Home / Eviction / Forced eviction from an apartment - judicial practice
The topic of forced de-registration is most often unpleasant for everyone who touched upon it: be it the owner of the premises or the evicted citizen. As a rule, eviction from an apartment is an extremely forced measure, but situations arise in life when you have to deal with this. Today's article will shed light on the issue of eviction from a residential premises. We will tell you how the procedure itself works, and also analyze judicial practice, based on real examples.
Deregistration from residential premises
Registration of a person at the place of residence (permanent registration) or at the place of stay (temporary registration) is mandatory. This makes it easier for the state to regulate law and order and monitor population migration. Before registering in a new place, a person must register at his old address. The procedure for deregistration from an apartment has nothing to do with the right of ownership of this housing, so a citizen, even if he is not the owner, can live in the apartment if he is registered there.
The main issues relating to registration and deregistration are regulated by GD No. 713 dated July 17, 1995. However, this resolution regulates the procedure for voluntary discharge only. In other cases, the issue is resolved through the court.
As for voluntary deregistration, everything is simple: the owner of the apartment comes to an agreement with the person registered in it, after which the citizen, of his own free will, goes to the passport office and carries out the procedure for deregistration from the residential premises. With forced discharge, things are more complicated.
Can they evict without consent?
According to Article 35, paragraph 1 of the Housing Code of the Russian Federation, eviction from an apartment without consent can only be carried out through the court. The court's decision, as a rule, depends on whether the person has another living space where he can register. It is easier for the owner of an apartment to discharge a citizen without his consent if he lives in another place . As a rule, in such situations the court sides with the plaintiff. Can they be forcibly evicted if the case concerns minor children or a person who has no other housing?
Yes, they can, but the discharge procedure will be more difficult. If the owner has applied to the court with a demand to deregister a person without his consent, he must provide reasons for such a demand. They can serve as:
- Violation of law and order by a person;
- Causing damage to residential property of which the evicted person is not the owner;
- Purchasing an apartment where unauthorized persons were registered;
- Sale of living space;
- Refusal of the evicted person from privatization;
- Actual residence at a different address;
- Refusal to pay utility bills;
- Divorce with the owner of the premises.
Despite the fact that there are quite a lot of grounds for forced deregistration, when applying to the courts, additional evidence of the plaintiff’s position will be required: testimony of witnesses, receipts for utilities, photo and video materials. Only after carefully examining all the evidence can a judge approve forced deregistration. Judicial practice on eviction from an apartment is ambiguous. Let's look at a few specific examples.
Reasons for deprivation of living space
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Eviction from occupied living space is possible if:
- long-term absence of a citizen from the place of registration;
- launching the registration procedure, complicated by the fact that one of the residents is against it;
- the presence of insoluble contradictions between relatives;
- systematic failure to pay utility bills;
- purchasing housing where residents were previously registered;
- residence of persons without appropriate legal grounds;
- regular and prolonged violation of moral and legal principles.
Analysis of practice in court cases
Article 40 of the Constitution of the Russian Federation states that it is impossible to deprive a person of the right to reside in a certain territory against his will. This often contradicts the interests of the owner of the premises. In this case, the latter have to go to court. Judicial practice in disputes regarding eviction from an apartment shows that most often claims are granted with the requirement to evict citizens who do not live in the disputed territory, as well as former spouses who are not the owners of the living space. According to statistics, such cases are resolved in favor of the plaintiffs in 85% of cases .
There are some situations in which eviction from an apartment, even through court, can cause a number of difficulties. This is an extract from a citizen with children, a person who does not have the opportunity to register elsewhere.
If a person has nowhere else to register, eviction is not refused, but it is postponed for a certain period, usually from 3 to 12 months. During this period, the evicted person must find a new place of registration.
In some cases, even the owner can be evicted from the apartment. The procedure is also carried out through the court. If he systematically violates public order or damages public places, at the request of his neighbors, the judge may decide to discharge him. The procedure for eviction from an apartment is quite simple if a person is in prison or is in the army. But according to an analysis of judicial practice, such people, upon their return, file a claim for cancellation of the extract, and, as a rule, the claims are satisfied.
General information about the specifics of making a court decision on eviction is described in this article.
Mortgage housing
If a person is unable to repay the loan for an apartment, then he will most likely have to part with the mortgaged housing. The fact is that according to the mortgage law, the mortgaged real estate is the property of the bank. Systematic delays in loan payments may be grounds for the creditor to go to court . After this appeal, the debtor and other persons living in the apartment are obliged to vacate the living space. If they do not do this within the period established by law, eviction from the apartment takes place forcibly. Let's look at an example.
The bank went to court to evict the debtor for non-payment of the loan. The borrower has not paid the mortgage for more than 6 months; before that, only 8% of the debt was repaid. The housing was pledged to the bank. The borrower did not agree with the plaintiff’s demand, arguing his refusal to evict by the fact that minor children were registered in the apartment. The court sided with the creditor.
When evicting from mortgaged housing, minor children registered in the apartment are not a reason for refusing to satisfy the claims of the plaintiff creditor.
In this case, the judge took into account the interests of the children by granting the defendant a deferment of 4 months. During this time, he must either come to an agreement with the bank and begin to pay off the debt, or vacate the home in accordance with the resolution.
With minor children
As for judicial practice regarding the eviction of families with a minor child from an apartment, according to statistics, the grounds for forced eviction may be:
- Expiration of the residential rental agreement;
- The apartment was provided by the employer with whom the defendant terminated the employment contract;
- The housing is owned by the municipality;
- Change of owner.
In any case, eviction from the apartment must take place under the supervision of the guardianship authorities . The court will approve the claim for the child's discharge only if he is provided with living space with living conditions no worse than the previous ones. For example, consider the lawsuit of gr. Shuvalova I.P.
We will learn more about whether it is possible to discharge a minor child from an apartment to nowhere in a special article prepared by our editors.
Citizen Shuvalov decided to sell the apartment, which he had previously rented to a family with a child. The lease was coming to an end, but the family refused to check out. The landlord filed a lawsuit. During court hearings, the guardianship authorities imposed a condition that they would give permission to deregister only if satisfactory living conditions were provided for the child. The plaintiff again failed to reach an agreement with his parents. Then citizen Shuvalov had to rent housing for a month at his own expense and submit a rental agreement to the court. The parents agreed to move to new housing. The family's eviction claim was granted.
✅ Is it possible to evict the owner if he does not pay the rent?
The owner has the right to evict a tenant for non-payment of utility bills. Is it possible to carry out a similar procedure in relation to the property owner himself?
Debts for housing and communal services are not grounds for eviction of an apartment owner. But this does not mean that the owner is allowed all sorts of liberties and can accumulate a significant debt. Most likely, the debt will be repaid from the property of the defaulter.
Debt collection is initiated at the request of creditors, and enforcement is carried out by bailiffs. The most common scenario, if the owner does not pay for the apartment and meters, is the seizure of accounts, deposits, securities, and an inventory of part of the debtor’s property. In this case, eviction cannot be threatened.
✅ Without providing other housing
Systematic and malicious violation of housing rules leads to the eviction of the tenant without the provision of other housing. But we need to understand what exactly is meant by such resettlement. The reasons are contained in Art. 91 of the RF Housing Code – let’s look at them in more detail.
In what cases are they evicted “to nowhere”:
- Regular violation of public order, conflicts with neighbors.
- Debt to housing and communal services for a period of more than 6 months (Read, “Is it possible and how to check out of an apartment with debts?”).
- Use of housing for other purposes (for example, creating an office or warehouse).
- Damage to property in the apartment.
- The evicted person was deprived of parental rights in relation to the child.
- Expiration of the social rental agreement for an apartment (not renewal).
These facts must be proven in court. Verbal identification of reasons for eviction is not permitted.
Who cannot be evicted and under what circumstances
The Housing Code of the Russian Federation stipulates that forced eviction of owners may be impossible or prohibited for certain reasons. Art. 103 paragraph 2 excludes this possibility if the matter concerns official residential premises. If another alternative is provided, then the rules must be followed.
Immunity applies to such categories of residents:
- disabled people (groups 1, 2) who were injured in the performance of official duties;
- orphans, where there are no age restrictions;
- pensioners;
- family members of persons killed in the performance of official duties, as well as those who are missing.
The Civil Code of the Russian Federation also provides that it is impossible to evict the owner from his property when this is his only possible place of residence.
Decision-making
The judge must listen to the arguments of both sides. But it is the applicant who must prove the existence of grounds for eviction. The defendant has the right to present other documentary evidence of the impossibility of moving out of the living space or the unlawfulness of the owner’s demand.
After hearing both sides, the court makes a final decision on the case. Whatever the outcome, this decision can be challenged by one or the other party to the process. You have ten days to appeal. If neither one nor the other party resorted to challenging the decision, it enters into legal force.
The court order is prepared in writing and sent to the plaintiff and defendant to the address specified in the statement of claim. The forwarding process can take a long time, so it is in the plaintiff's best interest to appear in court in person and take the decision in hand.
Terms of consideration
In accordance with Article 154 of the Civil Procedure Code, the application will be considered within two months.
Based on the result of the court decision, there may be several options:
- Deprivation of living space.
- Payment of compensation after the sale of the apartment, minus the costs of the court, payment of debts if any, repairs, if necessary.
- Denial of the plaintiff's request.
The court always tries to be on the side of the defendant, to find mitigating circumstances so that he is not left without a roof over his head.
Especially if it is a disabled person, an orphan, and the like.
But there are different situations, so this does not always work out.
