When selling real estate in which people are registered, the owner will have to face a number of difficulties. The presence of a registered family member has a bad effect on the cost of residential premises and can jeopardize the conclusion of the transaction.
Before you sell an apartment with a registered person, you need to know on the basis of what law citizens are given this opportunity. The risks and consequences of such a transaction should be considered. Knowledge of the legal norms that allow you to deregister residents will allow you to make an informed decision.
In order to get rid of fears of purchasing an apartment with a person who has not been discharged from it, you need to carefully study the possibility of doing this after purchasing a home.
The situation when you need to sell an apartment with a person registered in it puts the owner in an unpleasant position. Without knowing the legal norms, some citizens refuse to try to sell real estate. However, the legislation answers the question: is it possible to sell an apartment with a person registered in it in the affirmative.
This case is regulated by the Russian codes: Civil, Housing, Family. Article 292 of the Civil Code of Russia clearly states the possibility of selling property with registered persons.
According to the norm, a change of owner terminates the rights of use of his family members registered in the property.
Article 31 of the Russian Housing Code duplicates the owner’s right to sell housing with encumbrances.
Based on these articles of the law, there are no legal obstacles to completing the transaction. However, real estate buyers are reluctant to purchase such property. The transaction amount may be significantly underestimated.
This is not only due to the red tape involved in registering formal residents. The legislative framework contains exceptions for certain categories of citizens. The buyer is afraid of becoming the owner of a property from which he will not be able to evict unauthorized persons, either legally or physically.
The first thing that conscientious real estate sales specialists in such a situation will recommend to the owner is to come to an agreement with the registered persons. If the latter refuse to voluntarily deregister, the property owner will be asked to deregister them through the court.
Forced deregistration
How is the procedure for forcibly deregistering an unwanted tenant registered in a purchased apartment implemented? Photo No. 2
The law allows owners to independently expel from the apartment persons who do not have ownership rights. This does not apply to categories of citizens protected by the state or who have received the exclusive opportunity to use housing.
Who can be legally evicted from an apartment?
You can easily stop registering at your place of stay. With registration at the place of residence, everything is much more complicated. The legal owner can independently or through the court deregister registered persons who do not have ownership rights.
Former spouses and their family members
If we take paragraphs 4 and 5 of Article 31 of the Housing Code of Russia as a basis, officially ended family relationships lead to the loss of rights to use the living space by the owner’s former spouse. His relatives also lose their rights.
The article applies if the property was acquired by one of the spouses before marriage and legal claims to ownership of the property of the second spouse are not legally possible.
To register the deregistration of these persons, a statement from the owner is sufficient.
Adults registered after the privatization of residential premises
Unauthorized citizens may be discharged without consent if the registration procedure was carried out after privatization. This need often arises when a civil marriage ends.
Citizens registered but not living in the disputed premises
Having proven that the registered person does not pay taxes and utility bills, and does not live in the disputed living space, you can discharge him by court. In this case, the citizen being discharged must have premises suitable for living.
Parents deprived of rights to a child
Parents who have lost their rights to raise a child must be discharged from the apartment. The presence of other housing is not taken into account by the court.
Minors
The issue of discharging a minor is quite complex, and it can only be resolved with the help of the guardianship and trusteeship authorities. Photo No. 3
There were precedents in which children under 18 years of age were recognized as former family members of one of the parents during their divorce. The change in the wording of the Family Code guaranteed them more complete protection of their rights. Now minor owners can be discharged from the apartment only with the permission of the guardianship and trusteeship authorities.
Outsiders who remain registered in the premises that were purchased or legally obtained ownership
The new owner of a property has every right to terminate the registration of citizens registered under the former owner. This rule is used in the case of purchasing an apartment, receiving it under a will or on the basis of a gift agreement. Loss of the right to use the premises must be established through the court.
Legislation protects the buyer: citizens who do not have property and exclusive rights are required to deregister when the owner of the property changes.
Discharge procedure
If you refuse to comply with the law, you will have to go to court. You should prepare documents and submit a statement of claim to the arbitration court at your place of residence. Be sure to attach documents confirming the legality of deregistration of the tenant. It is advisable to enlist the support of witnesses.
In relation to the above categories of citizens, the decision is most often made in favor of the buyer. In some cases, the court may extend their right to use the property for a limited period of time.
There are cases in which it is impossible to discharge a relative or even a stranger from an apartment.
Who cannot be forcibly deregistered?
However, there are a number of categories of citizens who cannot be discharged from their apartment without their consent (or the consent of persons acting in their interests), and this must be taken into account before signing an apartment purchase and sale agreement. Photo No. 4
The state protects certain categories of citizens and grants them the right to live in the premises even in the absence of property. The existence of such an advantage is influenced by: property rights, testamentary refusal, privatization, participation in housing cooperatives, rent, marriage contract, children under 18 years of age.
Ownership
It is impossible to deregister a citizen who has ownership rights to part of the residential premises without his consent.
Testamentary refusal
An heir who receives an apartment under a will may be burdened with conditions. Such an obligation is the provision of the right to use residential premises to third parties.
By default, the commitment period is three years. But most often the terms are specified in the text of the will, and the right is granted for life.
In this case, even repeated resale of real estate will not affect the guarantee of the right to use the housing of third parties.
Buying and selling an apartment with a registered person: risks, law, how much cheaper, consequences
The title of the article itself seems wild at first glance. You immediately ask yourself: is this possible? And the second question: is this legal? Meanwhile, in the real estate market, the practice of selling and purchasing apartments with encumbrances is not uncommon. The encumbrance, in this case, is the person registered in the apartment. Let's look at situations where this is possible.
Postponement of deregistration of former owners
The most common situation: the owner sells his apartment while simultaneously buying a new home.
In the purchase and sale agreement of his old home, he includes, in agreement with the buyer, a clause on the timing of the check-out of all registered family members from the apartment.
He needs the money from the completed transaction and time to buy a new residential property. The law does not prohibit the conclusion of such a transaction (Article 31 of the Housing Code of the Russian Federation, Article 292 of the Civil Code of the Russian Federation).
Should the buyer make such a deal? Does he risk it?
Article 292 of the Civil Code of the Russian Federation determines that if the property has a new owner, then the old owner of the apartment automatically loses the right to use it, as well as all members of his family who are registered in the sold residential space.
There is still a risk: old residents may delay the time of discharge. You'll have to pay utilities for them. And it’s unpleasant: you are already the owner, and strangers are registered with you. It is worth considering this when concluding an agreement: enter penalties for violating the terms of the extract.
Typically, the new owner will not give the full amount to the old owner without receiving proof of their final separation from the house. The money is placed in a safe deposit box, which will be opened to the seller if there are new registration stamps in the passports.
The owner has the right, in the event of a protracted voluntary discharge of the old owners, to forcefully discharge them through the court. Only tenants with temporary registration can be discharged from an apartment without a trial.
Transaction with an apartment where a minor child is registered
Particular attention should be paid to a transaction with an apartment where the encumbrance is a registered minor child.
Parents must notify the Guardianship and Trusteeship Authority (TCA) about the transaction and obtain permission to discharge the child in connection with the move to better living conditions.
The buyer should make sure that such permission is available. If a minor is the owner of a share in the apartment, then a separate account must be opened for him in a bank of the Russian Federation.
The buyer transfers funds for the child’s share there. What to do with this money is up to the parents.
An extract from the house register is a necessary document when making a transaction.
Before buying an apartment, ask the seller for complete information about those registered in the apartment and their rights to housing. The current owner of the apartment must (clause 1 of Article 558 of the Civil Code of the Russian Federation) provide a regular or extended extract from the apartment (house) register. It can be obtained from the housing department or MFC only by the owner of the residential premises.
They will refuse to give out such information to an outsider (buyer).
To avoid troubles in the future, the contract must contain a clause on the seller’s responsibility for the accuracy of the information provided about the encumbrance. In the future, this will make it possible to invalidate the transaction through the court.
Citizens entitled to lifelong residence
Sometimes it is legally impossible to remove a person from registration without his good will, even if he is not the owner of the sold apartment.
- During privatization, the person renounced his share in writing, but remained registered in the apartment. A very common situation: the eldest son lives with his common-law wife, but is registered with his parents. He transferred the right to his share to his mother. According to her will, my mother wrote everything down to her youngest son. The last one is the seller. There is nowhere for my brother to be discharged voluntarily; he does not have his own place to live. He can come “home” at any moment, and it doesn’t matter that the house has a new owner.
- A stepfather or another family member who has the right to use the apartment until the end of his life according to the will of the deceased owner of the apartment, for example, the mother (testamentary refusal).
- It is easier to adopt minor orphans who have a residence permit in an apartment than to evict them. Voluntary refusal will not help here either. It is not worth selling or buying such an apartment if it is not possible to provide the child with other housing in which the living conditions are no worse. This also applies to people with disabilities.
- Former family members of the seller, for example, a spouse, may stay for a year after the sale of the apartment. She has no opportunity to leave: she has no other housing to own and no money to rent. The court will be ready to delay her eviction and discharge to resolve financial problems, but no more than for a year.
Conditions for forced eviction through court
Citizens of the categories listed above (except for former family members) have the right to lifelong residence. They can be issued through the court provided:
- they have a different living space;
- they do not participate in paying utility bills,
- They moved to another locality a long time ago and do not appear at home.
All this still needs to be proven in court: collect a bunch of papers, find witnesses, waste your health, money and time. It is better to sell an apartment with a registered person!
Who buys apartments with encumbrances?
Someone who knows the laws and is confident that he can easily expel a stranger from the purchased apartment. The one who decided to save money. The cost of such an apartment is 30% or more below market prices. Most often, the buyers of such apartments are real estate agencies. For them, buying such an apartment is a great opportunity to make money.
Finally, another life situation: a person sells his apartment with the right of lifelong residence, with dependents. This is a different type of transaction and an agreement not of purchase/sale, but of social rent. It will not be possible to discharge the owner as a dependent even through the court. Unless, of course, the buyer is a scammer. But this topic requires a separate discussion.
As a result
The apartment can be sold with a delay in deregistration of the previous residents.
An apartment with a child can only be sold with the permission of the guardianship authorities.
There are categories of citizens who have the right to lifelong residence and registration in an apartment.
You can forcefully evict someone who does not want to move out only through the courts.
Buying an apartment with a registered person: risks and consequences, how to register
Buying an apartment is a responsible undertaking in any case, and if you have to deal with the person registered in it, then you need to provide for all possible situations in order to protect yourself as much as possible. What the law says about such transactions, what you will have to face, what measures need to be taken, whether the risks for the buyer are great - answers to all questions can be found in this article.
Is such a deal possible?
It is prohibited to transfer the right to an apartment only in the event of its arrest and a ban on registration actions. Under such circumstances, the concluded transaction is considered invalid.
The fact that there is a legally registered person at the time of signing the contract allows the property to be considered encumbered.
The essence of this concept is that there are conditions that constrain or limit the owner when using housing. Many buyers go for this because...
There is a temptation to save money, because often the cost of an encumbered apartment is much lower (sometimes up to 30%) than a free one, and good discounts attract.
Some also expect to take advantage of the social housing improvement program in the future due to the small area of the premises and the large number of registered people. At the same time, buying an apartment with a registered person requires weighing, taking into account all possible future problems, and anticipating the consequences:
- refusal of voluntary eviction;
- the need for court proceedings, lengthy litigation, non-execution of a court decision;
- the inability to evict a person on legal terms (in the case of permitted lifelong use), difficulties in the future to sell or exchange the apartment encumbered by the tenant;
- the right of a tenant to register his or her minor child;
- inflated utility bills, bills for “outsiders”.
First of all, the law takes the side of the owners (bona fide purchasers), but respects the rights of third parties. In this case, it is important for the buyer to know who exactly remains registered. Rules of Art. 292 of the Civil Code (also duplicated by the Housing Code, Article 31) state that family members of the former owner lose their right to use the apartment - they are obliged to vacate it physically and deregister at this place of residence. This can be done voluntarily or compulsorily.
But the main danger is that there is a category of citizens whose right to use (reside and be registered) the sold residential premises is ensured at the legislative level. And buying an apartment with a registered person adds, sometimes time-consuming, hassle.
“Dangerous” registered persons when purchasing an apartment
Difficulties in deregistrating from a purchased apartment arise when you have to deal with persons whose right is conditional on:
- the fact of registration in the apartment at the time of its privatization and a written refusal of the privatization transaction in favor of other persons;
- indirect inheritance, otherwise testamentary refusal - a special order of the testator, allowing the legatee to use housing for the period specified in the will (often for life);
- a share participation agreement – fair to the participants of the housing cooperative themselves and their family members;
- minority;
- lease agreement, free use;
- an annuity agreement concluded on the terms of lifelong maintenance of a citizen (recipient of an indefinite-permanent annuity) with a dependent.
How to find out about registered people
Being registered citizens is a hidden burden. First of all, it is necessary to determine the legal status of the resident; for this it is necessary to distinguish between those registered temporarily and permanently.
Unlike persons with temporary registration, who do not have any property rights and lose the ability to access housing automatically, after the end of the allotted period, permanently registered persons have the right to use the apartment for an unlimited time.
It is impossible to arbitrarily terminate or limit their rights.
The law, namely Art. 558 of the Civil Code obliges sellers to notify of the presence of such an encumbrance - to provide a list of persons in the contract. Failure to comply with this article in accordance with Art. 460 of the Civil Code may become a reason for reducing the price, terminating the transaction, returning funds paid and compensation for expenses incurred.
By signing the agreement, the buyer assumes all risks and obligations associated with the specified restriction.
In addition, the encumbrance on the apartment must be registered (clause 1, article 131 and article 8.1). In the unified State Register, records are made of all actions with the property. The document specifies all authorized persons, the content and grounds for the emergence of the right.
By asking the buyer to provide an official extract from Rosreestr, you can study the entire legal history of the property. This will help you find out in advance about all the prescribed ones, calculate your options and protect yourself from an unpleasant surprise. If it was not possible to obtain the USRN information, then you can contact the passport office or multifunctional center for the necessary information. It is unlikely that you will be able to do this on your own; extracts from the house register, register or registration card are issued only to the current owner.
How to remove previous tenants from a purchased apartment
- Voluntary discharge is better when this issue is resolved at the stage of signing the contract. Tenants who agree to be discharged and who simply need time can give a notarized commitment to deregister by a certain date. It is also advisable to stipulate this in the contract; the final payment for the transaction can be made after the housing has been completely vacated and all agreements have been fulfilled.
- Forced eviction - a statement of claim is drawn up and submitted to the court. The process is long, requires certain legal skills, in standard cases it usually does not cause difficulties and the situation is ultimately resolved successfully.
Having decided to purchase an encumbered apartment and taking a conscious risk, you should know that there is a circle of “especially dangerous” people who cannot be forcibly discharged. They enjoy exclusive rights, and the court will side with them.
If sharing an apartment with a stranger is not part of the buyer’s plans, then it is better to refuse to purchase real estate with a registered person: Dangerous cases that require special attention also include transactions that involve:
- children (under 18 years of age) or other incapacitated citizens - the consent of parents, guardians, guardianship authorities, registration in a new housing not inferior to the lost one, or opening a bank account in the name of the minor and transfer of all money due to him will be required;
- temporarily discharged or absent (for example, living abroad, in the army, in prison);
- ex-spouses.
If the case is complex, then individual consultation with a lawyer or real estate agency specialist is recommended.
What to do if you bought an apartment with a registered person and how to register him?
- Buying an apartment is a responsible and important decision in the life of a citizen.
- It is important to take into account all the subtleties when making a transaction with the seller, especially if housing is purchased from the secondary market.
- One of the problems that may arise when purchasing a living space is the people registered in it.
What to do if there are former tenants in the purchased apartment?
Only the purchase and sale agreement must be accompanied by an official commitment from the seller to deregister all citizens registered in the living space being sold within the specified period.
These problems may also arise for a buyer who can purchase an apartment at a reduced price, taking into account the existing citizens registered in it. According to Article 292 of the Civil Code of the Russian Federation, the sale of residential premises with citizens registered in it is legal. A buyer may deliberately purchase an apartment with such an encumbrance at his own peril and risk.
Concealment by the seller of information about citizens who have not been deregistered will result in legal proceedings and termination of the purchase and sale agreement.
Important! Clause 2 of Article 292 of the Civil Code of the Russian Federation states that when the owner changes, all former residents are obliged to stop using the living space that has passed into the possession of another person.
But there is a certain category of citizens who have the right to use an apartment indefinitely or for a certain time. This:
persons who received housing under the conditions of a will (Clause 1 of Article 33 of the RF Housing Code). Article 33 of the RF Housing Code. Use of residential premises provided by testamentary refusal
- A citizen who, by testamentary refusal, has been granted the right to use residential premises for the period specified in the relevant will, uses this residential premises on an equal basis with the owner of this residential premises. Upon expiration of the period established by the testamentary refusal for the use of residential premises, the right to use the residential premises of the corresponding citizen is terminated, except in cases if the right of use of this residential premises for the relevant citizen arose on another legal basis.
- Citizens with legal capacity and limited legal capacity by the court who live in residential premises provided by testamentary refusal bear joint and several liability with the owner of such residential premises for the obligations arising from the use of such residential premises, unless otherwise provided by an agreement between the said owner and citizens.
- A citizen living in residential premises provided by testamentary refusal has the right to demand state registration of the right to use the residential premises arising from the testamentary refusal.
In such cases, there is practically no possibility of eviction.
Persons in this category can deregister only at their own request.
With minor citizens, things are even more complicated. With adequate influence on the registered persons, it is possible to solve the problem peacefully.
Some consider making a deposit and other monetary compensation one way out. But this is not a 100% guarantee; there is a risk of losing time and money.
How to register the previous owner?
The first thing you need to do before concluding a purchase and sale agreement is to order an extended extract from the house register . This document can be obtained at the passport office.
Attention! An extended extract from the house register differs from an ordinary one in that it indicates not only citizens registered on a permanent basis, but also those registered on a temporary basis, as well as those temporarily discharged (serving a prison sentence, undergoing long-term treatment, etc.).
- at the passport office;
- through the court.
If you can resolve the issue at the passport office, then good. If it doesn’t work out, you’ll have to go to court.
We discussed in detail in this material the question of whether it is necessary to expel a former owner from an apartment when selling it, and you can find out how to expel a citizen from an apartment in which you have become the owner.
List of papers for submission to the passport office
If the owner and other registered members of his family are not deregistered for some reason, you can submit a package of documents to the nearest branch of the passport office. In this case, some nuances should be observed:
- all registered citizens are adults, capable and do not suffer from mental disorders (in particular, the former owner);
- the owner does not have an indefinite right to use the apartment.
Required package of documents:
- contract of sale;
- a passport with the place of new registration indicated in it;
- documents confirming ownership of the new home (may be with or without an encumbrance);
- an extract from the house register confirming the presence of registered citizens in the living space from among the family members of the former owner (or himself).
- present documents at the passport office;
- write a statement indicating a request to discharge the former residents of the apartment;
- Expect results from 3 to 5 business days (depending on the complexity of the case).
If you did everything correctly, then there should be no problems with the procedure. However, depending on the complexity of the issue, the process may take longer.
Reference! The passport office does not have the right to discharge citizens on the basis of legal acts, since this body is not a judicial body.
After carrying out the procedure for deregistering residents who do not have the right to live in the purchased living space, the passport office makes a new entry in the house register and issues an updated certificate about the new owner and his family members. You should urgently contact the Housing and Communal Services Department with this document to calculate utility bills. After all, often the amount in the receipt for one or another utility resource directly depends on the number of residents in the apartment.
In case of refusal of an extract, the passport office is obliged to explain the obstacles that have arisen and possible solutions.
How to act through the courts?
This happens when the passport office was unable to satisfy the application for discharge.
Reasons why the passport office will not be able to register former residents:
- without the consent of registered citizens;
- minor children are registered in the apartment;
- the inability to deprive a citizen of a place of residence that has the right of indefinite use (by will, those who refused privatization, etc.).
Important! In such cases, the passport office can discharge citizens only upon presentation of a court order.
Required package of documents to go to court:
- contract of sale;
- documents confirming the change of owner (certificate of ownership of the new owner);
- certificate from passport office No. 8;
- statement of claim;
- receipt with paid state duty.
Drawing up a statement of claim
There is no single sample statement of claim for the eviction of citizens from living space; each situation is individual. But it must be drawn up in a certain form, based on regulations.
Structure of the claim:
- introductory part – general information about the judicial authority, the plaintiff and the defendant.
- Descriptive – a brief description of the circumstances of the case and the reasons for going to court.
- Motivated - the grounds on which the plaintiff demands that the issue be resolved in his favor, the legal acts on which the plaintiff relies to satisfy the claim.
- Petition - the claim of the plaintiff in relation to the defendant. In this case, a petition to evict a citizen from an apartment owned by another owner.
Reference! After considering the claim, the judicial authorities will set a specific court date in writing.
- The law establishes the cost of filing a claim in court.
- In this case, for the proceedings on the removal of unwanted tenants from the apartment, the amount is fixed - 300 rubles.
- The receipt can be found on the official website of the court to which the claim was sent.
- You can pay the state fee for filing a claim at almost any bank through a terminal or through the Internet portals “Gosuslugi” and “Sberban-Online”.
What problems might arise?
You may find yourself in an unpleasant situation if a child or a citizen serving a prison sentence is registered in the purchased apartment.
In the first case, when a minor is discharged, permission from the guardianship authorities will be required. This is because it is impossible to discharge a child anywhere without providing a place of registration in exchange for the purchased premises. Otherwise, the guardianship may terminate the purchase and sale agreement, considering the rights of the minor to be violated.
As for convicted persons, their discharge occurs only through the court, with the provision of a copy of the verdict. Obtaining this document is not so easy. There are several options to solve this problem:
- take the sentence from the convicted person himself;
- contact the judicial authority where the citizen was convicted;
- write an application for the provision of a document based on an extract from the apartment.
Using the instructions and advice provided, you can be sure that resolving the issue of deregistering former residents of an apartment is difficult, but possible. The main thing is to take into account all the possibilities even before concluding a purchase and sale agreement.
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