STATEMENT OF CLAIM FOR FORCED EXCHANGE OF RESIDENTIAL PREMISES

Pravozhil.com > Housing and communal services issues > Neighbors > Forced exchange of municipal housing through the court

How does a forced exchange of municipal housing occur through the court? Does this happen often? According to official statistics, about 20% of the total housing stock in Russia has not yet been privatized, that is, it belongs to the state.

A considerable part of these residential premises are provided to needy citizens by the state under social rental agreements. In this case, housing is municipal and the principles of owning it are quite different from the same actions with private property.

However, the actual owners - residents registered in a municipal apartment or house - are not deprived of the right to exchange living space under conditions that will be convenient for all of them. As a rule, such a procedure does not suit at least one of the owners of the described housing, so the decision to carry out the exchange is made by a judicial authority.

We will talk about this event in more detail in the material below.

Basic legal provisions

The main legislative act that will help you understand the issues of housing exchange is the Housing Code of the Russian Federation

When considering the forced exchange of municipal housing through the court, it is important to turn to the main legislative acts in our country, which fully cover this topic.

All issues relating to residential premises and transactions over them are resolved through consideration of the Housing Code (LC) of the Russian Federation.

In the topic we are considering, all the provisions of the code are important, which regulate the basic concepts, procedure and process of providing this type of housing and exchanging it.

First of all, it is important to define the concept of “municipal housing”. In accordance with Article 49 of the Housing Code of the Russian Federation, such housing is a housing facility provided to needy citizens from the local municipality (region, territory, region, etc.) for living.

The use of an apartment or house received from the state must comply with all the terms of the social rental agreement and the legislative rules specified in the Housing Code of the Russian Federation (Chapters 7, 8, 8.1, 8.2).

According to the same code, the tenant (the actual owner of the housing under the contract) has the right to exchange living space. But only if all other tenants and the landlord (the municipality) who provided him with housing agree to this. The main legislative provisions for this type of exchange are presented in articles 72 to 75 of the RF Housing Code.

Difficulties in exchanging municipal living space

Summarizing the information presented in the legislative act, we can highlight the following:

The exchange of housing provided under a social tenancy agreement can only be carried out with the written consent of all tenants of the housing, the landlord and the guardianship authorities (if there are minor tenants). In other cases, an exchange can only be achieved through court.
In the exchange procedure there is no limit on the number of participants participating in it.
The exchange of municipal living space can be carried out either peacefully or through the courts.
A housing exchange can only be carried out if, after its completion, the rights of none of the tenants are violated. Otherwise, the exchange may be declared invalid in court.
In a number of situations specified in Article 73 of the Housing Code of the Russian Federation, the exchange of municipal living space is not allowed.
Tenants have every right to refuse to exchange housing. But their refusal must be justified. Otherwise, it may be appealed in court.
The exchange agreement is concluded in writing and in compliance with all legal and legislative nuances of this procedure.
An agreement concluded in violation of the rights of employers, the provisions of the Civil Code of the Russian Federation and the Housing Code of the Russian Federation will be declared invalid in court. After the agreement is declared invalid, all tenants of municipal housing under the social contract will be relocated to the originally provided housing. The culprit, who through his unlawful actions provoked the invalidity of the contract, is obliged to bear some responsibility both to the legislator and to other participants in the exchange transaction.

Do not forget that each individual case may require a more in-depth reference to the legislation of the Russian Federation, so sometimes it is impossible to do without the help of a professional lawyer. Above are only the main legislative provisions that relate to the exchange of municipal living space.

Housing law. Forced exchange of residential premises

The situation is this: in a 3-room apartment there are 62 sq.m. (social tenancy agreement) registered husband, wife (they are divorced), two adult children and one minor. The husband demands that the family exchange the apartment (he wants to live separately). The tenant is the wife. All other family members are against the exchange. Apartment after renovation. The question is: What can he claim if he sues?

Nesterova Tatyana Alexandrovna

The Housing Code of the Russian Federation allows for the possibility of forced exchange of residential premises under a social tenancy agreement. Both the employer and any member of his family have the right to demand forced exchange in court if an agreement on the exchange is not reached. If a citizen ceases to be a member of the family of the tenant of the residential premises under a social tenancy agreement, but continues to live in the occupied residential premises, he retains the same rights as the tenant and members of his family.

Cases of forced exchange of residential premises present a certain complexity, since the scope of such a dispute involves not only the directly disputing parties, but also persons who voluntarily agreed to participate in the exchange (these citizens participate in the case as third parties who do not make independent claims on the subject of the dispute) .

Your ex-husband, acting as a plaintiff, will have to present to the court a specific version of the proposed exchange of residential premises, and the court, in turn, will decide whether the exchange option proposed by the plaintiff meets the requirements of the law, as well as on compliance with the legal and other interests of persons worthy of attention who object to the exchange. Thus, it is not possible to unequivocally answer your question regarding what the ex-spouse can claim; everything will be decided by the court, taking into account the specific circumstances.

But you should know that the court may take into account your objections and the objections of other users of the residential premises not only regarding the size and degree of amenities of the residential premises proposed for relocation, but also other circumstances, taking into account which it is significantly difficult for you to use the residential premises proposed by the plaintiff, for example , if it is significantly remote from the place of work or the location of a child care institution, and the existing transport links will not allow you to come to work on time, or your child to visit this institution, etc. In addition, given that there is a minor child in the family, a necessary condition for such a forced exchange will be the consent of the guardianship and trusteeship authorities to the exchange of living quarters. The court must take into account all relevant circumstances.

Doc-Net , answers your questions

Claim form and required documents

How to file a claim in court for forced size of an apartment?

Based on the fact that today’s material examines in detail the procedure for the forced exchange of a municipal apartment through the court, it would not be superfluous to consider the correct form of the claim and the necessary documents for filing with the court.

It is worth understanding that the legal literacy of the drafted claim largely determines whether you will be able to achieve your goals in the trial.

A correct statement of claim must necessarily contain the following information:

Full name, address, year of birth and contact details of the plaintiff (the employer who initiates the exchange);
Full name, address, year of birth and contact details of the defendant or defendants (employers who do not agree to the exchange);
information about marriage or its dissolution (if there is one between tenants);
information about children (if any among employers);
address of housing and period of residence in it;
description of housing (apartment or private house, floor, rooms, condition, etc.);
housing stock;
the plaintiff's arguments indicating the need for forced exchange;
offering exchange options;
information that the defendant or defendants did not voluntarily agree to make the exchange;
request to a judicial authority to carry out a forced exchange.

In the process of asserting your rights in court, you may need the following documents:

a copy of written consent from the landlord to carry out the exchange;
consent of the local executive or administrative government agency for intercity exchange (if deciding to move to another locality and get municipal living space there);
a copy of the title document for the home;
certificate of registration from the place of residence;
certificate of family composition (if the employers are a family);
a copy of the divorce or marriage certificate (if available);
a written application for refusal or consent to exchange from all tenants of the described housing;
receipts for payment of all necessary state fees.

By adhering to the above rules for drawing up a claim and collecting the necessary documentation, you can significantly increase the chances of a successful outcome of the legal proceedings.

Foreclosing on the debtor's only home

The position of the courts is that when selling the above-mentioned residential premises, the debtor’s need for housing can be satisfied by the acquisition by the debtor’s wife of funds due to her from the sale of the disputed property of another residential premises, or by allocating funds for the purchase of housing from the bankruptcy estate, or by issuing funds to the debtor for renting other residential premises is not based on the law , since it directly contradicts the above norms and violates the constitutional right of the debtor and his family members to housing, making the implementation of this right dependent on the occurrence of certain events and actions of third parties. Resolution of the Arbitration Court of the Ural District dated June 25, 2020 in case No. A50-34786/2017

At the same time, the courts took into account the explanations of N.S. Utkina. and Utkin S.S., according to which the registration of their son at the address: Tver, st. Zinaida Konoplyannikova, was carried out with the aim of placing a minor child in an educational institution - secondary school N 53 - the nearest educational institution from the actual place of residence. The courts also established that the following people are registered and live in the named apartment: Utkina Valentina Nikolaevna (mother of the debtor), Utkin Viktor Mikhailovich (brother of the debtor) and his family (wife, daughter born in 2010). Resolution of the Arbitration Court of the North-Western District dated September 15, 2020 in case No. A66-18719/2018

In the first case, a shared apartment is put up for sale, each owner signs an agreement, and then the amount received is divided between them, according to the size of the share in the apartment. Subsequently, everyone decides their own housing issue.
During the exchange, apartment options are simultaneously selected for all owners. The barter agreement, and the transaction itself, are in many ways similar to a sale and purchase. The difference is that instead of money, the parties exchange real estate.

You may like => How many characters does a Cadastral Number contain?

In what cases will the court refuse an exchange?

What can prevent you from carrying out a forced exchange of living space?

Forced exchange of housing through the court is a rather complex legal procedure. Even after collecting all the necessary documents and competently drafting a claim, the employer cannot guarantee himself success in achieving his goals in the lawsuit.

This is due to the potential presence of any factors that may force the court to refuse the exchange.

One part of them is enshrined in the Housing Code of the Russian Federation, and the other is formed based on the individual characteristics of each case. Taking into account the presence of such factors, the judge makes a final verdict.

Forced exchange of an apartment if one of the owners refuses

The second option, obtaining another housing from the municipality, is much more common, however, it must be taken into account that the law provides for an exchange only for housing with a smaller area. Simply put, you can exchange a two-room apartment for a one-room apartment, but not for a three-room apartment. And often just the opposite is required.

Privatized and non-privatized apartments have completely different legal status. Therefore, free exchange is possible only for apartments from a fund owned by the same owner (municipal or state). And this is a rather complicated operation: the number of privatized apartments is constantly decreasing, so it is very difficult to select 2 or more apartments of a smaller area for exchange. Perhaps it will be easier to first privatize housing, and then deal with its exchange (See Why do you need to privatize an apartment? We weigh the pros and cons).

You may like => VPD On Leave For Military Personnel

Nuances of the event

Nuances that must be taken into account when preparing a claim for forced exchange

The entire process of exchanging municipal housing is quite confusing and difficult to implement.

Even after reviewing and carefully studying the material presented above, not every person will be able to fully understand the essence of this procedure. One way or another, you will have to deal with the legislative and legal aspects of the exchange.

To simplify the process of understanding all the intricacies of the exchange of municipal housing, our resource has highlighted a number of important nuances of this event for consideration:

Any tenant or, more simply put, a registered tenant has every right to initiate an exchange.
Do not forget that it is necessary to carry out an exchange through the court only if the remaining employers or part of them have refused the voluntary procedure and the event is justified on your part.
Before going to court to file a lawsuit, be sure to consult with a legal professional about the advisability of such a practice in your case.
Draw up a statement of claim specifying all the details of your situation and in accordance with the form presented earlier. Also, do not forget to take care of collecting some documents.
When deciding to go to court, remember that in the process of resolving controversial issues you will have to incur some financial expenses. You will definitely have to spend money on paying the necessary state fees, obtaining certificates and processing other documents. In addition, litigants often spend considerable amounts of money on the assistance of lawyers and attorneys.
Even if you achieve a forced exchange of the described housing in court, do not rush to rejoice. The fact is that not in all regions of the country the municipal housing stock is rich enough. As a result, it can be very difficult to find suitable housing for exchange. At this stage, you need to be prepared for a long and persistent search for housing for exchange that will satisfy all the necessary requirements.

As you can see, litigation on issues of forced exchange of municipal housing is not an easy matter. During the course of a trial, new problems may arise, making life more difficult for those involved. Is it worth it or not - decide for yourself.

When resolving such issues through the court, do not forget to use the material presented above and contact professionals for help.

You can learn more about exchanging an apartment by watching the video:

See also Phone numbers for consultation January 16, 2021 kasjanenko 842

Share this post

Discussion: there is 1 comment

Ivan says:
09.20.2020 at 19:24
In general, is the option now realistic that was common in those days when almost all housing was municipal property: people from different cities come to an agreement and simply exchange their apartments without any courts?
Answer