The child is permanently registered in the apartment and lives in it
In many ways, with regard to the loss/termination of the right to use residential premises by a minor child, the grounds and situations described above are similar, the same court or without a trial (voluntary release by the child and his legal representative of the apartment), but there are some nuances...
When applying to court for the eviction of minor children, both OPEC and the Prosecutor always participate in the consideration of the case in court.
The prosecutor must give his opinion on the case, which has significant weight when the court evicts the decision - do not forget that if the prosecutor does not agree with the court decision, he will appeal it... And this does not bode well for the person he goes against...
So what are the nuances when considering such cases in court?
The first thing you must learn is to evict a child through the court... it is not a simple matter, if we are talking about a minor living in a disputed apartment, then it is better for relatives not to go to court with such claims at all - the probability of refusal to satisfy the claim is extremely high, the prosecutor's office is more likely to be on your side everything will not happen, as well as OPEC.
If you still decide to go to court, then you can and should act wiser here - first you go to court to remove the child from the register without eviction (then there will be no prosecutor), and only then, when the child’s rights to the apartment are terminated/lost - in court about eviction, or you simply change the locks in the apartment, then there will be no legal grounds for the discharged child to enter the apartment, the law will be on your side.
Typical atypical situations:
Situation 1
The owner of the apartment married a woman with a child from another man, registered his wife and not his child in the apartment, is it possible to discharge such a minor and evict him from the apartment?
If a man divorces his wife, then under Part 4 of Article 31 of the RF Housing Code and Article 35 of the RF Housing Code , you can go to court to terminate the right to use the apartment and evict both the ex-wife and her child from it. But don’t forget - the Prosecutor and OPEC will be in the case, if the child and ex-wife have nowhere to go, then they can, under the same Part 4 of Article 31 of the RF Housing Code, ask to retain their right to live in an apartment for a certain period... (usually they keep it for a year... rarely more, more often they refuse).
Here, the outcome of the case largely depends on the position of the judge and the prosecutor, as well as on the evidence presented by the child’s mother of her plight, but sooner or later they will still be evicted.
Situation 2
The owner of the apartment got married, a child was born in the marriage, and he registered everyone with him, is it possible to discharge and evict a minor child?
The answer is no, unless the owner of the apartment gets divorced and it is established that the child is not his, in which case the chances are great... In other cases, they are close to zero.
Situation 3
You bought an apartment with a minor child registered in it, is it possible to register him and evict him from the apartment?
As a general rule, according to Part 2 of Article 292 of the Civil Code of the Russian Federation and Article 35 of the Housing Code of the Russian Federation , of course, yes... but as described above, there are pitfalls - at the time of privatization, was the child registered in the apartment? If so...then the chances, as described above, are close to zero. In all other cases, you need to look at the documents, how and on the basis of what documents the child was registered in the apartment. If somewhere in the chain of contracts (previously before you) it appears that the child retains the rights to use the apartment and, God forbid, indefinitely, then without a detailed analysis of the situation, it is difficult to make an unequivocal verdict about the loss/termination of the child’s rights to the apartment.
Deregistration by court verdict in connection with conviction
Lawyer Bakumenko Igor Aleksandrovich
Call now and get a preliminary consultation:
8-919-865-42-20 8
On the merits of the question asked, we report the following.
In accordance with Art. 7 of the Law of the Russian Federation of June 25, 1993 No. 5242-I “On the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and residence within the Russian Federation”, the removal of a citizen of the Russian Federation from registration at the place of residence is carried out by the registration authority in the following cases :
- change of place of residence - based on a citizen’s application in writing or in the form of an electronic document on registration at a new place of residence;
- conscription for military service - based on a message from the military commissariat;
- conviction to imprisonment or forced labor - on the basis of a court verdict that has entered into legal force;
- recognition as missing - on the basis of a court decision that has entered into legal force;
- death or declaration of death by a court decision - on the basis of a death certificate issued in accordance with the procedure established by law.....”
By virtue of clause 128 of the order of the Federal Migration Service of September 11, 2012 No. 288 “On approval of the Administrative Regulations for the provision by the Federal Migration Service of state services for registration of citizens of the Russian Federation at the place of stay and at the place of residence within the Russian Federation,” deregistration at the place of residence without the direct participation of a citizen is carried out in the case of: conviction to imprisonment - on the basis of a court verdict that has entered into legal force.
In accordance with clause 31 of the Decree of the Government of the Russian Federation of July 17, 1995 N 713 “On approval of the Rules for registration and deregistration of citizens of the Russian Federation at the place of stay and place of residence within the Russian Federation and the list of officials responsible for registration” deregistration of a citizen at the place of residence is carried out by the registration authorities in the following cases:
- conviction to imprisonment - on the basis of a court verdict that has entered into legal force.
When citizens are deregistered at their place of residence on the basis of being sentenced to imprisonment, the relevant documents can be submitted by interested individuals.
Registration authorities, on the basis of received documents, remove citizens from registration at their place of residence within 3 days.
Thus, you, as the owner of a residential premises, need to contact the registration authorities with a written application to remove a citizen from registration. The court verdict must be attached as justification.
Attention! The information provided in the article is current at the time of publication.
Is it possible to evict a minor child?
When a person under the age of majority is the sole owner or holder of a common interest in residential real estate, no one will evict him. The child's place of residence is determined, as a rule, by the location of one or both parents.
Guardianship and trusteeship authorities protect the interests of vulnerable categories of citizens, including minor children. They monitor issues of housing conditions, alienation of property of controlled persons, and so on.
Therefore, deregistration from residential premises becomes possible when moving without worsening living conditions. It is very problematic to forcibly evict the person in question.
The Supreme Court has banned the deprivation of registration of people who have left home for a long time
Coincidentally, the Supreme Court had to consider two absolutely identical cases on the same day. In the first case, a certain resident of Astrakhan went to court. She demanded that a group of her relatives, including her mother, be discharged from the apartment that her mother had received back in 1986. Until 2010, they lived under the same roof, but then the relatives packed their things and left. The plaintiff demanded to recognize them as having lost the right to use the residential premises.
In another case, a father filed a similar lawsuit against his daughter. He said that in 2000 he received an apartment in Armavir. Until 2003, the applicant asserted in his lawsuit, his daughter lived with him, and then she upped and left. Therefore, her father decided to discharge her.
There are always family dramas behind such lawsuits. Formally, the plaintiffs usually refer to the severity of utility costs, since they have to pay for themselves and for that brother, that is, a loved one who is wandering somewhere. For example, a plaintiff from Astrakhan wrote that “all defendants lived in the disputed apartment until 2010, after which they voluntarily left the premises, taking their things, but continue to maintain registration, and do not bear the burden of maintaining the property or paying utility bills imposed on them by law.” services." According to her, the actions of the defendants indicate the termination of the rental agreement. Therefore, she asked to deregister everyone.
However, arguments about utility costs or the inability to sell an apartment with absent tenants usually hide the division of square meters between relatives. It is always sad when a brother goes to court against his brother, sincerely believing that he has much more rights to his father’s apartment. In such cases it is impossible to tell which side is right. Sometimes everyone is right, sometimes everyone is wrong.
Be that as it may, the law allows people who have been absent from their place of registration for a long time to be discharged from their apartments. However, there must be good reasons for this, and the courts must take a balanced approach to the matter each time.
This was not the case in these cases. The courts of the first and second instance, referring to the Housing Code, satisfied the claims in both cases. And they were wrong. The Supreme Court of Russia, having considered both cases, overturned all decisions. In his opinion, the lower courts committed significant violations of substantive and procedural law.
According to the Russian Constitution, the Supreme Court recalled, no one can be arbitrarily deprived of their home. According to the Housing Code, the temporary absence of a tenant of a residential premises under a social tenancy agreement, any of his family members living with him or all these citizens does not entail a change in their rights and obligations under the social tenancy agreement. In other words, even after leaving for a long time, a person does not automatically lose the right to registration. Each time it is necessary to find out the reasons for leaving, how long the person left and how voluntary the move was. The court must find out whether the person was interfered with in using housing, or whether the reason for leaving was any conflicts in the family. None of this was done by the lower courts in these processes.
In Astrakhan, one of the defendants indicated in the appeal that “her non-residence with the children in the disputed apartment was forced and temporary, they do not have any other housing, this apartment is the only housing.” In other words, it was not personal desire, but some circumstances that forced the woman to wander around the rented corners.
In the Armavir case, it turned out that the plaintiff’s daughter left in 2003 to study in Stavropol. And in 2009, the court confirmed that the daughter lived in the same apartment with the plaintiff father. Then they even tried to privatize the apartment together with their father. However, the lower courts did not pay attention to these facts and simply discharged the defendant.
Since the lower courts in both cases did not delve deeply into the essence of the case, the Supreme Court of Russia overturned both decisions and sent them for a new trial. For lower authorities, such legal positions of the Supreme Court of the country should be a guideline. You cannot blindly deprive a person of registration without really understanding it. And it is better for quarreling relatives to somehow come to an amicable agreement, no matter how naive such a proposal may sound.
