Is it possible to remove a child from an apartment without the mother’s consent?

Author of the article

Elena Nikolaevna Karpova

Reading time: 3 minutes

AA

Material updates: 2019-05-03 12:49:48

Registration at the place of residence in the Russian Federation is mandatory for all citizens. When a child appears in the family, it is the direct responsibility of the parents, enshrined in Articles 20 and 21 of the Civil Code of the Russian Federation, to issue a registration for the newborn within one week from the date of receipt of the birth certificate. If the child’s mother or father owns a living space, the procedure for obtaining registration is very simple and takes about one week. But in the Russian Federation, to this day, a situation very often occurs when a minor child is registered in a non-privatized apartment. Below we will look at the features of registering newborn children in municipal housing.

Leading legal consultant of the secondary real estate department of Est-a-Tet Yulia Dymova answers:

To change the place of registration of a child, the consent of both parents is required if they are alive and have not been deprived of parental rights. Even if they are divorced, their consent is necessary. This is a requirement of the passport office.

Is it possible to sell the share of a minor child?

How to remove your daughter from registration in absentia in order to sell an apartment?

Legal adviser Marina Kozik answers:

Only his legal representatives and parents can deregister a minor child under 14 years of age. If there is no voluntary desire of the parents to deregister the minor, this issue is resolved in court.

The court individually examines all materials in the case and decides whether the requirements can be satisfied. The reason could be, for example:

• termination of the contract for the gratuitous use of housing,
• transfer of ownership of residential premises to another person,
• termination of family relations with the parent of a minor child, also registered in the residential premises (except in the case of the parent’s ownership of the residential premises).

Housing rights of minors under the terms of social rent

Housing disputes very often involve the claims of a person living in a residential building to recognize another person as having lost or not acquired the right to use. Minor children are often defendants.

The problem associated with the emergence and subsequent termination of the right to use residential premises is quite easily resolved when a claim is filed by the owner of the residential premises. Such cases do not pose any significant difficulties for practicing lawyers, and do not cause any dogmatic difficulties in interpreting the norms of current law. All legal regulation in this part is covered by the provisions of Art. 31 of the Housing Code of the Russian Federation, and consists in the fact that the right to use residential premises is terminated upon termination of family relations with the owners. Thus, it is not difficult for the owner to evict a former family member from a living space.

The issues of loss of the right to use residential premises are resolved somewhat differently when such rights arise under the terms of social rent. From time to time, the courts demonstrate miracles of interpretation of the current law, in an effort to protect those who are the weaker parties in legal relations arising between persons. And then the courts present a rather interesting legal position, which has a fairly logical explanation.

In essence, there is nothing unusual about this. The desire for justice, for achieving a balance of private interests of several persons, is one of the goals of judicial activity. In situations where the law does not allow one to directly identify the beginning of justice in the content of a specific legal norm, judicial interpretation of the law enters the arena, which has its source in the factual circumstances that form the basis of the claim and the established relations of the parties .

It was in this way that the beginning of justice was realized in one of the disputes that aroused our interest, in connection with the consideration by the district court of a case, the final decision of which was upheld by the appellate instance of the regional court. The plot of the case is set out on the court’s website and is as follows:

Based on a social tenancy agreement, a person owns an apartment in which her two sons are registered and live along with the tenant. The tenant's granddaughter was also registered in the disputed apartment, but in fact the girl lives with her mother at another place of residence.

The employer filed a claim to recognize her granddaughter as a minor who had not acquired the right to use residential premises and to deregister her. Referring to the fact that the girl’s parents formally registered her in the disputed apartment, in fact the family permanently lived in another room, the child did not move into the apartment and never lived in it. The marriage between the girl’s parents was dissolved, and she remained to live with her mother; the plaintiff also pointed out that the granddaughter was not a member of the employer’s family.

Having examined the evidence presented by the parties, the court rejected the claims. The Judicial Collegium for Civil Cases, checking the arguments of the appeal, found no grounds for its satisfaction. However, the conclusions that guided the court are of considerable interest.

The existence of the right to use and residence of the child's father in the disputed residential premises is always interpreted by judicial practice in favor of the emergence of the same rights for the child. And this despite the fact that the actual basis for the emergence of the right of use is the fact of occupation (Article 70 of the Housing Code of the Russian Federation)

. For children, the only exception is made here due to the fact that their accommodation does not require the consent of the tenant and adult members of his family, as well as other persons who have the right to use the residential premises.

Everyone, it would seem, has become accustomed to the fact that the courts link the fact that children have the right to use municipal residential premises not with the fact of moving in, but with the fact that one of the parents lives in such premises, while referring to the derivative of the place of residence of the children from the place of residence of the parents. for a long time, despite the controversy of such an interpretation.

Let us remind you that according to clause 2 of Art. 20 of the Civil Code of the Russian Federation, the place of residence of minors under fourteen years of age, or citizens under guardianship, is recognized as the place of residence of their legal representatives - parents, adoptive parents or guardians. Accordingly, within the meaning of Art. 20 of the Civil Code of the Russian Federation, parents of a minor child under the age of fourteen have the right to move their child into legally occupied residential premises without the consent of the owner of the residential premises and other persons using the residential premises (see, for example, the Determination of the Moscow City Court dated October 20 2010 in case No. 33-32836).

At the same time, according to paragraph 3 of Art. 65 of the Family Code of the Russian Federation, the place of residence of children when parents live separately is established by agreement of the parents. This leads to an important conclusion that in order for a child to have the right to use residential premises, in addition to moving in, an agreement between the parents is also required to determine the child’s place of residence . At least, this is the conclusion with reference to paragraph 2 of Art. 20 of the Civil Code of the Russian Federation and clause 1 of Art. 70 of the RF Housing Code is motivated by the Ruling of the Supreme Court of the Russian Federation dated June 5, 2012 No. 5-KG12-3, in which the court concluded that minor children acquire the right to the living space of their parents, which is determined by them as a place of residence by agreement of the parents . And determining a child’s place of residence involves actually providing the child with a place to live in a residential building, but not an illusory move-in. It should be noted that the legal position formulated in the above ruling of the Supreme Court of the Russian Federation, based on the law, entailed the abolition of judicial acts of lower courts, which, under similar circumstances, also refused to recognize the child as having not acquired the right to use.

But what if the parents did not enter into such an agreement? We believe that in our situation it is necessary to proceed from the circumstances of the case, namely to assess the grounds for the loss or acquisition of the right to use the disputed residential premises by the parent with whom the child actually lives, and also take into account the existence of a dispute about determining the child’s place of residence.

Termination of family relations and actual abandonment of the place of residence in the disputed apartment, taking into account the interpretation of the provisions of Art. 83 of the Housing Code of the Russian Federation, given in paragraph 32 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 2, 2009 No. 14 “On some issues that arose in judicial practice when applying the Housing Code of the Russian Federation” by the mother of a child after the termination of her marriage with the son of the employer, indicates the loss of the right use of residential premises by one of the child’s parents.

However, in our case, the appellate court, in order to achieve justice, literally stated the following provisions. Since, according to Part 1 of Art. 38 of the Constitution of the Russian Federation, motherhood, childhood and family are under the protection of the state, and by virtue of Art. 71 of the Housing Code of the Russian Federation, the temporary absence of a tenant of 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; minor children acquire the right to living space by agreement parents, the form of which is not established by law. Excuse me, what kind of temporary absence of a child who has never moved into the apartment can we talk about in relation to the circumstances of the case that are available on the court’s website? And not a single word is said about the rights of the child’s mother to living quarters in the available report on the case.

Further, it is even more interesting: “ One of the proofs of the conclusion of such an agreement is the registration of a child in the disputed residential premises; this is a prerequisite for the child to acquire the right to use a specific residential premises, regardless of the fact that the child has moved into it, since minor children do not have the opportunity to independently exercise their right for move-in

».

What is called here it is - the spirit and letter of the law. With this interpretation, it is completely clear that the plaintiff’s arguments that the child did not move into or live in the apartment have no significance for the resolution of this case and are not the basis for recognizing a minor who has not acquired the right to use the residential premises. No other conclusion can be drawn in a situation of frankly incorrect application and interpretation of the law.

The case considered is indicative of the fact that certain provisions of our law are far from perfect. Of course, the interests of the child require protection. And the court is obliged to protect the interests of the child when the parents do not protect them. On the other hand, the court must always take into account the balance of interests of the parties to the dispute. After all, the formal registration of a child in a disputed residential premises, if there is a different actual place of residence, does not contribute to the protection of the interests of the child. There are simply no such interests violated when satisfying a claim. It is a completely different matter if the child, as a result of the existing relationship between the parents, was left without a place to live.

But justice inexorably requires more and more new interpretations to justify the correctness of the position on protecting the interests of children. As soon as we referred to the ruling of the Supreme Court of the Russian Federation, which made the exact opposite decision, the position of the same court on that article comes to mind. 304, 305 of the Civil Code of the Russian Federation (essentially, it is the reference to an obstacle to the use of residential premises that motivates any claim to recognize a person as having not acquired or lost the right to use residential premises) cannot be applied to relations of a contractual nature. And no one denies the contractual nature of the relationship for the use of residential premises on social rental terms. Therefore, if a housing relationship arises between the plaintiff and the defendant, the provisions of Art. 196 of the Civil Code of the Russian Federation, which establishes the limitation period at three years. This position on the case considered in relation to the issue of eviction from official residential premises is set out in the Ruling of the Supreme Court of the Russian Federation dated August 19, 2008 No. 5-B08-77.

So, to protect the interests of the child, the mother should have referred to the expiration of the statute of limitations? Of course it shouldn't. The case we examined indicates the need for courts to develop legal positions that are uniform in their content for the fair resolution of housing disputes involving minors.

hh

Legal consultant Olesya Obizhaeva answers:

In accordance with the law, the child must be registered at the place of residence of one of the parents. When a minor is deregistered, his living conditions should not become worse than the previous ones. It is possible to discharge a minor child without the consent of the mother if she is deprived of parental rights or is declared missing. In all other cases, the disagreement of the other party will result in litigation. The court has the right to ask the opinion of a child who has reached the age of 10 years. So the time for deregistration may drag on during the trial.

If the apartment is sold with a minor child registered at the place of residence, the new residents will be forced to sign him out themselves through the court.

A child is an apartment owner: pros and cons

Can I take ownership of the entire apartment when my daughter grows up?

Required package of documents

The specific list of registration papers depends on the situation:

1. In the event of a dispute between parents about where a minor should live, in order to register it at home, the mother must present: an application for registration at her address;
2. personal identifier;
3. divorce document;
4. document identifying the offspring;
5. court decision.

To register a close relative, his consent, passport, notarized parental consent, passport of a minor, and an application are required.