Appeal ruling in a civil case on the claim of A. against L. for recognition of the loss of the right to lifelong residence and use of residential premises. What is a conditional will? What conditions can be included in a will?

In short, then the right to use residential premises, for example an apartment- this is a legally guaranteed opportunity to live in it.

The basis for rights to use the apartment, most often, serves as registration at the place of residence (“ registration»).

But right of use can occur without registration» – for example, based on rental agreement or , and also on the basis of the so-called testamentary refusal. Let's consider all these cases in order, in relation to the purchase and sale transaction of an apartment.

The basis for registration in a privatized/private apartment can serve:

ownership of this apartment;
owner's consent to " registration» in your apartment of another person, incl. a member of your family.
court decision on the right to use an apartment for a specific person ( not the owner);
testamentary refusal;

At all, right of use exists separately from property rights for an apartment. Those. the owner of the apartment may be in it " not registered", A " registered“In an apartment, a person may not be its owner.

Essentially right of use- this is one of the types of encumbrances of rights to an apartment ( from the Buyer's perspective). In most cases, such an encumbrance is NOT registered in Rosreestr and, accordingly, it is NOT visible in the Title. We can attribute this to the imperfection of our legislation.

The removal of owners and members of their families from an apartment during its sale is a common market practice, but the buyer is recommended to collect information about everyone who has property before purchasing. right to use the apartment, i.e. about people who are registered in the apartment or have other reasons for living in it.

To find out who is “registered” in the apartment for sale , you need to get an apartment card. like this Card at the local passport office they are provided at the request of the owners, as well as at the request of law enforcement agencies.

At the same time, an apartment card is not required to register the purchase and sale transaction of an apartment in Rosreestr. It is of value only for the Buyer to find out who has the right to use the apartment, and who will be needed write out from it when it is sold.

The very presence « registration» is not unconditional right to use the apartment

Who retains the right to use the apartment after its sale?

The very presence « registration» is not unconditional right to use the apartment. For example, in the terms of the Sale and Purchase Agreement

The very presence « registration» is not unconditional right to use the apartment. For example, in the terms of the Apartment Purchase and Sale Agreement may ( and it should!) be registered condition for deregistration all members of the Seller’s family living in the apartment at the time of the transaction, because selling an apartment is grounds for termination of the right to use it for all family members of the previous owner.

Accordingly, each of the " registered» in the apartment, despite the presence « registration» , after the transaction, or better before it, must fulfill the terms of the agreement and deregister (« check out"). If he does not do this, then the Buyer ( new owner apartments) can remove it from the register by presenting a court decision, which is binding, to the passport office.

Here, however, there are several exceptions for persons living ( registered) in an apartment, which by law can retain your right to use the apartment after its sale:

Faces, those who refused privatization apartments;
Persons living in an apartment on the basis testamentary refusal ;
Minor children under guardianship or left without parental care;
Living in the apartment annuity recipients .

Let's explain in more detail:

Refusal from privatization. When selling such an apartment, right of use all members of the owner’s family lose, including former ones, except for those , who previously refused to privatize this apartment. Such residents have right to use the apartment indefinitely. This is a kind of legislative nonsense that causes a lot of controversy, however, we have to keep it in mind.

Testamentary refusal occurs when the apartment was received by the Seller inheritance by will , and the will contains a testamentary refusal establishing the right of residence in the inherited apartment for any person ( not an heir). This right of residence remains with the specified person even after the sale of the apartment.

Under guardianship, or left without parental care minor children who live in the apartment and are not its owners can also keep their right to use the apartment when selling it. To issue them, you must receive before the transaction permission from the Guardianship and Trusteeship Authorities .

Rent recipients- This former owners the same apartment, who sold it under a Lifetime Maintenance Agreement with dependents, with the condition of their living in it for the rest of their lives. Upon subsequent sale of the apartment by its new owner ( rent payer), rentee retains right to use the apartment, according to the conditions Lifetime maintenance agreements with dependents.

Moreover, regardless of « registration» , rights to use the apartment have those who live in it on the basis rental agreement , or based on free use agreement .

When selling an apartment by the owner, these characters retain their rights of use under the contract, and the Buyer, as new owner apartment, becomes a party to this agreement, automatically turning into a lessor. Those. In this case, the buyer receives an apartment with encumbrance.

Termination rights of use of such persons occurs either upon the expiration of such a contract of use, or through its termination ( including the new owner of the apartment).

According to domestic legislation, the right to lifelong use of an apartment is provided for, and this entails the impossibility of expelling or evicting the relevant person even if the owner changes.

The right to lifelong residence and use of an apartment

A compulsory right of residence that cannot be terminated may arise during privatization if a person renounces it in favor of other persons - family members. Family ties may weaken and the possibility of “expelling” a relative to the street may arise, but the law will be on his side. So, Supreme Court Russia has repeatedly pointed out judicial authorities, that it is impossible to satisfy the demands for deregistration of persons who refused privatization.

The right to lifelong residence and use of an apartment may arise from legal relations of inheritance, for example, when establishing a refusal of a will. We remind you that a testamentary refusal allows the testator to “bless” the heir with both the responsibilities and rights of the person registered in the apartment.
Important! This is how, for example, residential premises are bequeathed with the obligation to grant the right to lifelong use of housing to a brother/aunt/grandmother, etc.
“Lifetime” registration when paying for a share in a housing construction cooperative for its members, as well as former members and their spouses. For lifelong residence, it is enough to pay part of the share and keep documentation confirming this fact.
The conclusion between spouses of a marriage contract or an agreement on the division of property, which contains a provision on the right of lifelong use of the non-owner spouse, also entails the inadmissibility of eviction of this citizen.
Minors from an orphanage or other children's institution retain the right to abandoned living space involuntarily and cannot be deprived of registration in it.

Important! These categories of people have the right to lifelong use and ownership of the occupied residential premises.

How can I draw up a lifetime use agreement?

The owner of a living space has the right to provide for use or ownership of housing owned by him:

on the basis of a rental agreement;
free use agreements;
on another legal basis;
and also legal entity on the basis of a lease agreement or on another legal basis, taking into account the conditions established by the Civil Code of Russia.

According to Article 683 of the Civil Code of the Russian Federation, a rental agreement for residential premises is concluded for a period not exceeding 5 years. If the agreement does not specify a term, it is considered to be concluded for 5 years.

Under an agreement for gratuitous use (loan agreement), the lender (one party) is obliged to transfer the thing to free use temporarily to the borrower (the other party), the latter is obliged to return the same thing in the condition in which he received it, taking into account normal wear and tear or in the condition stipulated by the contract.

Thus, when purchasing an apartment, you should pay attention to the persons registered in it in order to make sure that the chosen apartment is not burdened with “eternal guests” living in it.

ATTENTION! Due to latest changes due to legislation, the information in the article may be out of date! Our lawyer will advise you free of charge - write in the form below.

Hello Nina

In your case, we are talking about a current “testamentary disclaimer”, by which a citizen (your brother) is granted the right to use residential premises (Article 33 of the Housing Code of the Russian Federation, Article 1137 of the Civil Code of the Russian Federation).

Such a legacy in your case, as I understand it, is granted for the life of the legatee.

A citizen who, by testamentary refusal, has been granted the right to use residential premises, uses this residential premises equal to the owner of this residential premises. Citizens with legal capacity and limited legal capacity by the court, living in residential premises provided by testamentary refusal, bear joint and several liability (i.e., equal, when a claim can be presented to anyone - the owner or legatee) with the owner of such residential premises, liability for obligations arising from the use of such residential premises, unless otherwise provided for by an agreement between the specified owner and citizen.

A citizen living in residential premises provided by testamentary refusal has the right to demand state registration the right to use residential premises arising from a testamentary refusal. You can sell such an apartment, but your brother still retains the right to use the apartment, so it is unlikely that there will be a buyer for such an apartment.

The right to receive a testamentary refusal is valid for three years from the date of opening of the inheritance and does not pass to other persons (that is, your brother can declare his rights within three years after the death of the testator). However, the legatee in the will may be assigned another legatee in the event that the legatee appointed in the will refuses to accept the legacy, or does not exercise his right to receive the legacy, or loses the right to receive the legacy. Make sure there is no such sub-designation in the will.

In addition, the law does not provide for any special form of requirement to provide a testamentary refusal, i.e., your brother has actually already received it if he lives in this apartment after the death of the testator.

In principle, if your brother agrees to check out of the apartment and have a notary certify the waiver of the right to use the apartment, which arose due to a testamentary refusal, then it will be easier to sell such an apartment, since the chances that your brother will change his mind and demand that he be moved in again are reduced. But such a situation cannot be completely excluded, since the right to go to court is unconditional. Your brother may decide that he was deceived or forced to sign a waiver and, based on this, demand the exercise of his right.

The testator is entitled:

impose on the heir the fulfillment, at the expense of the mass of the inherited property, of a material obligation in favor of one or a number of legatees who have the right to seek the fulfillment of this obligation. In accordance with the Russian Federation, this action is called a testamentary refusal;
impose on the heir or heirs the obligation of any action of a material or intangible nature, serving the implementation of a generally beneficial purpose. The testator has the right to impose a similar obligation on the immediate person, provided that the share of the inherited property intended for the implementation of the testamentary assignment is determined in the will. This is what the Russian Federation says.

Thus, despite the possibility of encumbering the right of inheritance, a will with a condition should not hiddenly turn into a restriction on the heir’s right to freely dispose of the inherited property.