Legal status of the owner of the residential premises. Who is the owner? Rights and obligations of the owner. Unitary state and municipal enterprise as a subject of labor law

11.2. Legal status of the owner and other citizens living in residential premises belonging to him

The owner of a residential premises exercises the right of ownership, use and disposal of the residential premises belonging to him by right of ownership, in accordance with its purpose and the limit of its use established by the Housing Code. Let us recall that possession is a legally secured possibility of economic domination of the owner over a thing. Use is a legally secured ability to extract from a thing beneficial properties in the process of personal or industrial consumption. Disposition is a legally secured opportunity to determine the fate of a thing by performing legal acts in relation to this thing.

The Code established a new rule according to which these powers of the owner must also be exercised in accordance with the purpose and limits of use of the residential premises. These are provided for in Art. 17 LC RF provisions:

1. Residential premises can be used for professional or individual entrepreneurial activity, if this does not violate the rights and legitimate interests of other citizens, as well as the requirements that residential premises must meet.
2. Do not allow industrial production to be located in residential premises.
3. The use of the premises shall be carried out taking into account the rights and legitimate interests of citizens living with it, neighbors, requirements fire safety, sanitary, hygienic, environmental and other requirements.

A citizen who is the owner of a building (residential building) has the right to free transfer of ownership to him land plot, V including and located in the water protection zone of water bodies or in the coastal protective strip of a water body.

According to Art. 30 of the Housing Code of the Russian Federation, the owner of a residential premises has the right to present for possession and (or) use the residential premises belonging to him by right of ownership on the basis of:

1) Lease agreements.
2) Agreements for free use.
3) On another legal basis.

The established limits for the use of residential premises provide the corresponding responsibilities of the owner: he is obliged to use the residential premises belonging to him by right of ownership in such a way as not to go beyond the specified limits. The main responsibility of the owner is that he general rule the burden of maintaining the premises belonging to him is assigned, however, in cases provided for by federal legislation or an agreement, this responsibility may also be assigned to a person who is not the owner.

In order to illustrate the importance of such an institution of housing law as the rights of family members and other persons living in residential premises owned by the owner, it is enough to consider the following questions:

About their recognition rights of use residential premises;
- about moving in;
- about the absence of obstacles to the use of residential premises in the order of use of residential premises, recognition of the loss of user rights, eviction.

A fundamental difference between the new Housing Code and the Housing Code of the RSFSR emerged in relation to the list of persons classified as family members. Previously, this list included children, the spouse of the employer (owner), his stepsons and stepdaughters, as well as the parents of the spouses, i.e. father-in-law and mother-in-law, father-in-law and mother-in-law. The list is quite extensive, since it included persons not related to the owner by blood. At the same time, in Art. 53 of the RSFSR Housing Code did not contain any express indication of the need to live together with the owner as prerequisite acquiring rights as members of his family.

This is especially obvious when comparing the above norm with the provisions of the RF LC. According to Art. 31 of the Housing Code of the Russian Federation, family members of the owner of a residential premises living together with him in the residential premises belonging to him include his children, parents and spouse.

At the same time, textually this norm is formulated in such a way that, in principle, it is impossible to broadly interpret it in order to include in this list the relatives of the owner’s spouse.

In addition, it is important to indicate the need to live together with the owner, which is a very logical requirement established by law. “It seems that this norm is aimed at clearly separating persons who have the legal right to live in a given premises as members of the owner’s family from other relatives who do not live in it”: notes S. Yu. Makarov 1

It should be noted that in the title of Art. 31 of the Housing Code of the Russian Federation “Rights and obligations of citizens living together with the owner in premises belonging to him” there is no term “family members”. “When concluding a contract for the so-called “commercial” rental of residential premises, the essence of the relationship between the tenant and the citizens permanently residing with him is legally indifferent, which, by the way, cannot be said about social hiring", states Mikheeva L. Yu. 2

Characteristic feature Art. 31 of the RF Housing Code is that it regulates these relations only in cases where family members of the owner and the owner himself live in the same residential premises. A Art. 292 of the Civil Code of the Russian Federation does not even imply such a restriction, allowing a family member to have owner rights in relation to such residential premises in which the latter does not live. If parents and their adult children live separately in premises belonging to the parents, then such a situation is Art. 31 LCD is not covered, notes L.Yu. Mikheeva. 3

Thus, the main condition for recognition of citizens family members the owner of a residential premises is the move in by the owner of a person as a member of his family. This, according to S.F. Filippova is puzzling. She notes “in paragraph 1 of Article 30, the owner’s right to independently exercise his powers does not correspond to the indication that “other persons” can be recognized as members of the owner’s family. That is, once again decisions are given to judicial discretion, generated by law disputes between the owner and other persons regarding their recognition as family members. It seems to me that it would be appropriate to assign the status of a member of the owner’s family to any person installed by him as such.” 4 It should be noted that, unlike persons moved in on the basis of civil law contracts, members of the owner’s family have the right to use residential premises, owned by the owner, and be registered there at the place of residence without formalizing contractual relations, based only on the will of the owner and the fact that they are or are recognized as members of his family.

Article 31 of the Housing Code identifies three types of persons living together with the owner - members of his family; former members of his family; citizens using residential premises on the basis of an agreement with the owner of this premises. In the latter case, we are talking about persons who have entered into a lease agreement (free use) with the owners, and the scope of the rights and obligations of these persons is determined not by law, but by agreement.

As for the spouse, parents and children referred to in Art. 31 LCD, then to them with reference to Art. 137 of the RF IC should include adoptive parents and adopted children.

Article 31 of the Housing Code of the Russian Federation creates a rule by virtue of which these persons automatically acquire the right to use residential premises if they live in it permanently. Therefore, by default, when the owner moves his spouse, children or parents into his residential premises, they have the right to permanently use the residential premises. The act of occupancy on the part of the owner indicates his desire to provide these persons with the corresponding right.

Regarding the rights of the owner's family members, one should agree with the opinion of D. A. Farmakidov that they should be supplemented by the right “for these persons to settle their minor children.” 5 Such a rule would be consistent with the provisions of Art. 54 - 55 of the Family Code of the Russian Federation. Since family members of the owner have broad rights in the use of premises belonging to the owner, capable family members are jointly and severally liable with the owner for the obligations arising from the use of residential premises. In case of joint liability of debtors, the creditor has the right to demand performance both from all debtors jointly and from any of them separately, both in full and in part of the debt. A creditor who has not received full satisfaction from one of the joint and several debtors has the right to demand what was not received from the remaining such debtors. Joint and several debtors remain obligated until the obligation is fully fulfilled.

The legislator includes other relatives, disabled dependents and, in exceptional cases, other citizens (grandmothers, grandchildren, nephews, daughters-in-law, sons-in-law, stepfathers, stepsons, etc.) in the second group of family members. These persons, on the contrary, do not automatically acquire the right to use residential premises. In accordance with part 1 of Art. 31 of the Housing Code of the Russian Federation, they can be recognized as members of the owner’s family. It is expected that this will be carried out in judicial procedure.

To recognize the above persons as members of the owner’s family, it is necessary to establish a very specific legal fact - the move-in of their owners into residential premises “as a member of their family.”

Registration of a citizen at the place of residence cannot be such a factor, since it cannot serve as a basis for restriction or a condition for the implementation of the rights and freedoms of citizens. Therefore, the wording given by the legislator in Art. 31 of the Housing Code of the Russian Federation is unsuccessful, is it really Article 53 of the Housing Code of the RSFSR of 1983, which noted additional signs “if they live together with the employer and conduct business with him?” general farming". These two facts together indicated the presence of family relations 6.

Now the court must establish not what the nature of the residence was, but the move-in itself as an actual action. Difficulties in assessing the fact of moving in can also be caused by the interpretation of the words “as members of one’s family.” But there is no generally accepted concept of “family member” endowed with specific and stable legal content. The above norm presupposes its subjective assessment on the part of the owner of the residential premises.

The rights of family members of the owners of residential premises are regulated by the norms of civil legislation (Article 292 of the Civil Code of the Russian Federation), and in terms of the use of residential premises - by the norms of Art. 31 Housing Code of the Russian Federation.

The Housing Code of the Russian Federation more precisely defines the scope of rights and obligations of family members of the owner of a residential premises. An equal right to use residential premises has been established with the owner, unless otherwise established by agreement between the owner and members of his family. Consequently, notes V.V. Gruzdev, “in practice, situations cannot be ruled out in which the volume of rights to use residential premises for a given entity may be greater or less” 7 .

Used in part 2 tbsp. 31 of the Housing Code of the Russian Federation, the words “equally with the owner” in relation to the possibilities of use also mean that members of the owner’s family have the right to use the residential premises in their own interests and at their own discretion. Of course, during use, these persons must not violate the law, as well as the rights and interests of other persons, since such actions cannot be carried out by the owner himself. For example, members of the owner’s family, like himself, do not have the right to use residential premises for other purposes. It should be noted that the right of a family member of the owner of a residential premises by virtue of paragraph 3 of Art. 292 of the Civil Code of the Russian Federation have signs of absolute protection, that is, the owner can demand elimination of violations of his rights to residential premises from any persons, including the owner of the premises.

In this regard, it cannot but arise, emphasizes L.Yu. Mikheev, the question of the proprietary nature of such a right. 8 The rights of the owner’s family members are among the real rights has already received its justification in modern literature. New edition of Art. 292 of the Civil Code of the Russian Federation, which came into force on January 1, 2005, did not change the nature of these rights.

The fact that these rights no longer follow the property, that is, cease with the transfer of ownership of the residential premises to another person, does not in itself transform them into mandatory rights. Paragraph 4 of Article 292 of the Civil Code still limits in some cases the very possibility of transferring ownership of a home.

The new legislation has undergone significant changes to the rights of family members of the owner of residential premises when the ownership of residential premises is transferred to another owner. The transfer of ownership of a residential building or apartment to another person is the basis for termination of the right to use residential premises by family members of the previous owner, unless otherwise provided by law, paragraph 2 of Art. 292 of the Civil Code of the Russian Federation).

Alienation of residential premises in which members of the family of the owner of this residential premises who are under guardianship or trusteeship or minor members of the owner’s family left without parental care live (which is known to the guardianship and trusteeship authority), if this affects the rights or interests protected by law of these persons, is permitted with the consent of the guardianship and trusteeship authority (clause 4 of article 292 of the Civil Code of the Russian Federation).

These changes came into force on January 1, 2005 in accordance with the Federal Law of December 30, 2004 N-213-FZ "On Amendments to Part One of the Civil Code Russian Federation".

As a result of the introduction of these norms, the procedure for alienation of property has been simplified, but at the same time we should expect an increase in the number of applications to judiciary, since innovations will affect the rights of family members of the owner.

A new rule has been introduced regulating legal relations related to the use of residential premises by a former family member of the owner of the residential premises and the owner of this premises.

In accordance with Part 4 of Article 31 of the Housing Code of the Russian Federation, in the event of termination of family relations with the owner of a residential premises, the right to use this residential premises is not retained by a former member of the owner’s family. This rule is optional. Moreover, an agreement defining the procedure for the use of residential premises by a former member of the owner’s family can be concluded both after the termination of family relations (for example, upon divorce of spouses), and long before that.

Within the meaning of Part 4 of Art. 31 of the RF Housing Code, termination of family relations is the basis for the “automatic” termination of the right to use residential premises. The question arises whether clause 4 of Art. 31 of the Housing Code of the Russian Federation for those rights and obligations that arose before the entry into force of the Housing Code?

Termination of the right to use provides for the release of the former family member of the owner of the occupied residential premises (to stop using it), otherwise he is subject to eviction in court at the request of the owner.

The eviction of a former family member of the owner is carried out in accordance with the requirements of Art. 35 Housing Code of the Russian Federation.

If there are grounds for terminating the right to use residential premises, the court may make a decision to evict the former family member of the owner only after the expiration of the period established by the owner of the relevant residential premises for the actual vacancy of the residential premises.

Former family members of the owner, in addition to former spouses, also include parents deprived parental rights in relation to a child who is the owner of a residential premises. Children of parents deprived of parental rights do not become former members of the owner’s family in the sense of Article 31 of the RF Housing Code and retain the right to use residential premises. At the same time, it should be borne in mind that in paragraph 3 of Art. 65 of the RF IC, the place of residence of children when parents live separately is established by agreement of the latter. If, after the divorce, the child begins to live with the parent who does not own residential premises, and the other parent has alimony obligations in relation to him, then the child can no longer be considered a member of the owner’s family and is subject to eviction along with the former spouse.

Since housing legal relations are of a continuing nature, then, as a general rule, the law in force in given time. In this regard, the provisions of Part 4 of Art. 31 of the Housing Code of the Russian Federation are applied when deciding the issue of eviction of former family members of the owner of a residential premises and in the event that family relations between them were terminated before the Housing Code of the Russian Federation came into force.

Part 4 p.31 of the Housing Code of the Russian Federation contains a rule designed to protect the right of citizens to housing. It lies in the fact that if a former family member of the owner of a residential premises does not have grounds for acquiring or exercising the right to use another residential premises, and also if his property status and other important circumstances do not allow him to provide himself with another residential premises, the right to use the residential premises belonging to to the specified owner may be retained by a former member of his family for a certain period based on a court decision. Thus, Part 4 of Article 31 of the Housing Code of the Russian Federation provides for the possibility of “preserving” for all former family members the right to use the owner’s residential premises on the basis of a court decision; in other cases, the court may not provide for such a possibility.

The opinion of L.Yu. is correct. Mikheeva that the legislator chose a not very successful design for this legal norm, since we cannot talk about preserving the right of use, since due to the termination of family relations this right is terminated. The use of the term "preservation" creates legal uncertainty regarding the period during which a former family member was removed from use of the premises.

A number of questions also raise the possibility of establishing court decision the period of existence of the right of a former family member of the owner of the residential premises. The discretion of the court in this case is not limited by anything other than the rights and interests of other persons. Due to the fact that deadlines can be determined not only by the expiration of a period of time, but also by an indication of an event that must inevitably occur (Article 190 of the Civil Code of the Russian Federation), the court can make a decision according to which a former member of the owner’s family has the right to use the residential premises during your life.

The court has the right to oblige the owner of the residential premises to provide other residential premises for the ex-spouse and other members of his family only if he fulfills his alimony obligations.

This provision in vain states: “The owner fulfills alimony obligations.” Presumably, the legislator had in mind cases where the owner of a residential premises is legally obliged to support a former member of his family. In essence, we are talking about providing housing for the ex-spouse, actual caregivers, stepfather and stepmother, which is possible in various forms. You can give your ex-spouse ownership of the home, you can conclude a rental agreement in his favor, and other options are not excluded. At the same time, the analogy with the alimony obligation suggests that the provision of housing to the ex-spouse should be terminated on the grounds established for the termination of alimony obligations (for example, when the ex-spouse enters into a new marriage).

A.M. Erdelevsky notes the importance of Art. 19 of the Introductory Law, according to which the effect of the provisions of Part 4 of Art. 31 of the RF Housing Code does not apply to former family members of the owner of a privatized residential premises, provided that at the time of privatization of this residential premises, these persons had equal rights to use this residential premises with the person who privatized it, unless otherwise established by law or agreement. “If we are talking about such former family members who, at the time of privatization, had equal rights to use this premises with the owner (and, accordingly, had the right to privatize it, but refused to exercise this right (in favor of the owner)), then such former members families retain the right to use residential premises. It follows that the right of these former family members is an independent right to residential premises, which encumbers the residential premises and is preserved when the right to residential premises is transferred to another person.” 9

Part 5 Art. 31 of the Housing Code of the Russian Federation allows the owner to prematurely terminate the right of former members of his family to use housing and neutralize established by decision court encumbrance of his property rights. In development general rule clause 2 art. 292 Civil Code of the Russian Federation, Part 5, Art. 31 of the RF Housing Code prescribes that before the expiration of the period established in accordance with Part 4 of Art. 31 of the Housing Code of the Russian Federation, the right to use the residential premises of a former family member of the owner is terminated simultaneously with the termination of the ownership right to this residential premises of this owner. “Consequently, in the event of a sufficiently strong deterioration in relations between former family members, the owner of a residential premises has a very real opportunity to free himself from the burden that the court will impose on his property. It is enough to make any transaction with the residential premises that entails the termination of his ownership rights” 10. To protect the rights of former family members, legislators are trying to “soften” Art. 31 of the Housing Code of the Russian Federation, providing for draft amendments, including those stipulating that in the event of the sale of residential premises, the owner is obliged to provide living space ex-family, if there is a court decision." 11

V.V. Gruzdev believes that in the new Housing Code of the Russian Federation the ideas of market liberalism of “pure” property rights were developed, and Article 7 of the Constitution of the Russian Federation, proclaimed by the Russian Federation social state m, is increasingly acquiring the character of a declarative norm. 12

1 Makarov S. Yu. Trends of change legal status family members of the owner and tenant in the light of the discussion of the new Housing Code of Russia // Housing Law. No. 4. 2004. p. 33 -37; Housing Code of the Russian Federation. -M.: Prospekt, 2005, p. 19.
2 Mikheeva L. Yu. Rights of family members of the owner of residential premises // Housing Law. No. 7, 2005. P. 20 -29.
3 Ibid., p. 21.
4 Filippova S.Yu. New Housing Code of the Russian Federation on the right of ownership of residential premises / New Housing Code of Russia. Current problems. Team of authors, 2006, "Axis - 89", p. 140 - 150
5 Farmakidov D. A. Change in the legal status of family members of the owner of a residential premises in the light of reforming housing legislation // Housing Law. No. 1, 2005. p. 25.
6 Farmakidov D.A. Changes in the legal status of family members of the owner of residential premises in the light of reforming housing legislation./ Housing Law. No. 1, 2005, p. 152.
7 Gruzdev V.V. Construction of property rights to residential premises of members and former members of the owner’s family. / Law, No. 6, 2005, p. 30 - 35
8 Mikheeva L. Yu. Rights of family members of the owner of residential premises. / Housing law. No. 7, 2005. p. 20 - 24
9 Erdelevsky A. Housing Code in test reading// Domestic lawyer. No. 9, 2005, p. 2-5.
10 Gruzdev V.V. Construction of property rights to residential premises of members and former members of the owner’s family // Law, No. 6, 2005, p. 34.
11 Innocent I. The Housing Code has been softened // Rossiyskaya Gazeta. July 11, 2006, No. 148 (4114).
12 Gruzdev V.V. Construction of property rights to residential premises of members and former members of the owner’s family // Law, No. 6, 2005, p. 35.

The owner of a residential premises exercises the rights of ownership, use and disposal of the residential premises belonging to him by right of ownership in accordance with its purpose and the limits of its use, which are established by the Housing Code of the Russian Federation.
The owner of a residential premises has the right to provide possession and (or) use of residential premises belonging to him by right of ownership to a citizen on the basis of a lease agreement, a contract of gratuitous use or on other legal grounds, as well as legal entity on the basis of a lease agreement or on another legal basis, taking into account the requirements established by civil legislation, the Housing Code of the Russian Federation.
The owner of a residential premises bears the burden of maintaining this premises and, if this premises is an apartment, the common property of the owners of the premises in the appropriate apartment building, and the owner of a room in a communal apartment also bears the burden of maintaining the common property of the owners of rooms in such an apartment, unless otherwise provided by federal law or an agreement.
The owner of a residential premises is obliged to maintain the premises in proper condition, preventing mismanagement of them, to comply with the rights and legitimate interests of neighbors, the rules for the use of residential premises, as well as the rules for maintaining the common property of the owners of premises in an apartment building.
Family members of the owner of residential premises include his spouse living together with this owner in the residential premises belonging to him, as well as the children and parents of this owner. Other relatives, disabled dependents and, in exceptional cases, other citizens may be recognized as members of the owner’s family if they are settled by the owner as members of his family.
Family members of the owner of a residential premises have the right to use this residential premises on an equal basis with its owner, unless otherwise established by agreement between the owner and members of his family. Family members of the owner of a residential premises are obliged to use this residential premises for its intended purpose and ensure its safety.
The capable family members of the owner of a residential premises bear joint and several liability with the owner for the obligations arising from the use of this residential premises, unless otherwise established by an agreement between the owner and members of his family.
In the event of termination of family relations with the owner of a residential premises, the right to use this residential premises for a former family member of the owner of this residential premises is not retained, unless otherwise established by an agreement between the owner and the former member of his family. If a former family member of the owner of a residential premises has no grounds for acquiring or exercising the right to use another residential premises, and also if the property status of a former family member of the owner of a residential premises and other noteworthy circumstances do not allow him to provide himself with another residential premises, the right to use the residential premises owned by the specified owner may be retained by a former member of his family for a certain period based on a court decision. In this case, the court has the right to oblige the owner of the residential premises to provide other residential premises for the ex-spouse and other members of his family, in whose favor the owner fulfills alimony obligations, at their request.
Upon expiration of the period of use of residential premises established by a court decision adopted taking into account the provisions of Part 4 of Article 31 of the Housing Code of the Russian Federation, the corresponding right to use the residential premises of a former member of the owner’s family is terminated, unless otherwise established by agreement between the owner and this former member of his family. Before the expiration of the specified period, the right to use the residential premises of a former family member of the owner is terminated simultaneously with the termination of the ownership right to this residential premises of this owner or, if the circumstances that served as the basis for maintaining such a right have ceased, on the basis of a court decision.
A former family member of the owner using residential premises on the basis of a court decision made taking into account the provisions of Part 4 of Art. 31 of the RF LC, has the rights, bears the duties and responsibilities provided for in parts 2 - 4 of Article 31 of the RF LC.
A citizen who uses residential premises on the basis of an agreement with the owner of this premises has rights, bears duties and responsibilities in accordance with the terms of such agreement.

The owner of a residential premises exercises the right of ownership, use and disposal of the residential premises belonging to him by right of ownership, in accordance with its purpose and the limit of its use established by the Housing Code. Let us recall that possession is a legally secured possibility of economic domination of the owner over a thing. Use- a legally secured possibility of extracting useful properties from a thing in the process of its personal or industrial consumption. Order- a legally secured opportunity to determine the fate of a thing by performing legal acts in relation to this thing.

1. Residential premises may be used to carry out professional or individual entrepreneurial activities, if this does not violate the rights and legitimate interests of other citizens, as well as the requirements that residential premises must meet.

2. Do not allow industrial production to be located in residential premises.

3. The use of the premises shall be carried out taking into account the rights and legitimate interests of citizens living with it, neighbors, fire safety requirements, sanitary and hygienic, environmental and other requirements.

A citizen who is the owner of a building (residential building) has the right to free transfer of ownership of a land plot to him, including those located in a water protection zone of water bodies or in the coastal protective strip of a water body.

1) Lease agreements.

2) Agreements for free use.

3) On another legal basis.

The established limits for the use of residential premises provide the corresponding responsibilities of the owner: he is obliged to use the residential premises belonging to him by right of ownership in such a way as not to go beyond the specified limits. The main responsibility of the owner is that, as a general rule, the burden of maintaining the premises belonging to him is assigned to him, however, in cases provided for by federal legislation or an agreement, this responsibility may also be assigned to a person who is not the owner.

On recognition of their right to use residential premises;

About moving in;

About the absence of obstacles to the use of residential premises in the order of use of residential premises, recognition of loss of user rights, eviction.

A fundamental difference between the new Housing Code and the Housing Code of the RSFSR has emerged in relation to the list of persons classified as family members. Previously, this list included children, the spouse of the employer (owner), his stepsons and stepdaughters, as well as the parents of the spouses, i.e. father-in-law and mother-in-law, father-in-law and mother-in-law. The list is quite extensive, since it included persons not related to the owner by blood. At the same time, in Art. 53 of the RSFSR Housing Code did not contain a direct indication of the need to live together with the owner as a prerequisite for acquiring rights as members of his family.

At the same time, textually, this norm is formulated in such a way that, in principle, it is impossible to broadly interpret it in order to include in this list the relatives of the owner’s spouse.

It should be noted that in the title of Art. 31 of the Housing Code of the Russian Federation “Rights and obligations of citizens living together with the owner in premises belonging to him” there is no term “family members”. “When concluding an agreement for the so-called “commercial” rental of residential premises, the essence of the relationship between the tenant and the citizens permanently residing with him is legally indifferent, which, by the way, cannot be said about social rental,” states Mikheeva L. Yu.

A characteristic feature of Art. 31 of the RF Housing Code is that it regulates these relations only in cases where family members of the owner and the owner himself live in the same residential premises. A Art. 292 of the Civil Code of the Russian Federation does not even imply such a restriction, allowing a family member to have owner rights in relation to such residential premises in which the latter does not live. If parents and their adult children live separately in premises belonging to the parents, then such a situation is Art. 31 LCD is not covered, notes L.Yu. Mikheeva.

Thus, the main condition for recognizing citizens as members of the family of the owner of a residential premises is that the owner moves in the person as a member of his family. This, according to S.F. Filippova is puzzling. She notes “in paragraph 1 of Art. 30 the right of the owner to independently exercise his powers does not correspond with the indication that “other persons” can be recognized as members of the owner’s family. That is, once again decisions are left to judicial discretion, and disputes between the owner and other persons regarding their recognition as family members are generated by law. It seems to me that it would be appropriate to assign the status of a member of the owner’s family to any person installed by him as such.” It should be noted that, unlike persons moved in on the basis of civil law contracts, members of the owner’s family have the right to use residential premises belonging to the owner and be registered in it at the place of residence without formalizing contractual relations, based only on the will of the owner and that fact that they are or are recognized as members of his family.

Article 31 of the Housing Code identifies three types of persons living together with the owner - members of his family; former members of his family; citizens using residential premises on the basis of an agreement with the owner of this premises. In the latter case, we are talking about persons who have entered into a rental agreement with the owners ( free use) and the scope of the rights and obligations of these persons is determined not by law, but by agreement.

As for the spouse, parents and children referred to in Art. 31 LCD, then to them with reference to Art. 137 of the RF IC should include adoptive parents and adopted children.

Regarding the rights of the owner’s family members, one should agree with the opinion of D. A. Farmakidov that they should be supplemented by the right “for these persons to settle their minor children.” Such a rule would be consistent with the provisions of Art. 54 - 55 of the Family Code of the Russian Federation. Since members of the owner’s family have broad rights in the use of property owner of the premises, capable family members are jointly and severally liable with the owner for obligations arising from the use of residential premises. In case of joint liability of debtors, the creditor has the right to demand performance both from all debtors jointly and from any of them separately, both in full and in part of the debt. A creditor who has not received full satisfaction from one of the joint and several debtors has the right to demand what was not received from the remaining such debtors. Joint and several debtors remain obligated until the obligation is fully fulfilled.

Registration of a citizen at the place of residence cannot be such a factor, since it cannot serve as a basis for restriction or a condition for the implementation of the rights and freedoms of citizens. Therefore, the wording given by the legislator in Art. 31 of the Housing Code of the Russian Federation is unsuccessful, is it really Article 53 of the Housing Code of the RSFSR of 1983, where additional signs were noted “if they live together with the employer and maintain a common household with him.” These two facts together indicated the presence of family relations.

Now the court must establish not what the nature of the residence was, but the move-in itself as an actual action. Difficulties in assessing the fact of moving in can also be caused by the interpretation of the words “as members of one’s family.” But there is no generally accepted concept of “family member” endowed with specific and stable legal content. The above norm assumes it subjective assessment on the part of the owner of the premises.

In this regard, it cannot but arise, emphasizes L.Yu. Mikheev, the question of the proprietary nature of such a right. The fact that the rights of the owner's family members are among property rights has already been substantiated in modern literature. New edition of Art. 292 of the Civil Code of the Russian Federation, which came into force on January 1, 2005, did not change the nature of these rights.

The fact that these rights no longer follow the property, that is, cease with the transfer of ownership of the residential premises to another person, does not in itself transform them into mandatory ones. Paragraph 4 of Article 292 of the Civil Code still limits in some cases the very possibility of transferring ownership of a home.

Alienation of residential premises in which members of the family of the owner of this residential premises who are under guardianship or trusteeship or minor members of the owner’s family left without parental care live (which is known to the guardianship and trusteeship authority), if this affects the rights or legally protected interests of these persons, is permitted with the consent of the guardianship and trusteeship authority (clause 4 of article 292 of the Civil Code of the Russian Federation).

These changes came into force on January 1, 2005 in accordance with the Federal Law of December 30, 2004 N~ 213-FZ “On Amendments to Part One of the Civil Code of the Russian Federation.”

As a result of the introduction of these norms, the procedure for alienation of property has been simplified, but at the same time we should expect an increase in the number of appeals to the judicial authorities, since the innovations will affect the rights of family members of the owner.

A new rule has been introduced regulating legal relations related to the use of residential premises by a former family member of the owner of the residential premises and the owner of this premises.

The eviction of a former family member of the owner is carried out in accordance with the requirements of Art. 35 Housing Code of the Russian Federation.

In addition to former spouses, former family members of the owner also include parents who have been deprived of parental rights in relation to a child who is the owner of the residential premises. Children of parents deprived of parental rights do not become former members of the owner’s family in the sense of Article 31 of the RF Housing Code and retain the right to use residential premises. At the same time, it should be borne in mind that in paragraph 3 of Art. 65 of the RF IC, the place of residence of children when parents live separately is established by agreement of the latter. If, after the divorce, the child begins to live with the parent who does not own residential premises, and the other parent has alimony obligations in relation to him, then the child can no longer be considered a member of the owner’s family and is subject to eviction along with the former spouse.

Since housing legal relations are of a continuing nature, then, as a general rule, the law in force at a given time is applied to them. In this regard, the provisions of Part 4 of Art. 31 of the Housing Code of the Russian Federation are applied when deciding the issue of eviction of former family members of the owner of a residential premises and in the event that family relations between them were terminated before the Housing Code of the Russian Federation came into force.

The opinion of L.Yu. is correct. Mikheeva that the legislator has chosen a not very successful construction of this legal norm, since we cannot talk about preserving the right of use, since in connection with the termination of family relations this right is terminated. The use of the term “preservation” creates legal uncertainty regarding the period during which a former family member was removed from use of the premises.

A number of questions are also raised by the possibility of establishing by a court decision the period of existence of the right of a former family member of the owner of a residential premises. The discretion of the court in this case is not limited by anything other than the rights and interests of other persons. Due to the fact that deadlines can be determined not only by the expiration of a period of time, but also by an indication of an event that must inevitably occur (Article 190 of the Civil Code of the Russian Federation), the court can make a decision according to which a former member of the owner’s family has the right to use the residential premises during your life.

Part 5 Art. 31 of the Housing Code of the Russian Federation allows the owner to prematurely terminate the right of former members of his family to use housing and neutralize the encumbrance on his property rights established by a court decision. In development of the general rule of paragraph 2 of Art. 292 Civil Code of the Russian Federation, Part 5, Art. 31 of the RF Housing Code prescribes that before the expiration of the period established in accordance with Part 4 of Art. 31 of the Housing Code of the Russian Federation, the right to use the residential premises of a former family member of the owner is terminated simultaneously with the termination of the ownership right to this residential premises of this owner. “Consequently, in the event of a sufficiently strong deterioration in relations between former family members, the owner of a residential premises has a very real opportunity to free himself from the burden that the court will impose on his property. It is enough to make any transaction with the residential premises that entails the termination of its ownership rights.” To protect the rights of former family members, legislators are trying to “soften” Art. 31 of the Housing Code of the Russian Federation, providing for draft amendments, including those stipulating that in the event of the sale of residential premises, the owner is obliged to provide living space for the former family, if there is a court decision.”

V.V. Gruzdev believes that in the new Housing Code of the Russian Federation, the ideas of market liberalism of “pure” property rights have been developed, and Article 7 of the Constitution of the Russian Federation, proclaiming the Russian Federation a social state, is increasingly acquiring the character of a declarative norm.

The owner of a residential premises exercises the right of ownership, use and disposal of the residential premises belonging to him by right of ownership in accordance with its purpose and the limit of its use established by the Housing Code. Let us remind you that possession- this is a legally secured possibility of economic domination of the owner over a thing. Use– a legally secured possibility of extracting useful properties from a thing in the process of its personal or industrial consumption. Order- a legally secured opportunity to determine the fate of a thing by performing legal acts in relation to this thing.

1. Residential premises may be used for professional or individual entrepreneurial activities, if this does not violate the rights and legitimate interests of other citizens, as well as the requirements that residential premises must meet.

2. Do not allow industrial production to be located in residential premises.

A citizen who is the owner of a building (residential building) has the right to free transfer of ownership of a land plot to him, including those located in the water protection zone of water bodies or in the coastal protective strip of a water body.

According to Art. 30 of the Housing Code of the Russian Federation, the owner of a residential premises has the right to provide for possession and (or) use of residential premises belonging to him by right of ownership on the basis of:

1) rental agreements;

2) free use agreements;

3) on another legal basis.

If such a transfer is temporary, the user is registered at the place of residence as a temporary resident or tenant. At the same time, only the owner, and not the body carrying out registration, can restrict the right to use residential premises. In accordance with Art. 246 and 247 of the Civil Code of the Russian Federation ownership, use and disposal of property located in shared ownership, is carried out by agreement of all its participants, and in the absence of agreement between them - in the manner established by the court. Therefore, in order to register a person who has the right of ownership to a share in a residential premises and members of his family, in addition to the will of this owner, the consent of all owners of the premises is also required. Judicial panel for civil cases Supreme Court RF dated December 11, 2007, having considered court hearing case on cassation appeals Mr. A., K,. B. referred to the Moscow government decree No. 859-pp of October 31, 2006, pointing out the contradictions between the Moscow government decree and the requirements of Art. 1 of the Law of the Russian Federation dated June 25. 1993 No. 5242-1 on the right of citizens to freedom of movement, choice of place of stay and residence within the Russian Federation, according to which restriction of the right of citizens to freedom of movement, choice of place of stay and residence within the Russian Federation is allowed only on the basis of law. The owner of a room in a communal apartment does not have the right to allocate in kind his share in the right of common ownership of the common property in this apartment and alienate his share, as well as perform other actions entailing the transfer of this share separately from the right of ownership of the specified room. The legislation does not provide for such a restriction on the right of ownership in a communal apartment for the owner to move members of his family into his room. The consent of other owners of residential premises, a certificate not specified in clause 2.3.6 of the List on the absence of severe forms of disease in residents and those moving in, do not belong to the documents that are the basis for a citizen to move into a residential premises. The board noted that, “having established in para. 1 clause 2.2.3 of the List of requirements for citizens to submit to the registration authorities an agreement of all owners on determining the procedure for using residential premises owned by citizens, or a court decision, the Moscow Government, in contradiction to the Federal Law, limited the rights of homeowners, and unlawfully invaded sphere civil legal relations» .

The established limits for the use of residential premises impose corresponding obligations on the owner: he is obliged to use the residential premises belonging to him by right of ownership in such a way as not to go beyond the specified limits. The main responsibility of the owner is that, as a general rule, he bears the burden of maintaining the premises he owns, however, in cases provided for by federal legislation or an agreement, this responsibility may also be assigned to a person who is not the owner.

So, according to Art. 16 of the Law of the Russian Federation “On the privatization of housing stock in the Russian Federation”, the obligation to carry out major repairs of residential premises of an apartment building, which arose with the former lessor (authority state power or organ local government) and not fulfilled by him at the time of privatization by a citizen of the residential premises occupied in this house, remains until the obligation is fulfilled. After this, the production of subsequent major repairs is entrusted to the owners of residential premises, which include the citizens who privatized them.

The landlord - a citizen (the owner of the residential premises or a person authorized by him), an organization formed by private owners - is obliged to:

1) transfer to the tenant legally and physically free residential premises, i.e. at the time of transfer there should not be any other persons present, permanently or temporarily; residential premises must be free from the rights of other persons;

2) provide residential premises in a condition suitable for habitation, i.e. it must meet established sanitary standards, technical rules and standards and other legal requirements. The condition of the residential premises at the time of its transfer to the tenant is recorded in the act of acceptance and transfer of residential premises, signed by both parties;

1) provide the tenant with residential premises within the period specified in the contract, and if such a period is not specified, then within a reasonable time (Article 314 of the Civil Code of the Russian Federation);

2) carry out proper operation of the residential building in which the rented residential premises are located;

3) provide or provide to the employer for a fee the necessary public utilities, carrying out repairs to the common property of an apartment building and capital, unless otherwise provided by the contract.

The lessor has the right:

1) require the employer to comply with all terms of the contract;

2) give consent for other persons to move in for permanent residence with the employer;

3) give consent to the refurbishment of residential premises;

4) prohibit the residence of temporary residents;

5) alienate the leased premises;

6) demand termination of the residential lease agreement.

– on recognition of their right to use residential premises;

– about infusion;

– about the absence of obstacles to the use of residential premises;

– on recognition of loss of user rights, eviction.

A fundamental difference between the new Housing Code of the Russian Federation and the Housing Code of the RSFSR exists in relation to the list of persons classified as family members. Previously, this list included children, the spouse of the employer (owner), his stepsons and stepdaughters, as well as the parents of the spouses, i.e. father-in-law and mother-in-law, father-in-law and mother-in-law. The list is quite extensive, since it included persons not related to the owner by blood. At the same time, in Art. 53 of the RSFSR Housing Code did not contain a direct indication of the need to live together with the owner as a prerequisite for acquiring rights as members of his family.

At the same time, textually this norm is formulated in such a way that, in principle, it is impossible to broadly interpret it in order to include in this list the relatives of the owner’s spouse.

In addition, it is important to indicate the need to live together with the owner, which is a very logical requirement established by law. “It seems that this norm is aimed at clearly separating persons who have the legal right to live in this premises as members of the owner’s family from other relatives who do not live in it,” notes S.Yu. Makarov .

It should be noted that in the title of Art. 31 of the Housing Code of the Russian Federation “Rights and obligations of citizens living together with the owner in premises belonging to him” there is no term “family members”. “When concluding a contract so-called commercial hiring residential premises, the essence of the relationship between the employer and the citizens permanently residing with him is legally indifferent, which, by the way, cannot be said about social rent,” states L.Yu. Mikheeva.

A characteristic feature of Art. 31 of the Housing Code of the Russian Federation is that it regulates these relations only in cases where members of the owner’s family and the owner himself live in the same residential premises.

It should be noted that, unlike persons moved in on the basis of civil law contracts, members of the owner’s family have the right to use residential premises belonging to the owner and be registered in it at the place of residence without formalizing contractual relations, based only on the will of the owner and that fact that they are or are recognized as members of his family.

Article 31 of the Housing Code identifies three types of persons living together with the owner: members of his family; former members of his family; citizens using residential premises on the basis of an agreement with the owner of this premises. In the latter case, we are talking about persons who have entered into a rental agreement with the owner (free use); the scope of the rights and obligations of these persons is determined not by law, but by agreement.

As for the spouse, parents and children referred to in Art. 31 LCD, then to them with reference to Art. 137 of the RF IC should include adoptive parents and adopted children.

Article 31 of the Housing Code of the Russian Federation creates a rule by virtue of which these persons automatically acquire the right to use residential premises if they live in it permanently. Therefore, by default, when the owner moves his spouse, children or parents into his residential premises, they have the right to permanent use of the residential premises. The act of occupancy on the part of the owner indicates his desire to provide these persons with the corresponding right.

Regarding the rights of the owner’s family members, we agree with the opinion of D.A. Farmakidov that they should be supplemented with the right “for these persons to move in their minor children” .

Such a rule would be consistent with the provisions of Art. 54-55 of the Family Code of the Russian Federation. Since family members of the owner have broad rights in the use of premises belonging to the owner, capable family members are jointly and severally liable with the owner for the obligations arising from the use of residential premises. In case of joint liability of debtors, the creditor has the right to demand performance both from all debtors jointly and from any of them separately, both in full and in part of the debt. A creditor who has not received full satisfaction from one of the joint and several debtors has the right to demand what was not received from the remaining such debtors. Joint and several debtors remain obligated until the obligation is fully fulfilled.

The legislator includes other relatives, disabled dependents and, in exceptional cases, other citizens (grandmothers, grandchildren, nephews, daughters-in-law, sons-in-law, stepfathers, stepsons, etc.) in the second group of family members. These persons, on the contrary, do not automatically acquire the right to use residential premises. In accordance with Part 1 of Art. 31 of the Housing Code of the Russian Federation, they can be recognized as members of the owner’s family. It is expected that this will be carried out in court.

To recognize the above persons as members of the owner’s family, it is necessary to establish a very specific legal fact - the owner moving them into the residential premises “as a member of his family.”

Registration of a citizen at the place of residence cannot be such a circumstance, since it is not a basis for restriction or a condition for the implementation of the rights and freedoms of citizens. Therefore, the wording given by the legislator in Art. 31 of the RF Housing Code is less successful than Art. 53 of the RSFSR Housing Code of 1983, where additional signs were noted: “if they live together with the tenant and run a common household with him.” These two facts together indicated the presence of family relations .

Now the court must establish not what the nature of the residence was, but the move-in itself as an actual action. Difficulties in assessing the fact of moving in can also be caused by the interpretation of the words “as members of one’s family”, because there is no generally accepted concept of “family member” endowed with specific and stable legal content. The above norm presupposes its subjective assessment on the part of the owner of the residential premises.

B.V. Prasolov points out that if the concept of “family member of the owner of a residential premises” is divided into three components, we will see that it consists of three concepts that relate to three various industries legislation: the first - to family, the second - to civil, and the third - to housing. The conclusions are as follows: family law does not regulate these relationships if they are broken down into parts; Membership relations are regulated by housing norms of a civil and civil nature. In the current Housing Code of the Russian Federation, the concept of “family member of the owner” is defined differently than in the Family Code. The difference between a former spouse and a former family member is as follows: if we assume that family relations between them have ceased (according to the RF IC), then it turns out that:

– ex-spouse transfers to the status of another person who is not a relative of the owner of the residential premises;

– this former spouse was evicted in compliance with all the rules provided for in Part 1 of Art. 31 Housing Code of the Russian Federation;

– therefore, the former spouse continues to remain a member of the family, but for different reasons;

– if the owner files a claim against the former spouse for eviction from the residential premises he owns, then the former spouse has the right to file a counterclaim to recognize him as a member of the family of the owner of the residential premises .

The rights of family members of the owner of a residential premises are regulated by the norms of civil legislation (Article 292 of the Civil Code of the Russian Federation), and in terms of the use of residential premises - by the norms of Art. 31 Housing Code of the Russian Federation.

The content of the rights of the owner's family members consists mainly in the opportunity to use the residential premises for their residence, and these persons (unless otherwise provided by an agreement with the owner) have the right to use not a separate part of it, but the premises as a whole.

The Housing Code of the Russian Federation more precisely defines the scope of rights and obligations of family members of the owner of a residential premises. An equal right to use residential premises has been established with the owner, unless otherwise provided by an agreement between the owner and members of his family. Consequently, notes V.V. Gruzdev, “in practice, situations are not excluded in which the volume of rights to use residential premises for a particular entity may be greater or less” .

Used in Part 2 of Art. 31 of the Housing Code of the Russian Federation, the words “equally with the owner” in relation to the possibilities of use also mean that members of the owner’s family have the right to use the residential premises in their own interests and at their own discretion. Of course, during use, these persons must not violate the law, as well as the rights and interests of other persons, since such actions cannot be carried out by the owner himself. For example, members of the owner’s family, like himself, do not have the right to use residential premises for other purposes. It should be noted that the right of a family member of the owner of a residential premises by virtue of clause 3 of Art. 292 of the Civil Code of the Russian Federation has signs of absolute protection, i.e. the owner may demand elimination of violations of his rights to residential premises from any persons, including the owner of the premises.

In this regard, notes L.Yu. Mikheev, - the question about the proprietary nature of such a right cannot but arise . The fact that the rights of the owner's family members are among property rights has already been justified in modern literature. New edition of Art. 292 of the Civil Code of the Russian Federation, which came into force on January 1, 2005, did not change the nature of these rights. Family members of members of housing and housing-construction cooperatives also acquire the right to use residential premises. But we can talk about the equality of family members with the shareholder only in relation to living in the living space of the cooperative, i.e. use of useful properties of the home, and a small number of other powers. “In the literature, almost everyone recognizes the dependent (derivative) nature of the rights of the shareholder’s family members, which is confirmed in the grounds and order of origin and termination, as well as in the scope of these rights. Thus, they only give their consent to the commission of legally significant actions by a member of the cooperative (Article 128 of the Housing Code of the Russian Federation) and lose the right to use residential premises upon termination of his membership in the housing cooperative (Article 133 of the Housing Code of the Russian Federation),” points out E.S. Kryukova .

Article 127 of the Housing Code of the Russian Federation provides for the possibility of dividing residential premises in a housing cooperative building between persons entitled to a share, if each of such persons can be allocated an isolated residential premises or there is a technical possibility for the reconstruction and (or) redevelopment of non-isolated premises into isolated ones.

The fact that these rights no longer follow the property, that is, cease with the transfer of ownership of the residential premises to another person, does not turn them into mandatory rights. Clause 4 art. 292 of the Civil Code still limits in some cases the very possibility of transferring ownership of a home.

The new legislation has undergone significant changes to the rights of family members of the owner of residential premises when the ownership of residential premises is transferred to another owner. The transfer of ownership of a residential building or apartment to another person is the basis for termination of the right to use residential premises by family members of the previous owner, unless otherwise provided by law (Clause 2 of Article 292 of the Civil Code of the Russian Federation).

These changes came into force on January 1, 2005 in accordance with the Federal Law of December 30, 2004 No. 13-FZ “On Amendments to Part One Civil Code Russian Federation".

A new rule has been introduced regulating legal relations related to the use of residential premises by a former family member of the owner of the residential premises and the owner of this premises.

In accordance with Part 4 of Art. 31 of the Housing Code of the Russian Federation, in the event of termination of family relations with the owner of a residential premises, the right to use this residential premises for a former member of the owner’s family is not retained. This rule is optional. An agreement defining the procedure for the use of residential premises by a former member of the owner’s family can be concluded both after the termination of family relations (for example, upon the divorce of spouses), and long before that.

In practice, situations arise when the marriage between spouses was not dissolved, but in fact the marriage and family relations were terminated. Does a spouse who is not the owner of the residential premises have the right to use the residential premises? The law allows in this case the conclusion of an agreement on the procedure for using residential premises; in his absence, evict the spouse on the grounds provided for in Part 4 of Art. 31 Housing Code of the Russian Federation, impossible, because family relations have not been terminated, and the spouse is legally a member of the owner’s family, despite the fact that he may not live in the residential premises of the other spouse.

Within the meaning of Part 4 of Art. 31 of the RF Housing Code, termination of family relations is the basis for the “automatic” termination of the right to use residential premises. The question arises: does clause 4 of Art. 31 of the Housing Code of the Russian Federation on those rights and obligations that arose before the entry into force of the Housing Code?

Termination of the right to use provides for the vacancy of the former family member of the owner of the occupied residential premises, otherwise he is subject to eviction in court at the request of the owner.

The eviction of a former family member of the owner is carried out in accordance with the requirements of Art. 35 Housing Code of the Russian Federation.

If there are grounds for terminating the right to use residential premises, the court may make a decision to evict a former family member of the owner only after the expiration of the period established by the owner of the relevant residential premises for the actual vacancy of the residential premises.

Former family members of the owner, in addition to former spouses, also include parents who have been deprived of parental rights in relation to a child who is the owner of the residential premises. Children of parents deprived of parental rights do not become former members of the owner’s family in the sense of Art. 31 of the Housing Code of the Russian Federation and retain the right to use residential premises. At the same time, it should be borne in mind that in paragraph 3 of Art. 65 of the RF IC, the place of residence of children when parents live separately is established by agreement of the latter. If, after the divorce, the child begins to live with the parent who does not own residential premises, and the other parent has child support obligations in relation to him, then the child can no longer be considered a member of the owner’s family and is subject to eviction along with his ex-parent(s). spouse.

Since housing legal relations are of a continuing nature, then, as a general rule, the law in force at a given time is applied to them. In this regard, the provisions of Part 4 of Art. 31 of the Housing Code of the Russian Federation are used when deciding the issue of eviction of former family members of the owner of a residential premises and in the event that family relations between them were terminated before the entry into force of the Housing Code of the Russian Federation.

Part 4 art. 31 of the RF Housing Code contains a rule designed to protect the right of citizens to housing. It lies in the fact that if a former family member of the owner of a residential premises does not have grounds for acquiring or exercising the right to use another residential premises, and also if his property status and other important circumstances do not allow him to provide himself with another residential premises, the right to use the residential premises owned by the specified owner may be retained by a former member of his family for a certain period based on a court decision. Thus, part 4 of Art. 31 of the RF Housing Code provides for the possibility of “preserving” for all former family members the right to use the owner’s residential premises on the basis of a court decision; in other cases, the court may not provide for such a possibility.

When determining the period for which a former family member can retain the right to use residential premises, the court must proceed from the specific circumstances of each case. After the expiration of the period for using the residential premises established by a court decision, the court may extend this period. The Housing Code of the Russian Federation does not contain a prohibition on applying to court for an extension of the period established by a court decision for which a former family member can retain the right to use residential premises.

This provision in vain states: “The owner fulfills alimony obligations.” Presumably, the legislator had in mind cases where the owner of a residential premises is legally obliged to support a former member of his family. In essence, we are talking about providing housing for the ex-spouse, actual caregivers, stepfather and stepmother, which is possible in various forms. The ex-spouse can be given ownership of the home, a residential lease agreement can be concluded in his favor, and other options are not excluded. At the same time, the analogy with the alimony obligation suggests that the provision of housing to the ex-spouse should be terminated on the grounds established for the termination of alimony obligations (for example, when the ex-spouse enters into a new marriage).

Let's look at how these provisions of the law are applied in practice. Thus, on the basis that citizen F. refused privatization and his right to use residential premises is of an indefinite nature, the federal court of the Oktyabrsky district of Samara rejected his ex-wife and daughter’s claim for eviction.

On May 25, 2007, the Judicial Collegium for Civil Cases of the Samara Regional Court recognized the above decision as unfounded, since the court ignored the fact that the plaintiffs refer to the impossibility of living together with the defendant due to his violation of the rights to use residential premises. The defendant's marriage to his wife was dissolved six years ago due to alcohol abuse. F. systematically beats his ex-wife. In essence, the plaintiffs demanded the eviction of F. due to the impossibility of living together, due to his illegal behavior .

Part 5 Art. 31 of the Housing Code of the Russian Federation allows the owner to prematurely terminate the right of former members of his family to use housing and neutralize the encumbrance on his property rights established by a court decision. In development of the general rule of paragraph 2 of Art. 292 Civil Code of the Russian Federation, Part 5, Art. 31 of the RF Housing Code prescribes that after the expiration of the period established in accordance with Part 4 of Art. 31 of the Housing Code of the Russian Federation, the right to use the residential premises of a former family member of the owner is terminated simultaneously with the termination of the ownership right to this residential premises of this owner. “Consequently, in the event of a sufficiently strong deterioration in relations between former family members, the owner of a residential premises has a very real opportunity to free himself from the burden that the court will impose on his property. It is enough to make any transaction with the residential premises that entails the termination of its ownership rights.” . To protect the rights of former family members, legislators are trying to “soften” Art. 31 of the Housing Code of the Russian Federation, introducing draft amendments, including those stipulating that “in the event of the sale of residential premises, the owner is obliged to provide living space for the former family, if there is a court decision” .

Of interest is the controversy that arose during the press conference “The practice of applying the Housing Code of the Russian Federation and deprivation of the right to housing,” during which A.I. Golovan pointed out: “The Housing Code of the Russian Federation, in its current form, is already aimed at destroying the family... We now have a lot of cases where the owner, in order not to bind himself to providing housing for former users with alimony, carries out sham transactions, selling this housing to someone one of his people whom he trusts (parents, confidants). A new owner he is already quite calmly evicting children and their parents onto the streets. After some time, the housing returns to the original owner again.” .

A similar opinion is expressed by N.A. Yakovleva: “... The housing legislation itself violates Article 27 of the Convention on the Rights of the Child. Today, relatives who are the owners of residential premises can freely sell this premises, and the new owner can kick out the children, in accordance with Part 2 of Art. 292 of the Civil Code of the Russian Federation. As a result, the child ends up on the street.”

To the question: if the initiator of the divorce is the wife, and the husband is the owner, the wife insists on divorce, and then appeals to the court that he is obliged to provide accommodation, should she be aware of the inevitable consequences? – A.I. Golovan replied: “All norms of federal legislation are equal. Currently, housing legislation has taken over family legislation in a number of ways, because it determines where a child should live, with whom to live, etc. It is necessary not to raise the question of the owner's right or the user's right. They must be balanced. It is not the father who should provide for his wife and child during a divorce, but the owner.” .

In our opinion, the answer was not entirely clear. I.L. Pankratova notes that the rights of the owner of a residential premises should not contradict parental responsibilities. Parents have equal rights and bear equal responsibilities in relation to their children (Article 61 of the RF IC). Ensuring the interests of children should be the main concern of their parents (Article 65 of the RF IC); The responsibility of parents includes, in particular, providing their minor children with adequate living conditions .

V.V. Gruzdev believes that in the new Housing Code of the Russian Federation the ideas of market liberalism of “pure” property rights have been developed, and Art. 7 of the Constitution of the Russian Federation, which proclaims the Russian Federation as a social state, is increasingly acquiring the character of a declarative norm .

The point of view of B.M. deserves attention. Gongalo that housing rights are perceived almost as unshakable. It’s strange, but the attitude towards housing rights is more respectful than even the right to property... Are the housing rights of former family members of the owner of the premises being violated? Of course, housing rights need to be protected. But does property rights need less protection? It deserves even more protection. Property rights are a fundamental right (and housing rights are only derivative) .

The Constitutional Court of the Russian Federation noted that clause 2 of Art. 292 of the Civil Code of the Russian Federation (as amended Federal Law dated December 30, 2004 No. 213-FZ) and Part 4 of Art. 31 of the RF LC cannot be considered as incompatible with constitutional principles legal regulation possession, use and disposal of residential premises and not ensuring the protection of the constitutional right to housing.

Let's consider one example of the application of Part 4 of Art. 31 Housing Code of the Russian Federation. Citizen M. appealed to the court with claims on the elimination of obstacles in the use of property, eviction, deregistration of his ex-wife and minor son, citing the fact that the marriage with the defendant was dissolved, he created a new family, has a young child, and the defendant interferes with the use of residential premises, deprives him of the opportunity to own and manage your property. ex-wife M. filed a counterclaim with the court demanding that she retain the right to use the disputed apartment for a period of 13 years, and after this period, oblige the defendant to provide her and her child with another living space.

In support of her demands, she indicated that, apart from the disputed residential premises, she and her son do not have any other housing, and there is no way to purchase it, because it doesn't work. The court partially satisfied her demands, preserving her right to use the residential premises for six months.

The Judicial Collegium for Civil Cases of the Samara Regional Court overturned the decision of the trial court on the counterclaim, indicating that the defendant is the founder and director of one of the operating LLCs, and, therefore, her property status allows her to provide herself with living quarters. In addition, from the case materials it follows that the defendant’s daughter owns a three-story house in which she lives with the defendant’s granddaughter alone .

Therefore, the statements of correspondents and senior officials are perceived ambiguously officials state about the scandalous situation when, after a divorce, a child is recognized as a former member of the owner’s family. “As a result, the “former” dad often breaks up not only with his ex-wife, but also with his own child, depriving him of housing. This is some kind of nonsense,” Dmitry Medvedev commented on the current situation . Isn’t it nonsense when a state that proclaims itself to be social does not create normal living conditions for workers who cannot provide themselves and their children not only with housing, but also with food?

Approving the position of I.L. Pankratova, we believe that the difficulty of implementing the right lies in the extremely high cost of housing, building materials and a very “modest” salary. Thus, 5.5 million Russians receive wages below living wage . Under such conditions, providing children with housing is simply unrealistic.

It should be noted that disputes between owners most often arise regarding the determination of the procedure for using residential premises. Thus, S. filed a lawsuit in which she asked to determine the procedure for using the disputed apartment, move her into a living space corresponding to her share, issue keys to the front door, vacate the apartment from tenants, and also provide the right to use ¼ of the kitchen, ¼ part of the corridor belonging to the defendant M. (mother-in-law); oblige the latter to pay her cash received from tenants for the use of her ¼ shares in the apartment in the amount of 30 thousand rubles.

The court rejected S.’s claim, and she appealed cassation appeal to a higher court. On April 17, 2007, the judicial panel for civil cases of the Samara Regional Court left the court's decision unchanged and the plaintiff's complaint without satisfaction, indicating the following.

In accordance with Art. 247 of the Civil Code of the Russian Federation, ownership and use of property in shared ownership is carried out by agreement of all its participants, and if agreement is not reached, in the manner established by the court. A participant in shared ownership has the right to be given for his possession and use a part of the common property commensurate with his share, and if this is not possible, he has the right to demand from other participants who own and use the property appropriate compensation due to his share.

According to Art. 252 of the Civil Code of the Russian Federation, a participant in shared ownership has the right to demand the allocation of his share from the common property. If the participants in shared ownership fail to reach an agreement on the method and conditions for dividing the common property or the allocation of the share of one of them, the participant in shared ownership has the right to legally demand the allocation in kind of his share from the common property. If the allocation of a share in kind is not permitted by law or is impossible without commensurate damage to the property in common shared ownership, the allocated owner has the right to have the value of his share paid to him by other participants in the shared ownership... Payment of compensation to a participant in shared ownership by the remaining owners instead of the allocation of his share in kind is allowed with his consent. In cases where the owner’s share is insignificant, cannot be realistically allocated and he does not have a significant interest in the use of the common property, the court may, in the absence of the consent of this owner, oblige the remaining participants in the shared ownership to pay him compensation.

In accordance with Art. 56 of the Code of Civil Procedure of the Russian Federation, each party must prove the circumstances to which it refers as the basis for its claims and objections, unless otherwise provided by federal law.

From the case materials, it is clear that S. has a ¼ share by inheritance, and ¾ shares by will in the right of common shared ownership in a one-room apartment belong to other owners.

The court found that S. permanently resides and is registered in a 3-room apartment at the address: Samara, st. Tashkent - with her husband and her mother (case file 28). To the apartment of the house on the street. Builders have never moved into Samara; there are no belongings in the apartment, which is not disputed by the parties. According to the housing department certificate No. 5, the son and grandson of the mother-in-law are registered in the disputed apartment (case file 6). S. and M. are not relatives and have never lived together. The disputed apartment is a one-room apartment, which is confirmed by the apartment plan (case sheet 52).

The court also found that S.’s share, as the owner, in the disputed apartment is insignificant, cannot be realistically allocated, technical capabilities do not allow determining the procedure for using the residential premises, S. is in a registered marriage, lives with her husband as one family in a 3-room apartment , S. did not present any evidence of her need for the said apartment to the court. Defendant M. agreed to pay S. compensation for her share, which the latter refused, demanding the allocation of her share in kind. S. did not submit any demands for compensation to the court.

The court found that S. did not provide evidence that M. rents out the disputed apartment and receives material benefits from it.

Under such circumstances, the court reasonably refused S. to satisfy her claims

Farmakidov, D.A. Change in the legal status of family members of the owner of a residential premises in the light of reforming housing legislation / D.A. Farmakidov // Housing Law. – 2005. – No. 1. – P. 25.

Right there. – P. 152.

Prasolov, B.V. Answers to questions from press conferences: “The practice of applying the Housing Code of the Russian Federation and deprivation of the right to housing” / B.V. Prasolov // Housing law. – 2007. – No. 8. – P. 2-14.

Gruzdev, V.V. Construction of property rights to residential premises of members and former members of the owner’s family / V.V. Gruzdev // Law. – 2005. – No. 6. – P. 30-35.

Mikheeva, L.Yu. Decree. op. – pp. 20-24.

Kryukova, E.S. Legal status family members in the light of the new Housing Code of the Russian Federation // State and law: issues of methodology, theory and practice of functioning / E.S. Kryukova. – Samara: Samara University Publishing House, 2006. – P. 266-274.

Erdelevsky, A. ZhK in control reading / A. Erdelevsky // Home lawyer. – 2005. – No. 9. – P. 2-5.

Determination of the judicial panel for civil cases of the Samara Regional Court No. 2692 of May 28, 2007 in the case of the eviction of citizen F. // Archive of the Samara Regional Court.

Gruzdev, V.V. Construction of property rights to residential premises of members and former members of the owner’s family / V.V. Gruzdev // Law. – 2005. – No. 6. – P. 34.

Nevinnaya, I. The Housing Code has been softened / I. Nevinnaya // Russian newspaper. – 2006. – July 11. – No. 148 (4114).

Golovan, A.I. Press conference “Practice of application of the Housing Code Russian Federation and deprivation of the right to housing" / A.I. Golovan // Housing law. – 2007. – No. 6. – P. 3-9.

Yakovleva, N.A. Press conference “The practice of applying the Housing Code of the Russian Federation and deprivation of rights to housing” / N.A. Yakovleva // Housing law. – 2007. – No. 6. – P. 5.

Pankratova, I.L. About the “former” children of the owner of the residential premises / I.L. Pankratova // Legal consultant. – 2007. – No. 6. – P. 5-7.

Golovachev, V.K. This salary requires a shoulder bag / V.K. Golovachev // Trud. – 2007. – August 21.

By virtue of clause 2 of Article 31 of the Housing Code of the Russian Federation, family members of the owner of a residential premises have an equal right with the owner to use this residential premises, unless otherwise established by agreement between the owner and members of his family. Such an agreement, in particular, can provide the use of separate rooms in the owner’s apartment to members of the owner’s family, establish the procedure for using common premises in the apartment, determine the amount of expenses of the owner’s family member to pay for living quarters and utilities, etc.

Due to the fact that the RF LC does not establish special requirements for the procedure for concluding such an agreement, as well as for its form and conditions, then, based on the norms of clause 1.Article 7 of the RF LC, the rules of the Civil Code of the Russian Federation on civil rights are applied to such agreements. -legal transactions.

Clause 2 of Article 31 of the Housing Code of the Russian Federation does not give family members the right to move other persons into the owner’s residential premises. At the same time, taking into account the provisions of Article 679 of the Civil Code of the Russian Federation on the unconditional right of the tenant under a rental agreement and citizens permanently residing with him to move minor children into the residential premises, as well as part 1 of Article 70 of the RF Housing Code on the right of parents to move their minor children without the obligatory consent of the remaining family members of the tenant under a social tenancy agreement and the landlord, by analogy with the law (Clause 1 of Article 7 of the Housing Code of the Russian Federation), in order to ensure the rights of minor children, family members of the owner of a residential premises may be recognized with the right to move in their minor children into a living space. This clarification is given by the Supreme Court of the Russian Federation.

Members of the family of the owner of a residential premises who are capable and limited by the court in their legal capacity are jointly and severally liable with the owner for the obligations arising from the use of this residential premises, unless otherwise established by agreement between the owner and members of his family. The form and content of the agreement are also determined by the general provisions on transactions of the Civil Code of the Russian Federation. Family members of the owner of a residential premises are obliged to use this residential premises for its intended purpose and ensure its safety.

Termination of right of use. Article 292 of the Civil Code of the Russian Federation in its current version establishes that, as a general rule, the transfer of ownership of a residential building or apartment to another person is the basis for termination of the right to use residential premises by family members of the previous owner, unless otherwise provided by law.

In the event of termination of family relations with the owner of a residential premises, the right to use this residential premises for a former family member of the owner of this residential premises also, as a general rule, is not retained, unless otherwise established by agreement between the owner and the former member of his family.

Former family members of the owner of a residential premises include persons with whom the owner’s family relations have been terminated. Termination of family relations between spouses should be understood as dissolution of marriage, recognition of marriage as invalid. Refusal of other persons to maintain a common household with the owner of the residential premises, lack of a common budget or common household items with the owner, failure to provide mutual support to each other, etc., as well as departure to another place of residence may indicate the termination of family relations with the owner residential premises, but must be assessed in conjunction with other evidence presented by the parties, taking into account the specific circumstances of each case.

If a former family member of the owner of a residential premises has no grounds for acquiring or exercising the right to use another residential premises, and also if the property status of a former family member of the owner of a residential premises and other noteworthy circumstances do not allow him to provide himself with another residential premises, the right to use the residential premises owned by the specified owner may be retained by a former member of his family for a certain period based on a court decision. In this case, the court has the right to oblige the owner of the residential premises to provide other residential premises for the ex-spouse and other members of his family, in whose favor the owner fulfills alimony obligations, at their request. The circle of these persons is contained in the RF IC:

Ex-wife during pregnancy and within three years from the date of birth of their common child;

A needy ex-spouse caring for a common disabled child until the child reaches the age of eighteen or a common child who has been disabled since childhood, group I;

A disabled, needy ex-spouse who became disabled before the dissolution of the marriage or within a year from the date of dissolution of the marriage;

A needy spouse who has reached retirement age no later than five years from the date of divorce, if the spouses have been married for a long time.

In accordance with paragraph 4 of Article 71 of the RF IC, a child in respect of whom the parents (one of them) are deprived of parental rights retains the right to use residential premises.

Termination of family relations between the parents of a minor child living in a residential premises owned by one of the parents does not entail the child’s loss of the right to use the residential premises in the context of the rules of Part 4 of Article 31 of the RF Housing Code.