) oblige such and such not to create obstacles in moving in and living. Sometimes, but rarely, courts can simultaneously consider demands to determine the procedure for using even a municipal apartment.

According to Article 40 of the Constitution of the Russian Federation, all citizens have the right to housing. But it happens that the rights of some citizens violate the rights of other citizens or organizations, creating obstacles to living in an apartment. At the same time, both parties are confident that they are protected by the law. How to be in this case? There is only one answer - to go to court with a claim to move into the apartment. Thus, an illegal move- in in the understanding of one, but in the understanding of another, the move-in took place in accordance with the law. This is where the controversy arises.

Changing the social tenancy agreement for residential premises

Since moving new residents into an apartment provided under a social rental contract implies a transformation of the very process of using living space, such an action also necessitates changes to the terms of the current agreement.

To do this, the applicant (this can be either the employer himself or representatives of his family) must contact the state or municipal body with which the agreement was signed. In this case, you should provide a complete package of documents that confirm the status of those in need, as well as written consent (if provided by law) received from each family member.

Only if the legislative order, provided, in particular, by the Housing Code of the Russian Federation, is observed, will the move-in of new residents be completely legitimate. Otherwise, such an action will be considered illegal, which will be quite easy to prove in court.

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Illegal entry into a municipal apartment

Illegal moving into a municipal apartment - when people move into non-residential municipal premises; when they move in arbitrarily, without having legal grounds for this (there are no relevant documents confirming their right to move in); when there is no consent of family members of the tenant of the apartment to move in; when the documents that are considered the basis for moving in are declared invalid by the court; when the residence of the moving-in person with a minor child is declared illegal by the court; when citizens move into buildings that are in danger of collapsing and are considered unsafe. The most difficult thing when illegally moving into a municipal apartment is to prove the right to move in, and the person who moved in is obliged to prove this. Not every apartment can be moved into.

Consent of temporarily absent family members of the tenant and co-tenants

As stated above, in order for the tenant’s right to move in to be put into practice, it is necessary to provide consent obtained from all participants in the social tenancy contract, and in particular:

representatives of the employer's family;
residents who are temporarily absent from the address where housing allocated from the social property fund is located;
co-tenants.

It should be remembered that the consent obtained from these persons must be provided in writing. If one of the family representatives does not give his consent for a third person to move into a residential apartment under a social tenancy contract, then such an action on the part of the tenant will be considered illegal.

If we turn to legal practice, it is impossible to challenge the refusal by the tenant’s family to move a new tenant into the provided living space even through the courts. This is regulated by the Supreme Court Resolution No. 14. In particular, it states that the determinants of refusal by family members to move in new residents do not have any meaning in the legal field.

As for the consent of the tenant to move in third parties, it is also not possible to challenge his refusal through the court. This is due to the fact that the entry of unauthorized citizens into an apartment owned by the applicant is only the right of the tenant, but not his direct responsibility.

Standard case of intrusion from judicial practice

Moving into a municipal apartment is forced in two cases (most often): either the owner of the apartment does not give consent to move in, or one of the people registered in the apartment does not give the other’s consent to registration. A client contacted us. The plot of the case is as follows: she dissolved her marital relationship with her husband. A child was born in the marriage. Due to the material costs of renting housing and the lack of alimony from her ex-husband, the principal decided to move into a municipal apartment, but the ex-husband’s mother simply did not let her in. At this stage, the victim contacted our center. At the pre-trial stage, a resolution was received from the local district inspector, who suggested going to court. It is known that disputes about moving into a municipal apartment begin precisely with an appeal about obstacles in moving in, however, the responses to such appeals are quite standard in nature. Upon completion of the pre-trial stage, we went to court with a request to move the principal and her child into a municipal apartment. The defendants filed a counterclaim with the court to remove both of them from registration as having lost the right to use. During the trial, it was possible to prove that the ex-husband received money under the young family program to purchase an apartment, but for this it was necessary to prove that the area did not correspond to the number of people living in it. For this purpose, the family of the ex-husband registered both the trustee and her child in a municipal apartment. Whether the invasion was real or not is a controversial issue and this issue was not raised by our side and was ignored.

Judge of the Lyublinsky District Court of Moscow - Maksimova (currently not working there) decided to refuse to satisfy our claims and satisfied the counterclaims of procedural opponents. In the Moscow City Court, in addition to the obvious absurdity of the decision, it also turned out that the judge read out one version of the operative part, and wrote another version, in which our demands regarding the placement of the child were satisfied (according to the judge, this judge whose intellectual level we leave behind the scenes, determined the place of residence of a young child with his father). The Moscow City Court overturned the decision, the case was returned at the stage of cassation appeal to the Lyublinsky District Court, where it was accepted for proceedings by another judge and a decision was made: to satisfy our demands in full, to refuse to satisfy the counter-claims in full. This legal decision came into force after the losing party attempted to appeal it. Frankly, the situation is standard, but Judge Maksimova’s behavior is not standard. Remember, there are not many such conventional “Maxim judges”, but you have to waste your nerves on them. And krexit? if it's the lawyer's nerves.

Obstacles when moving into a municipal apartment

If a situation arises of obstructing the entry into an apartment, first of all, before going to court, it is necessary to collect evidence of obstructing the use of the apartment. To do this, you need to contact the local commissioner with an application and invite a representative of the management organization. When you go out to the site, record everything in writing. If the apartment is owned in equal shares, then you can file a claim in court for occupancy on the basis of Article 30 of the Housing Code of the Russian Federation, but at the same time it is impossible to determine the procedure for using the apartment (the courts proceed from the fact that first it is necessary to carry out the actual occupancy, and then determine order of use). According to Art. 247 of the Civil Code of the Russian Federation, a participant in shared ownership has the right to be given for his possession and use a part of the common property commensurate with his share, and if this is not possible, he has the right to demand from other participants who own and use the property falling on his share, appropriate compensation. Therefore, you can also seek monetary compensation for the use of your apartments. meters for the year that the room was not used. All in one application to the court, the demands will sound like this: “On moving in, determining the procedure for using the apartment, collecting monetary compensation.”

Moving in with parents of minor children

Despite the fact that only certain categories of citizens have the right to enter housing allocated under a social tenancy agreement, there are exceptions to the general rule. In particular, moving in with the parents of their minor children does not imply consent from the landlord or other parties to the contract. In other words, minor citizens automatically become participants in a social employment contract.

In judicial practice, there are cases when tenants try to evict such tenants. However, for the most part, such claims are considered in favor of the defendant, even if the children do not live in housing allocated by the state or municipality for that period of time. This is due to the fact that minor citizens are not fully capable, so the opinion of their parents is taken into account. This is regulated, in particular, by Art. 28 of the Constitution of the Russian Federation, which establishes care for children as not only a right on the part of parents, but also their key responsibility.

Service housing as a type of municipal

Service housing. What it is? To explain it in simple terms, service housing is part of the housing stock, which is distributed by the department or enterprise that manages this fund. Unlike municipal housing, service housing cannot be privatized. Previously, there were exceptions (during the period of mass transfer of official housing from departments to the ownership of the constituent entities of the federation while maintaining the status of official housing), but by 2021 these exceptions no longer remained - everything was privatized. Moving into service housing is the same as moving into municipal housing. In fact, there are no differences in the process.

When moving in is impossible

Cases of citizens moving into living space are not subject to consideration when:

The lessor, without the appropriate permitting documentation, carried out the construction of a separate residential building or added living space for rental;
Housing space owned by the landlord and rented out has been seized in connection with criminal prosecution or for any other reason in accordance with the legal norms in force in the Russian Federation;
The living space, on the basis of a government decision in the Moscow region or Moscow, must be resettled for reasons of reconstruction, demolition, emergency condition, collapse, overhaul or other cases provided for by current legal norms;
When there is a ruling from the judicial authorities prohibiting the cohabitation of minor children with a parent deprived of parental rights;
When the documents establishing the right of the landlord to dispose of the living space for rent are declared invalid, namely, an agreement on the rental of living space, or a commercial lease, an agreement on the transfer for use of living space for a certain limited time, a lease (sublease) agreement; evidence of donation, exchange or ownership as private property, etc.