Housing code of the Russian Federation (extracts).

Article 72

1. A tenant of a dwelling under a social tenancy agreement, with the consent in writing of the landlord and members of his family living together with him, including temporarily absent members of his family, has the right to exchange the dwelling they occupy for a dwelling provided under a social tenancy agreement to another employer.

2. Members of his family living together with the tenant have the right to demand from the tenant the exchange of the living quarters occupied by them under a social tenancy agreement for living quarters provided under social tenancy agreements to other tenants and located in different houses or apartments.

3. If an agreement on the exchange is not 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.

4. The exchange of residential premises provided under social tenancy agreements and in which minors, incapacitated or partially capable citizens who are family members of the tenants of these residential premises live, is allowed with the prior consent of the guardianship and guardianship authorities. Guardianship and guardianship authorities refuse to give such consent if the exchange of residential premises provided under social tenancy agreements violates the rights or legitimate interests of these persons. Decisions of the guardianship and guardianship authorities on giving consent to the exchange of living quarters or on refusing to give such consent are taken in writing and provided to the applicants within fourteen working days from the date of submission of their respective applications.

5. The exchange of residential premises provided under social tenancy agreements may be made between citizens living in residential premises located both in the same and in different settlements on the territory of the Russian Federation. The exchange of living quarters is carried out without limiting the number of its participants, subject to the requirements of Part 1 of Article 70 of this Code.

Article 70

The tenant, with the consent in writing of his family members, including temporarily absent members of his family, has the right to move into the residential premises occupied by him under a social contract of employment of his spouse, his children and parents or with the consent in writing of his family members, including temporarily absent members of his family, and the landlord - other citizens as members of their family living together with him. The landlord may prohibit the move-in of citizens as members of his family living together with the tenant if, after their move-in, the total area of ​​the relevant dwelling per one member of the tenant's family is less than the accounting norm. The consent of the other members of the tenant's family and the consent of the landlord is not required to move in with the parents of their minor children.

Article 73

The exchange of residential premises between tenants of these premises under social tenancy agreements is not allowed if:

1) a claim has been brought against the tenant of the residential premises to be exchanged for the termination or amendment of the contract for the social rental of residential premises;

2) the right to use the exchanged residential premises is disputed in court;

3) the residential premises to be exchanged are recognized in accordance with the established procedure as unsuitable for habitation;

4) a decision has been made to demolish the house in question or to refurbish it for use for other purposes;

5) a decision has been made on the overhaul of the relevant house with the reconstruction and (or) redevelopment of residential premises in this house;

6) as a result of an exchange, a citizen suffering from one of the severe forms of chronic diseases specified in the list provided for in clause 4 of part 1 of Article 51 of this Code moves into a communal apartment.

How are disputes over forced exchanges resolved in court?

Due to the fact that the residential complex does not have the previously existing right of the tenant or a member of his family to change the social contract of employment (section of personal accounts), and in 2007 it will no longer be possible to privatize an apartment, the exchange will remain the only opportunity in the event of a family breakup to disperse to different apartments or, on the contrary, when connecting tenants of different premises into one family, combine their areas.

One of the main conditions for the exchange is that the exchanged residential premises must be in municipal ownership. It is not allowed to exchange for a dwelling that has a different status: it is in the private ownership of a citizen, is a hostel, office space, etc. In addition, the plaintiff has the right to oblige only the tenant (a member of his family) who occupies the dwelling with him to forcibly exchange the dwelling under one contract of social employment. You can't force a neighbor to move out of a communal apartment.

Only a citizen who occupies a dwelling under a social tenancy agreement has the right to go to court with a claim for a forced exchange. A participant in common ownership of a dwelling is not entitled to oblige another co-owner of real estate in a court of law to exchange their common dwelling. He can only manage his share.

If a lawsuit is filed in court for the forced exchange of residential premises, and a claim is brought against the tenant or members of his family of one of the exchanged premises for the termination or amendment of the contract for social rental of residential premises or the right to use such premises is disputed in court (clause 1.2 of Art. 73 of the Civil Code), the proceedings in the case of forced exchange must be suspended by the court until the said disputes are resolved. When the grounds for suspension cease to exist, i.e., claims for termination or amendment of the lease agreement, etc., are denied, the court will resume proceedings in the case of a forced exchange.

Compulsory exchange of residential premises is carried out on the basis of a court decision on the claim of an employer interested in the exchange or a member of the employer's family. Before going to court, the plaintiff must choose options for the exchange. Tenants of residential premises, to which the plaintiff proposes to forcibly relocate his family members, as well as renters of all residential premises participating in the exchange, are involved in the case as third parties.

If minors, incapacitated or partially capable citizens live in one of the exchanged residential premises, the guardianship and guardianship authority of the district (settlement) where such persons live is involved in the case as a third party. The body of guardianship and guardianship must be involved, regardless of whether they have given their consent to the exchange or not.

The following documents must be attached to the claim: social tenancy agreements for the exchanged residential premises, extracts from the house books involved in the exchange of residential premises, copies of financial and personal accounts, floor plans of apartments and explications for them, as well as the consent of the landlord, guardianship and guardianship authority, if some of them agreed.

When choosing an exchange option, you should be aware that the law requires that consideration be given to the arguments and legitimate interests of persons living in the exchanged residential premises (defendants). The arguments and interests of the defendants must "deserve" the attention of the court, so let's turn to judicial practice. Particular attention should be paid to this, since you can lose extra time in court if exchange options are initially selected that do not correspond to the position of the defendants.

The Plenum of the Supreme Court of the RSFSR clarified that under the noteworthy arguments and interests of family members, which must be taken into account by the court, one should understand the presence of circumstances that prevent them, due to their age, health status, etc., from using the living quarters provided by way of exchange (para. 12 of the Resolution of the Plenum of the Supreme Court of the RSFSR dated December 26, 1984 No. 5 “On some issues that have arisen in judicial practice in the application of the Housing Code of the RSFSR”.

The state of health of the defendant may merit the attention of the court if the medical report expressly states that, due to the diagnosis, the patient cannot use the accommodation provided. For example, hypertensive patients cannot live on the top floor, tuberculosis patients cannot live on the ground floor, etc. If, for health reasons, a citizen cannot move long distances (for example, his legs are sick) and this is stated in the medical report, the court will refuse to relocation to a dwelling located far from underground or surface transport or far from the place of work of a forcibly resettled citizen.

Although in paragraph 6 of Art. 73 of the LCD states that the exchange is not allowed if a citizen suffering from one of the severe forms of chronic diseases (for example, tuberculosis) moves into a communal apartment, the opposite situation is also not allowed when a citizen moves in to a person suffering from a disease living in a communal apartment, in which living with him in the same apartment for medical reasons is not recommended.

Undoubtedly, the size of the residential premises offered for the exchange deserves the attention of the court. It should not be less than the size attributable to the share of the tenant in the occupied apartment.

A decrease is possible, but it should be insignificant. In practice, the court accepts a reduction of no more than 2 square meters. m. On average, the court considers the tenant not infringed if he is provided with a room in exchange, which is less than the existing one by 1 sq. m. m.

Another noteworthy argument may be the fact that in the residential premises to be exchanged, the defendant (by common agreement with other family members living in the apartment) occupied a separate room larger than his share of the area in the apartment. That is, the room occupied by him is larger in size than the residential premises provided in the exchange. In such a situation, the court can satisfy the claim for forced exchange only if the defendant is provided with an equivalent or larger living space than the room he occupies.

It is necessary to tell about one more noteworthy interest - this is the number of neighbors in the communal apartment offered for exchange. If the defendant, upon a demand for a forced exchange, is offered to move to a communal apartment, there should not be more neighbors than there are residents in the apartment being exchanged. This circumstance is always checked and taken into account by the court.

When considering the application for a forced exchange by the court, it was established that the disputed residential premises is a separate three-room apartment with a living area of ​​42.4 sq. m, in which 3 people live and for each resident there is 14.1 square meters. m of living space. The plaintiff proposed to relocate the defendant with a minor child to a residential area of ​​27.5 sq. m, consisting of two rooms in a communal apartment, where each of them will have 13.75 sq. m (i.e. less than 0.35 sq. m). The size of the kitchen in the proposed apartment was 0.7 square meters smaller. m than they have in the controversial apartment. The defendants objected to the resettlement, as they believed that their conditions would worsen if the claim was granted. Given this, the claim for the resettlement of the defendants was denied.

Considering the claim for the forced exchange of living quarters, the court found that between the family members, when moving into the disputed apartment, an agreement was reached that the mother-in-law would use a separate room. However, according to the exchange option proposed by the plaintiff, the mother-in-law should have settled in the same room with her son. Therefore, the court reasonably came to the conclusion that such an exchange option would significantly violate the rights of the defendant, and dismissed the claim ... When considering the applicant's cassation appeal against the court's decision on the forced exchange, it was established that the defendant was offered a room of 15.7 square meters for relocation. m in a two-room apartment. When relocating the defendant to a room that has a common loggia with a kitchen, the court of first instance did not check whether this room meets the sanitary and hygienic requirements for living quarters and whether it is suitable for living. Given these circumstances, the decision of the court was canceled and the case was sent for a new trial.

When resolving the dispute on the forced exchange of living quarters, the court of first instance did not take into account the defendant's arguments that he was a participant in the Great Patriotic War, an old-age pensioner, and the room provided to him for relocation is located far from the clinic in which he is registered. Taking into account these circumstances, the case was sent for a new trial.

The court of first instance, when resolving the dispute on the forced exchange of residential premises, did not check and did not receive a proper assessment of the defendant's arguments that the apartment offered for exchange is located in a remote microdistrict, far from the medical institutions where he is being treated. In addition, there is no telephone in the apartment, which was extremely important for the defendant, given his age and state of health (he was born in 1920, a participant in the Great Patriotic War, a labor veteran). Since the court did not take into account all these circumstances, the decision was canceled and the case was sent for a new trial.

Demanding the forced relocation of the defendants, the plaintiff offered them living space in the form of a larger room - 23 sq. m. However, the defendants objected, arguing that if the claim is satisfied, their interests will be significantly worsened for the following reasons:

1) the disputed apartment is located within a 25-minute walk from the place of work of the defendant, while from the proposed house he will have to travel by public transport for more than an hour;

2) the proposed house was built in 1929, while the one currently occupied is in the 1970s;

3) the disputed apartment is located near the station of that branch of suburban trains, on which the defendants often go to the dacha and to the garage, which is used as a barn, which was not disputed in the court session by the plaintiff;

4) the number of neighbors in the proposed apartment is more than two people, while in the disputed apartment, only the plaintiff and the child live apart from them;

5) as elderly people, the defendants are satisfied with the first floor on which they live, they are also offered the fourth floor without a garbage chute and an elevator. The court considered that the interests of the elderly would be significantly violated if the claim under this item was satisfied, so the claim was dismissed.

Considering the application for the annulment of the court decision on the forced exchange of housing and the resettlement of the applicant, the court of cassation indicated that the applicant's arguments that his child was studying at a music school were observed by a neurologist for health reasons and, in accordance with the diagnosis, “not recommended living in a communal apartment” cannot be taken into account, since the doctor’s opinion is advisory in nature. In addition, at present, the parties do not essentially use a separate apartment, as they live in separate families. Considering all the circumstances of the case, the decision of the court was upheld.

How is the forced exchange of public housing through the court? Does this happen often? According to official statistics, about 20% of the total housing stock in Russia has not yet been privatized, that is, it belongs to the state.

A large part of these residential premises is provided to needy citizens by the state. In this case, housing is municipal and the principles of owning it are quite different from the same actions with private property.

However, the actual owners - residents registered in a municipal apartment or house, are not deprived of the right to exchange living space under conditions that will be convenient for them all. As a rule, such a procedure does not suit at least one of the owners of the described housing, therefore, the decision to carry out the exchange is made by the judicial authority.

We will discuss this event in more detail in the material below.

The main legislative act that will help you understand the issues of housing exchange is the Housing Code of the Russian Federation

Considering the forced exchange of public housing through the courts, it is important to refer to the main legislative acts in our country, which fully cover this topic.

All issues relating to housing and transactions over them are resolved through consideration of the Housing Code (LC) of the Russian Federation.

In the topic we are considering, all the provisions of the code are important, which regulate the basic concepts, procedure and process for providing this type of housing and exchanging it.

First of all, it is important to define the concept of “public housing”. In accordance with Article 49 of the Housing Code of the Russian Federation, such housing is a housing facility provided to needy citizens from a local municipality (region, territory, region, etc.) for living.

The use of an apartment or house received from the state must be carried out in compliance with all the conditions and legislative rules specified in the Housing Code of the Russian Federation (chapters 7, 8, 8.1, 8.2).

According to the same code, the tenant (the actual owner of the housing under the contract) has the right to exchange living space. But if all other tenants and the landlord (municipality) that provided him with housing agree to this. The main legislative provisions for this type of exchange are presented in articles from the 72nd 75th Housing Code of the Russian Federation.

Difficulties in exchanging municipal living space

Summarizing the information provided in the legislative act, we can highlight the following:

• The exchange of housing provided under a social tenancy agreement can be carried out only with the written consent of all tenants of housing, the landlord and guardianship authorities (if there are minor tenants). In other cases, the exchange can be achieved only through the court.
• In the exchange procedure there is no limit on the number of participants participating in it.
• The exchange of municipal living space can be carried out both peacefully and through the courts.
• It is possible to carry out an exchange of housing only if, after its completion, the rights of none of the tenants are violated. Otherwise, the exchange may be declared invalid in court.
• In a number of situations specified in Article 73 of the Housing Code of the Russian Federation, the exchange of municipal housing is not allowed.
• Tenants have every right to refuse to exchange housing. But their refusal must be justified. Otherwise, it may be challenged in court.
• The exchange agreement is concluded in writing and in compliance with all legal and legislative nuances of this procedure.
• An agreement concluded with violations of the rights of tenants, the provisions of the Civil Code of the Russian Federation and the Housing Code of the Russian Federation, will be declared invalid in court. After the agreement is declared invalid, all municipal tenants will be relocated to the originally provided housing. The culprit, who provoked the invalidity of the contract by his illegal actions, is obliged to bear some responsibility both before the legislator and other participants in the exchange transaction.

Do not forget that each individual case may require a more in-depth appeal to the legislation of the Russian Federation, so sometimes you cannot do without the help of a professional lawyer. The above are only the main legislative provisions that relate to the exchange of municipal housing.

Forced exchange of public housing through the court

The difference between voluntary and forced exchange

The forced exchange (exchange) of a municipal apartment is a legal transaction between social tenants, the implementation of which is aimed at dividing a large and common dwelling into several small, but separate ones.

This type of exchange can be carried out both voluntarily (through the consent of all tenants) and forcibly (through the court).

It is important to understand that when providing such housing to several tenants who register in it, they are all endowed with equal rights. Therefore, each employer can act as the initiator of the exchange.

First of all, the initiator needs to apply to all other tenants with a proposal for a voluntary exchange of housing. If the employers do not agree to act this way, then you will have to prove the need for the exchange in court.

If there are good reasons for the exchange, the state represented by the court has every right to force all tenants to exchange. Compulsory exchange of residential premises is allowed for the following reasons:

• employers and, accordingly, cohabitants often conflict, it is impossible to achieve a peaceful solution to the problem;
• one of the employers does not conflict with cohabitants, but leads an antisocial lifestyle or a hooligan;
• one of the residents has a serious illness that can be dangerous not only for him, but also for his cohabitants.

It is possible to carry out the exchange of municipal housing in a voluntary or judicial manner only if the landlord, the local municipality, agrees to this (as a rule, there are no problems). Regardless of the choice, the opinion of all registered tenants is taken into account, even those who do not live in it.

Since the described housing is the property of the state, the procedure for its exchange is very different from a similar one, but already with private property, and is considered more complex in legal terms.

General requirements for compliance with the forced exchange procedure

When deciding to conduct an exchange through the court, it is worth understanding that it is very problematic to do without the help of a professional lawyer. Often, even the most legally savvy citizens have problems in defending their rights in such situations.

The general procedure for the procedure is regulated by the LC RF and has the following form:

1. As noted earlier, before going to court, it is necessary to offer all tenants to exchange housing peacefully. If at least one of them does not agree, then one cannot do without going to court.
2. Before going to court, it is equally important to make sure that the landlord who provided the housing agrees to the exchange or not. In most cases, the local municipality gives permission for the procedure, but not always. Any refusal of the landlord, the tenant has the right to appeal in court.
3. Having received permission to exchange this housing from the landlord, you can go to court. It is necessary to file a lawsuit with the judicial authority, in which the plaintiff's request for a forced exchange of housing is expressed. In the statement of claim, it is important to indicate all the arguments that are significant in your opinion, which certify the expediency of exchanging a home. Having considered the claim and all the arguments of the defendants, the court will issue a verdict on the confirmation or refusal of the forced exchange.
4. Having received an official refusal to exchange, you can continue litigation, but often they do not give a result. If the court forced the rest of the tenants to exchange, then it is necessary to start searching for municipal housing in which they will be relocated. When selecting new housing facilities, it is important to consider that they have a municipal status and satisfy the wishes of all tenants. The total area of ​​new housing units for exchange must be equivalent to the previous place of residence.
5. Having found suitable options for exchange, an exchange agreement is concluded, which officially confirms the fact of the procedure. The contract is concluded with the participation of the local municipality and all tenants of such housing in writing. After that, the original contract is provided to each landlord of the new housing.

In general, the procedure for exchanging municipal housing through the court has many nuances that are important to consider at all stages of its implementation. In most cases, it is almost impossible to do without the help of a professional lawyer, do not forget about it.

Complaint form and required documents

How to file a lawsuit in court for the forced size of an apartment?

Based on the fact that today's material examines in detail the procedure for the forced exchange of a municipal apartment through the court, it will not be superfluous to consider the correct form of the claim and the necessary documents for filing with the court.

It should be understood that whether you will be able to achieve your goals in the lawsuit largely depends on the legal literacy of the drawn up claim.

A correct statement of claim must contain the following information:

• Full name, address, year of birth and contacts of the plaintiff (the employer who initiates the exchange);
• Full name, address, year of birth and contacts of the defendant or defendants (employers who do not agree to the exchange);
• information about the marriage or its dissolution (if any between the employers);
• information about children (if any among employers);
• address of housing and period of residence in it;
• description of housing (apartment or private house, floor, rooms, condition, etc.);
• housing stock;
• the plaintiff's arguments pointing to the need for forced exchange;
• offer exchange options;
• information that the defendant or defendants did not agree to voluntarily conduct an exchange;
• a request to the judiciary to carry out a forced exchange.

In the process of defending your rights in court, you may need the following documents:

• a copy of the written consent from the landlord for the exchange;
• the consent of the local executive or administrative state body for long-distance exchange (when deciding to move to another locality and receive municipal housing there);
• a copy of the title document for housing;
• certificate of registration from the place of residence;
• certificate of family composition (if the employers are a family);
• a copy of the certificate of divorce or marriage (if any);
• a written statement of refusal or consent to the exchange from all tenants of the described housing;
• receipts for payment of all necessary state duties.

By adhering to the above rules for filing a claim and collecting the necessary documentation, you can significantly increase the chances of a successful outcome of legal proceedings.

In what cases will the court refuse to exchange?

What can prevent you from making a forced exchange of living space?

Compulsory exchange of housing through the court is a rather complicated legal procedure. Even after collecting all the necessary documents and competently drawing up a claim, the employer cannot guarantee himself success in achieving his goals in the lawsuit.

This is due to the potential presence of any factors that may force the court to refuse to exchange.

One part of them is enshrined in the LC RF, and the other is formed based on the individual characteristics of each case. Given the presence of such factors, the judge makes the final verdict.

In accordance with Article 73 of the Housing Code of the Russian Federation, the exchange of municipal housing is not allowed if:

• the landlord sued the tenants to terminate the agreement or to change its terms;
• housing rights are already being challenged in court in another case;
• the dwelling, which is a potential object of exchange, is recognized as unfit for habitation or will be demolished / converted;
• as a result of the exchange, any employer will have to live with a citizen suffering from one of the diseases specified in paragraph 4 of Article 51 of the LC RF.

In the presence of any of the above factors, the judicial authority will refuse to force the exchange of public housing.

In addition to the legally established reasons for refusing to exchange, when issuing a verdict, the judge must take into account the specifics of each case individually.

In accordance with the legislation of the Russian Federation, after the exchange of housing, housing conditions for each tenant should not be worsened and their rights cannot be infringed. In deciding a case, the judge often considers the following factors:

• legal capacity of individual employers;
• proximity to the place of work / study of each tenant;
• the presence of serious illnesses in employers;
• family status of residents.

Based on the information presented above, it is important to state that it is far from always possible to succeed in court when deciding to forcibly exchange public housing.

So, for example, the claim is guaranteed to be rejected if, as a result of the exchange, a wheelchair user from an apartment on the 1st floor is relocated to a room on the 4th, located, moreover, in an entrance without an elevator.

Nuances of the event

Nuances to consider when preparing a claim for forced exchange

The whole process of exchanging municipal housing is quite confusing and difficult to implement.

Even having considered and carefully studied the material presented above, not every person will be able to fully understand the essence of this procedure. One way or another, you will have to deal with the legislative and legal aspects of the exchange.

To simplify the process of understanding all the intricacies of the exchange of public housing, our resource has highlighted a number of important nuances for consideration of this event:

1. Any tenant or, more simply, a registered tenant has every right to initiate an exchange.
2. Do not forget that it is only necessary to carry out an exchange through the court if the other tenants or some of them have refused the voluntary procedure and the holding of the event is justified on your part.
3. Before you go to court to file a claim, be sure to consult with a professional lawyer about the advisability of such a practice in your case.
4. Draw up a statement of claim with clarification of all the details of your situation and in accordance with the form presented earlier. Also, don't forget to take care of collecting some documents.
5. When deciding to go to court, remember that in the process of resolving contentious issues, you will have to bear some financial expenses. Without fail, you will have to spend money on paying the necessary state duties, obtaining certificates and processing other documents. In addition, participants in the trial often spend a lot of money on the help of lawyers and lawyers.
6. Even having achieved in court the forced exchange of the described housing, do not rush to rejoice. The fact is that not in all regions of the country the municipal housing stock is rich enough. As a result, it can be very difficult to find suitable housing for exchange. At this stage, you need to be prepared for a long and hard search for housing for exchange, which will meet all the necessary requirements.

As you can see, litigation over the forced exchange of public housing is not an easy task. In the course of the trial, new problems may appear, which will complicate the life of its participants. Is it worth it or not - decide for yourself.

When resolving such issues through the courts, do not forget to use the material presented above and turn to professionals for help.

You can find out more about the exchange of an apartment by watching the video:

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16 Jan 2017 116

As a general rule, in accordance with Art. 72 of the Housing Code of the Russian Federation, the tenant of a dwelling under a social tenancy agreement, with the consent (in writing) of the landlord and adult members of his family living together with him, including those who are temporarily absent, has the right to exchange the dwelling he occupies for a dwelling provided under a social tenancy agreement to another employer.

The tenant or tenant of residential premises in the houses of state, municipal housing funds has the right, with the consent of adult members of his family living together with him, to exchange the occupied premises with another tenant or tenant, including with a person living in another settlement. The tenant or tenant of residential premises in houses of state, municipal housing funds has the right, with the consent of the owner of the housing stock or a person (authority) authorized by the owner and adult members of his family living together with him, to transfer the rights and obligations under the contract of hiring or renting this residential premises to the owner of a private housing stock in exchange for acquiring ownership of a residential building (residential premises).

However, according to Art. 72 of the Housing Code of the Russian Federation, in the event that an agreement is not reached between the members of the tenant's family and the tenant himself or between the members of the tenant's family themselves on the exchange of residential premises, then any of the above subjects has the right to apply to the court with a request for a forced exchange of residential premises.

The exchange of residential premises is executed in accordance with the procedure established by law. Any administrative restrictions in the exchange of residential premises are not allowed, except for those provided by law. Within the framework of the Housing Code, detailed rules are provided for the procedure for registering the exchange of residential premises, as well as cases of inadmissibility of the exchange of residential premises. The agreement on the exchange of living quarters comes into force from the moment the relevant agreements are concluded, the forced exchange is carried out on the basis of a court decision.

The exchange of residential premises is not allowed in the following cases (Article 73 of the Housing Code of the Russian Federation):

1) a claim has been brought against the tenant of the residential premises for the termination or amendment of the contract for the rental of residential premises in a judicial proceeding;

2) the right to use the exchanged residential premises is disputed in court;

3) the dwelling is unfit for habitation, is subject to demolition or re-equipment for use for other purposes;

4) a decision has been made on the overhaul of the relevant residential building with the reconstruction and (or) redevelopment of residential premises in this building;

5) in connection with the exchange, a citizen suffering from severe forms of chronic diseases moves into a communal apartment, in which it is impossible to live together with him in the same apartment.

An exchange made in violation of the above requirements may be declared invalid by a court (Article 75 of the LC RF). In addition, the exchange of residential premises is declared invalid on the grounds established by civil law for the recognition of the transaction as invalid. In case of recognition of the exchange as invalid, the parties are subject to eviction to the previously occupied premises. When the exchange of living quarters is declared invalid due to unlawful actions of one of the parties, the perpetrator is obliged to compensate the other party for losses incurred as a result of the exchange (part 3 of article 75 of the LC RF, part 2 of article 179 of the Civil Code of the Russian Federation).

Control questions

1. What are the cases of saving living space for temporarily absent citizens?

2. What circumstances are established by the court during the eviction of citizens in connection with the need for major repairs?

3. What is the procedure for providing the tenant with another dwelling to replace the one being repaired?

4. What are the requirements for the exchange of residential premises?

5. What are the grounds for a forced exchange?

SAMPLES OF CLAIMS

B M-sky city court

Plaintiff: Vlasov Igor Petrovich,

residence: city N, st. Vavilova, d. 15, Kori. 3, apt. 67.

RESPONSIBLE: Vlasova Anna Semyonovna,

Vlasov Nikolai Steshnovich,

Vlasova Irina Anatolyevna,

residence: city N, st. River, d. 10, Kori. 1, apt. twenty.

THIRD PARTY: Guryev Semen Semenovich,

Guryeva Nadezhda Igorevna,

residence: city N, st. Radishcheva, d. 6, Kori. 2, apt. 80.

What is a forced exchange of housing through the court?

Actually this is a conversation about what is not.

Compulsory exchange of housing - from a legal point of view, as such does not exist.

If housing belongs to several people, then everyone has equal rights to dispose of it.

You can't force others without their desire to exchange or perform other actions with square meters.

In the case of public housing, the term "forced exchange" is alive and well.

Claim for forced exchange of living quarters.

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.

Or through real estate office which is preferable.

Thus, it turns out that the forced exchange of private housing is the very case when it is much easier on paper than in practice.

The plaintiff must Get help from a real estate attorney, only in this case the chances of a successful outcome will be high.

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The housing issue has always been one of the most pressing and problematic issues. It is not only an indicator of a person's success in society, but also has a serious impact on relations between members of society and even a single family.

Buying your own home is a cherished and extremely expensive dream, not achievable for the majority of the population, who have a fairly low income, and sometimes belong to the category of the poor. In this case, the state, represented by authorized bodies, comes to the aid of citizens by providing them with housing under a social contract.

This agreement is interesting in that a citizen (tenant) receives a dwelling for possession and use for living in it on the terms established by the Housing Code of the Russian Federation, while not being able to dispose of it. A family may live with the tenant, whose members are any persons who are settled by the tenant as such, conduct a joint household with him and at the same time have equal rights and obligations with the tenant.

The Housing Code regulates in sufficient detail the relations between the tenant and members of his family when concluding a social contract of employment, but what if the family breaks up, or if relatives live together in a common living space becomes unbearable? As noted above, all residents have equal rights with the tenant, and even having ceased to be relatives, they have the right to live in a residential building.

How is this issue resolved? The Housing Code provides for only one option - this is an exchange. But in this case, there is one caveat - the exchange is made with the consent of all those living together with the employer.

Naturally, everyone wants to live in the most comfortable conditions, and often the exchange options offered by the tenant are rejected, and then the issue is considered by the court on a lawsuit for the forced exchange of living quarters.

It should be said right away that the number of decisions containing the refusal to satisfy the claims significantly exceeds the number of those in which the claim is satisfied. Why is this happening?

Reason one: The option proposed by the tenant does not meet the requirements of housing legislation. Several options are possible here.

1. In the first case, the court, when making a decision on the case, takes into account such a circumstance as the norm of living space, which is established by law at the level of the municipality.

For example, the decision of the Akhtubinsky city court of the Astrakhan region in the case of 07/17/2012.

P.D.V. appealed to the court with a demand for a forced exchange of residential premises. In connection with the hostile relations that developed between the former spouses, cohabitation in the occupied apartment became impossible, in connection with which the plaintiff offered the defendant the option of exchanging the occupied apartment. According to the proposed exchange option, the apartment located at the address ... is subject to exchange for a communal apartment located at the address ..., with a proposal to the defendant with the children to occupy a room of 17.2 sq.m., and the plaintiff — room size 12 sq.m., third parties, C.D.V. and C.L.M., must move to apartment no. …. However, no agreement was reached between the plaintiff and the defendant on the exchange of their apartment. Third parties with exchangeagree.

At the court session it was established that on the basis of the Resolution of the Administrationassociation of homeowners "Mikroraion-No. entered into a social tenancy agreement for residential premises of apartment No. house No.… with P.D.V. for a family of three with an area of ​​52.1 sq.m. At present, the tenant P.D.V., former wife of the employer S.E.S., daughterFULL NAME5, daughterFULL NAME7,marriage between the spouses P. terminated.

As seen from the plaintiff's statement, between former spouses after the dissolution of the marriagehostile relations arose, which makes it impossible for them to live together. In this regard, he filed a lawsuit for the forced exchange of this occupied area.

According to the proposed exchange option, the size of the room where the plaintiff asks to be relocated is 12 sq.m. (according to the submitted order 14, 3 sq.m.), located in a communal apartment at…, ownership is registered in the nameFULL NAME13, and the defendant with minor children asks to settle in a room with a living area of ​​17.2 sq.m., located in the same communal apartment.

In its decision on the case, the court pointed to the inconsistency of the proposed exchange option with the Resolution of the head of the administration of the Moscow Region "On the establishment of an accounting norm and a norm for the provision of living space", according to which the minimum size of the living space provided under a social contract for one member of a family consisting of for two or more people, is 14 sq.m. total area. The claim was denied.

2. The dwelling must comply with the requirements of sanitary standards.

By its decision in case No. 2-1474/11 dated September 19, 2011, the Stupino City Court of the Moscow Region dismissed the claimFULL NAME18 toFULL NAME19,FULL NAME20 and acting in the interestsminor childFULL NAME1 on the forced exchange of residential premises and the obligation of the property management committee to terminate previously concluded social contracts and conclude new social employment contracts.

Thus, the court held thataccording to the act (conclusion) of the inspection of the residential premises located at the address... compiled by the department of guardianship and guardianship in the Stupinsky municipal district, it follows that the electrical wiring in the residential premises is open. Common areas: kitchen, corridor, separate bathroom have an unsightly appearance and require cosmetic repairs, there is an unpleasant smell. Open wiring runs along the walls of the corridor, covered with gray cobwebs. It is necessary to re-lay the floorboards, with the replacement of the log.

According to sanitary standards, living conditions do not correspond to the living and recreation of young children. Here there is a violation of Article 73 of the Housing Code of the Russian Federation, which does not allow for the exchange if the exchanged residential premises are recognized in accordance with the established procedure as unsuitable for habitation.

Reason two: the tenant offers exchange options that are not provided for by the Housing Code of the Russian Federation.

Decision of the Akhtubinsky District Court of the Astrakhan Region dated 15.06.2012.

T.E.L. filed a lawsuit against T.M.The. on the forced exchange of residential premises located at the address…. In support of the stated requirements pointed out that further life together on the same living area with the defendant is impossible, since hostile relations have developed, the marriage between him and T.M.The. terminated. An agreement on the exchange of living space has not been reached. He asks the court to make a forced exchange of the specified apartment, relocating the defendant and her minor sonFULL NAME4to a one-room apartment owned by V.V.S., located at…, his— to a one-room apartment belonging to V.V.S., located at the address ..., a third party, V.V.S., to their apartment located at the above address, since he agrees to the exchange, and to oblige military unit 15650 to issue exchange orders.

Plaintiff T.E.L. at the hearing supported the stated requirements, while indicating that the apartment located at…, consists of two rooms, with a total area... sq.m., the apartment has cold water, a balcony, heating, separate toilet and bathroom, offers to relocate the defendant with her minor son to a one-room apartment with a total area… sq.m. with similar amenities.

When deciding on this case, the court pointed to a significant circumstance that in this case makes the exchange impossible in principle, namely, the court found that two one-room apartments located at the addresses ... and ..., offered by the plaintiff for exchange to the defendant, belong to VVS, and the possibility of such an exchange is not provided for by Article 72 of the Housing Code of the Russian Federation.

Reason three: residence in the disputed residential premises of minor children.

The procedure for exchanging residential premises is significantly complicated if minor children live in the apartment, since in this case, in accordance with Article 72 of the Housing Code of the Russian Federation, consent to the exchange is required from the guardianship and guardianship authorities. The absence of such permission or the disagreement of the guardianship and guardianship authorities does not allow the court to rule in favor of the plaintiff.

The decision of the Ostrovsky city court of the Pskov region of 07/01/2010.

The claim was brought by S.S. on the grounds that the defendant S.I., as a former member of the plaintiff's family, out of court objects to the exchange of living quarters— two-room apartment No. in house No. on the street ... of the city of Ostrov, Pskov Region, provided to the plaintiff for the composition of the family ** of a person under a social contract of employment dated ... 2006 No. on the basis of a petition from the State Administration ** ** in connection with his service in the Armed Forces forces.

At the hearing, the plaintiff supported the claims, explaining that the marriage with the defendant was terminated ** years. Their minor children after the dissolution of the marriage live in a disputed apartment with the defendant. The plaintiff, on the day the case was heard, was registered in the disputed apartment, actually living at a new place of service in the city ....

defendant C.AND. objected to the claims brought, since under the exchange option she and her two minor children of different sex are provided with a one-room apartment, which is contrary to the interests of the children.

In this case, the court found that both in the pre-trial procedure and in the court session, the representative of the Municipal Unitary Enterprise ** as a landlord under a social contract of employment, the Territorial Administration of the Ostrovsky District of the Main State Administration for Social Protection of the Population of the Pskov Region as a representative of the guardianship and guardianship in the interests of minor children plaintiff and defendant, defendant C.AND. in the interests of themselves and their two minor children, they object to the option of exchanging apartments proposed by the plaintiff as infringing on the housing rights and interests of minor children. The claim is denied.

Reason four: The reason for the refusal of the claim may also be the establishment of the fact of residence in the apartment of a person with certain diseases or disabilities. In this case, the exchange should not worsen his position.

Here it is necessary to point out one nuance that is essential when making a decision by the court. The fact is that the list of diseases, in which additional living space is required, is established by a government decree, and the absence of a disease in the list allows the court to disregard the defendant's arguments when challenging the claims.

An example is the decision of the Bologovsky City Court of the Tver Region in case No. 2-817/2011 dated July 25, 2011.

T.A.L. appealed to the court with a claim to the full name for the forced exchange of residential premises, the plaintiff motivated his requirements as follows. Since January 2006, the plaintiff, the defendant and their children, on the basis of a social tenancy agreement No., concluded on January 11, 2006 with the MUOP ZHKH ZATO ..., have been living in an apartment at ... with a living area of ​​43.5 sq.m and a total area 72.1 sq.m, consisting of three isolated rooms with centralized heating, hot and cold water supply, sanitation. Living together with the defendant in the same apartment is impossible, since in fact the plaintiff and the defendant created new families, living together leads to numerous scandals, which negatively affects the psyche of children. The plaintiff offered the defendant the following exchange option: a comfortable apartment under a social tenancy agreement with a living area of ​​27.5 sq.m., total area 43.7 sq.m. address...; and a comfortable apartment under a social tenancy agreement with a living area of ​​11.0 sq.m, with a total area of ​​30.89 sq.m, consisting of one room with centralized heating, hot and cold water supply, sanitation, located at... Agreement between plaintiff and defendant on the exchange is not reached. Third parties agree with the exchange. Based the plaintiff asks the court to make a forced exchange of the dwelling and, according to the presented exchange option, to move him from the apartment at the address ... with a living area of ​​43.5 sq.m and a total area of ​​72.1 sq.m to an apartment with a living area of ​​11.0 sq.m, total 30.89 sq.m, at the address .... Relocate the defendant's name with minor children A. and D. from the apartment at the address ... with a living area of ​​43.5 sq.m and a total area of ​​72.1 sq.m in an apartment with a living area of ​​27.5 sq.m, a total area of ​​​​43.7 sq.m at the address .... third parties FULL NAME2, living in an apartment at the address ... with a living area of ​​11.0 sq.m, total 30.89 sq.m, andFULL NAME1, living in the apartment at... with a living area of ​​27.5 sq.m., total area of ​​43.7 sq.m., move to an apartment at the address ... with a living area of ​​43.5 sq.m. and a total area of ​​72.1 sq.m. To oblige the ZATO administration... to conclude contracts for the social rental of residential premises at the addresses indicated above.The representative of the defendant A.E.S. claims are not recognized and showed the court the following. defendantThe full name is not satisfied with the exchange option proposed by the plaintiff, since the house in which the plaintiff proposes to move to the defendant with the children is older than the one in which she currently lives with the children. In addition, according to the certificate of the medical advisory commission dated February 16, 2011A.suffers from bronchial asthma of moderate severity, she needs additional living space, which must be provided during the forced exchange by the plaintiff. Poplars grow near the house where the plaintiff asks to be relocated with children, which will cause an allergic reaction of the child to poplar fluff. Also, the condition of the proposed apartment does not meet the requirements of SanPiN, the air temperature and humidity are increased in the apartment. Besides,The full name objects to this exchange option, since the apartment is not renovated, the parquet on the floor in the living room has dried out, the bathroom needs repair, the bathroom needs to be replaced. The apartment where the children live has been renovated, each of the children has a separate room. The apartment, in which the defendant lives with the children, was provided to the plaintiff for the composition of the family, taking into account the illness of the child, namely, when receiving the apartment, he was provided with additional living space for a sick child. The exchange option proposed by the plaintiff does not take into account this circumstance, since additional living space is not implied in this exchange option. It is also grounds for denial of the claim and the fact that as a result of a forced exchange, children of different sexes aged 9 and 14 will live in the same room, which is unacceptable according to the norms of the Housing Code of the Russian Federation. The defendant does not refuse the exchange definitively, but asks the plaintiff to find such an apartment, where there will be at least 50 sq.m of total area, in a newer house. The defendant does not prevent the plaintiff from living in the apartment, but the plaintiff does not want to live in the apartment with her and the children.

After hearing the plaintiff, the representative of the defendant, the representative of the guardianship and guardianship, who gave an opinion on the satisfaction of the claim for compulsory exchange, having studied the case file, the court considers the claims T.A.L. eligible for the following reasons.

Resolving the stated requirements, the court, guided by the provisions of part 3article 72 of the Housing Code of the Russian Federation, having established the equivalence of the living quarters provided to the defendant to the one currently occupied, concluded that there were grounds for satisfying the stated requirements.

The arguments of the representative of the defendant A.E.S. the fact that the apartment according to the exchange option provided by the plaintiff is located in a house of an older year of construction, which significantly worsens the living conditions of the defendant and her children, and that poplars grow near the residential building, which can cause an allergic reaction in a child to poplar fluff, nothing confirmed. On the part of the defendant, no evidence was presented to the court in support of the arguments that these circumstances may in any way affect the state of health of the child and the housing rights of the defendant and minor children.

The argument of the representative of the defendant A.E.S. relative to the fact that since, according to the certificate of the medical advisory commissionA.suffers from moderate bronchial asthma, she needs additional living space, which must be provided in a forced exchange by the plaintiff, is not based on the norms of law. The disease of bronchial asthma is not included in the "List of diseases that give disabled people suffering from them the right to additional living space", approved by Decree of the Government of Russia dated December 21, 2004 No. 817, is not included.

The claim is satisfied.

An analysis of judicial practice reveals a fairly large number of disputes about the forced division of housing due to personal hostile relations between former family members. The following conclusions can be drawn from the above analysis. Claims for compulsory division are in most cases satisfied if the parties nevertheless come to an agreement. If an agreement has not been reached, the court, when making a decision, takes into account the actual circumstances of the case and the requirements of the law. At the same time, one of the main conditions is the absence of circumstances that could worsen the position of the parties in the event of an exchange.