Retention of the right to use residential premises after its sale

Retention of the right to use residential premises after its sale

The purpose of this article is to bring up for discussion the problem associated with maintaining the right of use for individuals after the alienation of an apartment. I hope that my colleagues will express their position and share their practice in resolving this issue in their region.

Consideration of the problem is proposed in the field of mortgage lending: mortgage by force of law (conclusion of a purchase and sale agreement) and mortgage by force of agreement (conclusion of a mortgage agreement).

This article does not imply a study of the legal nature of the right to use residential premises: its proprietary or legal nature. Only the practical part is expected to be studied.

I. Is it necessary to establish a list of registered (residing) persons in the alienated premises?

Today, the position according to which it is necessary to first obtain information about registered persons in residential premises seems more justified.

To confirm the relevance of the problem of preserving the rights of persons living in the premises, the following should be noted:

1. Traditionally, in practice, two categories of subjects are distinguished, the right of use of which is retained upon alienation of residential premises (Review of legislation and judicial practice of the Supreme Court of the Russian Federation for the 4th quarter of 2005 (approved by the resolution of the Presidium of the Supreme Court of the Russian Federation dated 01.03.2006)):

1.1. citizens who refused the privatization of residential premises and retained the right of unlimited use;

1.2. minor, incapacitated family members of the owner who are under guardianship or trusteeship;

2. an essential condition of the contract for the sale of residential premises in which persons live who, in accordance with the law, retain the right to use this premises after its acquisition by the buyer, is a list of these persons indicating their rights to use the premises (clause 1 of Article 558 of the Civil Code of the Russian Federation).

Violation of this requirement entails recognition of the purchase and sale agreement as not concluded (clause 1 of Article 432 of the Civil Code of the Russian Federation);

3. when concluding a mortgage agreement, the mortgagor is obliged to warn the mortgagee in writing about all the rights of third parties to the subject of the mortgage known to him at the time of state registration of the agreement (rights of pledge, lifelong use, lease, easements and other rights).

Unlike the sale of real estate, violation of this requirement gives the mortgagee the right to demand early fulfillment of the obligation secured by the mortgage or change the terms of the mortgage agreement (Article 12 of the Federal Law of July 16, 1998 No. 102-FZ “On Mortgage (Pledge of Real Estate).”

If the requirement for early fulfillment of the obligation secured by the mortgage is not fulfilled, then the mortgagee has the right to foreclose on the subject of the mortgage (clause 4 of Article 50 of the Mortgage Law).

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It seems that the application of similar rules that would allow the recognition of a purchase and sale agreement as concluded would be more justified from the point of view of protecting the rights of the buyer and persons living in the premises

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In any case, the termination of the right of use is not specified in the Mortgage Law. Obviously, the presence of such a real estate encumbrance as the “right of residence” will in the future create problems with the sale of premises with the specified encumbrance (sale at a significant discount that does not cover the mortgagee’s losses).

II. Judicial proceedings in similar disputes are based on the following provisions:

1. Clause 18 of the Resolution of the Plenum of the Supreme Court dated July 2, 2009 No. 14: Clause 2 of Article 292 of the Civil Code of the Russian Federation cannot be applied to former family members of the owner of residential premises, since, by giving consent to the privatization of residential premises occupied under a social tenancy agreement, without which it would have been impossible, they proceeded from the fact that the right to use this residential premises for them would be of an indefinite nature and, therefore, it should be taken into account when transferring ownership of the residential premises on the appropriate basis to another person (for example, purchase and sale , exchange, donation, rent, inheritance);

2. when resolving the issue of termination of the right to use residential premises by citizens who refused to participate in privatization, the circumstances of the actual residence of these citizens in the residential premises are subject to clarification, and in the event of their non-residence - the reasons and period of non-residence, the nature of the departure - forced or voluntary, temporary or permanent, whether other persons interfered with their use of residential premises, whether they acquired the right to use another residential premises in a new place of residence, whether they fulfill obligations under the contract to pay for residential premises and utilities (Part 3 of Article 83 of the Housing Code of the Russian Federation , paragraph 32 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated July 2, 2009 No. 14, determination of the Supreme Court No. 49-KG15-7 dated August 4, 2015);

3. in accordance with Article 35 of the Housing Code of the Russian Federation, when deciding on the issue of eviction, the presence of two legal facts is necessary: ​​termination of the right to use the residential premises and the citizen’s failure to vacate the residential premises (JSC IC for Civil Cases of the Armed Forces of the Republic of Bashkortostan dated 02/04/2014 in case No. 33- 1454/2014).

III. How to check the seller’s information about the presence/absence of persons registered in the apartment?

Previously, there was a practice of providing such certificates to housing departments and passport offices. Currently, an increasing number of housing departments refuse to provide this information, justifying their lack of authority to do so and making reference to Order of the Ministry of Internal Affairs of the Russian Federation dated December 31, 2017 No. 984. However, this order does not establish the procedure for providing certificates of registered persons: the registration procedure is regulated and deregistration.

Homeowners' associations or housing management organizations are currently retained in the list of persons responsible for receiving and transmitting to registration authorities documents for registration and deregistration of citizens (Resolution of the Government of the Russian Federation of July 17, 1995 No. 713).

The Ministry of Internal Affairs of the Russian Federation, in turn, provides information about the place of registration of a specific person, and not a list of all persons registered in the apartment.

Thus, there may not be direct information about registered individuals.

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The following verification options are available:

1. request information about your personal account (confirmation of payment for utilities and major repairs). Resource supply companies may indicate the number of registered persons on receipts;

2. request supporting documents for residential premises: apartment, room. If this is a privatization agreement, then you need to look in it for an indication of the person who retains the right of residence, but does not participate in the privatization

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Property and owner

To own something is to have a set of exclusive rights that determine control, restriction of access and responsibility for what the owner has. A person who has such civil rights is automatically endowed with the ability to use and dispose of them. This allows you to perform actions with property of any nature, in accordance with the letter of the law, of course. In this case, the owner can transfer ownership and use rights to other persons, while remaining the sole owner.

Having a sufficient set of rights, the owner is also responsible for the maintenance of his property, including paying taxes, if provided for by law. In general, risks associated with damage to things are also borne by the owner.

Termination of owner rights

In some cases, ownership rights are lost by the owner. In addition to voluntary abandonment of property, the owner is deprived of the rights of ownership, use and disposal in the following cases:

• alienation to other persons;
• destruction or destruction of property;
• confiscation, requisition, collection of property for obligations;
• alienation due to the impossibility of belonging to a given person by law;
• ransom

Property owned by the state or municipal organizations may be alienated to individuals or legal entities, that is, privatized, in the manner prescribed by law.

Property rights allow you to dispose of personal belongings, from small material assets to real estate. The owner of property can grant others rights of use and ownership. Each person possesses something, and only owns something to some extent. The legal relations established in this case must not contradict the law and the rights of the owner.

Use of housing by minors

Children are a special category of citizens whose rights are protected by law very carefully. Protecting the right to use housing is no exception.

One of the guarantees for the implementation of this right is the unhindered registration of the child at the place of residence of the parents. That is, if the written consent of the tenant and members of his family or the owner is required for moving into and subsequent registration of an ordinary citizen’s residential premises, then such consent is not required when moving children to their parents. This means that the child is registered in the residential premises, even if the owner or tenant is against such an action.

There is also a special category of children who, if they register in an apartment, automatically block any actions of the owner or tenant.

We are talking about children for whom guardianship has been established. The essence of the problem is that it is almost impossible to discharge such a child. Moreover, the main responsibility of his guardian is to live together with such a child, which means that, in addition to the child, the owner or tenant will also have to endure his guardian.

The procedure for ownership of land by the property owner

As already mentioned, the owner of the land can authorize construction to other persons if the process does not contradict the law. In this case, the owner of the constructed real estate is given the right to use the land plot. In the event of transfer of rights to the rebuilt property, the new owner continues to use the land under the same conditions and to the same extent. At the same time, he is authorized to apply all aspects of ownership of real estate.

The use of a land plot has a certain period. If it is not extended by agreement of the parties, then the owner has the right to demand the demolition of all buildings and restore the land to its original form. A possible option is to register the rights of the property owner to the land, or vice versa. A profitable legal transaction for both parties is usually the extension of the agreement on the use of the land plot.

Rights to the subject of pledge

The owner has the right to pledge his property, thereby guaranteeing the fulfillment of his obligations. In this case, the pledgor does not have the right to dispose of the pledged item. The owner of the property does not change, and all rights associated with this status remain with him. However, the pledgor has the rights of ownership and use of the pledged item, including:

• use property according to its purpose, including extracting income or fruits from it;
• transfer the pledged item for temporary use or possession to other persons without the consent of the owner (pledgee);
• the pledgee has the right to use the property pledged only in exceptional cases specified in the agreement.

Each of the points is observed only when otherwise is not specified in the contract and does not contradict the law. The relationship between the pledgor and the pledgee is largely regulated by agreement. According to it, the mortgagor has a significant amount of rights to the property pledged. Perhaps the only thing he is deprived of is to alienate property without the consent of the owner.

Land easement

The owner of a land plot (as well as other real estate) has the right to apply to the owner of a neighboring plot for limited use rights (which is called an easement). It is usually used for the purpose of laying communication lines and ensuring free passage or passage through the bordering area. Carrying out such seemingly simple procedures is quite difficult without formalizing an easement. Such limited privileges to use land do not deprive the owner of his own rights. The legislation does not prohibit setting a certain fee for the provision of an easement.

The parties enter into an agreement independently and register it. In cases where the owners cannot reach an agreement, a lawsuit may be filed. The registration of an easement is justified only in cases where it is really necessary.

The concept of common property

If several persons (two or more) have the right of ownership, then the object of the relationship belongs to the subjects equally. The owner's share can be determined, then we are talking about shared ownership, or without such action (common ownership). Generally, co-ownership rights arise in relation to property that cannot be divided. In cases established by law, the concept of common property also applies to divisible material assets. A typical example of such a situation is property acquired jointly by spouses. Unless otherwise specified in the contract, everything acquired during marriage is divided in half upon divorce.

The essence of an indivisible plot can be considered using the example of an apartment building. Each of the residents has a share in the ownership of the land. However, it can be alienated to other persons. When deciding to sell a share, the owner first notifies the other owners. If none of them agrees to complete the deal, then the rights may be sold to a third party. The size of the share is, if possible, determined or considered equal for each owner.

Contents of property rights

After purchasing the property, the owner is vested with exclusive ownership rights, which represents a whole range of additional powers. The main ones are: the right of possession, use and disposal. It is the owner who has a complex of such civil powers, while other persons, by his decision, can be vested with only some of them. It should also be remembered that the right of ownership applies only to that property that may belong to an individual (legal) person or state enterprise in accordance with the law.

Ownership and use rights allow you to actually own property and use it for your own purposes (including receiving income). However, without maintaining ownership rights, subsequent privileges are not available. The right of disposal provides the opportunity to make legal transactions with property: sell, exchange, donate, inherit, lease or pledge.