Forced exchange. Forced Exchange of Public Housing Denial of Forced Exchange of Housing

The lawyer answered - Koroleva S.O.:

Hello Alena!
In accordance with Part 3 of Art. 72 of the Housing Code of the Russian Federation, if an exchange agreement has not been reached between the tenant of the residential premises under a social tenancy agreement and the members of his family living together with him, any of them has the right to demand the implementation of a forced exchange of the occupied residential premises in a judicial proceeding. At the same time, noteworthy arguments and legitimate interests of persons living in the exchanged residential premises are taken into account.
From this rule of law it follows that the subject composition of the plaintiffs and defendants (parents and children) is not significant in resolving this category of cases.
As shows jurisprudence, forced exchange of public housing carried out in a judicial proceeding on the claim of any interested person.
The refusal of the claim will also entail the plaintiff's lack of evidence that the proposed option for the exchange of residential premises is indeed optimal, which can be seen in the following examples from judicial practice.
The court refused to carry out the forced exchange of apartments, since it found that the exchange option proposed by the plaintiff would lead to a violation of the full implementation of the defendant's housing rights: the share of the total area and kitchen attributable to him would decrease. The premises proposed for resettlement are located on the first floor of a building from an earlier year of construction, the location of which is significantly far from the metro (Cassation ruling of the St.
The court dismissed the claim for a forced exchange of living space, resettlement, the obligation to conclude a social tenancy agreement, since as a result of the proposed exchange, the living conditions of the forcibly resettled defendants will worsen: the defendants are provided with an apartment smaller than the one they had before the exchange; the building in which the proposed apartment is located was built 19 years earlier than the one from which the defendants are being relocated; the apartment currently in their use is located in a new building (Decision of the Moscow City Court of October 28, 2011 N 33-35094, see also the Appeal ruling of the same court of May 6, 2015 N 33-13945).
The decision of the court to dismiss the claim for the forced exchange of residential premises by a higher court was left unchanged, since the proposed option for the exchange of residential premises occupied by the parties does not meet the requirements of housing legislation: during the resettlement, the housing rights of the defendants, including a minor child, will be worsened, since the size attributable to each of the defendants residential and total area in the proposed premises is less than the size of the specified area attributable to them in the occupied apartment (Determination of the Moscow City Court of October 28, 2011 N 33-31025).
Claims for the forced exchange of residential premises, termination of the right to use residential premises, deregistration were denied, since the lack of a balcony, an elevator, the need for repairs in the residential premises proposed for forced exchange significantly violate the legitimate interests of those living in the exchanged residential premises (Determination of the Moscow City Court of 04/06/2011 N 33-7643).
The claim for the forced exchange of residential premises was dismissed, since the exchange according to the option proposed by the plaintiff would violate the rights of a minor child: he will live in a room in a three-room communal apartment where six people are registered, but there are explanations from the defendant that in the proposed nine people actually live as a minor daughter for the exchange of living quarters; the room provided for moving in in this room is located on the first floor of an old building with a gas water heater; satisfaction of the stated claims will lead to the need to change the educational institution for the child, the area of residence, which may adversely affect her mental state (Determination of the Moscow City Court of July 13, 2010 N 33-20766 / 2010).
When considering one of the cases, the court found that when the defendants move to a 2-room apartment, their living space will be reduced. If in a occupied 4-room apartment, each of the defendants has 9.72 sq. m, then in a 2-room apartment the norm of living space for each of them will be 9.03 sq. m. The lower court, moreover, did not take into account that one of the defendants is a pensioner and, due to his age, such changes in living and social conditions are difficult, his work is in close proximity to his place of residence and the clinic he uses is also located in this area. When changing the place of residence, the defendant will spend not only time, but also money on travel, which is also significant and deserves attention (Determination of the Arkhangelsk Regional Court of 11.04.2002 N 33-1062).
If the options for the exchange of premises proposed by the plaintiff do not violate the balance of interests of all parties to the dispute, do not infringe on the rights and legitimate interests of the defendant, then the court may satisfy the claim in accordance with one of the proposed options.
Thus, the court noted that the option proposed by the plaintiff involves the relocation of the defendant to a living room a little, but still larger than the one he currently occupies, and the proposed housing is not inferior to the one occupied at the time of the dispute in terms of the level of improvement; the size of the kitchen in the proposed version is slightly smaller than that available to the defendant at the moment; the entrance to the double loggia is available only through the room of neighbors, however, they do not have the right to use the loggia in violation of the rights of other neighbors in the occupied communal apartment. Under such circumstances, the claim for the forced exchange of housing was satisfied (Determination of the Pskov Regional Court dated 09.12.1999 N 33-1141).
In a similar case, the court pointed out that the proposed options for the exchange of the disputed living space comply with the requirements of housing legislation. The difference in the amount of living space provided to the defendants is insignificant and cannot be regarded as a deterioration in their living conditions. Other interests of the defendants will also not be infringed upon due to the resettlement: the apartment he offered meets sanitary and epidemiological requirements and has all communal amenities. The court took into account the presence in both versions of a separate bathroom, telephone, elevator in the house, the number of storeys and the area of apartments, etc. (Definitions of the Moscow City Court dated 04.05.
An analysis of the current law enforcement practice allows us to draw the following conclusions. When the plaintiff applies to the court with a demand to carry out a forced exchange of residential premises, he must submit several options for such an exchange. The proposed options should be no worse or slightly worse than the position in which the defendant is. If the premises offered for exchange are better, this is an additional argument in favor of the plaintiff. It is desirable that the defendant's living conditions after the exchange of premises be optimally close to those that he had, namely a balcony, a loggia, a separate bathroom, a certain type of house, floor, elevator, infrastructure of the area, transport security, etc. (Appeal ruling of the St. Petersburg City Court dated May 13, 2014 N 33-3947 / 2014).
The court takes into account all circumstances worthy of attention, such as: the defendant's need for medical care, habitual activities near his former home, the condition of the housing received, etc. If the optimal option for exchanging an apartment without prejudice to the defendant's housing rights is proven, the plaintiff has every chance to win the case.
Our lawyers are ready to assist you in the conduct of this lawsuit, please contact us, we will be happy to help.

1. You need to write a statement of claim for the forced exchange of an apartment.

1.1. Good day!
According to Art. 779 of the Civil Code of the Russian Federation, you can contact the lawyer of your choice in a personal message to draw up a claim.

1.2. Hello.
Irina, you can choose a lawyer on the site and contact him in private messages, agree on a service. You will need all the documents on this issue.

2. And if you file a claim for a forced exchange?

2.1. If you find an exchange option on your own, you can apply.

3. Forced exchange between owners to pay off a debt.

3.1. Civil Code of the Russian Federation Article 422. Agreement and law

1. The contract must comply with the rules binding on the parties, established by law and other legal acts (mandatory norms) in force at the time of its conclusion.
2. If, after the conclusion of the contract, a law is adopted that establishes rules binding on the parties other than those that were in force at the conclusion of the contract, the terms of the concluded contract shall remain in force, except in cases where the law establishes that its effect extends to relations arising from previously concluded contracts.

3.2. Good day!
There can be no forced exchange, if this is a transaction, then it must be carried out exclusively by the voluntary consent of the parties. By virtue of Art. 421 of the Civil Code of the Russian Federation, we have freedom of contract.
Good luck in resolving your issue.

3.3. Hello! Transactions can only be concluded on a voluntary basis. You cannot force a person to exchange his housing, even if he has a debt.

4. Who legally provides public housing options for forced exchange?

4.1. Hello! If in Moscow, then get to know the Administration of the district where you live. The local government is addressing this issue.

4.2. Hello, since the municipality represented by the administration is the owner of the apartment, this question should be addressed there. Good luck.

Related question

I am registered in the 1.5 municipal apartment together with my mother. She is a disabled person of the 2nd group and says that she wants to exchange the apartment forcibly, since I am against the exchange. Tell me pzhl in the event of an exchange, the apartment is divided equally or is she, as a disabled person of the 2nd group, entitled to a large living space? The total area of the apartment is 30 square meters and she says that she, as a disabled person, is entitled to 18 meters and me only 12 square meters. Is it true or not.

9. For the following questions.

Moreover, my half consisted of two parts: a third of the entire apartment, that is, most of it - I received by agreement with my parents after privatization and as a result of inheritance. As I understand it, this part is not jointly acquired property and is not divided during a divorce?

If yes, what part?
Do I understand correctly: I will owe the cost of half of the share received by redemption in court to my wife, since this is jointly acquired property. But the rest of the part received through gratuitous transactions is not supposed to be for the wife, but is it necessary to send a quarter from the sale of this large part to alimony?

3) Another interesting question is about my relative, who leaked his share, substituting everyone. His registration has not changed. On whose share in the apartment is he now registered? And on whose share will prescribe their children born? After all, up to a year, without the consent of all other owners, you can simply prescribe to your mother or father: (. Can there be obstacles to the sale of your share without the consent of this relative to be discharged? Or obstacles to a donation?

9.1. Good afternoon, Yuri. Anything acquired before marriage will not be shared. Alimony will be paid either by agreement between you, or on the basis of a court decision in a fixed amount or some percentage to be determined. A relative can be discharged by the court.

9.2. You have already been answered in detail before. Everything received under a gratuitous transaction is not divided. If you redeemed the share in court and were married, then it is subject to division. The former owner and his children can be discharged by a court decision without any problems.

10. For the following questions.
There is half of the apartment that belongs to me. The other half is my mother.
I am officially married. The fate of my share in the event of a divorce is interesting.

I redeemed a smaller part of my share by a court decision, under the article of forced buyout of a share, from a stranger to our family.
There was a court, I provided money and a lawsuit to buy out an insignificant share from this person who did not use it, we signed a peace agreement and the court ruled that the property was transferred to me, and the money to him.
As a result, I formed a share in the apartment, equal to half. During all this time I am officially married.

Interested in the following questions:
1) In the event of a divorce, will that part of my share that I received as a result of a court decision, but in exchange for money, be considered jointly acquired property and, accordingly, be subject to division?

2) In the event of a divorce, it is quite logical that I will pay alimony. And if I decide to sell my share in the apartment, after the divorce (together with other owners of the apartment), then I will receive some money.
The question is, will I have to transfer part of this money to child support?

Thanks for the help.

10.1. 1. Yes, this part will be considered jointly acquired and will be divided equally. Because acquired for a fee (Article 34 of the RF IC)
2. Yes, you will have to list.
3. There is no such threat. This is your agreement. It does not affect the rights of third parties.

11. Please, for the following questions.
There is half of the apartment that belongs to me. The other half is my mother.
I am officially married. The fate of my share in the event of a divorce is interesting.
Moreover, my half consisted of two parts: a third of the entire apartment, that is, most of it - I received by agreement with my parents after privatization and as a result of inheritance. As I understand it, this part is not jointly acquired property and is not divided during a divorce?
I redeemed a smaller part of my share by a court decision, under the article of forced buyout of a share, from a stranger to our family.
There was a court, I provided money and a lawsuit to buy out an insignificant share from this person who did not use it, we signed a peace agreement and the court ruled that the property was transferred to me, and the money to him.
As a result, I formed a share in the apartment, equal to half. During all this time I am officially married.

3) Is there any threat to the settlement agreement signed by me with an outsider from whom I bought out a share? The fact is that the share that I bought out passed to him from my relative, in exchange for a loan. And at the moment, an outsider filed a lawsuit against this relative of mine that the loan was never paid, arguing that the settlement agreement concerns only me and him, and my relative, it turns out, never repaid the loan.
The settlement agreement was fulfilled on both sides, the property rights were registered in my name, and the money was transferred through the judicial authority to an outsider. Is there no danger?

Thanks for the help.

11.1. In general, you correctly understand your situation.
For questions:
1) yes
2) no
3) you need to look at the documents.

12. First of all, I want to thank the administration of the site and directly, all the lawyers who, all these years, have helped me and my small family, with correct and legal advice and explanations for my questions. Thank you, ladies and gentlemen, from all cities and corners of the country. The information that I drew from your answers helped me a lot and was useful.
I am the father of two minor children (now they are 14 years 9 months old, and 4 years 10 months old.) Some time ago I wrote that after the birth of my second child in 2014, my ex-wife, instead of caring for children, and family life, chose booze, girlfriends, and wanted freedom from family ties, and kids. In 2015, as a father, I could not stand bullying and beatings on children, took the children from our house, which was still built in marriage, and moved to the house of my parents (their grandparents), in which we live to this day all together, in five. The ex-wife went to live with her mother, from our common, new house, where she continued her cheerful life. In the end, she "went" with her head, later went to a psychiatric hospital, and after recovering for some time, she left there with a diagnosis of "Shuboidal schizophrenia". So I stayed with my son at that time 9 years old and my daughter at that time 7 months old.
In 2015, my wife and I got divorced. In 2017, I filed an application with the court for the deprivation of her parental rights and the payment of alimony in favor of two minor children. The process was difficult and lasted almost a year. At the trial, she did not mind that the children would live with me, she wished to meet with the children on certain days and hours. She was not deprived of parental rights, she was obliged to pay alimony (33% of all income), Sundays were appointed for meetings with children. However, she did not appear at any of the meetings with the children. Since alimony is counted from the moment the application is submitted to the court, for the period of time while the process lasted, the ex-wife was also obliged to pay alimony. Since 2018, she paid for both 2017 (while the process was ongoing) and for the current time, that is, 2018. Another year passed, 2019 came, the payments were monthly, by transfer to a card, through bailiffs. Small but stable. In July 2019, payments stopped. To my questions to her, she answered that she quit her job and until she finds another, she will not be able to pay.
For all these years, I had to work at different jobs, at the same time (official, contract and hack), I did not disdain anything. In addition to work, I managed to resolve issues at my son’s school, visit hospitals, planned and for illnesses, take my son to a music school, then back to work, through the courts, to the police (her girlfriends and she wrote “empty” statements against me), travel to concerts (we are engaged in vocals with our son) and much, much more. But, I raised the children, of course with great difficulty, climbed the career ladder, bought another, more reliable car. Slowly got out. I am very grateful to my parents for all their help and patience.
All these years, the house that we built in marriage is empty. My son and I constantly go there, check windows, doors, tidy up, play the piano (there is a musical instrument there). conceived, but since the house and the land under it are registered for three owners, in equal shares, for me, my ex-wife and our son (the daughter was not yet born when we built and arranged), knowing that at any moment, at any day, an ex-wife can show up there, I haven’t driven a nail there in all these years. Over the entire period, she has repeatedly broken in the house, bought by us, in marriage, household appliances, light bulbs, took away or beat and broke building materials, tools, took something for herself, several times left the door open, knowing that they could scald . Constantly, bottles, cigarette butts, open windows. I managed to save something, transport it, to my parents. He does not show any concern for the future of the children, he does not worry about property, he does not look after the house, he only crap, even cut off the curtains. Forbid her or change the locks on the doors, I have no right, because. it is also her property. Frankly "to fuck off" too, this is an article that I don't need at all. There was no division of property, nor any written agreements with her either. Statements to the local policeman did not lead to anything. He simply "got off" by the fact that he does not get into family affairs, and by the fact that he cannot interfere and influence her, tk. it is also her property.
The son decided to enter a technical school (in a year, this will happen), and then to a university in the city, for this he needs housing, in the same place in the city. With great difficulty, I persuaded her to sell the house, and seemed to agree to buy an apartment for her son, but on the condition that she take half of the total amount for herself. I have involved three real estate agencies, posted ads on many popular sites. Rarely, but buyers came, examined, and that's it. I also understand that children need to be provided with an equivalent vein. the area during the sale, but for the half that the ex-wife leaves us, he lived like that. It is not possible to acquire an area, only if it is somewhere near the devil ... Here, my son and I would not want to change the awl for soap. We have a large, two-story house, 184 sq.m., land 15 acres, albeit without repair, but still ... Apartment or boarding house 18 sq.m. m, no comparison .. The exchange for two apartments is also not suitable, either for her, or for us with the children. Such is the vicious circle. If you don’t sell it, she will beat everything there, break it and spoil it, until it “accidentally” sets it on fire at all. Sell, she takes half, and as you wish ... And besides, social. guardianship will not agree to lesser conditions for children. I've been in sales for almost a year and this is the moment...
And here's the moment .. Having convinced her that the house most likely would not be sold, for the desired price, greatly shaming her that she did not hit her finger for the benefit of the children, persuasion and explanation, the ex-wife took a step towards the meeting, and put forward conditions so that I bought from her, her part of the house myself, and named the amount, 600,000 rubles. The amount is not sky-high, but it’s hard for me, given the already endless expenses with such an income as mine. With great difficulty, I convinced my ex-wife to transfer our shares of the house and land to both children. That is, I unsubscribe to the children, my part of the house for both children, and she also unsubscribes her part for both children, also in equal shares. Thus, we would provide our children, real estate, our corner. Well, of course, upon reaching the age of 18, let them decide for themselves what to do with the house and the land. In addition, the ex-wife completely and completely takes the mat. capital for myself, for which neither I nor the children will claim (it has not yet been touched), and I release her from alimony. Draw up a written agreement, with a notary, but at least with anyone. Thus, to provide real estate for children, to release the ex-wife from alimony, and later from the removal of children lived. square, at the place of study, which, as I heard, she will have to rent for a minor child and generally avoid a lot of difficulties. As a loving father, I do not cling to this property, but I know that children need it. Instead of rented or miserable apartments and cottages, they will have their own house in the village.
Here is another nuance. If, and not even if, but most likely it will be, the ex-wife will not be able to pay alimony for another 14 years, until the daughter comes of age, and along the way, still pay for a rented apartment for her son at the place of study, and then for her daughter, because she will also go to study, I'm afraid that court will come. bailiffs, and completely describe and seal the house. After all, it is still her property. Well, time will pass, well, even if they start describing with household appliances, or correctional, forced labor, or what's next, a prison? She will not be released from debt. In the same way, her brother served time. I did not pay for half a year, and I went ... Sooner or later, there is a danger that they will seal. And they can seal it, because she has a share in the property of her mother, at a different address, they have a hut in equal shares for her mother, brother, and herself, too. Then, in general, both the children and the ex-wife will lose everything. (Well, this is just an example.) She won’t be able to repay her debts, that’s for sure, and she won’t want to.
Please write, direct how we and our children can get out of this situation without loss and legally.

So the questions are:

1. Can the mat. capital, the mother of the children (openly, with the consent of the father of these children), if the father is the guardian and the children live with him, despite the fact that the mother is not deprived of her family. right, but not married to her father?

2. Based on the above, can the mother of the children use the mat. capital, at its discretion, without reporting to the FIU?

3. In case of malicious, long-term non-payment of alimony, in favor of minor children, if it comes to sealing real estate, despite the fact that the debtor has two real estate properties, at different addresses, what kind of real estate can bailiffs seize or seal in the first place? The one where she is registered, but does not live, but this housing is also the property of a minor child, or the one that the debtor also owns, but there is no minor child of the co-owner, only adults (adults?

4. I want to buy a part of the housing from the co-owner, and register it for the children, how can I do this using the mat. capital, will the FIU and guardianship allow?

5. Can I, the father of two minor children, being their guardian living with them, use the mat. capital, buy a share from the co-owner and issue it to the children, or improve the living conditions for these children, or just the mother?

Thank you. Alexander.

12.1. Hello.
1 and 2. Maybe. Cash out through a fraudulent company, or it is completely legal to direct maternity capital to the funded part of your pension.
3. Any. Which one can be implemented.
4. You can't. The mother manages the capital.
5. You can't live without a mother either.
The only advice is that the mother should be deprived of parental rights, then if she did not have time to transfer maternity capital to pension savings, it will go to the children, and you will be able to dispose of it in the interests of the children.

Section of private property

When is a forced exchange of an apartment necessary? How do they do it if privately owned apartment? There are two options here:

negotiate with relatives (which they usually do) about the sale and division of money for all, then - everyone goes their own way.
allocate your share and then sell or exchange.

Why do they go for it? As a rule, for one of two reasons - one of the roommates is rowdy, hooligan, drunk, endangers the safety of those living in the neighborhood.

Or - a total quarrel between members of the household. In a word, these are situations when further living under one roof is inexpedient, impossible, and often dangerous.

If no agreements between the once close have become impossible, then one thing remains - apportionment of a share by judicial procedure.

After that, the owner is obliged to officially offer cohabitants ransom her(Article 250 of the Civil Code of the Russian Federation).

All documents, including the refusal of relatives, must be certified by a notary. Only then can the owner sell your share or exchange her.

Several the situation is more complicated with registered tenants. The allocation and sale of a share involves a change in the owner of the housing, which means (, Article 292 of the Civil Code of the Russian Federation) the people registered there (not co-owners) cease to have the right to use it.

dependents;
voluntarily refused privatization (an appropriate act certified by a notary must be provided).

You can learn about how in a hostel or communal apartment, as well as an apartment, and how to compose one, from our articles.

Change of marital home

In this case, square meters will have to be divided first.

Shares will be equal unless there are circumstances that allow the court to consider otherwise.

One way or another, first you need to sign an agreement defining share size former family home.

This is carried out either by peace, if an agreement is reached between the ex-husband and wife, or by judicial procedure.

After that, the ex-spouses sell an apartment and share the money or dispose of each of its shares.

You can learn about how a privatized apartment can be divided after a divorce from the video:

How is the procedure carried out?

How to exchange an apartment through the court? Primarily need to contact a lawyer specializing in housing law.

In no case should you take up the matter on your own, because each situation is individual and the layman may simply not see all the nuances that may turn out to be decisive for the case.

The process initiator then calls to the district court where the defendant is located. In addition to the actual statement of claim, he is required to provide the following papers to the office:

identity cards of all participants in the transaction;
notification of the exchange for the board of trustees (if the transaction involves a child);
title documents for the share;
cadastral passport;
extract from the house book;
a copy of the financial account.

The decision is made by the court within a month. But it should be remembered that the judge is not a broker and nothing will be sold or changed. A servant of Themis can only give a "green light" to the exchange of an apartment in court and other legal actions.

What will be reported in the decision. All subsequent legal procedures with square meters former members of a single household are already producing.