Retention of the right to use residential premises after its sale

Kulikov Alexander Vitalievich

• Work experience since 2004.
• St. Petersburg University of the Ministry of Internal Affairs of Russia
• Defended the interests of the Internal Affairs Directorate for the Murmansk region

Make an appointment

Back call

Kulikov Alexander Vitalievich

• Work experience since 2004.
• St. Petersburg University of the Ministry of Internal Affairs of Russia
• Defended the interests of the Internal Affairs Directorate for the Murmansk region

From February 2013 to June 2014

Work as a lawyer at Moscow Legal Support Center LLC. Protecting the interests of clients in courts of general jurisdiction and arbitration courts of the city of Moscow and the Moscow region in civil cases, including: recovery of damages, disputes with insurance companies as a result of an accident, violation of labor rights (reinstatement at work, appealing disciplinary sanctions, collection of wages , compensation for moral damage), violation of consumer rights, violation of land ownership rights, violation of housing rights, eviction, deregistration at the place of residence, family disputes (divorce, determination of the order of communication with a child, collection of alimony, deprivation of parental rights, division of jointly acquired property, etc.), disputes about inheritance, appealing decisions of government bodies, courts of general jurisdiction, arbitration courts.

From June 2012 to February 2013

Work as director of the Murmansk municipal budgetary institution “Unified Duty Dispatch Service”. He took part in court hearings in the Arbitration Court of the Murmansk Region, defended the interests of a budgetary institution. As a result, 700 thousand were recovered from the plaintiff. rub. debt. A statement of claim in the amount of more than 1 million rubles was prepared and filed.

From February to June 2012

Work as a legal adviser at the Murmansk municipal budgetary institution “Unified Duty Dispatch Service”. Preparation of documents related to municipal assignments to budgetary institutions and the provision of municipal services. 4 resolutions of the Murmansk city administration were prepared.

From May 2011 to February 2012

Work as an assistant lawyer at the Murmansk Central Bar Association. Preparation of documents on administrative and civil cases. In total, more than 100 documents were prepared that helped the lawyer defend his position and protect the interests of his clients.

From 2007 to 2011

Work as a chief specialist-expert of the administrative department of the Territorial body of the Federal State Statistics Service for the Murmansk region (Murmanskstat) with the duties of a legal adviser. Job responsibilities included:

— conducting a legal examination of civil agreements and government contracts concluded by Murmanskstat with legal entities in various areas of the organization’s activities (economic, communication services, water supply and sanitation, repairs of premises, various examinations, electricity and energy supply, etc.);

— consulting employees on various legal issues;

— conducting cases of administrative offenses against officials who violate the established procedure for submitting statistical information necessary for conducting state statistical observations to Murmanskstat;

— informing Murmanskstat employees about changes in legislation regulating the activities of statistical bodies;

— representation and protection of the interests of Murmanskstat in the courts, government bodies, local governments, and other organizations.

From 1991 to 2007

Service in the internal affairs bodies of the Murmansk region in various positions of junior, middle and senior command staff. In the period from 2004 to 2007, he served as a legal consultant, was engaged in litigation work, defended the interests of the Internal Affairs Directorate for the Murmansk Region in courts of general jurisdiction, including in the appellate, cassation and supervisory instances, as well as in the Arbitration Court of the Murmansk Region. Participated in civil cases regarding claims for reinstatement in service, appeals against disciplinary sanctions, collection of salary, pensions, and other payments, appeals against decisions of the Internal Affairs Directorate to refuse to issue temporary residence permits, and other cases. During his work as a legal adviser to the service, he took part in more than 650 court hearings, prepared more than 300 appeals and cassation complaints, more than 100 supervisory complaints, including more than 10 to the Supreme Court of Russia.

From 1988 to 1991:

Work at the Palace of Culture named after. CM. Kirov, Murmansk, as an accompanist of the dance group “Spolokhi”.

From 1986 to 1988:

Work as an electric forklift driver at military warehouse No. 287, Murmansk-57.

From 1985 to 1986:

Work at the Moryakov House of Culture in Murmansk as an accompanist for the dance group “Radost”.

From 1984 to 1985:

Work as a button accordion teacher at the Murmansk evening music school.

From 1983 to 1985:

Studying 3-5 years at the Murmansk Music College.

From 1981 to 1983:

Service in the Soviet army.

From 1978 to 1981:

Studying 1-3 courses at the Murmansk Music College.

The legislation enshrines such a concept as “the right to use residential premises,” but it is so ambiguous that its definition is often carried out by writing theses and dissertations. Since the scope of the article is limited, we will try to briefly characterize this term.

It is worth noting that if you have problems exercising this right in life, it is best to seek help from a specialist, since independently defending your interests carries a high risk of losing or significantly limiting the right to use the housing in which you live .

Determination of the right to use residential premises

The right to use residential premises is, first of all, the right to live in it. The owner who owns the residential premises has the broadest right of use. He has the independent right to use residential premises, which is limited only by law and the need to respect the rights of other citizens.

Other citizens may also have the right to use the housing in which they live, but it will always be derivative and determined depending on the availability of ownership of the housing in respect of which they are vested with housing rights.

VRI classifier

The entire list of types of land use in accordance with the law is contained in the VRI classifier. Its purpose is to determine the list of permitted uses of the territory when conducting a certain type of activity.
Land users must always check whether their type of activity corresponds to that indicated in the classifier for a given site.

The classifier contains names, detailed descriptions and codes of activities permitted for each specific territory. VRI is established by local governments. The classifier contains 12 general types of activities and additional clarifying types.

If users have not yet decided on the direction in which the land will be used, then a generalized VRI is initially established, so that in the future it would be possible to use all specified types. Violation of the classifier rules may result in civil consequences (termination of the agreement between the parties) and administrative fines.

The legislation provides for several types of land use. Some of them were installed during the USSR period and ceased to be used with changes in legislation. Land users must comply with the rules specified in the VRI classifier. It contains a detailed description of the types of activities that can be carried out in a specific territory.

Independent right to use your home

In addition to the right to directly live in his existing housing, the owner has the right to carry out a whole series of actions, which constitute a list of his powers. In particular, the owner can independently perform the following actions:

• Provide your home for use.
• Infuse your family members and other citizens into it.
• Rent out your home to a legal entity or citizens.
• Carry out other actions not prohibited by law.

In addition to rights, the owner also has responsibilities, for example, to bear the costs of maintaining his property, not to cause damage to third parties through his actions, and others.

In addition to the owner, the tenant of the housing in which he lives under a social tenancy agreement has similar rights. The employer's powers are narrower, but he has more responsibilities. But still, the employer has an independent right of use, since it does not depend on the decisions or actions of other citizens or organizations. Naturally, within reasonable limits, which are determined by law and the social tenancy agreement.

The truncated right of use lies in the fact that, unlike the owner, the tenant can move in his relatives only with the written consent of other family members, and in some cases, the landlord. Such restrictions do not apply to the owner.

It should be noted that the owner and tenant have an indefinite right to use the residential premises, that is, it is not limited by time limits and is not tied to certain events.

The right to use their housing by the owner and tenant can often be limited by the rights of other persons, but these rights, as a rule, arise due to the consent of the owners and tenants themselves.

Use of housing by other citizens

The law primarily includes household members of the owner or tenant as such citizens. The emergence of the right to use residential premises for family members is due to the presence of family ties and living together in the same place with the owner or tenant.

Household members of the owner or tenant have the right to live in residential premises under the same conditions as its owner. At the same time, they can protect their rights both from the actions of other citizens and the owner himself. That is, the owner cannot simply throw his family members out onto the street.

In addition to rights, family members of the homeowner also have responsibilities for paying utility bills. So, for example, upon moving in, the owner can enter into an agreement with a member of his family on shared participation in the payment of utilities and collect the amounts due in court if necessary.

In life, very often you have to face the problem of determining the fact of cohabitation. Thus, one person may have a dozen relatives, but not all of them will be recognized as living together. Therefore, in order to avoid disputes on these issues, the fact of residence is determined by registration at the place of residence. This is not the best option, but nothing more convenient has been invented at the moment.

Differences between ownership and use

The owner is the full owner of the residential property. There are two types of housing on the territory of the Russian Federation:

• private;
• municipal.

Owners of private real estate include citizens and organizations, and owners of municipal housing include the state in the form of a municipality.

The right to own housing may be registered or unregistered . When registering, the owner receives a special certificate, which is the main document of title.

If the registration was carried out in ancient “pre-perestroika” times, then the owner must have certificates of the old form (for private houses and land plots) or orders (for apartments), which are also valid.

But homeowners do not always register their ownership rights. However, they are not deprived of this right. For example, by paying a share to a cooperative, the shareholder becomes the full owner of the home.

The main difference between the right of use and the right of ownership is the powers given to it. Persons entitled to use can only reside in this dwelling .

The rights of owners also include the ability to carry out transactions with the property (sale, exchange, rental, donation, etc.), as well as registering relatives in this territory.

Use of housing by former family members

When peace and prosperity reign in the family, most people do not even think about legal formalities. And is it possible to refuse registration to your beloved son-in-law or daughter-in-law? And the husband’s refusal to register his wife in general, in fact, contradicts the very concept of family.

As statistics show, up to 70 percent of marriages in Russia break up, which means that today’s beloved “relatives” tomorrow may become former family members, and, moreover, registered in housing. And then, in addition to family disputes, housing disputes also arise. If former family members do not plan to collect things on their own, then the case of eviction will be added to the cases of divorce, division of property, and alimony.

It should be noted that with a competent approach and knowledge of the law, former relatives will easily retain the right to live in residential premises. Moreover, if the owner still has the option of influencing such a situation, then the tenant will not be able to evict such citizens.

As a general rule, if former family members do not have the opportunity to move to other housing, then they should retain the right to live in their previous place, regardless of whether the employer wants it or not.

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.

Special rights to use residential premises

The current legislation also contains a number of cases when citizens are granted specific rights to use residential premises.

One of such cases is the acquisition of the right of use due to a will. Its meaning is that the testator can impose on his heir the obligation to provide accommodation in the inherited apartment for a person who, for some reason, needs to improve or maintain living conditions. In such a situation, the heir, if he accepts the inheritance, is obliged to ensure the right to use his residential premises for such a citizen.

The acquisition of the right to use by testamentary refusal is subject to registration and is a very inconvenient encumbrance of real estate. Moreover, the heir cannot in any way evict such a citizen. Termination of the right to use residential premises by the legatee is possible only in the event of expiration of the period specified in the will or his death.

Another option for a special right to use housing is the conclusion of a dependency agreement. In this case, the owner independently assumes responsibilities for ensuring the residence of an elderly person in the residential premises he owns, for which he was provided with residential premises as payment.

The principle of exercising the right of use is in many ways similar to a testamentary refusal. However, the parties are not deprived of the right to provide for other conditions in the contract with each other that do not contradict the law.

Options for using land plots

A specific owner can legally own a plot of land, but any person who has received permission from the owner can use the land. Only the legal owner of the land has the right to dispose at his own discretion. Based on such powers, several types of land use rights are distinguished.

Own

Property rights mean the right of a person to own, use and dispose of a plot of land, which is legally fixed.
The owner acts as a subject of law, and the object in this case is the land itself. The owner of the land receives the right to use everything that is on the surface of his plot and under it, at his own discretion, however, these actions should not be illegal (Article 261 of the Civil Code of the Russian Federation).

Norms Art. 260 of the Civil Code of the Russian Federation states that persons who own land can:

• complete a purchase and sale transaction and transfer your ownership rights to another person;
• donate a plot;
• pledge;
• enter into a lease agreement for the use of the site with another person.

If you own a plot that is intended only for agricultural purposes, then no other activity can be carried out on it. This also applies to other designated territories (clause 2 of Article 260 of the Civil Code of the Russian Federation).

The form of ownership can be of the following types:

1. state;
2. federal;
3. regional;
4. municipal;
5. private.

Subjects of private property can be both individuals and legal entities.

You can become a full owner on a civil basis or through land privatization. In the first case, land comes into ownership as a result of purchase and sale transactions, donation of heritage, and other things. Privatization involves the transfer of ownership of state or municipal property to private individuals.

Lifetime inheritable ownership

The right to lifelong inheritable ownership refers to land plots owned by the state or municipal organizations, and it is granted only to individuals (Article 265 of the Civil Code of the Russian Federation).
The owner of the land has the legal right to transfer the right of ownership and use of property to another person by inheritance (Article 266 of the Civil Code of the Russian Federation). There are no other ways to dispose of property. After the Land Code of the Russian Federation came into force, the provision of land on the basis of lifelong inheritable ownership ceased, but persons who previously received plots under this right retained it. This change was established by Art. 21 of the Land Code of the Russian Federation, which became invalid on March 1, 2015 on the basis of Law No. 171-FZ.

All persons who inherited land could register ownership or lease rights to it at their own discretion. There is no need to obtain any permits for this; citizens will only need to register their property in accordance with Art. 131 Civil Code of the Russian Federation.

This right ceases to apply if:

• the owner of the land abandoned it in the manner prescribed by Art. 53 Land Code of the Russian Federation;
• the owner is deprived of the land if there are violations of its use (Article 54 of the Land Code of the Russian Federation) and in the presence of the circumstances listed in Art. 45 Land Code of the Russian Federation;
• the owner has registered ownership of the plot.

Permanent unlimited use

Permanent perpetual use refers to real rights to land and is regulated by the Civil Code of the Russian Federation and the Land Code of the Russian Federation. It allows the use of the site in accordance with the purposes intended for it without time restrictions. The authorized body may issue a decision to assign such a right to the following entities:

1. government authorities;
2. state and municipal organizations;
3. state-owned enterprises;
4. centers of historical heritage of the presidents of the Russian Federation who no longer exercise their powers.

Individuals are not considered subjects of this type of land use, but if they received it before the RF Land Code came into effect, this right is retained by citizens. In this regard, citizens who previously used land on a permanent, unlimited basis were given the opportunity to purchase their plots and register ownership of them. Each citizen can register only one plot of land as property.

Important! A person using land on a permanent, unlimited basis does not have the right to dispose of it, with the exception of easement and service allotment.

Law No. 137-FZ of October 25, 2001 obligated all legal entities using land under the right of permanent, unlimited use to register the plots as ownership or lease until January 2012. No time frame was set for this for individuals.

Free urgent

Free-term use implies a contractual relationship between two persons, in which one person transfers a plot of land to another for a specific period without charging any payment for it.
In case of gratuitous urgent transfer of land for use, the parties must enter into an agreement in accordance with the norms of the Civil Code of the Russian Federation (clause 1.1, Article 24 of the Land Code of the Russian Federation). The contract must indicate:

• information about the plot and its owner (cadastral number, type of use, data on the certificate of title to the plot);
• time of use (specific period or specific circumstances).

A territory that:

1. belongs to state and municipal entities in the manner prescribed by Art. 39.10 Land Code of the Russian Federation;
2. belongs to individuals and legal entities on the basis of an agreement.

The territory transferred for use must be used for its intended purpose.

Lease and sublease

Lease of land territory implies its transfer by one person for temporary use to another for a fee under certain conditions (Article 606 of the Civil Code of the Russian Federation).

The owner acts as a lessor.

To settle such relationships, the parties enter into a land lease agreement between themselves. Its subject is the territory, which is transferred for use to the tenant. The parties stipulate the following points in the agreement:

1. location of the subject of the contract;
2. category and purpose;
3. cadastral number and other distinctive characteristics;
4. rent price;
5. term of the contract.

Important! The subject of the agreement and the amount of rent are considered essential conditions. If they are absent from the agreement, the document has no legal force.

The parties independently agree on the lease term, but if this clause is not in the agreement, then the parties are considered to have signed it for an indefinite period (Article 610 of the Civil Code of the Russian Federation).

The tenant of the land territory has the right to sublease it to a third party during the validity period of the lease agreement without the consent of the owner, unless this is prohibited by the terms of the agreement, but the tenant must notify him of his decision (Clause 6 of Article 22 of the Land Code of the Russian Federation).

If, under a lease agreement, the use of land owned by the state is formalized for a period of more than 5 years, then the tenant has the opportunity to transfer all his rights and obligations under the lease agreement to a third party within the validity period of the agreement (Clause 9 of Article 22 of the Land Code of the Russian Federation).

Lease and sublease of land must be registered if it is issued for a period of more than 1 year.

Easement

Another type of land use is an easement. It refers to the limited right to use an object owned by another person. Easements can be temporary or permanent.
They are also divided into private and public. The owner of a land territory has the right to demand from the owner of another territory (a neighboring plot) to grant him the right to use this neighboring plot, subject to certain restrictions (private easement).

A private easement may be established for the following purposes:

1. to pass or pass through someone else's territory;
2. to perform work related to electrical wiring, communications or pipelines;
3. other needs that require obtaining the right to limited use of neighboring land.

Attention! A private easement is established by concluding an agreement between the parties. If disputes arise, the issue is resolved in court.

A public easement is established by decision of the executive authority on a plot of land owned by the state in order to meet the needs of the state, municipal organizations or the local population (Clause 1, 2 of Article 23 of the Land Code of the Russian Federation). A public easement can be established:

• if it is necessary to ensure passage or travel through the territory;
• for agricultural work (running and grazing animals, collecting hay);
• for hunting and fishing;
• for research;
• to gain access to the coastal strip.

The owner of the land on which an easement has been established is not deprived of the right to dispose of this territory (Clause 4 of Article 23 of the Land Code of the Russian Federation).

There are other publications by experts on our website, from which you can learn:

• What is a state act on the right to use a site?
• What does unjust enrichment mean?
• Where to apply for land and what to do if the administration refuses?
• What is preliminary approval and how does it happen?
• Who is eligible for benefits?