Determining the procedure for using residential premises or a house in shared ownership

Home » Housing disputes » Determination of the procedure for using residential premises or a house in shared ownership

There are often situations when people who are complete strangers to each other live in the same apartment or house. The reasons are different: the former spouses divorced, but still live in the same living space, the apartment was inherited by several people who, sometimes, are not even related to each other, etc.

Selling a property and leaving - this option is not always possible, people continue to live in a common living space, each of them has some share of the property, no one wants to give up their part of the housing to other owners, when sharing an apartment, misunderstandings and mutual claims arise, escalating into scandals.

What can be done in such a situation to avoid such developments? Determine the procedure for using a joint property that is in shared ownership.

In what situations is a procedure for determining the order of use of housing necessary?

As a rule, shares of an apartment or house are owned by relatives who inherited the property, or by former spouses who divorced. In both cases, citizens who are not members of the same family and do not lead a joint household actually live in the same residential premises. In these or similar situations, the question arises of determining the procedure for using housing.

The best option is to establish rules for cohabitation in one residential premises by several owners independently and voluntarily. It is for this purpose that a voluntary written agreement is concluded, in which the co-owners stipulate all the nuances of using a joint house or apartment. Ideally, the agreement should be certified by a notary office.

For example, spouses Nikolai and Lyudmila Rokotov lived in a two-room apartment, which they bought jointly after marriage. A few years later, the couple divorced and divided their joint property, including the apartment, equally. Neither Lyudmila nor Nikolai had anywhere to move out; neither of them could buy out the second spouse’s share, so they continued to live in the living quarters together.

If the spouses were somehow able to come to an agreement with the separate rooms, then they constantly had minor clashes regarding the order of using the kitchen and other common rooms. Nikolai loved to bring friends and colleagues, they often drank alcoholic beverages, while Nikolai did not take them to his room, but received them in the kitchen. Lyudmila did not like such gatherings; minor domestic conflicts arose on this basis. Nikolai also had some complaints about Lyudmila regarding her use of the bathroom.

But since they had nowhere to escape from each other, the former spouses decided to enter into an agreement to determine the procedure for using the apartment. They agreed that Nikolai would no longer take his friends to the shared kitchen, and Lyudmila would not use the bathroom as a clothes dryer.

What should apartment owners who cannot live together do?

The case of two owners of a small apartment reached the Supreme Court. Pensioner Kapitolina Zotina* has lived in a one-room apartment near Moscow since 2006. She was diagnosed with a mental illness that makes it impossible to live with anyone. After the death of Zotina's father, her half-brother sold his share to strangers. There were legal disputes, and in 2021, half of the apartment was bought by Alisa Kirchik*. In 2018, she filed a lawsuit in which she asked to determine the procedure for using the apartment and paying for utilities in proportion to shares. Kirchik pointed out that the apartment already has two owners, but only Zotina lives there.

The Supreme Court allowed the division of shared property against the will of the owners
April 18, 9:33
Minor share: when the owner can be forced to sell his part of the home
September 13, 15:09
The Armed Forces explained how to force the owner to sell a share in an apartment
July 5, 12:48

The first instance rejected the claim. After all, the plaintiff did not provide evidence that she was being prevented from using the apartment. The trio of judges of the Moscow Regional Court, chaired by Evgeniy Kuchinsky (definition No. 33-17020/2018), had a different opinion. The appeal ordered Zotina to pay Kirchik 11,500 rubles monthly. for the use of someone else’s share and “utilities” according to the meters. The judges calculated this amount of “rent” based on the conclusion of LLC “Center for Expertise and Assessment “Alliance”. His employees used a comparative approach to similar real estate properties - one-room apartments, which were rented out at an average price of 23,000 rubles.

The defendant did not agree with this decision and appealed to the Supreme Court. As Zotina’s representative wrote in the complaint, her monthly pension is only 12,700 rubles.

The Supreme Court Collegium gave its assessment of the case. The judges concluded that the appeal incorrectly determined the amount of compensation because it did not take into account important circumstances of the case. When purchasing a share in 2017, Kirchik should have foreseen that she would not be able to live in a one-room apartment. She knew that the second owner lives there permanently and suffers from a disease that prevents her from living with her. “The disputed apartment, due to its technical purpose, is not intended for the residence of several families that are not related to each other,” noted the board chaired by Alexander Klikushin. The appeal took the average market rental price for similar one-room apartments, but the study included vacant properties. Meanwhile, a pensioner lives in the disputed apartment, who owns half of the housing, and the other half is really impossible to use, says definition No. 4-КГ19-5. With these conclusions, the Supreme Court sent the case back to appeal.

Market logic and social aspects

The Moscow City Court made a decision in market logic based on a rational understanding of property rights. “The second owner cannot experience inconvenience just because the first owner cannot pay compensation, and only the state has social obligations to a disabled person.” This is how the managing partner of the law firm Voinov, Maslov and partners Voinov, Maslov and partners Regional Rating comments on the decision of the appeal. group Antimonopoly law (including disputes) group Arbitration proceedings (medium and small disputes - mid market) group Land law/Commercial real estate/Construction group Tax consulting and disputes group Dispute resolution in courts of general jurisdiction 20th place By revenue Alexander Maslov.

The Supreme Court continues the tradition of limiting property rights in favor of other social rights of citizens, including the right to housing. For home ownership, the identity of the owner matters.

Alexander Maslov, Voinov, Maslov and partners Voinov, Maslov and partners Regional rating. group Antimonopoly law (including disputes) group Arbitration proceedings (medium and small disputes - mid market) group Land law/Commercial real estate/Construction group Tax consulting and disputes group Dispute resolution in courts of general jurisdiction 20th place by revenue

The Supreme Court confirmed that “rent” must be transferred and established conditions for this. They were singled out by the FPA adviser and MCA lawyer Moscow Bar Association "GRAD" Moscow Bar Association "GRAD" Federal rating. group Dispute resolution in courts of general jurisdiction group Financial/Banking law group Arbitration proceedings (medium and small disputes - mid market) 21st place By revenue 23rd place By revenue per lawyer (more than 30 lawyers) Sergey Makarov:

dispute between a resident owner and a non-resident owner;
determining the amount of the fee taking into account all actual circumstances (firstly, it is set for a share).

The non-residing owner may demand in his claim either to move into the residential premises and not create obstacles, or to oblige the living owner to pay, explains Makarov. According to him, the Supreme Court did not comment in any way on the fact that the plaintiff could have made alternative demands. “Can a non-residing owner immediately raise the issue of payments or must he first receive a refusal from the court to move in and determine the procedure for use?” – the lawyer asks. He calls the first option “logical and reasonable,” which makes it possible to resolve relations between owners within the framework of one process.

How not to pay compensation

The owner may try to exempt himself from paying compensation. “A simple but costly way” is to ensure that the share is recognized as insignificant and forcibly buy it out, says Irina Sivakova from legal. The main criterion, according to her, is not the actual size of the share, but the inability to provide a separate room commensurate with the owner’s share. The Supreme Court recognized even a 1/3 share as insignificant (case No. 78-KG16-36).

Sivakova also names another, “more complex and ambiguous method”: to prove that the sole purpose of purchasing a share in a one-room apartment was to infringe on the rights of residents. In judicial practice, Art. 10 of the Civil Code (on the inadmissibility of abuse of rights) in disputes about the resettlement of the owner of a small share. For example, the Rubtsovsky City Court of the Altai Territory did not move in the owner citing abuse of rights. He took into account the minimum share size, the presence of a number of diseases and conflict with other residents (case No. 2-211/16).

The rule on the inadmissibility of abuse of rights can be applied to cases of recovery of monetary compensation, Sivakova believes. “Such cases have not yet been noticed, because the practice of collecting compensation from co-owners is still in its infancy,” says the expert. – Perhaps in the foreseeable future there will be a place and station there. 10 GK".

* – first and last names have been changed by the editors.

Evgenia Efimenko

Supreme Court of the Russian Federation

Options for using shared ownership

The order of use of housing is influenced by several factors:

The size of the shares of each owner.
The number of separate living rooms in an apartment or house. If it is enough to allocate separate rooms to each of the owners, then this is one option; if there are more owners than separate rooms, then determining the order of use will be much more difficult.
Number of registered residents . For example, if there are two owners (ex-husband and wife), but in fact a minor child lives in the apartment with the mother, then the wife is allocated a larger room.
Do the co-owners have alternative housing ?
Family connections of all owners.
Layout . Many residential premises have walk-through rooms; of course, none of the owners would agree to have other apartment residents constantly walking through their personal space.

The best option would be if the number of separate rooms is not less than the number of co-owners. In this case, each of them occupies a separate room, and the kitchen, bathroom and other common areas remain shared. That is, it turns out to be a kind of communal apartment.

If housing in shared ownership does not allow each owner to be allocated a separate room (one-room apartment, or there are more owners than rooms), then in this case it is possible for one owner to buy out the other’s share. Typically, the owner of the majority of the apartment buys out a smaller share, but other buyout options are also possible.

It is extremely rare, but there are other options for determining the procedure for using joint housing. For example, periodic use of an apartment by two (or more) owners. That is, one owner lives in the apartment for a specified period, then he leaves it and another owner moves in for the same period of time.

How to determine the procedure for using an apartment in shared ownership

The procedure for using any residential premises (room, apartment, house) implies certain rules that all owners of this premises establish for themselves and among themselves, in accordance with which this housing is used by all of them.

Sharing regulations can be:

established;
installed.

In the first case, we mean the procedure that has developed over time for the operation of individual rooms, a common kitchen and bathroom, and other premises. In other words, co-owners have been using an apartment or house together for a long time, sometimes for years, and they have no joint claims against each other. Often all residents are satisfied with the current situation and they are not going to change anything.

The situation becomes more complicated in cases where there are any mutual claims between the owners regarding the procedure for using the residential premises, or one of the co-owners against the other (others). In this case, it will be necessary, through peaceful negotiations or with the help of the court, to establish a certain procedure for the use of residential premises by all its owners.

The regulations for the joint use of residential premises assume that each of the co-owners has a separate room or part of it, most often commensurate with their shares of property (the so-called personal space), in addition, the rules for the use of common areas (kitchen, bathroom, other utility rooms) are stipulated.

Of course, in a situation with shared ownership of residential premises, the ideal option would be to allocate the share of each of the co-owners in kind, but, unfortunately, in practice this does not always work out. The actual allocation of a share requires redevelopment, and if with a separate house the procedure for dividing one living space into two or more separate ones can somehow be carried out, then in cases with an apartment in an apartment building this is almost impossible. The owners have to negotiate and determine the procedure for using the apartment that suits all residents.

There are two ways to determine the order of use of residential premises:

when consensus is reached, an agreement is concluded ;
if agreement is not reached, file a claim in court .

Of course, the first option is the most successful in terms of maintaining good neighborly relations between residents; in addition, drawing up an agreement will take much less time than litigation. In the first option, it is assumed that all co-owners of an apartment or house agree among themselves on how they will use the common premises, which of them will get which room, and enshrine this agreement in the text of the voluntary agreement. If necessary, the document is certified by a notary office.

If an agreement cannot be reached, the parties resort to solving the problem with the help of the court. But even in this case, it is necessary to try to resolve the dispute out of court. To do this, the initiator of the procedure must contact the remaining owners with a written proposal to conclude an agreement. It is better to send the document by registered mail with notification, or hand it over to each of the co-owners personally against signature. In court, this written proposal will serve as evidence of an attempt to resolve the dispute out of court.

The legislation does not stipulate the mandatory certification of an agreement by a notary; moreover, agreements can be concluded orally. But if one of the residents violates an oral agreement that is not written down on paper and not certified by a notary office, then it will be problematic to prove the violation.

What is the procedure for using shared ownership and how to establish it

A situation where it is not possible to reach an agreement with other homeowners regarding the use of the right to live in the living space can hardly be considered pleasant. Moreover, each case is unique, and both the Civil Code of the Russian Federation and the Housing Code of the Russian Federation do not have an exact algorithm on how to establish the procedure for using an apartment. One can only build on the current practice of the court and the explanations of the Plenum of the Supreme Court, trusting that the judge will take into account the interests and rights of each of the parties to the trial, determining the optimal decision regarding the use of housing by each of the apartment owners.

The court will proceed from the current order of residence, the distribution of rooms for each of the owners, and will also take into account the validity of the claims of the dissenting party.

To determine exactly how the owner can use the housing, it is worth carefully studying the provisions of the legislation (housing and civil) and assessing your chances of defending the most comfortable living conditions within your property share.

What the law says

It will be useful to study a number of articles of the Civil Code of the Russian Federation (last edition as amended on October 1, 2021) devoted to ownership of property by shares:

The owner of even a minimal part of a single object has the right to file a claim with a request to establish the procedure for using the real estate. This norm is expressly stated in parts 1-2 of Art. 247 Civil Code of the Russian Federation.
If there is no consensus on which of the rooms can be occupied by each of the owners, they go to court on the basis of Part 3 of Art. 252 of the Civil Code of the Russian Federation.
The issue is more difficult to resolve if the living space consists of 1 room and it is not possible to ensure cohabitation of two or more strangers. This option is also allowed for consideration in a judicial body on the basis of clause 37 of the Resolution of the Plenum (PP) of the RF Armed Forces.

The problem of determining the rules for the use of shared housing is faced by any owner, regardless of the size of the living space, if the number of shares is 2 or more. It is easier to resolve the issue when running a joint household by people who are not strangers to each other, if it is possible to allocate shares in kind with the transfer of isolated residential premises. The most difficult question is when the apartment is small, and it is impossible to allocate at least a room to everyone.

In this situation, they adhere to the position of Resolution of the Supreme Court of the Russian Federation No. 6, Plenum of the Supreme Arbitration Court No. 8 of July 1, 1996, which allows issues of ownership and use of property to be resolved in court.

How to determine the procedure for using housing

The absence of the possibility of dividing real estate does not exclude the requirement of each of the owners to establish a procedure for the use of shares in an undivided apartment.

This can only be done in 2 ways:

Through a settlement agreement out of court.
Through filing a claim and obtaining a court order.

The easiest option is to try to reach a compromise out of court. Having independently determined the distribution of housing and the rules for their use, the parties must not only sign a written agreement, but also record the agreement in a notary office interested in observing the rule of law and taking into account the rights of each owner.

If irreconcilable differences arise between residents of the same apartment, there is no other option other than litigation.

Agreement on determining the procedure for using residential premises

Sample agreement on determining the procedure for using residential premises

If the co-owners have already been living together for some time and, in fact, the procedure for using common premises and individual rooms has developed, while the residents do not have any claims against each other, then it can be stated that they have already entered into a verbal agreement on the procedure for using the apartment or house and this procedure they are quite satisfied.

But each of them will want to insure themselves a little for the future - suddenly one of the co-owners wants to change the existing order and begins to establish their own rules. Owners can consolidate the existing dormitory rules in the residential premises they own by concluding a written agreement among themselves on the procedure for using their joint apartment. To do this, they must draw up the text of the agreement, which indicates which room is used by each tenant, indicate their footage, other characteristics, and also stipulate the rules for the use of common premises.

In order for the document to have legal force, each of the co-owners must sign it. Owners can also contact a notary office and, in order to give the document greater legal force, have it certified by a notary.

As a rule, such agreements are drawn up extremely rarely. If the co-owners live in peace and harmony, then they do not need an additional agreement, but if they have any mutual claims, then it is unlikely that they will be able to reach an agreement peacefully; in this case, only the court can solve the problem.

Through the court

The first and main condition for establishing the procedure for using residential premises through the court is that the residential property must be in common shared ownership. If residents live in a communal apartment, then each of them is already the sole owner of a separate room; in this case, disputes are possible only by determining the conditions and procedure for the operation of common areas.

The second condition is that only the owner of a share of an apartment or house can file a claim in court. If a citizen who is not a co-owner lives in a residential building and is even registered, he cannot be the initiator of changing the procedure for using the real estate.

Procedure

The initiator of a legal dispute must follow a certain algorithm and take a number of sequential steps:

Try to resolve the problem out of court . The initiator sends a letter to each of the owners, indicating how he sees a way out of the current situation. If one of the co-owners answered negatively or ignored the proposal altogether, the initiator can move on to the next step.
Collect all necessary documents . If the plaintiff files a statement of claim without an attachment, the court will leave the claim without consideration. The court may also require additional documents; the plaintiff must be prepared for this.
Draw up a statement of claim . It is better to entrust this procedure to a professional. Any legal error in drawing up a claim may lead to refusal to accept the claim or to a delay in the process.
Take part in court debates . Often, litigation lasts more than one month, so if you do not have time to attend court hearings, or you are not sure that you can protect your interests on your own, it is better to use the services of an experienced specialist.
Appeal the court decision . This step is only necessary if you are not satisfied with the court's decision.
Receive a court decision that has entered into force . There are often cases when defendants, even after a court verdict has entered into force, do not want to comply with it. In this case, you can contact the bailiff service, who, on the basis of a writ of execution, will open proceedings in the case and force the defendant to execute the court decision.

Required documents

The following package of documents must be attached to the statement of claim:

several copies of the claim (according to the number of participants in the process plus one copy);
a photocopy of the passport or a document replacing it;
extract from the Unified State Register of Real Estate;
document of title, maybe a sales contract, deed of gift, certificate of inheritance of a share, etc.);
papers that will confirm an attempt at pre-trial settlement;
registration certificate for a residential property;
receipt for payment of state duty.

Deadlines

The timing of a claim depends on many factors, such as:

appearance of participants in the process;
the position of the defendant;
presence or absence of any documents;
other important nuances.

In any case, the trial usually lasts at least two months.

Price

In accordance with Art. 333.19 of the Tax Code of the Russian Federation, the amount of state duty for a non-property dispute will be 300 rubles.

The cost may increase slightly if you seek help from a lawyer, for example, depending on the region, drawing up a statement of claim will cost you from 1 to 3 thousand rubles, and you will also have to pay separately for the services of a lawyer for representing your interests in court.

Example

Spouses Nadezhda and Maxim Rakitin bought a two-room apartment with a total area of 60 square meters. During their marriage, they had a daughter, but the couple soon divorced the marriage, as Maxim began to abuse alcohol. After the divorce, the former spouses divided the joint apartment equally, that is, each of them got a share of living space with an area of 30 square meters, but Nadezhda and Maxim were unable to separate.

Maxim immediately after the divorce took a large room with an area of 20 square meters, leaving a small ten-meter room for Nadezhda and her daughter. No persuasion from his ex-wife had any effect on Maxim; he did not agree to exchange rooms with Nadezhda.

Rakitina filed a claim to determine the procedure for using the apartment, which was in shared ownership of the former spouses, to the court. In the statement of claim, she indicated that she lives alone with her young daughter in a small room, and her husband occupies a large one and asked the court to transfer to her use the room currently occupied by Maxim Rakitin.

The court, having considered all the circumstances of the case, made a decision: to determine the procedure for using a two-room apartment as follows: to oblige the defendant to transfer a large room with an area of 20 square meters for the use of the plaintiff and her daughter, and to move into the room that Rakitina occupied before the trial.

Basic legal provisions

What is the procedure for using residential premises in shared ownership?

In our country, legislation regulates the general essence, concept and procedure for using an apartment in shared ownership.

More precisely, to consider this point in more detail, it is necessary to refer to the 16th chapter of the Civil Code (Civil Code) of the Russian Federation. It contains most of the legislative provisions on the general right to property, including those divided into shares.

One way or another, each article of Chapter 16 of the Civil Code of the Russian Federation contains information about the shared form of ownership of an apartment.

Therefore, if this topic is especially interesting to you, do not be lazy to study it as efficiently as possible. Today’s article will highlight only the main excerpts from the legislation on the issue under consideration.

What is common ownership of an apartment? First of all, it is necessary to refer to Article 244 of the Civil Code of the Russian Federation, which provides a clear definition of what common property is shared: common property is any property owned by several persons (two or more).

If shares of ownership of property are legally defined between these persons, then such ownership is shared. It is also called joint (without allocating shares for specific persons) - determined on the basis of an agreement between the owners and or by a court verdict.

In accordance with Article 245 of the Civil Code of the Russian Federation, the shares of an apartment for each person are determined by agreement of the parties, or by decision of a judicial authority. If there are no legal grounds for a clear definition of the shares of property, then it is distributed equally.

The procedure for using the property of each of the shareholders is also determined by agreement of the parties or a court decision. Depending on the contribution made to the development and growth of the property, one of the owners has the right to increase his share in the apartment.

The procedure for using your shares in real estate is regulated by agreement of the parties or established by the court

Articles 246 and 247 of the Civil Code of the Russian Federation regulate the procedure for the disposal, ownership and use of apartment shares by the persons to whom they belong.

Their general essence is that the shareholder has the opportunity to carry out any significant actions on his part of the property only if he complies with the rules of the agreement or the provisions of the court verdict on the division of real estate.

The last most significant article of the Civil Code of the Russian Federation is Article 249, which determines the procedure for maintaining part of the property in terms of expenses for its existence.

The amount of expenses is determined in proportion to the share that belongs to each of the owners. Thus, the larger a person’s share in an apartment, the higher his expenses for housing and communal services, taxes and other payments on property.

Claim to determine the procedure for using an apartment in shared ownership

The statement of claim does not have a specific unified form, however, its preparation must be approached with all responsibility. It must be drawn up in accordance with all the requirements of Art. 131 Code of Civil Procedure and contain the following information:

name and address of the court;
personal data of the plaintiff and defendant(s);
document's name;
the grounds on which the right of ownership to a share in the residential premises arose;
the size of the shares of all owners;
description of the living space: number of rooms, their size and location, description and area of utility rooms, etc.;
the essence of the conflict;
an indication of attempts to resolve the dispute pre-trial;
claim;
a numbered list of all attached documents;
date and signature.

Sample statement of claim to determine the procedure for using residential premises

Arbitrage practice

When considering claims to determine the order of use of housing, courts use the following legal regulations:

Art. 35 of the Constitution of the Russian Federation;
Art. 247 Civil Code of the Russian Federation;
Art. 304 Civil Code of the Russian Federation;
Art. 3 of the Housing Code of the Russian Federation;
Art. 30 Housing Code of the Russian Federation.

In many ways, the court's decision will depend on the specific situation and intentions of each party.

For example, if one of the spouses does not need a living room, he has alternative housing in which he lives, and he filed a lawsuit in order to fray the nerves of his ex-spouse, then the court is unlikely to satisfy such a claim.

If one of the co-owners does not actually live in the disputed apartment, then the second has the right to have a room with better characteristics installed for his use than his opponent.

For example, after the divorce, Olga Nikiforova remained in a two-room apartment, bought together with her ex-husband Dmitry, and he moved to a one-room apartment, which he bought before marriage. In the apartment of the former spouses, one of the rooms was a passage room, and the second had an area twice as large, that is, the rooms were clearly not of equal value.

Dmitry, despite the fact that he had moved out of the apartment, insisted that the large room remain at his disposal, since he had invested more money in the purchase of the apartment than his ex-wife. But he had no intention of selling his share to her or living in the apartment.

Olga filed a statement of claim in court, where she asked that not a small walk-through room be allocated for her to live in, but a more comfortable one. The court satisfied her claims in full.

Litigation of this kind, such as determining the order of use of housing by two or more owners, is usually quite difficult. Preparation of an evidence base, reliance on established judicial practice in similar cases, knowledge of procedural law and the ability to apply it in practice - all this is unlikely to be within the capabilities of a common man who is not versed in jurisprudence.

The lawyers on our site have extensive experience in handling cases of this kind, so by contacting our specialists, you can get qualified answers to any questions related to housing law.

FREE CONSULTATIONS are available for you! If you want to solve exactly your problem, then

describe your situation to a lawyer in an online chat;
write a question in the form below;
call Moscow and Moscow region
call St. Petersburg and region

Save or share the link on social networks

(
2 ratings, average: 5.00 out of 5)
Author of the article

Natalya Fomicheva

Website expert lawyer. 10 years of experience. Inheritance matters. Family disputes. Housing and land law.

Ask a question Author's rating

Articles written

513

- FREE for a lawyer!

Write your question, our lawyer will prepare an answer for FREE and call you back in 5 minutes.

By submitting data you agree to the Consent to PD processing, PD Processing Policy and User Agreement

Useful information on the topic

Appeal against a court decision to evict an apartment

Eviction lawsuits are quite common. Often the defendant’s position on...

Eviction without provision of other accommodation

Can a citizen be left homeless if for some time...

Statement of claim for eviction of ex-spouse from residential premises

Having officially dissolved the marriage, the former spouses cease to be relatives, all of them...

Statement of claim for eviction and deregistration

The tenant violates all conceivable and inconceivable rules of the hostel. Ex-husband…

Privatization of a share, part in a municipal apartment

Privatization of an apartment is an inalienable right of any citizen of Russia. However, not...

Forced eviction of the owner from the apartment

The citizen is the owner of the residential premises. It doesn’t matter if he bought it, privatized it,...

Cannot be moved in

In this regard, a very important clarification of one difficult situation in which co-owners of small housing find themselves was made by the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation. Her explanations can be extremely useful not only for judges, but also for citizens who find themselves in a similar “deadlock” situation.

It all started with a claim for resettlement, which was brought to the district court of Sochi by a citizen. In court, this man stated that he owns a 1/4 share in a one-room apartment. But the majority - 3/4 of the share - is owned by a certain citizen with whom he cannot come to an agreement. The plaintiff asks the court to move him into the apartment. The Central District Court of Sochi considered the claim and refused to allow the citizen to move in. But the Krasnodar Regional Court overturned this refusal and made a new decision - to move the owner of the “quarter” into a one-room apartment.

The defendant did not agree with such a settlement and went all the way to the Supreme Court of the Russian Federation. They requested the case, studied it and stated that they did not agree with the decision of the appeal. And they explained why.

The subject of the dispute was a one-room apartment with 30 square meters of total and 14 square meters of living space. According to the will, the apartment went to two citizens. Our defendant received 3/4 of the share and 1/4 of another citizen, who, under the guise of a gift, sold his share to our plaintiff. He never lived in the apartment. And as stated in the court materials, “an agreement between the co-owners of the disputed apartment on the procedure for using the common and living space has not been reached.”

The district court, when it rejected the claim, saw that the apartment was not intended for shared living. There is no technical possibility to determine the order of use. And the relationships between the co-owners are conflictual.

According to the district court, the plaintiff “does not have an unconditional right to move in,” and therefore to live in a tiny apartment. The realization by the owner of his rights to own and use residential premises, the district court said, depends on the size of his share.

According to the district court, moving a co-owner into such housing is possible only if the court determines the procedure for using the apartment and provides each of the co-owners with residential premises commensurate with their right of ownership.” And in a one-room apartment there is no room “commensurate to the plaintiff’s share.”

According to the district court, moving in a citizen will lead to a “significant infringement of the rights and legitimate interests” of the defendant. It is impossible for these owners to live together in an apartment, and they are not members of the same family.

At the same time, the district court emphasized: the apartment was never the plaintiff’s place of residence. He was “given” a share seven years ago, and during all these years the plaintiff did not express any complaints to anyone and did not demand occupancy and “determination of the procedure for use.”

The regional court did not agree with this decision of its colleagues. The appeal stated that the plaintiff was “deprived of the opportunity to live in the disputed apartment, of which he is a co-owner.” And the fact that he has a small share is not a problem, since, in the opinion of the regional court, this circumstance “does not limit the owner’s right to exercise the powers of actual ownership and use of the apartment owned by him.”

The Supreme Court categorically disagreed with the conclusions of the Krasnodar Regional Court.

The Supreme Court reasoned like this. According to the Civil Code (Article 247), ownership and use of property in shared ownership is carried out by agreement of the parties. If it is not possible to reach an agreement, then in the manner established by the court. A co-owner of a share has the right to demand “the provision of possession of common property in accordance with his share.” If this is impossible, then he has the right to demand compensation from other co-owners.

According to the Housing Code (Article 30), if one residential premises has several owners, then Article 247 of the Civil Code must be applied, which says about the owners of property that is in shared ownership.

The main idea of the Housing Code (Article 1) is this: the rights and obligations of home owners should not violate the rights, freedoms and interests of other citizens.

The Supreme Court emphasized: based on all the above rules, it turns out that a participant in shared ownership has the right to be provided with a part of the residential premises for living, commensurate with his share. And if it is impossible to do this, the share is small, the layout of the apartment does not allow it, the rights of other citizens to live in this premises are violated, the owner’s right can be exercised “in another way.” In particular, this person can ask for appropriate compensation.

At the same time, the Supreme Court emphasized: Article 247 of the Civil Code says that satisfaction of demands to determine the procedure for using housing, if the owners could not agree, “cannot be refused.”

The Supreme Court also cited Article 10 of the Civil Code, which states this: the exercise of civil rights is not allowed solely with the intention of causing harm to another person, as well as “other deliberately dishonest exercise of civil rights is an abuse of right.”

If the court comes to the conclusion that the rights of some co-owners of housing require priority protection compared to the rights of other co-owners, then a procedure for use must be established that will not lead to “unfair exercise of civil rights.”

Therefore, according to the high court, the court, when establishing the procedure for using housing, has the right to refuse to move in to a specific person, assigning as compensation to him a monthly payment of his share for the actual use of other residents of his property. For some reason the appeal did not take this into account.

According to the Judicial Collegium for Civil Cases of the Supreme Court, when the regional court moved the plaintiff, it not only did not apply Article 247 of the Civil Code, but also violated the meaning of Article 2 of the same code, since it did not resolve the dispute that arose between the co-owners.

According to the decision of the Supreme Court, the regional court will have to reconsider its decision.