Often there are situations when the owners of the premises can not agree on the order of residence. In most cases, such disputes necessitate the determination of the use of a residential type of premises. Most often, these issues have to be addressed through judicial intervention.
The essence of the debate
In most cases, problems arise due to the impossibility of voluntarily determining the procedure for using municipal premises or difficulties in establishing the rules for living in an apartment that is owned by the shared type of two or more citizens.
The situation is aggravated most often due to the fact that the procedure for using housing has developed long ago, but this situation infringes on the rights of another owner if his share in the apartment is higher than the actual space occupied by him.
Also, many problems regarding determining the order of use of a residential type of premises arise if one of the rooms is not isolated and no one wants to live in the entrance. Similar situations occur when the owners have equal rights to shares, and the size of the rooms is very different. As a result, the rights of one of the co-owners (who will settle in the smaller room) will be violated in one way or another.
The next group of disputes regarding the determination of the use of a residential type of premises is confirmation of the fact that one of the owners does not actually live in the apartment. In this case, disputes may also arise, despite the fact that the owner living in this room is vested with the priority right to use the premises he occupies, even if his characteristics are better than other rooms.
The essence of the definition of "the order of use of residential premises"
The order of living in an apartment is the rules for the use of housing, agreed by all owners of the share in relation to the ownership and use of common types of property located in the apartment.
If all owners of the apartment made a joint decision to determine the procedure for using the premises, such an agreement is called the established (established) order.
The terms of use suggest that all co-owners occupy the established rooms, which are proportional to their shares in the right to own this property. Also, parties living in a communal apartment, most often agree on controversial issues regarding the determination of the procedure for using municipal residential premises.
Many are worried about how to voluntarily agree on the rules of living in an apartment of a state fund. In this case, the problem is that in a municipal residential building it is impossible to forcibly (judicially) distinguish between the rules of residence. This is due to the fact that according to the terms of social tenancy agreements, a lawsuit to determine the procedure for using residential premises is not accepted for consideration by the court. In the event that the parties cannot voluntarily establish the rules for cohabitation, this issue will not be forcibly resolved.
Ways to establish rules of residence
The living conditions in the apartment can be established by the parties in one of two ways:
- The signing of a voluntary agreement on the determination of the use of premises between the parties.
- Compulsory court decision establishing the rules of residence of co-owners.
The conclusion of a voluntary agreement on determining the procedure for using the premises suggests that the co-owners were able to agree with each other how they are going to use the private and shared rooms in the apartment. Also, the coordination of residence in this real estate property suggests that the owners of shares in the house have established to whom which room is allocated.
The determination of the procedure for using residential premises in judicial practice most often shows that at least one of the owners does not agree with the rules of residence or with the room allotted to him. In this regard, the owner of the real estate object, infringed on the rights, applies to the appropriate body for the protection of his interests.
In the event of a trial, the dissatisfied owner must, before filing a lawsuit, turn to other tenants with a proposal to conclude a settlement agreement on the rules for living together and using the premises in person and in general.
Such options for pre-trial settlement of disputes are best sent to all interested parties in writing, so that in the future the applicant could prove that he was trying to solve the case in a peaceful way. The document must be sent to the co-owners by mail in the form of a registered letter with a description of the attachment (and notification of receipt). When using the peaceful method of dispute settlement, the court will have no reason to postpone the process if one of the participants does not appear.
Agreement on the establishment of rules for living in an apartment with shared ownership
An agreement on determining the procedure for the use of residential premises is most often a consequence of the previously established verbal rules for the residence of neighbors in the same property. If the established standards of living suit all parties, the conclusion of an agreement helps to legitimize them.
It is mandatory to specify in the document which premises each of the co-owners uses, what is his footage and basic characteristics. An agreement on determining the procedure for the use of the premises by the owners can be made in writing in simple form, without corresponding notarization.
The document can be confirmed by a third party, but this fact is optional. If the drawn up agreement is violated by one of the co-owners of the apartment, the dispute will need to be referred to the court.
In practice, co-owners rarely enter into agreements on the procedure for living in a dwelling and its use. Often the time standards of living in an apartment are fixed on paper even when disputes and friction arise regarding any aspect of housing use. After no options can satisfy all parties, one of the infringed rights of the co-owners applies to the judicial authority.
Subjects contesting the rules of living in an apartment in court
Only one of the owners of the property is entitled to file a lawsuit on the procedure for using residential premises, regardless of its share in the apartment. Even if its part in the property is the smallest, its ability to restore its violated rights is equal to the capabilities of other owners.
Persons who are not the owners of the apartment cannot file lawsuits of a similar nature to the court, even if they are registered in this property and are constantly living there.
For clarity, you can consider an example. In the apartment owned by two sisters, their brother (not the owner) is registered. If there is a dispute about the rules of residence and the procedure for using housing, only owners (sisters) can participate in the dispute. A brother is not entitled to file a lawsuit, even if his rights are infringed.
Before filing an application with the court to determine the procedure for using the premises, you need to weigh the pros and cons by considering the following points:
- The term for a decision on housing issues of this type may be extended due to various features of such categories of cases.
- It is rather difficult to resolve such a dispute and defend one’s position in court without the help of a representative, and lawyers charge large amounts for such cases.
- The entire process of judicial review of the case is likely to negatively affect relations with neighbors and cause various conflicts. This often happens, even if the court establishes the most favorable order for all to live in a disputed property.
In this regard, it is best to try to negotiate with other co-owners peacefully in order to avoid a housing "war".
Judicial review of housing dispute
In order to file a lawsuit in court on determining the procedure for using a dwelling, a sample of which is presented below, it is necessary to remember the following.
It is possible to establish in compulsory form the rules of residence in a particular real estate property only when it comes to the subject of the dispute, which is in common shared ownership. If questions arise regarding a communal apartment, in which each room has a separate personal account, in the courts it will only be possible to establish rules for using common areas (kitchen, bath, toilet, corridor, etc.).
If the disputing entities are owners of common joint law, it is first necessary to determine the size of the shares of each of the property owners. Shares are established either by drawing up a notarized agreement, or by compulsory (judicial) procedure. If it is also impossible to agree on this issue voluntarily, claims for the allocation of parts in the apartment and determination of the rules of residence can be combined in one thing.
Judicial practice on determining the procedure for using residential premises shows that such a problem arises for spouses who, after registering a divorce, continue to live together. This is due to the fact that jointly acquired property in most cases is recorded as common joint property. Therefore, if they cannot peacefully agree on the procedure for living in one apartment, they need to solve two issues at once through the court: allocation of shares and determination of the rules for using the premises of the apartment.
The legal relations that are considered in the framework of this issue are disclosed in article 247 of the Russian Civil Code. According to the provisions of the law, the use and ownership of real estate may be determined by the co-owners on a voluntary basis. If the parties are unable to agree peacefully, the controversial issue is resolved through the court.
When considering a controversial case, the court finds out the following important circumstances:
- the number of rooms available in the disputed property, as well as the area of each of them;
- the size of the share of each of the owners of the apartment in question.
Circumstances considered by the court in determining the rules of residence of the co-owners in the disputed apartment
When considering a case related to determining the procedure for using a dwelling, a sample of which is presented below, the judge makes his decision on the basis of the requirements of the law that each of the co-owners should be granted the right to use the room, which is proportional to the share of the right of ownership established for him.
Since there were many questions regarding the first part of the Russian Civil Code, an explanatory act was issued. It was Decree No. 6, published by the Plenum of the Supreme Court of the Russian Federation and the Russian Plenum of the Supreme Arbitration Court (No. 8) of July 1, 1996.
According to the clarifications contained in paragraph thirty-seven, when considering housing disputes, judges need to consider the following important circumstances:
- In fact, the established procedure for living and the rules for using residential premises, if they contradict the size of those shares that belong to each of the parties by law.
- The presence of other real estate in which one of the owners (owner) can live.
- A real opportunity to live together and use common property.
If there are previously established (actually existing) certain rules of residence, the existence of such an order must be proved. Evidence may be photographs, written documents (agreements, acts with the previous owner, etc.), as well as witness statements.
In the event of a situation where the determination of the rules for the use of residential premises, based on the procedure previously established by the parties, and the allocation to him for use of the premises, which is much less than his share in the right of ownership, significantly infringes his rights and gives privileges to the other party, there is monetary compensation .
The second paragraph of Article 247 of the Russian Civil Code establishes that the owner, whose rights are not respected when dividing the apartment into parts for cohabitation, must be paid compensation in cash. At the same time, it is important that the financial compensation be proportionate to the share that was not transferred to the infringed owner.
When determining the criterion of need for housing for a particular owner, it is necessary to establish whether the owner uses this apartment for living or actually lives in another house. It also determines the existence of a property right or other property right to another property.
Distinctive features of the consideration of certain types of cases
One of the most problematic issues considered by the court in relation to housing disputes is the definition of the rules for using the apartment, when there is only one room, and there are two owners of the apartment.
In this case, the statement of claim will be returned to the plaintiff, since cases of sharing a studio apartment with two or more owners are not subject to satisfaction due to the impossibility of resolving such a case.
When considering this category of cases, the courts take into account the following key circumstances:
- Layout of the apartment, the number of isolated and passage rooms.
- Family relations of each of the owners, the presence of children and other dependents, etc.
In determining who will get a walk-in or isolation room, the courts take into account the interests and marital status of each of the parties. Since all owners want to live in a separate room, the judge examines who has children who need a separate room.
If several factors relevant to the case are presented to the court, the arguments of the owners themselves and not the people living with them are considered first. This is due to the fact that the order of residence is established specifically for apartment owners, and not members of their families.
Rules for filing a lawsuit
The establishment of jurisdiction in determining the order of use of residential premises depends on the location of the disputed apartment. If the essence of the process is only to establish the rules of residence, the case is considered by a justice of the peace.
If, in addition to this, a request is made for the introduction of a third party, determination of the rules for paying utility bills, a claim for impeding residence, or a property issue, the price of which is more than fifty thousand rubles, the case is transferred to the jurisdiction of the district court.
The following package of documents must be attached to the application:
- documents of ownership of the disputed premises;
- extract from the register of real estate rights;
- certificate in the form of F-9 on the registration of residents;
- characteristics of the room (household);
- receipt confirming payment of state duty;
- other securities important in the opinion of the claimant;
- copies of all documents by the number of participants in the case.
Applicant actions after the process
After the case has been reviewed and the court has made its decision, it is necessary to wait for its entry into force. The waiting period is one month from the date the decision was made in the final form (motivated).
During this period, any of the participants in the process may file an appeal against the decision of the judge. This is the establishment of the first part of Article 209 and the second part of Article 321 of the Civil Procedure Code of the Russian Federation.
If the complaint has not been satisfied, the initial court decision comes into force after the complaint has been considered and rejected. If the appellate court quashed or changed the judge’s decision, the entry into force takes place instantly (based on the first part of Article 209 of the Civil Procedure Code of the Russian Federation).
Determining the order of residence is a complex matter. Therefore, before filing a lawsuit, it is necessary to collect all, even insignificant, documents so that the decision takes place in favor of the plaintiff.