Grounds for moving into residential premises. Illegal entry into an apartment.

Grounds for moving into residential premises

People go to court with a claim to move into an apartment when their rights are violated by other people - those who create obstacles to their residence. But according to Article 40 of the Constitution of the Russian Federation, every citizen has the right to housing, so those who prevent people from moving in are often confident that the law is on their side. Is it really?

The move-in of citizens into residential premises is regulated by the norms of the Housing, Family and Civil Code of the Russian Federation.

When moving into a municipal or service apartment (room), as well as when moving in temporarily, it is necessary to conclude a rental agreement (sublease), lease or transfer of the premises for temporary use. The written consent of all adult family members of the landlord, the owners of the residential premises, the guardianship authorities (if the person being moved in or the owner is under guardianship), and the organization (if they are moving into a hostel premises) is required.
When moving into residential premises on the right of private ownership, the basis for moving in is a contract of sale, gift or exchange, a certificate of inheritance, a lifelong maintenance agreement with a dependent, or a rent agreement. If the premises belong to a citizen on the right of private property, he and his family members can move in personally, regardless of the size of the living space. If the owner is the tenant (user) of this living space, occupancy is carried out in compliance with the requirements of the law on living space standards for one person (except for minor children, spouses, disabled parents).

Tenant rights. Do's and Don'ts

One of the most common transactions in the real estate market is rental housing. The transaction itself is quite common, but a certain conflict of interests between the parties often arises. Tenants believe that, having paid for their accommodation, they have the right to do whatever they want on the territory they occupy. Homeowners, on the contrary, believe that they have the right to demand that tenants comply with any conditions under penalty of immediate eviction.

In this article, we will look at what rights a tenant has in the area he occupies from the point of view of the law.

The contract is a guarantee of responsibility for compliance with rights and obligations

It is immediately necessary to clarify that the rights and obligations of the parties are reflected in the rental agreement, which must be concluded between the tenant and the owner of the apartment. The only place where an employer or lessor can defend their rights is in court, and in the absence of an agreement, the court has no reason to conduct proceedings - who is right and who is wrong. Since, from a legal point of view, there was no transaction, but the presence of unauthorized persons in the owner’s living space may raise questions of a completely different nature...

In addition to the provisions of the lease agreement, the rights and obligations of the parties are also governed by current legislation and are valid even if they are not reflected in the agreement. If the terms of the contract contradict the provisions of the law, the transaction will be declared invalid by the court.

Who should do the repairs?

One of the questions that arises most often regarding the rights of a tenant is whether he is obliged to carry out any repair work or make cosmetic repairs to the apartment. According to Article 681 of the Civil Code, maintaining the rented premises in proper condition is the direct responsibility of the tenant, therefore, if ongoing minor or cosmetic repairs are necessary, he is obliged to organize and carry out repair work.

The same applies to the elimination of breakdowns and malfunctions of engineering systems (water taps, electrical communications, fiber optic lines of the Internet network, cable television), if these malfunctions occurred during the residents’ stay. But the owner of the apartment must carry out a major renovation of the apartment, participate in the improvement of the areas adjacent to the entrance, and repair the entrance itself, in accordance with the provisions of the same Article 681 of the Civil Code.

Quite often, the owner of the apartment does not want to make cosmetic repairs and rents out the apartment “as is,” while the contract stipulates that the tenant will carry out the repairs to pay for the housing. Sometimes the quality of repairs does not suit the tenants themselves, but the owner does not want to pay for the repairs. In this case, the tenant can make repairs only in agreement with the owner of the property.

Can the owner increase the rent?

Speaking about the rights and responsibilities of a tenant, it is necessary to highlight one of the “eternal” questions - can the owner increase the rent at his own discretion (and by how much)? Perhaps there are no direct instructions in the legislation on how much you can ask for rent, just as there are no instructions on how much the owner can increase the rent; most often this is reflected in the contract. However, there is Article 614 of the Civil Code, which states that the rent cannot be increased once a year. At the same time, Article 452 clarifies that changing the terms of the contract unilaterally (including increasing the rent) requires warning tenants 30 days in advance.

Who is responsible for damage to third parties

The tenant may be the cause of damage to neighbors, for example, a water tap left open led to flooding of the apartment from below. Who should compensate for the damage and carry out repairs? In such a situation, the fact that there is an agreement is important for the owner, otherwise it will be impossible to force his tenants to compensate for damage through the court. First of all, the court will require the provision of a lease agreement, which, according to Article 674 of the Civil Code, must be drawn up. Continuing proceedings regarding the obligations or rights of the tenant without an agreement is devoid of any grounds.

The right to “share”...

The rights of the tenant regarding the use of living space are limited by the terms of the agreement, which clearly states who has the right to live in the apartment. Thus, the lease agreement specifies family members (or several tenants) who have the right to live there. The tenant has every right to invite guests, but he cannot accommodate anyone even for a while without the consent of the owner.

Responsibility for violations of law and order

Residents living in an apartment, regardless of ownership rights, are required to maintain public order. This applies to established rules that relate to noise at unspecified times, as well as rules governing the use of common areas (floor landing, staircase, elevator, entrance). In case of violation of the listed rules and the existence of a lease agreement, the owner is not responsible for the behavior of the residents, who bear this responsibility in full.

Owner visits

The owner of an apartment, according to the law, has the right to freely stay within the boundaries of his living space. However, his right is limited by the terms of the lease agreement, which must stipulate that visits are limited to one visit per month. In addition, tenant rights reflected in the law allow the tenant to demand that the owner appear only when the tenant is in the apartment.

Termination of the contract due to the sale of the apartment

Quite often, apartment owners rent out the housing they own for a while until a buyer is found who offers good money. At the same time, the owner is obliged to inform the tenants of his intentions, since the sudden need to find new housing can cause a lot of inconvenience to the tenant. Not to mention the fact that Article 675 of the Civil Code, which talks about the rights and obligations of the tenant, clearly indicates that a change of ownership is not a reason for terminating the tenancy agreement.

In other words, after the sale of the apartment, residents can feel calm until the deadline specified in the lease agreement. Neither the former owner nor the current owner of the property can evict them legally; they will have to negotiate amicably.

Illegal entry into residential premises

According to Russian legislation, moving in is considered illegal if:

a citizen arbitrarily moved into residential premises without legal grounds (lease agreement, purchase and sale of housing, lease, etc.);
a citizen has occupied non-residential or unauthorized premises;
a citizen moved into the premises on the basis of a lease, sublease, lease or sublease agreement, but this premises was seized on the grounds provided for by the legislation of the Russian Federation (for example, a criminal investigation);
if there is no consent of family members of the owner or tenant to move in a subtenant or temporary tenant;
living with a child who has not reached the age of majority has been declared illegal in court;
if the documents that are the basis for moving into the residential premises are declared invalid in court;

In addition, it is impossible for persons to move into buildings that are recognized as unsafe and in danger of collapse.

If you are interested in legal issues related to moving into residential premises, contact a housing lawyer. After all, this area of legal relations has many nuances that a person who does not have sufficient legal knowledge is often unable to understand. An experienced lawyer will explain to you the legal norms, the procedure for moving in by court decision, and will protect your rights in court.

Suitability of premises for habitation

To fully participate in legal relations, Russian citizens require registration (propiska) in residential premises. And if there are no problems with city apartments or dorm rooms, then registration in a country house (country house, garden) can be fraught with a number of difficulties. The main thing is the recognition of real estate as suitable for living, complying with the standards established by law. The concept of habitability Which properties are considered uninhabitable? Order 1) an established state, the correct arrangement of something; 2) a sequential process of something; 3) the rules in accordance with which something is done; 4) the existing regime, the arrangement of the applicant’s actions, the necessary documents Possibility of appeal Judicial practice

The concept of habitability

According to the Housing Code of the Russian Federation, isolated real estate suitable for permanent human habitation is considered residential. Such a building fully complies with the sanitary, technical standards and regulations introduced by law. A residential private house is an individual building consisting of rooms and auxiliary spaces, intended for the permanent residence of people, satisfying their everyday needs.

The following are not grounds for declaring a house uninhabitable:

Lack of hot water supply and sewerage systems for a 1.2-story building.
Lack of an elevator and garbage chute in a building above 5 floors.
Inconsistency of planning solutions and the minimum number of rooms with modern requirements - in relation to buildings built according to previously relevant regulatory documentation in the Russian Federation. But only on the condition that the construction plan satisfies the current ergonomic (useful use) requirements.

Only an interdepartmental commission created for these purposes is authorized to recognize a premises as suitable for civilian habitation.
Its convening is initiated by a statement from the citizen-owner or the conclusion of the state supervision authorities. The commission checks the building's compliance with current requirements, on the basis of which it recognizes the property as suitable, unsuitable for living, unsafe, or completely subject to demolition.
What kind of property is considered unfit for habitation?
According to Government Decree No. 47 (2006), the following premises are unfit for habitation:

Exposure to environmental factors that threaten health and life: chemicals, biological substances, noise levels, electromagnetic fields, vibration, quality of inhaled air, etc.
Built from materials subject to rapid deterioration, deformation, and having load-bearing structures with traces of damage that threaten rapid collapse and exhaustion of the load-bearing function.
Located in areas where important epidemiological and sanitary indicators are exceeded: physical impact factors (noise, electromagnetic, ionizing, vibration), concentrations of harmful chemicals and biological substances (mercury, lead, ammonia, nitrogen, formaldehyde, hydrogen sulfide, phenol, ethyl acetate, benzene).
Located in hazardous industrial, transport, engineering, sanitary protection zones with the impossibility of minimizing harmful effects.
Built in areas of landslides, avalanches, mudflows, in areas that are annually flooded (if engineering solutions cannot prevent periodic flooding).
Located in the expected zone of destruction by expected man-made accidents (if it is impossible to prevent damage to the house and its structures by a design or engineering solution).
Adjacent to overhead transmission lines of alternating electric current, as well as to objects that create electric field strength, induction of a magnetic field of industrial frequencies.
Unrestored after an explosion, fire, earthquake, man-made accident, serious ground subsidence, complex geological processes due to economic inexpediency, technical impossibility of repair work.
The windows overlook transport highways, where the noise level exceeds the norm established for humans.
Located in close proximity to garbage chutes and devices for washing them.

In accordance with Art. 15 of the Housing Code, a premises can only be declared unfit for habitation by an executive authority authorized by the Government of the Russian Federation. Procedure for the applicant, required documents
In order to recognize a country house or garden house as suitable for permanent residence and to register there in the future, several important steps must be completed:

Ordering a technical certificate for an object from the inventory bureau. The BTI specialist reflects in the document the following: design features, condition of the foundation, floors, walls, partitions, roofing, etc.
Technical inspection. Experts visit the site, take measurements, photograph important elements, and perform instrumental control of characteristics. The engineers’ task is to determine the house’s compliance with strength, fire, and sanitary requirements. Then calculations are carried out - thermotechnical and verification. The graphic part of the conclusion is drawn up. If necessary, the owner of the house is given recommendations on how to eliminate shortcomings that prevent the house from being recognized as meeting the requirements of strength and safety.
Submitting an application to the district office of the city administration, the nearest MFC with a request to recognize the house as residential.
Registration registration. In most cases, before this stage, a visit from a fire inspector is required to declare the house fit for habitation.

The decision of the local interdepartmental commission to recognize the premises as residential is made within 30 days. It must be sent to the applicant within another 5 days. The service is provided to Russian citizens free of charge. Applicants may be:

Owners of the premises.
Tenants.
Persons authorized by these citizens are representatives for whom a notarized power of attorney is issued.

Procedure The established procedure for conducting and considering a specific case (an example could be a judicial procedure) of applying to government agencies to recognize a premises as residential consists of several stages:

Submitting an application and necessary documents to the regional administration department.
Receiving a receipt for acceptance of papers.
Over the next 35 days - receive a copy of the conclusion on recognition or non-recognition of the premises as residential.

Citizen In civil law, a subject of civil law, one of the types of participants in civil legal relations provides the following documentation:

An application filled out in the prescribed form.
Own passport.
Notarized photocopies of papers confirming his ownership of real estate.
House plan.
Real estate registration certificate.
If a representative is involved in the case, a passport and a power of attorney in his name are additionally required.

In individual situations, an extract from the Unified State Register and a certificate of registration at the current place of residence are presented. Possibility of appeal
The applicant has an inalienable right to appeal against actions or inactions of the district administration:

Pre-trial. Not required.
Judicial.

The grounds for appealing the authorities’ decision are the following:

Violation of deadlines: acceptance of the applicant’s request, provision of public services.
Requirements from a citizen for documentation that is not necessary for this procedure.
Refusal to accept papers provided by a citizen.
Refusal to provide public services.
Requirement from a citizen to make a payment.
Issuing a solution with errors, typos, inaccuracies and subsequent refusal to correct them.

During pre-trial proceedings, the complaint is sent to the place where the public service is provided - in person, by mail, or by email. The document states:

Name of the authority, contact details of the official to whom the paper is sent.
Information about the applicant: Full name, place of residence, postal address, email address, contact phone number.
Arguments, confirmation of the applicant’s disagreement with the decision of the government.

The complaint can be supported by documentation (photocopies thereof) confirming that the citizen is right. Judicial practice
In most cases, sending complaints to the public service, which must recognize the premises as residential, does not have effective consequences. Trial required.

Our client appealed to the local government structure with a request to recognize his garden house as residential. This property was his only and permanent residence.

The house, according to the client, is fully suitable for year-round living and is equipped with the necessary communications. However, the interdepartmental commission refused to recognize the premises as residential on the grounds that the building is located in a garden cooperative, which is why it cannot be suitable for permanent residence.

Our lawyers helped the citizen draw up a statement of claim mentioning a number of legal norms that government officials had violated. A technical examination of the house was carried out by independent specialists. As it progressed, it became clear that, according to Art. 15 h. 2 LCD, this premises has all the signs of a residential building, it is completely safe for permanent residence of people and domestic use.

Other evidence collected:

The man was the sole owner of both the house and the garden plot on which the building was located.
There is no other property registered in the citizen’s name where he could register it.

The government violated Art.
27 of the Constitution of the Russian Federation - the right to freely choose accommodation. The court ruled in favor of our client. Based on this resolution, the premises must be recognized as residential with the possibility of permanent registration in it. Declaring a premises suitable for permanent residence is a multi-stage procedure that requires lengthy preparation. It is necessary to conduct a technical examination, issue a registration certificate, and then submit an application to the city administration. There are often refusals that can only be effectively appealed in court.

The procedure for moving citizens into residential premises

Citizens whose rights have been violated have the right to file a claim in court for relocation. The court considers both the plaintiff’s arguments and the defendant’s objections, and, guided by legislative norms, makes a decision on moving in or refusing to move in. Forced entry is carried out by the bailiff service.

Before applying enforcement measures, debtors are asked to independently execute the court decision and move in a person who has the legal right to reside. Usually the period is 5-7 days. If during this time the obstacles to moving in are not removed, the moving in is carried out forcibly, possibly even without the presence of the debtor (in this case, the police and witnesses are involved).