As a result of privatization processes, the division of property during divorce or entry into the inheritance of the apartment often become the object of rights of several citizens at the same time. Legally, it looks like a share ownership if the shares of each of the owners (for example, ½, ⅓, etc.) are quantitatively defined, or as a joint property, if it comes to the property of spouses, it is profit during marriage. About the division of common property and determine the shares of each of the spouses when divorced. On the definition of the procedure for using an apartment in the share ownership and division of property read below.
Sale of a share in the apartment
If the relationship with other owners of the apartment does not allow fully useful to her, the owner of the share decides on its sale. But it often turns out that the share in the apartment is unprofitable, because its value is below the proportional share of the amount of the amount that could be reserved when selling an apartment. Yes, and the demand for such a type of real estate is low even in the central regions. The repurchase of such fractions offered by some organizations and private investors is carried out at an extremely underestimated price - this is the last one to do with such property.
At the same time, for the sale of a share in such an apartment, you must first make sure to purchase it in the reluctance of other owners. For this, the procedure for the direction of notification of the preferential right of buying a share is observed. If you get rid of the share, bypassing this step, other owners will be able to challenge the transaction.
If you cannot agree on the joint sale of such an apartment with other owners, you can force them to sell our share if their share is insignificant. This process can be. In other cases, output from the situation will be the determination of the order of use of the apartment and the possible outlet / section of the share in the apartment in nature.
Appeal to the court to determine the procedure for the use and partition of the apartment
In any case, when accessing the court, it is necessary to competently build a legal position based on the right interpretations of concepts. Otherwise, you can not get anything from the court even with a positive initial forecast. To know what to ask for the court, we'll figure it out in the concepts:
Shadow separation - allocation of share in the right common property The apartment of it is when other owners object to the separation of shares.
The share section is the termination of the rights of common property and the full separation of the apartment on the share.
The section and shares in the apartment in nature involves the technical possibility of equipment of a separate entry and use of the corridor, a bathroom and a kitchen separately. Such a scenario is possible only in private homes and some apartments of the Old Fund. Holding its share from the common property, the citizen loses the right to common property, which he had. At the same time, the owners of other shares cannot use the dedicated share of another owner.
Therefore, to most cases, such a scheme of claims is applicable: isolated a dwelling and determining the procedure for using public areas.
This is possible, for example, if the plaintiff is one of the three owners of the share in three-bedroom apartment. At the same time, the size of the share does not have a decisive value - even if it owns everything ⅙ share in the right of ownership, the court will allocate a whole isolated room. At the same time, at the request of the Party, the disproportion of the premises determined to use can be compensated by a cash payment.
The impossibility of determining the procedure for using the apartment. "Problem" in the language of realtors
But if one of the three owners of a two-bedroom apartment requires it to allocate its share or determine the procedure for using it, such a sanctivation of the court considers it impossible, as it will entail disproportionate damage to property.
Definition of use order one bedroom apartments Several owners are possible only by temporary sign. For example, the owner of ½ share enjoys an apartment for 6 months a year, similar rights has the second owner. Such court decisions are rarely taken, because the judge is guided by the opinion of the Parties that such an order of use is hardly convenient.
In such and other cases, when the apartment is not "divided" due to a large number of owners, the owner of a small share may require compensation from other owners for the use of its share or to demand redemption of its share by other apartment owners.
Compensation for the use of share in the property by the other owners
In case of the impossibility of providing one of the participants in the overall property of the room or an isolated part of the residential premises based on the area of \u200b\u200bpremises or other circumstances, it is entitled to demand from other owners who own and use property, compensation (paragraph 2 of Art. 247 of the Civil Code of the Russian Federation). Its amount can be calculated based on the average market for hiring such an apartment according to the results of an independent evaluation examination. At the same time, by the decision of the court, such compensation is usually charged over the past period. Future monthly payments cannot be determined to pay for the court.
Need to determine the procedure for use residential premises It usually occurs, as a rule, because of the hostility between family members (former family members) of the owner, the employer. The conflict leads to the ghost of obstacles to one of the family members (former family members) in the use of housing, which is expressed, first of all, in the change of door locks, the exposition of things, the creation of other obstacles, up to the causing harm to the health of the family when trying to go to the controversial Residential premises.
A proper way to protect the violated right in this situation is a lawsuit on the nonsense and determination of the procedure for use in which the plaintiff indicates which isolated living space in an apartment or house he asks to allocate to the use of him and what to leave the defendants. If the disputed residential premises has only one room, this does not mean that the claim for determining the procedure for use will be denied. The court in this case will satisfy the demand for the University and will indicate that the disputed room is transferred to the use of the plaintiff and the defendants. It is clear that the practical value of the definition of the court of order of use of one room is zero.
Determine the procedure for use when apartment owned and in social hiring
Example from judicial practice: the order of use of the apartment in social hiring
So, by canceling the decision of the magistrate of the refusal to the lawsuit on determining the procedure for using the residential premises held under a social hiring agreement, district court indicated :
".. The appellate instance cannot agree with the conclusions of the magistrate about the impossibility of applying the analogy of the right and the law to resolve this dispute.
In accordance with paragraph 2 of Art. 1 LCD of the Russian Federation, citizens at their discretion and in their own interests carry out housing rights belonging to them, including they dispose of them. They are free to establish and implement their housing rights due to the contract and (or) other grounds provided for by housing legislation. At the same time, citizens should not violate the rights, freedoms and legitimate interests of other citizens.
According to the provisions of the provision of the LCD of the LCD of the Russian Federation, housing rights may be limited on the basis of the federal law and only to the extent that it is necessary to protect the foundations of the constitutional system, morality, health, the rights and legitimate interests of others.
Clause 1 of Article 7 of the LCD of the Russian Federation stipulates that in cases where housing relations are not settled by housing legislation or by agreement of participants in such relations, and in the absence of citizen or other legislation, directly regulating such relations to them, if it does not contradict their essence, applies Housing legislation regulating similar relations (analogy of the law).
Since there is no agreement on the procedure for using residential premises in the apartment between the parties, which are in accordance with Art. 60-61 LCD RF equal rights of ownership and use of the specified apartment, and the head of 8 LCD RF directly did not regulate the order of such use in the social hiring of residential premises. The court considers it possible in order to protect the rights and legitimate interests of the plaintiff, by analogy of the provision of civil legislation on the procedure for ownership and use by residential premises belonging to the right of ownership to citizens on him with equal rights.
At the same time, the Court takes into account the provisions of Art. 15-16 LCD RF about housing objects, i.e. About the residential room and its views. The use of an analogy of the law on the relationship of use during the social hiring of residential premises does not contradict their essence and corresponds to the provisions of paragraph 4 of Art. 17 LCD of the Russian Federation establishing that the use of residential premises is carried out taking into account respect for the rights and legitimate interests of citizens living in this residential premises.
According to Art. Art. 244, 247 of the Civil Code of the Russian Federation, property (indivisible items) may be as a common ownership with the definition of the share of each participant (share ownership). In this case, the participants own and enjoy common property under the agreement between them, and if consent is not achieving, in the manner established by the court. The participant of the share ownership is entitled to providing him with the possession and use of a part of the common property, commensurate its share, and if it is impossible to demand this in the right to demand from other participants who own and enjoyed property coming on its share of relevant compensation. " (The decision has entered into legal force).
The court will refuse to determine the procedure for using the apartment in social hire
An analysis of judicial practice shows that the courts mainly adhere to the first point of view and in the claims to determine the procedure for using the residential premises occupied under the contract of sociality refuse.
According to part 2 of Article 69 of the LCD RF, members of the family of the tenant of residential premises under a social hiring agreement have equal rights and obligations with the employer. As follows from part 4 of this article, if a citizen has ceased to be a member of the family of the tenant of residential premises under a social hiring agreement, but continues to live in a residential premises occupied, behind it remains the same rights that they have the employer and members of his family. The specified citizen independently responds by its obligations arising from the relevant social hiring agreement.
So, as stated in the right rate of law, equal to the employer of law have not only members of his family, but also former family members who continue to live in this residential premises. The right to use the residential premises (and not some part of it) is one of the rights of the employer, which in case of determining the procedure for use will undoubtedly be limited, as the result will the right to use the arguing parties part of the residential premises, which contradicts the imperative norm of law, will cease The 69 LCD of the Russian Federation is contained in Article 69.
Examples from judicial practice
Court of Cassation, leaving unchanged the court decision of the first instance, indicated: During the consideration of the case, the court found that V.A. It does not have the opportunity to use the disputed residential premises provided under a social hire agreement due to the fact that this is hampered by M.V.
Under the circumstances, due to the fact that the employer and members of his family have an equal right to use residential premises under a social hiring agreement, no other residential premises at V.A. for permanent residence There is no, the court justified V.A. together with juvenile son M. In the controversial apartment and ordered the defendant to not blame them the obstacles in the use of the apartment. In terms of a claim for determining the procedure for using an apartment, the court reasonably refused, since the possibility of changing the social hone agreement is not provided Housing Code of the Russian Federation (Definition of the Ulyanovsk Regional Court of August 26, 2008)
The court refused a claim for determining the procedure for using residential premises
B. appealed to the court with a claim to E. and Yu. On the establishment of it in the apartment A and on the determination of the procedure for using residential premises by allocating 13.1 square meters in its use. m.
In justification, the claim indicated that she was the tenant of a disputed apartment, lived in her with her husband, daughter - E. and grandson - V. Also without registration, her son-in-law lives - Y. after the death of her husband on September 19, 2006 due to bad relationships With the son-in-law she left the son of his son. The defendants threw her things, changed the castle from the entrance door, did not let her go home on December 6, 2006 for receiving a pension.
The court of first instance B. satisfied, instilled B. in the apartment, determined the use of residential premises: allocated in the use of B. room with a balcony of 13.1 square meters. m, use E. and V. - a room with an area of \u200b\u200b17.9 square meters. m, general premises - a corridor, a kitchen, a bathroom - leave in sharing of the parties.
The judicial board of the regional court, the decision of the court of first instance in terms of satisfying the claims to determine the procedure for using residential premises canceled, indicating the following.
B. Right use the controversial residential premises on social recovery conditions, the presence of the right of the tenant of residential premises by the defendants was not challenged. The court decision in terms of the expiration of the plaintiff in the controversial residential premises is not disputed.
The court correctly pointed out that existing housing legislation ( Housing Code of the Russian Federation , Rules for use of residential premises approved by the Government Decree Russian Federation On January 21, 2006, N 25) did not settle the question of determining the procedure for using residential premises held under a social hiring agreement, in the absence of an agreement between the employer and the members of his family and the emergence of the dispute.
The Housing Code of the Russian Federation provides an exhaustive list of grounds for changing, termination and termination of a social hiring agreement. The circumstances indicated by the plaintiff are not a legal basis for changing the contract of social hiring of the disputed residential premises. There is no evidence that to the forced departure of the plaintiff from the controversial residential premises there was a certain procedure for using residential premises, the plaintiff is not represented.
Since the claimant's requirement to determine the procedure for using a disputed residential premises by consolidating a separate room of 13.1 square meters after it. m, and for E. and V. - Rooms of 17.9 square meters. M is not based on the law, violates the rights and legitimate interests of the defendant E. and its minor son V., family members of the employer, the court decision in this part cannot be recognized as legitimate and reasonable and is subject to cancellation.
Canceling the court decision in this part, the Judicial Board takes a new decision to refuse to meet the claims for determining the procedure for using residential premises, without directing the case for a new consideration, since the circumstances that are important for the case are established on the basis of the evidence (definition of the Sverdlovsk Regional Court May 15, 2007 in case number 33-3210 / 2007)
The court of supervisory instance canceled judicial acts on determining the procedure for using the apartment
The requirements of the plaintiffs on determining the procedure for using residential premises held under the social employment contract were satisfied with the courts of the first and cassation instance, however, these judicial acts were abolished in supervision.
According to the refined requirements of the plaintiff, among other requirements, requested obliges a branch No. 2 of REU No. 2 MP G. Comsk "Housing Economy" to conclude an independent social hiring agreement with the separation of the personal account.
District Court considered it possible satisfy the requirements of the plaintiff About the section of facial accounts and imposing responsibility for a branch 2 " Housing Lenin Administrative District "Municipal unitary enterprise Omsk Open for the plaintiff a separate financial account, proportional to her and her son of the area of \u200b\u200bcontroversial residential premises, by 29.06 square meters In the apartment number ... In addition, considering the fact that at present the parties are not members of one family, the Court considers it possible to determine the use of residential premises as follows: a room of 16.4 sq.m. In the apartment number ... In the city ofomsk, consolidate for the plaintiff and its minor son, a room of 10.5 sq.m. Secure the defendant. General use sites in sharing. In satisfying the requirements of the plaintiff about the conclusion of a separate agreement of the social hiring of residential premises (the decision of the Leninsky District Court of Omsk dated May 31, 2007)
Leaving a decision without changing, the judicial board on civil cases of the Omsk Regional Court in definition of August 29, 2007 in case number 33-2755 He indicated that the court was true, taking into account the interests of the parties, identified the use of residential premises and the participation of the former member of the family of the employer for obligations arising from the social hiring agreement.
Resolution of the Presidium of the Omsk Regional Court of December 25, 2007 Year (Case No. 44-M-194) Decision of the Leninsky District Court of Comsk dated May 31, 2007 and the definition of the judicial board on civil cases of the Omsk Regional Court dated August 29, 2007 in terms of satisfying the claim for determining the procedure for using residential premises canceled. In satisfaction of the claim to determine the procedure for using residential premises denied.
The Presidium pointed out that satisfying the claims of the plaintiff in terms of determining the procedure for the use of residential premises, the court came to the conclusion about the possibility of changing the contract of social employment by providing the plaintiff with her son to use the room with a size of 16.4 m 2, and the respondent - room 10,5m2, Leaving the rest of the premises in the apartment in the overall use of the parties. The court acting at the time of consideration of the dispute provides for only two cases of changing the social hiring agreement.
- First, when combining citizens living in the apartment, in one family;
- Secondly, a social hiring agreement can be changed in case of recognition by the tenant of another capable family member (for example, the employer left, died or refuses to perform his duties).
In accordance with the LCD of the Russian Federation, the Social Hospility Agreement can also be changed:
- when leaving some of the family members of the employer (Article 69);
- universe of other citizens as family members (Article 70);
- reorganization or redevelopment of residential premises (Article 26);
- obtaining the residential premises liberated in the apartment (Art.59).
Housing Code of the Russian Federation and other federal laws Does not contain norms providing a member of the family of the employer the right to conclude a separate employment contract with the allocation of an isolated dwelling.
Since at the time of this dispute (the claim was presented in August 2005), the Housing Code of the Russian Federation acted, a court in part in part of the claimant's claims to determine the procedure for using residential premises should be guided by the LCD of the Russian Federation.
Definition of the judge of the Supreme Court of the Russian Federation No. 50-F08-184 dated June 24, 2008 G. denied the transfer of supervisory complaint to consider in court session Judicial Board of Civil Cases of the Supreme Court of the Russian Federation
Position of the Supreme Court of the Russian Federation on the determination of the procedure for using social housing
The parties themselves are entitled to conclude an agreement on determining the procedure for using residential premises held under a social hiring agreement, but it is not entitled to demand it in judicial order In the absence of consent to this any of the parties.
The position of the Armed Forces of the Russian Federation is also contained in Resolution of the Plenum of the Supreme Court of the Russian Federation of July 2, 2009. No. 14. "On some issues that have arisen in judicial practice When applying the Housing Code of the Russian Federation. "
In the specified decision of the Armed Forces of the Russian Federation No. 14, it is removed on the independent responsibility of the former member of the tenant family and the possibility of concluding a separate agreement with it, which determines the procedure and size of its participation in the costs of making a fee for hiring of residential premises and utilities, repair and maintenance of residential premises, in particular , in paragraph 30 indicate:
".. Ever 4 articles 69 LCD RF established independent responsibility of the former member of the family of the tenant of residential premises under a social hire agreement, continuing to live in this residential premises, according to its obligations arising from the relevant contract of social hiring. Therefore, it has the right to demand from the signator and the employer of the conclusion It is a separate agreement with it, which determines the procedure and size of its participation in the costs of making fees for hiring of residential premises and utilities, repair and maintenance of residential premises. The proposal for the conclusion of such an agreement may also proceed from the employer. Disputes arising in connection with the refusal of the hip and (or) the employer to conclude such an agreement or in connection with the accomplishment of the agreement between the parties on its content, are permitted in court ... The court, considering these disputes, is entitled to the provisions of parts 4, 5 of Article 155, Articles 156 of the LCD RF and Articles 249 of the Civil Code of the Russian Federation to determine the order and the size of the participation of the former h Lena family of employer in expenses for the payment of residential premises and communal services, based on the shares of the total area of \u200b\u200bthe residential room, with the entrance to the hodger (control organization), the obligations to conclude with the former member of the employer family the appropriate agreement and give him a separate payment document For payment of residential premises and utilities. "
"If there is an agreement between the persons living in the residential premises under the contract, there is an agreement on determining the procedure for using this residential premises (for example, a former member of the employer's family uses a separate room in the apartment), then the above costs can be defined by the court with this circumstance."
Thus, the parties have the right to determine the procedure for using residential premises occupied by them under a social hiring agreement, concluding an agreement.
To require the conclusion of a separate social employment contract for a part of the residential premises (room) family members (former family members) of the employer not entitled to this also indicated the Supreme Court of the Russian Federation in the Resolution of Plenum No. 14:
"Courts need to be borne in mind that the Housing Code of the Russian Federation does not contain norms on the right member of the family of the residential position of the residential premises to demand from the Moderator to change the social hiring agreement by concluding a separate social hiring agreement. In this regard, the requirement of a member of the family of the employer about the conclusion with him A separate agreement for hiring residential premises (including taking into account the provisions of Article 5 of the Introductory Law and with regard to the residential premises provided under a social employment contract until March 1, 2005), based on the volume of housing rights of the employer and members of his family, a certain article 67 of the LCD RF and paragraph 6 Typical treaty Social hiring residential premises approved by the Decree of the Government of the Russian Federation dated May 21, 2005 N 315, not subject to satisfaction. "
I will start with history from practice.
A young woman with a child and her former mother-in-law lived in a two-room apartment. The young woman's husband threw her and left to live in another family. By virtue of the circumstances, the apartment belonged in shares on the same second heroine and its former mother-in-law.
At the time of which I tell, the child was about two years old. The apartment had two balconies - one in the kitchen and the second, in the room where a woman lived with a child. The former mother-in-law took a habit of almost every day, in the morning early with a basic laundry laundry to open the door of the room where a woman lived with a child and with an independent view to walk on the balcony to raw lingerie.
At the request of a woman not to break into the room when a child sleeps, and she herself is not dressed, mother-in-law confidently reported that the balcony belongs to the common property that she has the same rights as a young woman. And on the other balcony, she is uncomfortable to hang underwin because it goes to the roadway.
Desperate to negotiate with the former mother-in-law, which continued to spoil her life, the young woman appealed to me for consultation. Together we decided to go to court to determine the procedure for using residential premises and prohibit a former relative to enjoy the balcony of the room in which the applicant lived.
After a few months of intense litigation, the court satisfied our demands, consolidating the right to use the second balcony for the former mother-in-law. So our heroine has received some respite, before the final decision of the housing issue and a train with a former relative.
Often, a person is forced to live with other people, relationship with which is hopelessly spoiled. But due to the lack of finance or for other reasons, the residential premises cannot be exchanged. In order to avoid endless quarrels and clarifying relationships about the right to use a joint kitchen, a bathroom or other rooms, you can determine the procedure for using residential premises.
The right to own the owner, to use and dispose of residential premises is enshrined in part 1 of article 30 of the Housing Code of the Russian Federation. Three listed categories of rights: possession, use and disposal, at first glance it is very similar, practically no difference. However, it should be understood that each of them is endowed with an independent meaning. I will try to briefly voice it
Possession of residential premises - This is an opportunity to possess the right of ownership of it. Let me remind you that the ownership of real estate objects to which residential premises include, it is necessary to register in the prescribed manner. After registering the right of ownership, your ownership right is a recognized state and is subject to protection from encroachments by other persons. To acquire ownership of residential premises, you must have sufficient grounds, for example: buying, receiving as a gift, by inheritance and so on.
Use of residential premises - The ability to operate a residential premises in accordance with its appointment. That is, for accommodation. When using residential premises should be remembered for the existence of the rights and legitimate interests of neighbors, the need to comply with the rules for the use of residential premises. And in relation to apartments located in apartment housesIt is also necessary to comply with the rules for the content of common property. It is unacceptable to be abandoned to treat the residential premises, since bringing it to the unfit, emergency condition can also adversely affect the apartments of your neighbors.
Disposal of residential premises - This is an opportunity to make a deal with him. That is, sell, give, exchange a residential premises belonging to you or make it inheritance. And also lay or dispose of another method provided by law.
Now it is clear that the owner of the residential premises has a whole complex of rights regarding his property.
But we also know that housing can be not only owned by one owner, but have several owners, each of which has a certain share in the property.
Collisions of interests of several owners of shares in general property - residential premises can be avoided having determined the use of residential premises.
The first step towards achieving an agreement between owners is negotiations. Thus, in Article 247 of the Civil Code of the Russian Federation, it is envisaged that: the ownership and use of property in equity ownership is carried out by agreement of all its participants.
Thus, the owners of the apartment in the apartment can independently determine which part of the residential premises each of them uses alone, and how much part is in sharing.
Requirements for determining the procedure for use can only be announced with respect to that property that cannot be divided.
But there are situations where one of the owners stubbornly does not want to come to consent, or acts called other owners.
Then the law makes it possible to apply to the court for establishing the procedure for using residential premises.
At the same time, each participant in equity ownership may require themselves to use and possession of such a part of the common property, which commensurate its share. If it is impossible to give him such a fraction in kind, he has the right to receive monetary compensation.
After the decision by the court, other owners do not have the right to prevent the owner to use the residential premises within the established procedure.
What does the court draw on, determining the use of residential premises
In paragraph 37 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated 07/01/1996 No. 6/8, it is indicated that the Court must be taken into account the following circumstances:
- in fact, the established procedure for the use of property, Moreover, it may not correspond to the accuracy of shared ownership
- the need of each of the co-owners in general property
- the presence of a real opportunity for sharing.
In fact, the established procedure for using the property may exist for years. He manifests itself in the placement of furniture, household appliances and a number of other circumstances. Not necessarily such an order should be for the current owners, it may exist before one of the shares in the general property changed its owner.
In other words, the current order is the rules for the use of residential premises that have existed for a long time. A new co-owl can or accept and join them, or try to achieve a new agreement. But the advantage will have a current order.
To prove the established order by any permissible means, including testimony.
Determining the procedure for using residential premises is required for all owners. The term is not limited.
The claim for determining the procedure for using residential premises is submitted to the court at the location of the disputed real estate. This category Affairs jurisdated by the world judges.
I hope that the article was useful to you.
Definition of SC on civil cases of the Supreme Court of the Russian Federation dated October 21, 2014 N 5-kg14-109 Court canceled previously adopted judicial acts in the case of the Institution in the residential premises, eliminate obstacles and determining the procedure for using residential premises, since a certain use of residential premises excludes The use of the plaintiff is a specific part of the residential premises without the use of the room allocated to other persons and without disturbing the rights of these persons.
The judicial board on civil cases of the Supreme Court of the Russian Federation as part of:
presiding Gorshkova V.V.,
judges Hetman E.S. and Kiselev A.P.
examined in open court a civil case under the claim Polyakova V.I. to Kurgina I.E. and Grigorieva MA On the venture in the residential premises, eliminate obstacles and determining the procedure for using residential premises
according to the cassation appeal Kiganya A.I. and Grigorieva V.Yu., acting in his own interests and interests of the Minor Grigorieva D.V., on the decision of the Babushkinsky District Court of Moscow of May 16, 2012 and the appeal definition of the judicial board on civil cases of the Moscow City Court of December 6, 2013 .
Having heard the report of the judge of the Supreme Court of the Russian Federation Kiselev A.P., explanations of the Kurginaya I.E., Representative of Kryngina A.I., Grigorieva V.Yu., Grigorieva D.V. - Kazansky A.V., who supported the arguments of the cassation complaint, the judicial board on civil cases of the Supreme Court of the Russian Federation established:
Polyakova V.I. appealed to the court with a claim to Kurgina I.E. and Grigorieva MA On the Institute, eliminating obstacles in the use of residential premises, determining the procedure for using residential premises, motivating the demands that it belongs to 1/4 of the share of ownership of the apartment, located at the address: G. ... by the owner 3/4 of the share Is the defendant Kigorgin I.E. The controversial apartment has a total area of \u200b\u200b56.7 sq. M, including residential 43.4 sq. M, consists of three residential rooms with an area of \u200b\u200b12.4 sq.m., 11.3 sq.m., 19.7 square meters. m. The defendant prevents the use of residential premises, it does not have the opportunity to fit into the apartment. The actions of the defendant Kurgina I.E. Her rights and legitimate interests are significantly violated.
By the decision of the Babushkinsky District Court of Moscow of May 16, 2012. The claims of Polyakova V.I. Partially satisfied: Polyakova I.E. universe into residential premises; to Kurgin I.E. and Grigoriev MA It is entrusted not to repair Polyakova V.I. obstacles in the use of residential premises; The procedure for use in accordance with which Polyakova V.I. The use of a residential room of 11.3 sq.m, the respondent of Kurgina I.E. Left to use residential rooms with an area of \u200b\u200b12.4 sq. M and 19.7 sq.m, common areas are left in sharing. The court decision also decided that the right to use the specified residential premises for Grigorieva MA It remains on the previous conditions. With Kurgina I.E. In favor of Polyakova V.I. at the expense of compensation judicial expenditures recovered cash In size ... rub. At the meeting the rest of the claim denied.
The appeal definition of the judicial board on civil cases of the Moscow City Court of July 30, 2012. The decision of the court of first instance was changed in terms of the size of the recovered court costs, in the rest of the appeal of Kurgina I.E. and Grigorieva MA left without satisfaction.
On December 6, 2013, the Appeal complaint of Grigorieva V.Yu. And Kigrun A.I., submitted to the decision of the Babushkinsky District Court of Moscow of May 16, 2012, which was left without satisfaction.
In the cassation appeal Kiganya A.I. and Grigorieva V.Yu., acting in his interests and interests of a minor Grigorieva D.V., raises the question of the abolition of the decision of the Babushkinsky District Court of Moscow of May 16, 2012 and the appellate definition of the judicial board on civil cases of the Moscow City Court from 6 December 2013
The definition of the judge of the Supreme Court of the Russian Federation of September 24, 2014, a cassation complaint with the case was transferred to consideration at the court session of the judicial board on civil cases of the Supreme Court of the Russian Federation.
After checking the case file, discussed the arguments of the cassation complaint, the judicial board on civil cases of the Supreme Court of the Russian Federation finds a complaint to be satisfied, and the contested court decisions are subject to cancellation.
In accordance with Article 387 of the Civil Procedure Code of the Russian Federation, the grounds for cancellation or change of judicial decrees in cassation are significant violations of the norms of material or procedural law, which influenced the outcome of the case and without the elimination of which is impossible to restore and protect violated rights, freedoms and legitimate interests, as well as the protection of public interest protected by law.
The judicial board on civil cases of the Supreme Court of the Russian Federation comes to the conclusion that in this case such a nature, a significant violation of the norms of substantive law was allowed by the courts of the first and appeal instance, which was as follows.
The court found that the apartment for which the dispute arose is located at: ..., with total area 56.7 sq. M, including a residential area of \u200b\u200b43.4 sq. M, consisting of 3 adjacent rooms with an area of \u200b\u200b19.7 sq.m; 12.4 sq.m and 11.3 sq.m.
Polyakova V.I. It is the owner of 1/4 of the apartment's share, Kigorgin I.E. Owns 3/4 apartments. In the specified residential room, the daughter of Kurgina I.E. is also registered and reside. -Grigorieva MA, grandson Kurgina I.E. - Grigoriev D.V. Together with Kurgina I.E. and Grigorieva MA Their husbands live - Kurgin A.I., Grigoriev V.Yu.
Resolving the dispute and partially satisfying the claims for the University, eliminate obstacles in the use of residential premises, determining the procedure for using residential premises, the court of first instance proceeded from the fact that Polyakova V.I., as a participant in equity property, cannot be denied a lawsuit , determining the procedure for the use of property and taking into account the share of the plaintiff in the right of ownership real estate It is determined to use the room with an area of \u200b\u200b11.3 sq.m, in the use of the defendant Kurginine I.E. Left rooms with an area of \u200b\u200b12.4 sq. M and 19.7 sq.m.
The court of appeal with the conclusions of the court of first instance agreed and, assessing the arguments of the appeal Kargin A.I. and Grigorieva V.Yu. Regarding the transfer to the use of the plaintiff of the room, the passage to which is carried out through the room transmitted to the use of the defendant, referred to the decision of the Babukhkin District Court of Moscow of June 22, 2009, which the former owner of 1/4 share on the disputed residential premises of the delenikov V.E. ., who sold the specified share of the plaintiff, was unheated to the apartment and the court was determined by the procedure for using residential premises, in which Dielennik V.E. A living room of 11.3 sq.m was highlighted for use, the passage to which is carried out through the room of 19.7 sq.m, and in the use of Kurginina I.E. There were rooms with an area of \u200b\u200b12.4 sq. M and a passage room of 19.7 sq.m.
The Judicial Board of Civil Affairs of the Supreme Court of the Russian Federation believes that it is impossible to agree with such conclusions.
By virtue of the provisions of part 3 of Article 17 of the Constitution of the Russian Federation, the implementation of human rights and freedoms and citizen should not violate the rights and freedoms of others.
According to part 1 of Article 30 of the Housing Code of the Russian Federation, the owner of the residential premises carries out the rights of ownership, use and orders to him on the right of ownership of the residential premises in accordance with its appointment and limits of its use, which are established by this Code.
In accordance with paragraph 1 and 2 of Article 247 Civil Code The Russian Federation possession and use of property in equity ownership is carried out by agreement of all its participants, and if consent is unresolved, in the manner established by the court. The participant of the share ownership is entitled to the provision of its ownership and use of a part of the common property, commensurate its share, and if it is impossible, it is entitled to demand from other participants who own and enjoying property included in its share of compensation.
According to the explanations contained in paragraph 37 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 6, the Plenum of the Supreme Arbitration Court of the Russian Federation No. 8 dated July 1, 1996 "On some issues related to the use of part of the First Civil Code of the Russian Federation", allowing the requirement to determine the order The use of property in equity, the Court takes into account the actual procedure for the use of property, which may definitely not meet shares in the legal ownership, the need of each of the co-owners in this property and the real possibility of sharing.
In the sense of the provisions of Article 247 of the Civil Code of the Russian Federation and the above explanations, the definition of the procedure for using common property between co-owners is possible only when the use and possession of the participant in equity ownership may be transferred to a particular property (part of the common property proportionate share in the right of ownership of this property).
In this regard, when resolving the stated requirements, the court had to take into account not only the current procedure for the use of property, the need of each of the co-owners in this property, but also the real possibility of using living space without violating the rights of other persons who have the right to use residential premises that the court did not have .
Determining the procedure for using residential premises and highlighting Polyakova V.I. room 11.3 sq.m, Kurgina I.E. room 19.7 sq.m, in violation of the requirements of Article 247 of the Civil Code of the Russian Federation, the court did not consider that the allocated Polyakova V.I. The room is requested, the use of which is impossible without the use of the respondent's room. In this connection, the court decision in this part is non-execute.
In addition, the court allocated Polyakova V.I. The room with the entrance to the pantry, thereby closing access for the defendants and her family members to this common destination.
Thus, the procedure for using the residential premises determined by the court excludes the use of Polyakova V.I. A concrete part of this residential premises without the use of a room allocated to other persons and without violating the rights of these persons.
The court decision also decided that the right to use the specified residential premises for Grigorieva MA It remains on the previous conditions, however Grigorieva M.A. The family members lived in a room of 11.3 sq.m, which was subsequently transferred to Polyakova V.I., which also entails the impossibility of executing a court decision in the specified part.
The judicial board also finds a unreasonable reference of the court of first instance on the decision of the Babushkinsky District Court of Moscow of June 22, 2009, which former owner of 1/4 share of the controversized apartment - Dielenkov V.E., who sold the specified share of the plaintiff, was united to an apartment, And the court was determined by the procedure for using residential premises, in which Dielennik V.E. For use, a living room of 11.3 sq.m was highlighted, since Polyakova V.I. did not participate in the consideration of this case.
Under such circumstances, the judicial board on civil cases of the Supreme Court of the Russian Federation finds a violation of the norms of substantial law, which was not eliminated by the court of appeal, they influenced the exodus, without elimination, it is impossible to restore and protect the violated rights and legitimate interests of the applicants, Convosity with which the applicable court decisions are subject to cancellation with the direction of the case for a new consideration in the court of first instance.
Guided by Articles 387, 388, 390 Civil Procedure Code of the Russian Federation, the Judicial Board of Civil Affairs of the Supreme Court of the Russian Federation identified:
the decision of the Babushkinsky District Court of Moscow of May 16, 2012 and the appeal definition of the judicial board on civil cases of the Moscow City Court of December 6, 2013. To cancel, to send a new consideration to the court of first instance.
Overview of the document
The owner (1/4) of the share in the right of ownership of the apartment appealed to the court in order to adjust into it.
As the plaintiff pointed out, the defendants (one of which is the owner of 3/4 share) impede his living in the apartment.
The court of two instances considered that the requirement could be satisfied by the allocation to the use of one of three rooms in the apartment.
SK on civil cases of the Russian Armed Forces sent a case to a new consideration and indicated the following.
By virtue of the Civil Code of the Russian Federation, possession and use of property in equity ownership is carried out by agreement of all its participants, and if consent is in disadvantage - in the manner established by the court.
The participant of the share ownership is entitled to the provision of its possession and use of a part of the common property, commensurate its share.
If it is impossible to do this, it is entitled to demand from other participants who own and enjoying property coming to his share corresponding to compensation.
Based on these norms and previously formulated explanations, the procedure for using common property between co-owners can be defined only in a certain case.
This is possible only when in an exceptional one (no other) use and possession of the participant can be transferred to a specific property (part of the common property commensurate).
Therefore, the court was supposed to take into account not only the established procedure for using the property, the need of each of the co-owners in it, but also the real possibility of using residential area without violating the rights of others who have the right to this.
IN this case The lower courts did not take into account.
So, the plaintiff was allocated a room, the passage in which only across the room transmitted to the use of the defendant.
In this room there was a single entrance to the storage room, i.e., as a result, the defendants lost access to her.
Also, the lower courts took into account the other dispute, in which the previous owner of 1/4 share was erected in the same room in court (later the plaintiff who served it).
Determination of the procedure for using residential premises - This is a special dispute or conflict that occurs most often between the owners of the specified residential premises on the use of this facility.
Each citizen of our country has housing rights, but not always citizens understand how it is necessary to defend their interests and defend their rights, without disturbing the interests and rights of other people. Conflicts from the lack of understanding, specific knowledge and experience arise continuously between the former spouses, relatives or neighbors.
The decision of this kind of legal disputes is one of the most common and violent issues for Russians. In addition to these situations that are accompanied by a section of property (residential premises), very often lawyers face problems when necessary establishing the procedure for using residential premises.
Legal services in determining the procedure for using residential premises
If you believe this judicial statistics, then those owners of real estate that have equal shares in the specified property are treated to settle the issue with the use of living space. Usually determining the right to use residential premises It is necessary if spouses who have common property decided to divorce or the heirs received some apartments at all, received their legal share in the previously acquired by other members of the property family.
Often, such situations are accompanied or already arise on the basis of an unfavorable emotional situation, the emergence of hostility, even physical counteraction from one owners to others in the process of using residential premises.
According to Art. 247 of the Civil Code Citizen - the equity owner is entitled to demand a renewable share in property or insist on compensation. In such a situation, the need to determine the use of residential premises with monetary refund It may well be the basis for compiling the claim to court. Since it is hardly possible to solve this issue, it is unlikely possible due to the lack of experience and specific knowledge in most citizens, then to achieve the desired result, it is necessary to seek help from qualified lawyers.
Competent and experienced specialists will hold all the required activities for the successful completion of the case, among which you can allocate:
- Legal advice on housing legislation.
- Analysis of the specific situation of the client and the development of the legal position.
- Preparation and registration of a full package of documents for the conclusion of a settlement agreement or appeal to court.
- Representation of interests and protection of the housing rights of the client in court.
- Control over the execution of the court decision.
It is quite natural that an experienced lawyer who possesses deep knowledge will try to act in the interests of the client, which means it will have to make every effort to conclude an oral agreement between the owners. If there are no contradictions, then it is enough to act without formalities. However, in the case of disagreements, you can assure a compiled agreement on the use of residential premises notarially.
In exceptional cases, it may be necessary to resolve the conflict in court, the court decision is not amenable to any other interpretation and should be performed as accuracy, therefore, before making this step, it is necessary to try to solve the dispute arising in any other way. It will not be superfluous, as mentioned above, to apply to the legal office and get comprehensive explanations of your situation with a lawyer on housing issues. Thus, you will save not only strength and nerves, but time and money, and the likelihood of a favorable outcome of the case will increase dramatically.
Features of the court settlement of a housing dispute
If you still could not determine the order of use of the apartment (home) in pretty orderA unresolved contradiction arose between the owners of the room, some features of the situation should be taken into account. First, only the owner has the right to file a statement, and not just a registered person. To clearly imagine what you have right, contact Legal Advice. Professional lawyer outlines for the client a list of features, optimal options for the expending situation.
It is also necessary to clearly understand the difference between different claimsyou can demand recognize the right to use residential premises under a social hire agreement or submit a document on the allocation of a share of the total ownership, to provide monetary compensation, equivalent share in total property. If we are talking about the allocation of a share, then russian legislationThe owner of this share has the right to receive a separate certificate of ownership of ownership of the dedicated property, for example, to room No. 1 in a residential apartment, part of the house, which includes certain premises, and so on. This share goes into sole ownership, and other owners of residential premises will not have any rights to it.
There are also subtleties in this matter. So, when the owner is allocated to the apartment, the plaintiff should be at his disposal, if possible, an isolated part of the residential premises and utility rooms - a bathroom, kitchen, and also has the right to a separate entrance (if it comes to the house). If you can practically accomplish something like this, then to solve such a question as definition of the order of use of the apartment, there will be a court.
Definition of the order of use of the apartment
In this case, two options are possible: providing the right to use an isolated or uninsulated room. The passage room can be recognized by the court as an object of general use of all owners of the housing, and the size of other rooms does not necessarily have to meet the legitimate proportion of those who want to determine the order of owners. Since in general the right of equity property does not stop due to the determination of the procedure for the use of residential premises, this issue is recognized by the court insignificant: the room may be more, and less. However, the plaintiff is entitled to demand some compensation, for example, if the second owner is provided with a large room in the area than the share of ownership, it undertakes to pay the plaintiff monthly to the plaintiff in the form of an apartment fee for using extra meters.
In addition, neither the verbal agreement between the owners of housing nor the court decree does not act and do not go to new owners of housing, if it is suddenly entirely or in shares will be alienated / sold to third parties. New participants can present new requirements and put new conditions for using the apartment.
It is necessary to clearly understand that the definition of the procedure for use municipal apartment Not only confirms the rights of each owner separately on the specified property or part of it, but also imposes certain obligations. All capable family members or neighbors, relatives carry the apartment that is in joint ownership, solidarity responsibility for all obligations arising from the use of residential premises. So, all citizens must make utility payments, maintain proper order in their own premises and public areas, to ensure the safety of property. Meeting of obstacles or the use of other measures of exposure to one owners relative to the other is not allowed and can be prosecuted.
Factors affecting the court decision and the necessary documents for filing a claim
Any competent and experienced housing lawyer will certainly explain to you that the court will consider the situation in terms of the legality of the requirements of the Parties, however, other factors may affect the decision of the judge in one way or that favor.
So, trying to determine for the plaintiff and defendants the procedure for using residential premises, the court can be guided by such parameters as:
- The size of the share of each owner is commonplace;
- The preceding procedure for the use of residential premises;
- Planning this roomwhich may affect the possibility of selection of an isolated share;
- The number of passing and individual premises in residential ownership;
- The composition of the owners, the presence of family ties;
- Availability of other property (residential real estate) at the owners of the residential premises - the subject of the dispute.
Experienced lawyers will not only be able to represent the interests of the client during the trial, but will also be ready to provide legal advice to the Client and other owners of the residential premises, to hold the negotiation process. In the case of a favorable outcome, qualified employees legal advice Also find the optimal and compromise option with the release of the property in the property or with the definition of the satisfying side of the order of ownership, will prepare an agreement.
To obtain comprehensive explanations and a clear plan of legitimate and effective actions to resolve the issue with the use of residential premises, the client must provide some information and official documents by a lawyer:
- Document confirming property rights.
- An extract from the housebook or account of all residents of the meaningful residential premises.
- Plan of residential premises with explication from BTI.
- Documents that can confirm the order that has developed earlier to conflict: various receipts for furniture or equipment, photos and so on.
- Documents that confirm related links between owners or prescribed persons.
Violation of the procedure for use by residential area
However, even if you received a court order or a written, a notarized agreement between the owners of the residential premises (apartments), which will establish the procedure for the use of the same room, this does not mean that their conditions will be respected strictly by all conflict participants.
Problems may arise at any time, the relationships may suddenly worsen, neighbors or relatives can freely cover access to the house / apartment, limit the rights of use of living space. Hoping that their behavior will change, you should not, you need to immediately ask for help from a lawyer and solve the newly broken conflict in a legitimate way.
In this sense, the easiest thing is probably neighbors communal apartment. According to the law, each room is initially enshrined in property individualAnd therefore, no one can use this premises except the specified owner. And if someone decides to disrupt the conditions of use, breaks into the premises, then you can simply apply to law enforcement agencies.
We also keep in mind that the Court cannot, according to the law, to allocate a part of the room into the property or decide the procedure for using residential area, for example, in time: one owner lives in the apartment, another year.
The procedure for using residential premises (apartment) should be convenient and comfortable for all owners of the premises, but if your rights are violated, you can submit a new lawsuit on the Institution or about the change in the use of housing. The latter should be done in the event that the share of residential premises or the room will change the owner, again will have to go to court and wait for the settlement of the issue with the order of use of premises for at least six months from the moment of filing the claim.
Sale of a share (Rooms) is the sale of problem real estate, whatever order has been operating with the previous owners, the new one has the right to violate all the conditions and requirements, and it will be possible to achieve the resolution of the controversial situation. It is likely that by the time of the court, the owner will change again, so be attentive, acquiring the room in a communal service, for example, because of other residents in relation to your premises, the order of use also stops acting.
