Sometimes it becomes necessary to evict tenants, relatives or ex-spouses from an apartment. But this can only be done after receiving a court decision on eviction, because Article 40 of the Constitution of the Russian Federation does not allow leaving a person without housing just like that.
In order for the court to satisfy the plaintiff’s demands, the necessary grounds are needed, which are prescribed in the Housing and Civil Codes of the Russian Federation. We will look at them in more detail, but in some cases the eviction process can be complex and drawn out, since it often meets resistance from those who are being evicted. If you are faced with this or are trying to illegally evict you from your apartment, it is better to contact experienced lawyers on housing issues.
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Grounds for eviction of persons by court decision
Eviction means the expulsion of people from an apartment with their property: things, animals, furniture, electrical appliances. Laws allow for compulsory eviction by court decision in several cases:
- expiration of the lease term (commercial or social);
- the desire of the apartment owner himself (for example, when buying housing with registered strangers);
- absence of a person from the apartment for a long time;
- seizure of land under the house in favor of the state;
- recognition of the house as unsafe or subject to demolition;
- debt for paying utilities for more than six months (for municipal housing);
- use of residential premises as a store or warehouse;
- violation of the rights of neighbors (raising dirt, creating a brothel, immoral lifestyle, noise after 23.00);
- intentional damage to housing (violation of the structure or property of other owners);
- dismissal (relevant for service apartments);
- resettlement of a spouse after divorce;
- eviction of one of the parents in case of deprivation of parental rights;
- transfer of a residential property by the municipality to non-residential status.
Arbitrage practice
There is no uniform judicial practice. The outcome of the case depends on the preparation of the parties for the trial and the availability of convincing evidence.
If the defendant has no right to live in the apartment, then he will lose the case and sooner or later he will have to leave the apartment. In difficult situations, it is advisable to seek support from a competent lawyer.
Here is the case law on the issue of eviction.
Several features of the eviction procedure by court decision
If there is a court decision to evict the defendant from the apartment, then the entire process of execution of this decision is controlled by bailiff services. They receive a writ of execution from the court and, based on it, issue a resolution to initiate enforcement proceedings. Without such documents, they have no legal right to evict people.
The actions of bailiffs are regulated by Federal Law No. 229 “On Enforcement Proceedings,” which sets out a clear procedure for the procedure for eviction from an apartment by court decision. Violation of the established procedure can and should be appealed in court as soon as possible.
According to Articles 85-89 of the Housing Code of the Russian Federation, when residents are evicted for reasons beyond their control (demolition of an old house, emergency housing, seizure of land under a building in favor of the state), government officials are obliged to provide people with new, equivalent housing that meets housing standards.
Rent arrears in a municipal apartment leads to eviction by court decision and provision of less living space. At the same time, his current debt remains.
If the owner of an apartment is evicted for debt, the living space is sold at auction. Part of the proceeds pays off debt and covers organizational expenses. The remainder is transferred to the owner to purchase a new home.
General information
The actual procedure may be preceded by a period of contacting the offender with a request to vacate the premises without trial. The defendant may be notified by registered letters, and explanatory conversations may be held with him by municipal employees or bank employees (if the apartment was sold by the bank due to the debtor’s inability to pay the mortgage on time).
The defendant may be given a period to vacate the home; if he refuses to do this, then the legal owners and owners of the home have no choice but to prepare a statement of claim in court.
The proceedings can take several months and are periodically postponed for various valid reasons - the search for defendants, the failure of witnesses to appear, examinations, or the expectation of documents from local governments and other authorities.
The process of eviction by bailiffs in stages
According to the procedure, it is required that a district police officer and two witnesses be present with the bailiffs during the forced eviction of tenants from an apartment by court decision. Sometimes the eviction procedure requires the involvement of specialists from the Ministry of Emergency Situations, when access to the apartment is impossible due to closed locks.
The person being evicted may not even be present at home. This will not prevent you from clearing the room of his things.
Eviction begins after a court decision according to a procedure regulated by law. The writ of execution is sent to the nearest territorial department of the Bailiff Service (Bailiff Service) to the defendant’s place of residence.
Next, the bailiffs study the received decision in detail and begin preparations for forced eviction. Enforcement proceedings begin.
Both parties (respondent and applicant) receive notification of the start of enforcement proceedings. The defendant is asked to voluntarily leave the premises within 5 days from the date of receipt of the notification, and the plaintiff is explained the procedure for contacting the SSP if the defendant does not want to leave the apartment.
If the defendant does not intend to vacate the living space after five days, the bailiffs with the district police officer and two witnesses will go to the address.
An act of eviction of the defendant signed by witnesses is filled out on the spot.
Next, an inventory of the property in the house takes place and the defendant’s personal belongings are sent for temporary storage if he cannot remove them himself. Items are kept by bailiffs for two months. If the owner does not take back his property during this time, the bailiffs have the right to sell it in accordance with Article 107 of the Federal Law of October 2, 2007 N 229-FZ “On Enforcement Proceedings”
After the forced eviction of the owner from the apartment is completed by a court decision, the doors are sealed. If a tenant or a registered person has been evicted, the keys are handed over to the owner of the property. After all the procedures, the bailiffs issue orders to complete the enforcement proceedings and submit them to the court for review.
The lawyer achieved the cancellation of the decision to evict the trustee from the apartment sold without her consent
The Seventh Court of Cassation of General Jurisdiction published a reasoned ruling in a civil dispute in which a man sold an apartment acquired during marriage and owned jointly, without the consent of his ex-wife.
Circumstances of the dispute
Tatyana and Vladimir Zykov filed a claim against Alsu Mansurova in the Kogalym City Court of the Khanty-Mansiysk Autonomous Okrug - Ugra. Referring to Art. 209, 304 of the Civil Code of the Russian Federation, they asked the court to oblige the defendant to stop actions that impede their exercise of ownership of the apartment and to move out of there. The plaintiffs motivated their demands by the fact that they are the owners of the disputed housing, but cannot use it, since the defendant occupied the apartment without legal grounds, citing a power of attorney issued to her by the former owner, Sergei Semyonov (the power of attorney has now been revoked).
Alsu Mansurova, in turn, filed a counterclaim against the Zykovs, as well as Olesya Kirichenko and Sergei Semenov, to invalidate the purchase and sale agreements, cancel the entries in the Unified State Register of Real Estate and apply the consequences of the invalidity of the transactions (AG has the statement of claim). The plaintiff explained that the apartment was purchased by her and Sergei Semyonov during their marriage and is joint property. On September 7, 2010, the marriage was dissolved, there was no dispute about the division of joint property, the ex-spouses decided to use the apartment together, and in the future to re-register it to their son.
Since in 2006 Semyonov was transferred to work in another city and from that time lived there, after the divorce he issued a power of attorney for Mansurova to manage the apartment, which he canceled on July 14, 2021.
In 2021, Mansurova filed an application with the magistrate for a court order to collect child support from Semenov, which caused the relationship between the former spouses to go wrong.
In mid-October of the same year, Semenov informed Mansurova of his intention to sell the apartment, and also that he would sell it even if his ex-wife refused to give notarized consent. Mansurova replied that she would not give consent and would go to court with a claim to divide the apartment into shares, intending to exercise the right of pre-emption to acquire a share.
In November 2021, she filed a claim with the Kogalym City Court for recognition of ownership of the apartment, in which she asked to be allocated a ½ share and to terminate the joint ownership regime. In the same lawsuit, the plaintiff asked for interim measures in the form of a ban on performing registration actions with the apartment. She informed her co-owner about this.
On November 7, 2021, the application was returned due to a violation of the rules of jurisdiction. Mansurova was explained that the claim should be filed at the defendant’s place of residence. The appeal upheld the ruling of the first instance. At the beginning of January 2021, the plaintiff appealed to the Surgut City Court - at the place of residence of her ex-husband.
On January 28, 2021, Sergei Semenov informed Alsu Mansurova about the new owner of the apartment, Vladimir Zykov, and demanded to vacate the apartment within 10 days. The next day, the woman sent a photo of a statement of claim against Semyonov to Zykov’s phone number for the division of jointly acquired property, indicating that the issue of the apartment they were purchasing was being considered in court. On February 1, 2021, Tatyana Zykova told Mansurova over the phone about a conversation with a lawyer, who explained that since they were purchasing the apartment not from Semenov, but from Olesya Kirichenko, Mansurova could only count on funds that she had the right to recover from Semenov. The Zykovs decided not to suspend the deal.
Then Mansurova found out that Kirichenko was involved in the deal, and contacted the Kogalym City Department of Internal Affairs with a statement of crime under Art. 159 of the Criminal Code of the Russian Federation.
On February 4, 2021, Alsu Mansurova applied to the cadastral chamber to suspend the transaction, but was refused due to the fact that she was not a party to it.
On February 13 of the same year, a decision was made to refuse to initiate a criminal case under Art. 159 of the Criminal Code, according to which, during the inspection, Vladimir Zykov was interviewed, explaining that from 2018 to 2021, he and his wife decided to purchase an apartment, for which they contacted a real estate agency. They were offered a controversial apartment, but it turned out that the owner was on a business trip. In January 2021, realtor R. called Zykov and said that the owner had arrived and was ready for a deal.
“As can be seen from the said resolution, not about any owner of the apartment in the person of O.E. Kirichenko. Zykov did not mention it, he referred to the owner of the apartment, and not to the landlady. Thus, he knew that the apartment was actually being sold not by O.E. Kirichenko, but by S.V. Semenov. Moreover, after registering the sale and purchase transaction, defendant Kirichenko O.E. she did not try to move into the apartment, the apartment remained in her ownership for only three weeks, after which it was sold by Zykov,” Mansurova emphasized in her counterclaim.
“It is obvious that, without obtaining consent to sell the apartment, Semenov S.V. and Kirichenko O.E. planned a purchase and sale transaction with the aim of approving a subsequent transaction with Zykov Bank, since back in December 2021, realtors Semenov S.V. and Kirichenko O.E. were informed that the Zykovs intended to purchase an apartment with a mortgage, and, accordingly, the latter assumed that the bank would thoroughly check the apartment to ensure there was no dispute,” the document noted.
In addition, it was indicated that as a result of unfair actions of all parties to the sales contracts, Mansurova’s rights were violated. Thus, the defendants became reliably aware of the existence of a dispute on January 29, 2021, and the transfer of ownership of the apartment was registered in the Unified State Register of Real Estate on February 7.
The counterclaim also emphasized that Mansurova learned about the violation of her right in October 2021, and therefore filed a lawsuit to determine the shares in the right to the property. Due to the fact that Kirichenko and the Zykovs knew about the existence of a dispute between the former spouses regarding the use of the apartment, they, according to the plaintiff, cannot be recognized as bona fide purchasers, and transactions for the alienation of the disputed apartment should be declared invalid.
Mansurova asked to invalidate the agreements for the purchase and sale of an apartment concluded between Semyonov and Kirichenko, as well as between the latter and the Zykovs, as well as to cancel the entries in the Unified State Register of Property Rights and apply the consequences of the invalidity of these transactions, returning the parties to the original position that existed before the violation of her rights .
The first instance came to the conclusion that there was no evidence of dishonest behavior of buyers
In court, Tatyana Zykova explained that they bought the apartment the second time, since the first time the realtor R. said that the owner could not come, and the second time they met the owner - Olesya Kirichenko - for the first time at the bank when transferring money.
January 29, 2021 The Zykovs arrived at the apartment and found it locked from the inside. In the evening, Mansurova invited them to meet, but Tatyana Zykova refused, citing the fact that the apartment belonged to her. Since Mansurova did not participate in the transaction, nor was she listed on the certificate of persons ever registered in the apartment, and they purchased the property from Olesya Kirichenko, Zykova perceived Mansurova’s behavior as dishonest. A day or two before registering the transaction, Tatyana Zykova explained to the court, they received a call from the registration chamber and were informed about Mansurova’s claims to the apartment. The registration chamber, in turn, explained to the Zykovs that the transaction can only be canceled with the consent of all its participants. They did not know that the registration of the transaction could be suspended. Tatyana Zykova asked her claim to be satisfied and her counterclaim to be rejected.
According to the testimony of Sergei Semenov, since the apartment was not “divided” and the statute of limitations had expired, he believed that the apartment completely belonged to him. The realtor asked him to give a notarized statement that the apartment was not purchased during marriage, but the man refused and the deal did not take place.
Sergei Semyonov discussed the situation with his colleagues, and Olesya Kirichenko expressed a desire to buy this apartment for cash for her son. Some time after the purchase, she said that circumstances had changed and the property needed to be sold, and asked for help. Semyonov recommended that she contact a real estate agency. He asked the court to reject Alsou Mansurova’s claim.
Having studied the case materials, the court noted that the sale and purchase agreements disputed by Mansurova were concluded on December 7, 2021 and January 25, 2019 - i.e. when she and Semyonov divorced. Thus, the possession, use and disposal of common property, determined by the provisions of Art. 35 of the RF IC, were terminated, and the former spouses acquired the status of participants in joint property, regulated by the norms of the Civil Code of the Russian Federation.
The court indicated that based on the provisions of paragraphs 2 and 3 of Art. 253 of the Civil Code, when resolving a dispute regarding the recognition of a transaction for the disposal of common property made by one of the participants in joint ownership as invalid, the following circumstances are subject to establishment: the presence of the participant in joint ownership of the authority to dispose of the common property and the awareness of the other party to the transaction that this participant does not have the appropriate powers, taking into account which the other party should have known about the illegality of his actions.
The first instance noted that since Alsou Mansurova is challenging the transaction made by her ex-husband to dispose of the disputed apartment, it is she who must prove Olesya Kirichenko’s bad faith in terms of her awareness of Sergei Semyonov’s lack of authority to dispose of the apartment.
At the same time, as follows from the testimony of witness T., a senior detective officer of the OEBiPK OMVD of Russia for the city of Kogalym, who conducted an inspection at the request of Mansurova and interviewed Kirichenko, in an oral conversation the latter explained that she agreed to act as a fictitious buyer of the apartment, since Semenov’s ex-wife behaved incorrectly. Kirichenko refused to give written explanations, citing Art. 51 of the Constitution of the Russian Federation.
“Taking into account the above, the court cannot, as evidence of the dishonest behavior of Kirichenko O.E. accept the testimony of witness T., since in accordance with the procedure established by law it is recorded that from giving explanations during the interview Kirichenko O.E. refused, the fact of giving oral explanations by T. on the merits of the dispute Kirichenko O.E. “I denied it at the hearing,” the court concluded.
The first instance indicated that evidence of Kirichenko’s awareness of Mansurova’s appeal to the court, given that the claim was returned, and Kirichenko was not a party to the dispute over the division of property between Semenov and Mansurova, was not presented by the plaintiff’s side in the counterclaim. At the same time, Art. 38 of the RF IC does contain a rule that a three-year statute of limitations applies to claims for the division of common property of spouses whose marriage is dissolved.
Rights and obligations of bailiffs during eviction
All actions of bailiffs must be carried out in strict accordance with the regulations. Any small mistake when completing the eviction procedure may become a reason for the defendant to appeal and suspend the process.
Bailiffs do not have the right to use physical force against the defendant if the citizen himself does not show aggression. Forcible expulsion from the premises of a non-aggressive and non-attacking person can only be carried out by police officers, who can be called by the district police officer in the event of conflict and controversial situations.
Bailiffs are required to introduce themselves, show identification and familiarize the evicted person with his rights and obligations.
Legislative regulation
Eviction is possible on the basis of Art. 31, art. 95 of the Housing Code of the Russian Federation, as well as the Civil Code of the Russian Federation - if a citizen uses the housing that he owns for other purposes. The trial is conducted taking into account the norms of the Code of Civil Procedure of the Russian Federation. Enforcement actions are carried out in accordance with Federal Law No. 229, adopted in 2007.
Rights of defendants in court-ordered evictions
The defendant can count on being granted a deferment on eviction in accordance with Article 434 of the Civil Procedure Code of the Russian Federation. To do this, the person evicted by court decision can submit an application to the bailiffs requesting such a deferment. The legislation provides for a certain range of reasons for deferring forced eviction:
- difficult financial situation (Article 203 of the Civil Procedure Code of the Russian Federation);
- eviction of a tenant with a minor child;
- the defendant has a serious illness that requires constant care and relocation may aggravate the health condition;
- reconciliation of the parties, when the defendant was able to come to an agreement with the plaintiff (for example, compensated for property damage or paid part of the rent debt).
To verify these reasons, you will need salary statements, receipts, birth certificates for minors, medical certificates, prescriptions and receipts for medications.
Consideration of the case
Filing a claim is a complex process.
It is not always possible to register a claim with the secretariat the first time. Sometimes the reason for refusal to accept it is incompleteness of documents, and sometimes the rejection occurs due to an incorrectly drawn up claim. All this hassle can be avoided if you contact the services of a lawyer who will not only write the statement of claim correctly, but will also check the completeness of the documentation, as well as the correctness of its completion.
After submitting documents for consideration, the plaintiff will need to wait until written notice of a hearing date is received. It is in the interests of the owner to appear at the meeting, and if it is impossible to do this in person, to send his representative there. It is important to transfer the powers to him by a notary, otherwise he will not be accepted in court.
At the trial, you will need to confirm what was previously stated and protect your interests when clarifying controversial issues.
How to file a claim - sample
Any applications submitted to the court must comply with the requirements of procedural law. Therefore, before submitting them, you should familiarize yourself with the contents of Art. 131, 132 Code of Civil Procedure of the Russian Federation. The claim must include the name of the court, the parties to the dispute, their details, addresses, and the circumstances that prompted them to go to court.
The reasons for the requested eviction, as well as the evidence supporting their existence, should be clearly stated with reference to the law. In addition, the claim itself must be clearly stated. The document must be readable and signed by the correct person. If it is submitted on behalf of authorities, then a seal is required. At the same time, the signature of an authorized person is placed on it. If a representative of any body or citizen acts, then a document on his powers is attached to the claim. An approximate example of its composition can be seen below.
Sample letter of claim for eviction.
Deadlines
The process of reviewing such claims is quite complex. Judges treat decisions that serve as grounds for eviction of citizens from their homes with extreme caution. It is difficult to predict the duration of such a process; the law does not establish specific deadlines in this regard. It depends on many different circumstances. These include the volume of evidence presented, the positions of the parties, and the need to involve other persons.
In any case, you should not expect a decision to be made quickly. Even when it is issued, the party dissatisfied with it most often resorts to the appeal procedure. And this may take another couple of months to go through all the authorities. A decision that has already entered into force can begin to be executed by bailiffs.
Thus, before the actual eviction from the apartment, it can take from a couple of months to a year.
Documentation
In addition to the claim, the court also requires the provision of other documents. Their full list can be read in Art. 132 of the Civil Procedure Code (hereinafter referred to as the Code of Civil Procedure of the Russian Federation). Some of them are clearly named and relate to compliance with procedural issues. For example, a receipt for payment of state duty, copies of the claim and documents for other persons, a claim, a power of attorney (if the claim was signed by a representative).
The documents submitted to the court must strictly comply with these requirements. As for other documents, these can be any papers that prove the applicant’s position on the need to evict the premises.
These may include documents on non-payment of housing and communal services, acts on violations committed during the use of premises, protocols from the district police officer on violations, instructions from fire and sanitary services on the need to eliminate violations.
