When buying housing on the secondary market, citizens often face a situation where former owners "forgot" or for some reason do not want to leave the apartment they have sold.
For the new owner, it is an additional headache because the "propiska" gives the right to use the dwelling, i.e. the possibility to reside in it. In addition, under article 153 of the Russian Housing Code, the owner has the right of ownership from the moment of his or her establishment to pay for housing and public services. Payments are calculated on the basis of the personal account of the dwelling and the number of persons registered therein. In other words, the new owner will have to pay for the commune and for the previous owner, as well as his or her family members, if they are still prescribed in the apartment.
Before we figure out how to deal with this situation, let's say that the term "propiska" is not right now, and that's what we mentioned in the paper on the place of payment for public utilities, but let's just use it in this article to be simple.State registration by place of residence.
So the citizen sells the apartment, the right to own it stops, the house has a new owner, and the best option is for the former owner and his relatives to be discharged before the contract of sale is concluded.
In practice, however, transactions and de-registration processes often go hand in hand.
However, an essential condition of the contract for the sale of the dwelling is the seller ' s obligation to identify all persons who retain the right to use the premises after the buyer has acquired them (art. 558 of the Civil Code of the Russian Federation).
In addition, the text of the contract often includes a paragraph setting out the obligation of persons registered in the dwelling to be discharged within a certain period of time, and banks generally request notarized statements when purchasing an apartment in the mortgage.
Thus, under the law, the former owner and members of his family must voluntarily withdraw from the register, but what if this does not happen?
According to article 304 of the Civil Code of the Russian Federation, the owner may demand the elimination of any violation of his or her right, even if these violations were not connected with the deprivation of possession.
In addition, article 292, paragraph 2, of the Civil Law stipulates that the transfer of ownership of a dwelling or apartment to another person is grounds for the termination of the right of use of the dwelling by members of the family of the former owner.
This provision, however, includes a reference to "unless otherwise established by law", which refers to categories of citizens who cannot be discharged or are extremely difficult to write down; thus, the registration of minors or disabled persons may be removed only with the consent of the guardianship and guardianship authority.
Persons who had refused or could not participate in privatization could not be released, but at the time it was carried out were equal to those who had committed it, nor could they be removed from the list of persons who had been entitled to use the accommodation under the contract for life and as a result of a testator ' s refusal.
If there are no specified categories of citizens, the most effective solution to the problem will be recourse to the courts.
Before doing so, lawyers advise that the former owner be given a written notice indicating that he has lost his right to use the dwelling and is required to be discharged from it.
It should also be pointed out that it continues to receive utility charges, which the new owner has to pay but intends to collect from the ex-owner in court as unfounded enrichment.
If this step is ignored, we write a claim for loss of right to use the dwelling and removal from the registry; the legal basis for the claims will be the above-mentioned rules; the claim will be filed at the place of residence of the defendant; it will be accompanied by a certificate of ownership of the real estate property, a contract of sale, an extract from the passport table ("Certificate No. 8"), a receipt of payment of the State order, a copy of the statement for the defendant and other necessary documents.
Most de-registration claims are granted in favour of the owner, who may, on the basis of a court decision received, issue an ex-owner ' s notice and receive a recalculation of the utility charges by filing an application with the managing company.
If salesmen don't get out of a sold apartment?
Last update: 29.05.2022
Question:
I bought an apartment with the residents in it, and they said they'd check out after the deal, but then they turned around, and they wouldn't be in a hurry.
Answer:........................................................
Buying an apartment with the registered tenants is a fairly common situation that occurs in the real estate market, usually in alternative transactions with apartments.
In this case, sellers (family, for example), while selling their apartment, buy a different apartment at the same time, and in most cases at the time of selling their apartment, they have nowhere to go, so they are discharged after the end of the transaction, to a new bought apartment.
But what to do,if the sellers are not discharged from the sold apartment?
Realtors have a salesman's statement (i.e. removal from the residence register) called "legal release of the apartment".
In order for the buyer to be confident that the sellers will be removed from the registry after the transaction, this condition must be clearly and unequivocally prescribed under the terms of the Sales Agreement.
Literally--The contract specifies the list of persons who remain in the transaction at the time of the transactionThe following paragraph of the contract specifies the seller ' s obligation to remove these persons from the registry within, for example, two weeks after registration of the transfer of ownership of the dwelling.
Nuance here is that, formally, the seller (i.e. the owner of the apartment) may be one person, i.e., one who is listed in the Certificate of Tenure of the apartment or in the Certificate of the EGRN, while the entire family, whose members are not the owners, and thus do not participate in the signing of the Agreement for the Sale of the apartment, may be registered in the apartment.
Thus, by signing an obligation to de-register itself and all members of his family, the seller actually makes a decision for other people who, theoretically, may not accept such a decision.
"We guarantee you!"...is it worth believing in realtors' promises?- read here.
In practice, buyers in such a case are insured by a supplementary agreement ora copy from all registered dwellings family members(which are not owners and do not sign a sales contract) that they do not object to the transaction and undertake to withdraw from the registry after the sale of the apartment.
The law, in this case, treats this situation also in favour of the buyer, stating in article 292, paragraph 2, of the Russian Civil Code that the sale of the dwelling isgroundfor terminationthe right to useby the former owner ' s family, unless otherwise established by law.
The amendment "unless otherwise provided by law" means that there are specialException casesas provided for by law, under which former tenants mayKeep the right of residenceSuch cases may include:
- Refusal of any member of the seller ' s familyprivatization of the dwelling(if the apartment sold was previously privatized);
- AvailabilityPromulgation waiver(if the sold apartment was inherited by the seller on will);
- Living in an apartmentof a minor child(if he is under guardianship);
- Living in an apartmentBeneficiary(if the apartment sold was purchased by the seller under the Contract for Life with Sorting).
In the first case, the non-prioritization resident retainsright to useThis dwelling is open-ended (art. 19, FH-1989 of 29.12.2004).
For more details on the risks of buying a privatized dwelling, see the reference to the Glossary.
In the second case, it is a situation in whichBequest to an apartmentThere is a testator ' s refusal stating that a certain person (not the heir) is entitled to reside in the apartment.
For more details on the inheritance of apartments by law and by will, see the reference to the Glossary.
In the third case, the authority must authorize the guardianship and custody authorities to sell the apartment.Minorseven if he is not its owner but is prescribed in it and is under guardianship or guardianship, as clearly stated in article 292, paragraph 4, of the Criminal Code of the Russian Federation.
For more information on the rights of minor children in the apartment, see the reference in the Glossary.
In the fourth case, the right to live in the flat of the rent recipient who sold his apartment on the basis ofLife-long contract with dependencywith the condition that you live in it.
Please refer to the Glossary for details of a life-long contract with a residence.
In general, if, under the terms of the transaction, "legal release of the dwelling" is anticipated after its sale and the buyer has doubts that former tenants may "forget" to release it, it is recommended that such a transaction be made with the Notary.Conditions for the discharge of tenantswill be specified in the contract as required and additional certificates and authorizations will be required.
Viewing the apartment on the "secondary" before buying. What questions do you ask the seller?Look at the relevant step of the Regulation.
How do you get a salesman out of the apartment?
If these measures are met and the former tenants, after the transaction, refuse (or avoid) the removal of the registration in the sold apartment, the matter is settled simply.
It is sufficient for the buyer to apply to the court and present his or her property documents (contract) with which he or she is a party.The obligation to dischargeThe court shall order the removal of the former tenants from the register, in accordance with the terms of the contract and article 2, paragraph 2, above.
292 SC of the Russian Federation: The buyer then puts this decision on the passport table and the former tenants are discharged without their consent.
In practice, buyers apply another "insurance against forgetfulness" of the tenants of the dwelling from the register, when the money for the dwelling is transferred, including through the use of a bank cell, the buyerUnderpaidThe seller has a portion of the rent until all the tenants are fully discharged from it.
In order to better understand who and when is entitled to use the dwelling after its sale, it is recommended that the relevant article be read in the Glossary (by reference).
Any questions left? Do you have any doubts?You can ask for advice from a subject-matter real estate lawyer or a full transaction escort here.
How to make a sale of an apartment is described in detail on the pages of the SHORT INSTRUCTION.
How to get out of a purchased apartment of former owners and registered owners, how to deal with a forced discharge, special features of the protection of rights in a court of law.
The purchase of a new dwelling is not only a positive emotion; often it is accompanied by many difficulties that need to be taken into account in order to complete the dwelling and avoid problems in the future; one such issue is the deregistration of former owners and other persons who were prescribed at the time of the purchase of the premises.
* Deficiencies in the purchase of an apartment with registered persons
It's a pretty reckless thing to take possession of a dwelling with people in it. Of course, there are different situations in life, but there is always a need to study the situation in detail.
If there is reason to trust the former owner, he may be kept in writing for the time being, as this may be necessary in order to avoid a fine for residence without the registration provided for in article 19.15.
1 COP of the Russian Federation.
There may not be the most conscientious persons who may cause serious problems; for example, they may refuse to leave the apartment or simply leave the apartment; in such a case, they may have to resort to legal proceedings; and there are also citizens who cannot be discharged without their consent, even by the court.
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:: Exploitation legislation
The issue of the discharge of former owners by civil law is regulated; the main provision is article 292, paragraph 2, of the Criminal Code, which establishes the removal of an apartment as the basis for the termination of the right to live in an apartment.
- Article 292, paragraph 2, of the Criminal Code of the Russian Federation:
- "The transfer of ownership of a dwelling or apartment to another person shall be the reason for the termination of the right of use of the dwelling by members of the family of the former owner, unless otherwise provided by law."
There are relatively few problems with the ex-owner ' s discharge, according to article 235, paragraph 1, of the Civil Code, ownership, which includes, in addition to possession and regulation, the right to use, is lost after its disposition.
Since the transaction is carried out by the owner, there is very little room for disenfranchising the discharge; in the event that members of the former owner's family continue to be prescribed, art.
304 The Criminal Code of the Russian Federation, which guarantees the new owner of a dwelling the right to eliminate all kinds of violations, even if they do not relate directly to the ownership of property.
In addition, in a number of special cases, the provisions of the Russian Criminal Code, the Introductory Act to the Russian Criminal Code and the Decision of the Plenum of the Supreme Court of the Russian Federation of 2 July 2009 No. 14 may be applied.
This is most often required when it is necessary to release citizens who are entitled to live for life. If it is still possible to bring an action before a court, sub-section II of the Code of Criminal Procedure of the Russian Federation and article 333 of the Code of Criminal Procedure are used.
19 NK of the Russian Federation on the determination of the size of the State Ministry.
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:: Voluntary release
The ideal solution to the problems of registration in the apartment of former owners and family members is voluntary discharge. Citizens agree to be removed from the register and, together with the owner, go to the territorial authority of the Ministry of Internal Affairs (formerly OFMS).
The simplest situation is the seller ' s own issuance of a family member ' s apartment and his own, for which he simply has to write a formal application, attach a copy of the passport and a certificate of State registration of the right to housing (extract from the EGRN).
Those who are discharged must also be present in order to confirm their consent.
No one shall be released after the sale, nor shall the former owners perform the same procedure, except in situations where they cannot do so themselves for objective reasons.
In such a case, they must write a permit for the discharge, notarize it and hand it over to the new owner who carries the document to the Ministry of Internal Affairs, together with a statement and a copy of the passport.
He also needs to take either an extract from the EGRN or a sales contract in which the Rosreestra seal of the State registration of the right of accommodation is available.
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:: Court release
Unfortunately, the situation may not be the same, but without the consent of the citizen, it is possible to release him. First, it is necessary to check whether he or she belongs to one of the categories that are entitled to live for life. If all is well, he or she must collect a package of documents that are brought to court.
- Statement of claimThe application is made in a free written form, but its content must strictly comply with the requirements of article 131, paragraph 2, 4 of the Code of Criminal Procedure of the Russian Federation. Citizens who are familiar with the legal language may draw up it themselves, but if they are not able to prepare documents of this type, they should contact legal advisers or simply familiar lawyers.
- A copy of the identity documentThe passport must always be on the way to court, since it is simply not allowed to enter the building without it, but copies of the pages on identity and place of residence must also be attached to the application.
- Copy of the certificate of ownership of the dwellingAccording to paragraph 1, 2 of article 28 of FL 13.07.2015 No. 218-FZ "On State Registration of Real Estates", these are an extract from the EGRN (former EGRP) or Rosreest's registration inscription on the right-making contract.
- A copy of the receipt for the payment of the Minister ' s officeAccording to article 333.19, paragraph 3, of the Criminal Code, the amount of the duty in this case is 300 roubles.
- An extract from the home bookIt shall certify the existence of citizens living in an apartment.
The dispute is settled in the district courts and it is not possible to file an action until the right of ownership has been transferred and it has been confirmed by the State registration to the EGRN. The case is heard within two months of the date of the application (art.
154 of the Criminal Code of the Russian Federation), during which the former owner or members of his family have the right to reside in the disputed premises.
Only after receiving a copy of the judgement can you go to the territorial authority of the Ministry of Internal Affairs and file an application for the release of the citizen concerned.
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:: When no prescribed person can be discharged
The most serious problem in the acquisition of an apartment with a registered person may be the presence of citizens whose new owner is not entitled to discharge.
- Former family members living in a privatized apartment if they refused privatization but were initially entitled to do so (article 19 of FL of 29 December 2004 No. 189-FZ "On the enactment of the Housing Code of the Russian Federation").
- Article 19 of the Introductory Law to the FRF of the Russian Federation:
- "The provisions of article 31, paragraph 4, of the Housing Code of the Russian Federation shall not apply to former members of the family of the owner of the privatized dwelling, provided that, at the time of the privatization of the dwelling in question, the said persons had equal rights to use the premises with the person who had privatized them, unless otherwise established by law or by contract."
- Persons entitled to live for life as a result of a testator ' s testator ' s refusal; even if the owner of the other owner ' s apartment, the will of the heir may give him the opportunity to be registered in the premises for the rest of his life; only the will of the recipient is the basis for the discharge (art. 1137, para. 4, of the Criminal Code of the Russian Federation).
- A person who has part of the drinking in a housing cooperative; if the owner has sold most of the drinking on the apartment to another person, the other person is not entitled to evict the other person except for the full buy-in of the contribution.
- Minors living in children ' s homes but with a residence permit in an apartment that was forced to leave.
The categories of persons listed could only be released on a voluntary basis, since they were in fact confined to their homes on a life-long basis; moreover, even the court could not deprive them of their propiska.
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:: How to secure yourself when buying
It is possible, and even necessary, to warn of possible problems with the availability of registered citizens in the apartment in advance by contacting the passport desk to obtain copies of home books or special records containing data on persons registered in the dwelling.
An additional guarantee would be the ordering of archival statements that would permit the identification of persons with a right to live in an apartment; unfortunately, the passport officers were reluctant to do so, and most often refused to do so.
Only a specialized legal agency dealing with real estate issues can assist in this effort.
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Legal advice:
♪ Is it possible to get out on the Internet?
The only way to get online is through the "State Services" portal, but only the citizen registered in the apartment can do so voluntarily; first of all, it requires a personal account on the website.
If a personal profile is created, the search line should find the section "Removal of the residence register" and complete the application in the form provided, and report to the Ministry of Internal Affairs in three days by the scheduled time (to be indicated in the SMS notification), provide a passport and obtain a list of departures.
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Can a person in writing use a dwelling?
According to article 3 of the Russian Federation Act of 25 June 1993.
No. 5242-I "On the right of citizens of the Russian Federation to freedom of movement, choice of place of residence and residence within the Russian Federation", registration at their place of residence is necessary to guarantee citizens' right of residence.
Of course, it is also necessary for the authorities to take account of migration flows, but it is not the main purpose; indeed, the very essence of the concept of "place of residence" is the use of accommodation.
- Article 2, paragraph 8, of the Russian Federation Act on the right of citizens of the Russian Federation to freedom of movement:
- "The place of residence is a dwelling, an apartment, a room, a dwelling of a specialized housing stock or another dwelling in which the citizen is permanently or predominantly the owner, under a contract of employment (recruit), a contract for the employment of a specialized dwelling or on other grounds provided for by the legislation of the Russian Federation and in which he is registered at his place of residence."
The registered citizens have full right to use the dwelling for residence, even if the owner has changed; only the procedure for deregistration and the issuance of a certificate of departure deprives the tenants of this right.
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We bought an apartment with a "prescribed" man. What do we do?
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Published :Vadim Kalyuzhka, a specialist in the Topurist.RU portal
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