Determining the procedure for using an apartment - judicial practice. Determining the procedure for using an apartment in shared ownership

In legal practice, disputes often arise related to determining the procedure for using residential premises. Historically, the most valuable property owned by the vast majority of citizens is residential premises. Therefore, any owner of residential premises is very sensitive to the fact that his rights to residential premises are challenged by anyone. In the event that ownership of a residential premises belongs to several persons, the question arises about the joint use of this residential premises by all co-owners. This is where disputes usually arise. Indeed, it very rarely happens that the rooms in a residential area exactly correspond to the shares of the co-owners. Each co-owner wants to get a room larger size and preferably with a balcony.

The law allows the owners of residential premises to enter into an agreement to determine the procedure for using the residential premises, and if such an agreement is unattainable, go to court to establish the procedure for using the residential premises.

Claims to determine the procedure for using residential premises are in most cases satisfied by the courts. However, in some cases, courts decide to reject such claims.

Judicial practice, when resolving disputes about determining the procedure for using property that is in shared ownership, proceeds from the actually established procedure for using property, which may not exactly correspond to the shares in the right common property, the need of each of the co-owners for this property and the real possibility of joint use.

The purpose of this article is to provide a legal analysis of the reasons for the courts’ refusal to establish the procedure for using residential premises.

Plenum Supreme Court RF No. 6, Plenum of the Supreme Arbitration Court of the Russian Federation No. 8 dated 07/01/1996 “On some issues related to the application of part one of the Civil Code Russian Federation"in his Resolution indicated that the impossibility of dividing property in shared ownership in kind or separating a share from it, including in the case specified in part two of paragraph 4 of Article 252 of the Code, does not exclude the right of a participant in common shared ownership to make a claim on determining the procedure for using this property, if this procedure is not established by agreement of the parties.

When resolving such a requirement, the court takes into account the actual procedure for using the property, which may not exactly correspond to the shares in the right of common ownership, the need of each of the co-owners for this property and the real possibility of joint use.

This Resolution made it possible for owners of residential premises to raise the issue of the procedure for using residential premises before the courts if the co-owners cannot resolve this issue voluntarily.

The reasons for refusal to satisfy claims to determine the procedure for using residential premises can be classified into the following main groups:

1. Inconsistency between the requirements for the area of ​​the room (rooms) and the size of the owner’s share;
2. The plaintiff does not need housing;
3. Inability to use residential premises together with other co-owners.
4. Other reasons.

Inconsistency between the requirements for the area of ​​the room (rooms) and the size of the owner’s share.

The court found that the plaintiff long time does not live in the disputed residential premises, since the defendant, by her actions, namely by renting out the apartment to third parties, prevents him from living in the apartment; the defendant is currently making repairs in the apartment. Thus, the procedure for using the disputed apartment between the parties did not work out.

Considering living area the disputed apartment is<...>does the plaintiff N. belong to? shares in the right of common shared ownership of the apartment, the defendant - ? share, the apartment does not have a room that would correspond in area to the plaintiff’s share in the property right, and the use of which he could exercise without infringing on the defendant’s rights, in connection with which, the judicial panel comes to the conclusion that the defendant’s rights have been violated if the plaintiff is provided with use of room size<...>exceeding by<...>its share of the living space.

In such circumstances, the court decision regarding the determination of the procedure for use<адрес>subject to cancellation as adopted on the basis of incorrect application of substantive law.

(Determination of the St. Petersburg City Court No. 33-9777/2013)

In resolving the dispute, the court of first instance, guided by the provisions of Article 247 of the Civil Code of the Russian Federation on the ownership and use of property in shared ownership, proceeded from the fact that the number of separate living rooms in the disputed residential premises does not correspond to the proportionality of the shares in the right of common shared ownership of each of the participants , the procedure for using the disputed residential premises cannot be considered established; determining the procedure with preference to one or the other party will entail a violation of the rights of each of the co-owners, and therefore, I came to the conclusion that determining the procedure for using the residential premises is unacceptable.

This conclusion of the court is correct, the court’s decision is motivated and appeal essentially not refuted.

The mere fact of the presence of three isolated rooms in the disputed residential premises, corresponding to the number of apartment owners, does not indicate the possibility of determining the procedure for using the residential premises.

By virtue of paragraph 1 of Art. 209 of the Civil Code of the Russian Federation, the owner has the rights to own, use and dispose of his property.

In accordance with paragraph 1 of 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.

As explained in paragraph 37 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 6/8 dated July 1, 1996 “On some issues related to the application of the Civil Code of the Russian Federation,” a participant in common shared ownership has the right to make a claim to determine the procedure for use common property, unless this procedure is established by agreement of the parties. When resolving such a requirement, the court takes into account the actual procedure for using the property, which may not exactly correspond to the shares in the right of common ownership, the need of each of the co-owners for this property and the real possibility of joint use.

Thus, the legally significant circumstances in resolving this dispute are the actual established procedure for using the property (which may not exactly correspond to the shares in the right of common ownership), the need of each of the co-owners for this property and

So, the disputed apartment has a total area... sq. m. m, including the loggia, living space... sq. m. m and consists of three isolated rooms with an area of... sq. m. m, ... sq. m and... sq. m (ld 10).

Thus, the parties, being the owners... of the disputed apartment, have the right to demand the allocation for their use of residential premises measuring... sq. m. m (... sq. m/3). There is no room in the said apartment corresponding to the amount of living space shared by each of the co-owners.

At the same time, as follows from the stated requirements, a room with an area of... sq. m. m are asked to assign A.D. for their use. and G.D., Z. asks to assign a room for his use with an area of ​​... sq. m. m.

Meanwhile, since the actual procedure for using the disputed apartment has not developed between the parties, the options proposed by the parties for determining the procedure for using the living space lead to restrictions on the right to use the apartment of other co-owners.

Under such circumstances, based on the fact that the parties have not established a procedure for using the disputed residential premises, the allocation for use of A.D. or G.D. rooms with a loggia, living space... sq. m. m, per... sq. m exceeding their share in the right of shared ownership of the living space, will significantly violate the rights of each of them, as well as the rights of Z.

Thus, the court of first instance came to the correct conclusion that determining the procedure for using residential premises in this case according to the options proposed by the parties is impossible, since the balance of rights and legitimate interests of the owners of residential premises will be violated.

The circumstances referred to by G.D. in the appeal, namely, the presence of two dependent minor children, one of whom is disabled, cannot serve as a basis for reversing the court decision, since the parties have equal shares in the ownership of real estate, therefore, have equal rights in possession and use by her.

(Determination of the Leningrad Regional Court dated June 11, 2013 N 33-2710/2013)

Satisfying the claims regarding the determination of the procedure for the use of residential premises between the owners according to the option proposed by the plaintiff, the court took into account the absence of an established procedure for the use of the apartment, the equal size of the shares of the co-owners, determined that the use of the apartment should be equal for each of the owners and divided the living room into two halves (left and right), transferring half of the room for the use of each of the co-owners and leaving them as seats public use in the shared use of the owners there is a kitchen, bathroom, hallway, pantry and loggia.

According to Art. 195 of the Code of Civil Procedure of the Russian Federation, a court decision must be legal and justified, that is, it must be made in strict compliance with the norms of procedural law and in full compliance with the norms of substantive law that are subject to application to a given legal relationship, when the facts that are significant for the case are confirmed by those examined by the court evidence that meets the requirements of the law on relevance and admissibility.

The panel of judges cannot agree with these conclusions of the court, since they are based on the incorrect application of substantive law, and were made with an incorrect determination of the circumstances relevant for the correct consideration of this dispute.

Based on the provisions of Art. 328 of the Code of Civil Procedure of the Russian Federation, the judicial panel considers it necessary to cancel the court decision regarding the determination of the procedure for using the disputed apartment and make a new decision in the canceled part to refuse to satisfy these requirements.

In accordance with Art. Art. 15 - 17 of the Housing Code of the Russian Federation, residential premises are intended for the residence of citizens, that is, isolated premises that are real estate and are suitable for permanent residence of citizens (meet established sanitary and technical rules and regulations, and other legal requirements). Residential premises include a residential building, part of a residential building, apartment, part of an apartment, and a room.

As can be seen from the certificate of the State Enterprise "Nizhtekhinventarizatsiya" and a copy of the floor plan (case sheets 11, 12) of the disputed apartment, it has one living room, the area<...>sq. meters.

At the same time, the owners of the apartment are two people - strangers, not relatives, of different genders, who are in hostile relationships.

This indicates that the properties of the apartment do not allow each of the owners to be allocated a part of the common property in the form of an isolated living space, the area of ​​which would correspond to their share in the apartment. At the same time, providing half of the entire room for the use of participants in shared ownership, in the form of left and right parts, as indicated by the court and as requested by the plaintiff, is not possible from the point of view of current legislation, since this will significantly infringe on the rights of the owners, thereby depriving them of the right to use the room in general and not receiving the use of another isolated room.

At the same time, dividing the room is also impossible, since this was not the subject of this claim (a claim for dividing the apartment in kind was not filed), and also due to the lack of confirmation of the possibility of dividing the apartment in this way without losing its consumer properties and purpose. Moreover, the decision in this part contradicts Art. 198 and art. 206 of the Code of Civil Procedure of the Russian Federation, since it cannot be actually executed. It is not clear from the decision how and by whom the room should be divided into two halves.

Taking into account the above, joint use of the apartment according to the option proposed by the plaintiff is not possible and is contrary to the law.

(Appeal ruling of the Nizhny Novgorod Regional Court dated 06/04/2013 in case No. 33-4732 The requirements for determining the procedure for using an apartment by dividing it into two equal parts were rejected, since the properties of the apartment do not allow each of the owners (parties) to be allocated a part of the common property in in the form of an isolated living space, the area of ​​which would correspond to their share in the apartment; demands for division of the apartment in kind were not made)

No need for housing

Reasons for transfer cassation appeal There is no cassation court for consideration at the court hearing, since no such violations were committed by the appellate court when considering this case.

The court found that on the basis of the donation agreement for 1/9 share of the apartment concluded on May 20, 2009, plaintiff V. became the owner of 1/9 share of the apartment located at the address:

Defendants K-ko are the owners of 8/9 shares of the apartment (4/9 shares each). Some people have been registered and have been living in the apartment since 1965. Plaintiff V. is not registered in the disputed apartment and does not live in it.

Checking the legality of the decision made by the court of first instance, the judicial panel civil cases, having examined in the aggregate the evidence collected in the case, based on the provisions of the law, namely, Art. Art. clause 2 art. 288, 247 of the Civil Code of the Russian Federation, taking into account the legal position set out in paragraph 37 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 6, the Plenum of the Supreme Arbitration Court of the Russian Federation No. 8 of July 1, 1996 “On some issues related to the application of part one of the Civil Code of the Russian Federation Federation, came to the rightful conclusion that the legal significance for resolving the dispute in this case is the circumstances of the established procedure for using the property, the need of each of the co-owners for this property, as well as the real possibility of joint use of the disputed property.

The court found that the procedure for using the disputed apartment by the participants in shared ownership has not been determined; conflictual relations have developed between the parties; the plaintiff is permanently registered in the territory, the plaintiff’s wife is registered in the apartment located at the address:

Based on the established circumstances in this case, guided by the provisions of Art. 10 of the Civil Code of the Russian Federation, according to which actions of citizens carried out solely with the intention of causing harm to another person, as well as abuse of rights in other forms, are not allowed, I came to the reasonable conclusion that, by stating this demand for moving into a disputed residential premises with an area of ​​4 .75 sq. m, the plaintiff, as the owner of 1/9 share of the apartment, abuses the right granted to him by law; the plaintiff has not provided the court with evidence of need for the disputed residential premises; it is impossible for the plaintiff to actually live in a living room on an area corresponding to his share without infringing on the defendants’ housing rights.

(Determination of the Moscow City Court dated May 30, 2013 N 4g/3-5240/13)

Thus, in accordance with the above provisions of the law and explanations for their application, issues of legal significance for the case are, in particular, the actual established procedure for using property, the real need of each of the co-owners for this property and the possibility of joint use.

Meanwhile, from the case materials, explanations of the defendant and the plaintiff’s representative N.S.R. it follows that B.G. and B.R. each also owns by right of common shared ownership a three-room apartment located at (address) B.G. and her daughter N.S.R. are registered in the said apartment. and B.R., who does not live in the said apartment, but lives in the disputed apartment at (address) together with his mother B.H.H.

Considering that the plaintiff owns, in addition to the disputed apartment, in which she has not previously lived, also a three-room apartment at (address), in which she is registered and in which the defendant does not live, therefore, the plaintiff does not have a real need for the disputed residential premises, in which it is permissible determination of the procedure for using the disputed apartment according to the option proposed by the plaintiff.

(Appeal ruling of the Orenburg Regional Court dated 05/07/2013 N 33-2101/2013 In a claim to eliminate obstacles in using an apartment, moving in, determining the procedure for using an apartment and collecting legal expenses refused, since it was established that the plaintiff does not have a real need for the disputed residential premises for living, and does not have legal grounds to meet the stated requirements.)

The court established and follows from the case materials that the disputed residential premises is a two-room apartment with a total area of ​​55.6 square meters. m, located at: 1.

The specified residential premises belong in equal shares to R. and K. based on the decision of the Gagarinsky District Court of Moscow dated November 15, 2011.

A conflicting relationship developed between K. and R.

Currently, R. permanently resides in another apartment at address: 2, where he owns a 3/4 share of the apartment, and K. - a 1/4 share.

K. lives in the disputed residential premises with two minor children.

The procedure for using the disputed residential premises has not been determined.

In refusing to satisfy the stated demands, the court of first instance reasonably proceeded from the fact that conflicting relations had developed between the parties, K. uses the disputed apartment as his only home in Moscow, and lives in it with minor children, the plaintiff has no need to use the disputed residential premises, since he permanently resides at address: 2, consisting of two rooms with a total area of ​​45.4 sq. m, also the plaintiff has no intention to actually live in the apartment, the procedure for using the living quarters in the apartment is not defined.

Under such circumstances, the court, having assessed the evidence collected in the case, guided by the provisions of Art. 30 Housing Code of the Russian Federation, art. 304 of the Civil Code of the Russian Federation, as well as paragraphs 36, 37 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated July 6, 1996 N 6/8 “On some issues related to the application of part one of the Civil Code of the Russian Federation” came to the correct conclusion about the refusal to satisfy the claims of R.

(Determination of the Moscow City Court dated April 29, 2013 N 4g/8-2559)

Inability to use residential premises together with other co-owners.

Thus, legally significant circumstances when resolving a dispute about determining the procedure for using property are the actually established procedure for using the property (which may not exactly correspond to the shares in the right of common ownership), the need of each of the co-owners for this property and the real possibility of joint use.

Based on the case materials, the appellate court established that according to the agreement for the transfer and sale of apartments (houses) into the ownership of citizens from<дата изъята>, gift agreement from<дата изъята>, certificate of state registration of rights<номер изъят>from<дата изъята>, notice to the Office Federal service state registration, cadastre and cartography by Irkutsk region from<дата изъята> <номер изъят>, P.L. and P.R. owns 1/2 share in the ownership of the apartment located at the address:<адрес изъят>.

Based on the explanations of the parties given during the trial, P.L. does not live in the specified residential premises.

Considering the claims of P.L. about moving her into the disputed residential premises, the court of first instance proceeded from the fact that P.L., as a participant in shared ownership, has the right to own, use and dispose of the said apartment within his share, including the right to use the apartment for living , which is prevented by the defendant, in connection with which P.L., being a shared co-owner of the disputed apartment, exercising the powers of the owner of the residential premises, has the right to demand the elimination of any violations of his right, including by moving into the apartment to live in it, in connection with than the court satisfied the claims for the resettlement of P.L. to a residential premises located at:<адрес изъят>.

Having established that there is no established procedure for using the apartment between the parties to the dispute, the rooms in the residential premises are adjacent, and therefore assigning the rooms in the order proposed by the plaintiff will lead to a significant infringement of the rights and legitimate interests of the other co-owner of the apartment, in addition, the size of each room does not correspond to the size shares of the parties in common shared property, the court of first instance refused to satisfy the claims of P.L. on determining the procedure for using the disputed apartment.

(Appeal ruling of the Irkutsk Regional Court dated July 11, 2013 in case No. 33-5585/2013. The claims to determine the procedure for using the apartment and collecting legal expenses were denied, since there is no established procedure for using the apartment between the parties to the dispute, the rooms in the residential premises are adjacent , in connection with which the assignment of rooms in the order proposed by the plaintiff will lead to a significant infringement of the rights and legitimate interests of the other co-owner of the apartment (ConsultantPlus)).

<адрес>

In this connection, the court decision in this part is subject to cancellation with the adoption of a decision to refuse to satisfy the claims of plaintiffs E., S. to K. to determine the procedure for using the residential premises located at the address:<адрес>.

Within the meaning of Art. 247 of the Civil Code of the Russian Federation, a participant in common shared ownership of residential premises does not have an unconditional right to move in. Under certain conditions, he may be denied this, in particular, if it is impossible to divide the living premises in kind, or to determine the procedure for using this premises, and also if his occupancy will significantly violate the interests of other participants in the common property.

Refusing D.'s claims for moving in, the obligation not to create obstacles in the use of this residential premises, the obligation to hand over the keys to the apartment, the court came to the correct conclusion that the parties were not related to each other in the disputed living space, which is a one-room apartment, the plaintiff never lived, was not in the apartment, did not transport his things, in fact, the defendant and his children live in the disputed living space, the plaintiff is registered at the place of residence at a different address: ----.

In accordance with the explanations set out in paragraph 37 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 6, the Plenum of the Supreme Arbitration Court of the Russian Federation No. 8 of July 1, 1996 "On some issues related to the application of part one of the Civil Code of the Russian Federation", allowing the requirement for When determining the procedure for using property in shared ownership, the court takes into account the actual procedure for using the property, which may not exactly correspond to the shares in the right of common ownership, the need of each of the co-owners for this property and the real possibility of joint use.

The court correctly assumed that no circumstances had been established indicating the plaintiff’s need for the disputed living space. When purchasing a 1/3 share of the disputed apartment, the plaintiff did not inspect this residential premises, he was aware that citizens previously unknown to him were registered and living in this residential premises, and knew that the apartment was one-room.

The court took into account that residence different families in one room of a one-room apartment does not comply with the principles of housing legislation and entails a violation of the rights of each of the co-owners to use the residential premises for their intended purpose, taking into account the rights of citizens to inviolability guaranteed by the Constitution of the Russian Federation privacy and housing rights.

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 (Article 288 of the Civil Code, Article 30 of the Housing Code).

To exercise the right to own and use property in shared ownership, the consent of other co-owners is required (Article 247 of the Civil Code).

The occupancy by the owner of a residential premises of his family members and other citizens is the exercise of the right to use and dispose of the residential premises belonging to him, and therefore the consent of all co-owners of this residential premises is required.

Evidence that the defendant moved other persons into the disputed residential premises, in which prerequisite is the consent of the other co-owner, was not presented to the court, therefore the court correctly refused to satisfy D.’s claims for the obligation not to provide the apartment to third parties.

(Appeal ruling of the Moscow City Court dated July 24, 2013 in case No. 11-23477 The satisfaction of claims for occupancy, non-obstruction in the use of residential premises, the obligation to provide keys, the obligation not to provide the disputed residential premises for use to third parties was rightfully denied, since the parties are not related; the plaintiff is registered at a different address.)

At the same time, the judicial panel finds the court decision subject to reversal regarding the determination of E., S., K. on the procedure for using the residential premises located at the address:<адрес>, as stipulated in this part in violation of substantive law.
Satisfying the plaintiffs’ claims in this part and allocating rooms in the disputed apartment for use by the parties, the court referred to paragraph 37 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 N 6/8 “On some issues related to the application of part one of the Civil Code of the Russian Federation."
However, the court did not take into account that the Housing Code of the Russian Federation, which came into force on March 1, 2005, does not contain rules governing the determination of the procedure for using residential premises that are in shared ownership, and does not provide for the division of apartments.
While determining the procedure for using the apartment between co-owners and allocating specific rooms in the apartment for the use of the parties, the court did not indicate in the decision the rules of substantive law on the basis of which the parties’ demands in this part were satisfied.

(Appeal ruling of the Bryansk Regional Court dated 08/13/2013 The claim regarding the determination of the procedure for using residential premises was rejected, since the Housing Code of the Russian Federation, which came into force on 03/01/2005, does not contain rules governing the determination of the procedure for using residential premises located in shared ownership property, and does not provide for the division of apartments.)

Registered in the said apartment are Full Name 3., his wife Full Name 4., and the daughter of the latter Full Name 1. Having established that Full Name 1 is not a participant in the common shared ownership of the disputed apartment, as well as the fact that she is not a member of the family of the owner Full Name 2, the court of first instance came to a reasonable conclusion to refuse to satisfy the stated requirements of Full Name 1, since on the basis of the above rules of law only the owner of the residential premises, or a member of the owner’s family, has the right to demand the elimination of any violations of his right to use the residential premises.

(Appeal ruling of the Kamchatka Regional Court dated July 25, 2013 in case No. 33-1055/2013 The claim for determining the procedure for using residential premises, the obligation not to create obstacles to living was rightfully refused, since only the owner of the residential premises or a member of his family have the right to demand elimination of any violations of his right to use the residential premises, and the plaintiff is not a participant in the common shared ownership of the disputed apartment and a member of the owner’s family.)

Court decisions based on the application of the provisions of Article 17 of the Housing Code of the Russian Federation.

Art. 17 Housing Code of the Russian Federation. Purpose of living space and limits of its use. Use of residential premises

Judicial practice

Decision No. 2-2469/2018 2-348/2019 2-348/2019(2-2469/2018;)~M-2471/2018 M-2471/2018 dated January 30, 2019 in case No. 2-2469/2018

Leninsky District Court (Republic of Crimea) - Civil and administrative

And the 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 this Code. Part 1 of Article 17 of the Housing Code of the Russian Federation stipulates that residential premises are intended for the residence of citizens. The court established a set of circumstances that made it possible to recognize the defendant as having lost the right to use the disputed residential premises. Reasons for preserving...

Decision No. 2-715/2019 2-715/2019(2-7873/2018;)~M-7041/2018 2-7873/2018 M-7041/2018 dated January 30, 2019 in case No. 2-715/2019

Sovetsky District Court of Lipetsk (Lipetsk Region) - Civil and administrative

Systematic violation of the rights and legitimate interests of neighbors by the tenant and (or) members of his family, taking into account the provisions of Part 2 of Article 1 and Part 4 of Article 17 of the Housing Code of the Russian Federation, should include their repeated, constantly repeated actions to use residential premises without respecting the rights and legitimate interests of those living in this residential premises or home of citizens, ...

Decision No. 2-19/2019 2-19/2019(2-848/2018;)~M-858/2018 2-848/2018 M-858/2018 dated January 28, 2019 in case No. 2-19/2019

Ilovlinsky District Court ( Volgograd region) - Civil and administrative

In judicial practice when applying the Housing Code of the Russian Federation, it is explained that the use of residential premises for purposes other than their intended purpose, based on the provisions of parts 1 - 3 of Article 17 of the Housing Code of the Russian Federation, should be understood as the use of residential premises not for the residence of citizens, but for other purposes (for example, the use of it for offices, warehouses, accommodation industrial production, keeping and breeding...

Decision No. 2-1528/2018 2-62/2019 2-62/2019(2-1528/2018;)~M-1484/2018 M-1484/2018 dated January 28, 2019 in case No. 2-1528/2018

Kochubeevsky District Court ( Stavropol region) - Civil and administrative

The right of private property is protected by law. According to Part 2 of Article 35 of the Constitution of the Russian Federation, everyone has the right to own, own, use and dispose of property. According to Art. 17 Housing Code of the Russian Federation - residential premises are intended for the residence of citizens. From the analysis of these legal norms it follows that Housing Code The Russian Federation proceeds from the priority of ownership of residential premises...

Decision No. 2-368/2019 2-5715/2018 of January 28, 2019 in case No. 2-368/2019

Leninsky District Court of Saratov ( Saratov region) - Civil and administrative

of the Russian Federation, citizens, while exercising housing rights and fulfilling the responsibilities arising from housing relations, must not violate the rights, freedoms and legitimate interests of other citizens. According to Article 17 of the Housing Code of the Russian Federation, residential premises are intended for the residence of citizens. The use of residential premises is carried out taking into account the rights and legitimate interests of citizens living in this residential premises, ...

Decision No. 2-303/2019 2-303/2019(2-7485/2018;)~M-6331/2018 2-7485/2018 M-6331/2018 dated January 25, 2019 in case No. 2-303/2019

Oktyabrsky District Court of Murmansk ( Murmansk region) - Civil and administrative

The structures of a given home, mechanical, electrical, plumbing and other equipment located outside or indoors in a given home and serving more than one room. Article 17 of the Housing Code of the Russian Federation provides that the use of residential premises is carried out taking into account the rights and legitimate interests of citizens, neighbors, and requirements living in this residential premises fire safety, sanitary...

Decision No. 21-4/2019 of January 24, 2019 in case No. 21-4/2019

Lipetsk Regional Court (Lipetsk region) - Administrative offenses

Part 1 of Article 7.21 of the Code of Administrative Offenses of the Russian Federation provides for administrative liability for the use of residential buildings and residential premises for purposes other than their intended purpose. In accordance with Part 1 of Art. 17 of the Housing Code of the Russian Federation, residential premises are intended for the residence of citizens. From the materials of the prosecutor's audit it follows that Aleksina S.V. there were no reports of use by Nikushkin S.N. residential building...

Decision No. 2-1010/2018 2-43/2019 2-43/2019(2-1010/2018;)~M-1064/2018 M-1064/2018 dated January 24, 2019 in case No. 2-1010/2018

Zelenogradsky District Court ( Kaliningrad region) - Civil and administrative

She could have prevented this. The arguments of the plaintiff, set out in the petition to consider the case in his absence and the submitted Inspection Report dated January 22, 2019 No. ZhK - 1/164/pr/SVM on the basis of the order dated January 17, 2019 No. ZhK - 164/pr, cannot be taken into account because they do not indicate the defendant’s refusal...

Novomoskovsk City Court ( Tula region) - Civil and administrative

Considered in the absence of persons who did not appear. Having studied the opinion of the persons participating in the case and examined the written materials of the case, the court comes to the following. By virtue of Part 4 of Article 17 of the Housing Code of the Russian Federation, the use of residential premises is carried out taking into account the rights and legitimate interests of citizens living in this residential premises, neighbors, fire safety requirements, sanitary and hygienic, environmental...

Answer: Let's talk about those cases when division in kind is technically not possible. It is possible to divide a living space in kind if it is a house. You can make a separate entrance in it, and, if necessary, add utility rooms for each of the co-owners. The apartment cannot be divided in kind, since standard apartments do not have technical feasibility transfer to each of the co-owners of an isolated part of not only residential, but also utility rooms (kitchen, corridor, bathroom, etc.), equipment for a separate entrance.

If, after dividing the house in kind, the right to common shared ownership is terminated, then after determining the procedure for using the residential premises, the co-owners continue to remain participants in the common shared ownership.

The housing complex has not renewed the previously existing right of the tenant of a residential premises or an adult member of his family to demand in court a change in the rental agreement (in everyday life: the section of the personal account). Therefore, the rules on determining the procedure for the use of residential premises by owners will, I believe, also apply to tenants of residential premises, although somewhat limited. Disputes regarding the use of residential premises that arise between the tenant and members of his family or former members of his family must be resolved by the court. Determining the procedure for using residential premises occupied by citizens under a social tenancy agreement does not entail changes to the social tenancy agreement or deprivation of the tenant's rights to part of the residential premises.

In relation to tenants, in court on claims to determine the procedure for using residential premises, issues related to the use of rooms, the arrangement of furniture, sleeping places, and installation in the event of termination will be resolved. family relations second refrigerator, etc. The court may also determine the use of rooms based on relevant circumstances. For example, when due to conflict situation between former family members, one side has taken over almost the entire area of ​​the apartment, and other family members cannot place either beds or things. However, unlike the rights enjoyed by participants in shared ownership, tenants of residential premises cannot demand that a certain room in the apartment be provided for their sole use.

Only a co-owner of property in shared ownership has the right to demand the establishment of a procedure for use; Tenants of residential premises in apartments owned by citizens do not have such a right.

When considering cases of this category, the court first of all takes into account the voluntarily established procedure for use.

When determining the procedure for using residential premises, a participant in shared ownership may require the provision of both an isolated room and a non-isolated one. The court may leave the passage room in the apartment for the common use of the co-owners. The size of the room(s) allocated to a co-owner does not have to correspond exactly to the co-owners' ideal shares. The Supreme Court of the Russian Federation believes that the provision of a room for use by one of the co-owners that exceeds the size of his share does not violate the rights of the other co-owner to own a common living space, since the right of shared ownership does not terminate.

If the rights of use are infringed, a participant in shared ownership may demand recovery from another participant in shared ownership, to whom the residential premises were transferred in excess of it ideal share, payment for the use of a part of the premises exceeding the share. In this case, user fees should be understood as mandatory payments and expenses for maintaining the property. Demand monetary or other compensation for the cost square meters a co-owner whose housing rights were infringed upon in determining the procedure for use does not have the right, since the division of the residential premises in kind is not carried out, and the ownership shares are not changed or alienated. The procedure for using home ownership belonging to participants in common shared ownership is determined if an expert has established the impossibility of dividing the house in kind. In this case, the expert must present options for using the house.

The court may also, at the request of one of the parties, determine the procedure for using the house, if division of the house in kind is possible only with significant financial investments in refurbishing the house or constructing additional utility rooms, and the parties to the case refuse to assume responsibility for such reconstruction.

In advertisements for the sale of a share of an apartment, you can often find a note stating that the procedure for use of the apartment is determined both by a court decision and by agreement of the parties, certified by a notary. Meanwhile, this agreement or decision has no legal significance for the acquirer. By virtue of clause 3 of Art. 308 of the Civil Code, an obligation does not create obligations for persons not participating in it as parties (for third parties). It follows from this that in the event of a change in the participant in shared ownership, both the acquirer of the share and the former participants in the common shared ownership have the right to determine new order use of residential premises.

Examples

...The plaintiff, in the interests of her minor children, filed a lawsuit against the defendant to determine the procedure for using the residential premises. She justified her demand by the fact that their minor children were registered in the apartment owned by the defendant, and she asked the court to allocate a room of 19.9 square meters for their use. m. The court came to the conclusion that the claim cannot be satisfied, since minor children are not participants in the shared ownership of the disputed apartment, therefore the requirement to determine the procedure for using the residential premises is not justified and must be rejected.

...The plaintiff filed a lawsuit to determine the procedure for using the apartment, which is in shared ownership of the plaintiff and defendant, motivating her claim by the fact that the defendant seized the entire apartment, which belonged to them in equal shares.

The plaintiff explained that for more than two years the defendant has been using the disputed apartment alone, violating her right of use. Therefore, she asked the court to determine the further procedure for using the apartment: the plaintiff would use it for 2 years, then the defendant would use it for 2 years, and so on in this order.

The court concluded that the claim cannot be satisfied for the following reasons.

In accordance with paragraph 1 of Art. 209 of the Civil Code, the owner has the rights to own, use and dispose of his property. According to Art. 247 of the Civil Code, 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 falling on his share, appropriate compensation. As can be seen from the presented materials, the disputed apartment on the basis of a certificate of ownership in the order of inheritance by law belongs to the plaintiffs and the defendant in equal shares. The apartment is a one-room apartment and cannot be divided in kind. The court does not consider it possible to limit by its decision the defendant’s right to use this apartment, therefore the claim cannot be satisfied.

...The plaintiff filed a lawsuit to establish ownership shares in the apartment, citing the fact that her relationship with the defendant had deteriorated. The court found that the plaintiff and her daughter occupy a large room measuring 18 square meters. m. The plaintiff asked to determine the procedure for using the living space, assigning this room to her and her daughter, and to the defendant - a room measuring 14 square meters. m. In addition, the plaintiff asked to oblige the defendant to pay her compensation for 3.3 sq. m. within a month. m of excess area.

The court decided to determine the ownership shares of 1/3 of the apartment for each owner. The court also determined the procedure for use: for the plaintiff with minor daughter a room of 18 square meters was assigned. m, and behind the defendant - 14.4 sq. m. In addition, the court indicated that it sees no legal basis for the defendant’s obligation to pay the plaintiff the difference in the form of the cost of 3.3 sq. m. m of living space, which the defendant did not express any intention to acquire from the plaintiff.

O.V. Pantyushov, lawyer (Moscow)

Can the procedure for using a municipal apartment be determined?

According to clause 1 of Article 247 of the Civil Code of the Russian Federation, ownership and use of property in common shared ownership is carried out by agreement of all owners, or in the absence of such an agreement - in court.

As you can see, the law talks about the rules for determining the procedure for using property that is owned. Municipal apartments are owned by citizens on the right of social rent. In accordance with Article 60 of the Housing Code of the Russian Federation, the landlord transfers the apartment to the tenant for possession and use, i.e. Residents use and own the apartment legally.

According to Article 61 of the Housing Code of the Russian Federation, the use of residential premises provided under a social tenancy agreement is carried out in accordance with the Housing Code of the Russian Federation and the social tenancy agreement. The Housing Code of the Russian Federation does not provide for rules for determining the procedure for using social housing between persons living in a municipal apartment.

According to Article 69 of the Housing Code of the Russian Federation, members of his family and persons who are no longer members of his family can live with the employer. In any case, these persons have equal rights with the employer and bear equal responsibilities. The only difference is the amount of responsibility. Members of the tenant's family are jointly and severally liable to the landlord, while other persons are independently liable to the landlord.

Could a dispute arise between these persons regarding the procedure for using a municipal apartment? The answer is obvious - such a possibility cannot be excluded. Therefore, if the residents cannot reach an agreement on the procedure for using the apartment, do they have the right to refer this dispute to the court for resolution? Quite.

The absence of a direct rule in the Housing Code of the Russian Federation and the Civil Code of the Russian Federation, which establishes the possibility of resolving a dispute about the procedure for using a municipal apartment in court, cannot serve as an obstacle to going to court.

As is known, in accordance with Article 3 of the Civil Code of the Russian Federation, the right to go to court arises in the presence of a violated or disputed right, freedom or legitimate interest. Those. if a person living in a municipal apartment believes that his right to use the apartment has been violated by another person, then there is every reason to go to court.

Excluding this possibility would mean restricting access to justice, which is a violation of Article 46 of the Constitution of the Russian Federation. The court will be obliged to resolve the dispute, if necessary, by applying the analogy of law.

Can the court When resolving a dispute about the procedure for using an apartment, not resolving the dispute on its merits? Those. Can the court indicate in its decision that it is not possible to determine the procedure for using the residential premises?

Unfortunately, in practice such cases happen. How can we evaluate the actions of the judiciary in this case? I believe that in this situation the court avoided resolving the dispute, thereby violating Article 2 of the Code of Civil Procedure of the Russian Federation, which states that the tasks of civil proceedings are the correct and timely consideration and resolution of civil cases.

In addition, in this case the norms of substantive law were also violated, in particular, Article 247 of the Civil Code of the Russian Federation. Clause 1 of Article 247 of the Civil Code of the Russian Federation clearly states that in the absence of an agreement between the owners, the procedure for use is determined by the court. Article 247 of the Civil Code of the Russian Federation does not allow such a situation as the impossibility of determining the procedure for using common property in court.

The court's refusal to determine the procedure for using the apartment will mean that, in the court's opinion, none of the apartment owners can use the apartment legally. And this contradicts paragraph 1 of Article 209 of the Civil Code of the Russian Federation, which establishes that the owner has the right to use his property.

Disputes regarding the determination of the procedure for using property are subject to resolution by justices of the peace - clause 7, part 1, article 23 of the Code of Civil Procedure of the Russian Federation. Please note that the law states that “disputes regarding the determination of the procedure for using property are subject to resolution...”.

Thus, situations where the court may refuse to resolve a dispute are not allowed. An indication in a court decision that the court cannot determine the procedure for using the property means that the court did not fulfill its task and did not resolve the dispute about the right.

The court's decision will put the apartment owners in an uncertain position and, in fact, will deprive the interested party of the right to judicial protection of their rights and legitimate interests. And this is already a violation of Article 6 of the 1950 Human Rights Convention, which states that everyone has the right to a fair hearing by a court established in accordance with the law.

Can the right of shared ownership of an apartment be terminated, i.e. Has the apartment been divided and the share allocated in kind?

Apartments often have several owners, i.e. are in shared ownership. In view of this, the question arises: can the regime of shared ownership of an apartment be terminated as a result of the division of the apartment? Those. each of the shared owners will become the owner of the room as an independent object of law.

In accordance with Article 16 of the Housing Code of the Russian Federation, an isolated room is an independent living space. In communal apartments, room tenants privatize rooms that are in civil circulation as separate living quarters.

It is logical to assume that there are no obstacles to allocating a share in kind, i.e. the shared owner has the right to demand an allocation in kind of his share, which in size corresponds to a room in the apartment. Clause 2 of Article 252 of the Civil Code of the Russian Federation provides for the following right of a shared owner: “a participant in shared ownership has the right to demand the allocation of his share from the common property”

The consequence of such a division is that the regime of shared ownership is terminated, and the owner of a share in the apartment becomes the owner of a separate room in the apartment.

Resolution of the Plenum of the Supreme Court of the Russian Federation No. 8 of August 24, 1993 « On some issues of application by courts of the Law of the Russian Federation "On Privatization" housing stock in the Russian Federation" contain the following explanations:

"12. The allocation to a participant of the common ownership of a privatized residential premises, which is a separate apartment, of a share belonging to him is permissible if it is technically possible to transfer to the plaintiff an isolated part of not only residential premises, but also utility rooms (kitchen, corridor, bathroom, etc.), and equipment for a separate entrance. In the absence of such a possibility, the court has the right, at the request of the plaintiff, to determine the procedure for using the apartment.”

The argumentation is quite flawed and completely inconsistent with current legislation. When allocating a share in kind, the owner does not raise the question of allocating in kind a share in the common premises of the apartment, which will not change their legal regime and will remain in common shared ownership after the division of the apartment. Equipping a separate entrance is also not necessary.

In addition, you need to pay attention that we are talking about privatized residential premises. What if the issue of allocating a share in kind is resolved in an apartment that was acquired under a purchase and sale agreement, inheritance, barter or other transactions? Those. the apartment will not be considered privatized for the parties (one of the parties) to the dispute.

The goal of the shared owner is the allocation in kind of residential premises, which have already been formally allocated and are in the independent use of the owner interested in the allocation. The legal consequence of allotment in kind is the acquisition of ownership rights to an independent object of property - an isolated room.

It is interesting to note that Article 127 of the Housing Code of the Russian Federation allows for the division of living space in a housing cooperative building: “The division of residential premises in a housing cooperative building between persons entitled to a share is permitted if each of such persons can be allocated an isolated residential premises...”

If this is possible in a housing cooperative apartment, then it is also acceptable in other apartments. Otherwise, the right is granted depending on legal status property , those. one of the basic principles of civil law has been violated - the principle of equality of subjects in civil law (Article 1 of the Civil Code of the Russian Federation).

There are no legal obstacles to allocating a share in kind in an apartment.

From the editor. Often they divide not only apartments, but also, for example, curtains.

SOLUTION

IN THE NAME OF THE RUSSIAN FEDERATION

The Tagansky District Court of Moscow, having considered in open court a civil case on the claim of Borisova against Vishnevskaya, the State Public Institution "Engineering Service of the Tagansky District" of Moscow on determining the procedure for using residential premises, determining shares in payment for housing and utilities, the obligation to issue two separate payment documents for payment of housing and communal services, and on the counterclaim of Vishnevskaya to Borisova to determine the procedure for using residential premises,

INSTALLED:

The plaintiff filed a lawsuit against the defendants with demands to determine the procedure for using a three-room apartment at the address: Moscow, st. Stanislavsky, 3, allocating the plaintiff two rooms in the said apartment, and the defendant (the plaintiff’s daughter) a room measuring 13.6 square meters. m. and leaving common areas (kitchen, bathroom and hallway) for the common use of the parties. At the same time, the plaintiff asks the court to determine the shares of payment for housing and communal services for this apartment - 1/3 for the defendant and 2/3 for the plaintiff, with the obligation of the State Public Institution "Engineering Service of the Tagansky District" of Moscow to issue two separate payment documents in accordance with the established by the court in shares to pay for housing and communal services.

The claims are motivated by the fact that the apartment belongs by right of common shared ownership to the plaintiff (2/3 share) and the defendant (1/3 share), and the plaintiff, defendant and daughter live in it as separate families. Further cohabitation of the plaintiff with the defendant in this apartment has become impossible, the plaintiff’s pension is not enough to pay for housing and communal services for the disputed apartment, the defendant does not pay for them.

In the framework of this civil case, the defendant filed a counterclaim to determine the procedure for using residential premises - an apartment at the address: Moscow, st. Stanislavsky, 3, according to the following option: to provide the plaintiff in the counterclaim for the use of a room measuring 12.2 sq.m., the defendant in the counterclaim - a room measuring 15.4 sq.m., and a room measuring 18.5 sq.m. m. and leave common areas for joint use (case sheet 83). The counterclaims are justified by the fact that the defendant in the original claim with her minor daughter S. and the plaintiff actually live in the said three-room apartment. When moving into the apartment, the defendant was allocated a room with an area of ​​12.2 sq.m., in which the defendant and her daughter still live. The plaintiff occupies a room measuring 15.4 square meters, and the defendant’s father lived in a room measuring 18.5 square meters with a balcony until the moment of his death.

The present court hearing was attended by: the plaintiff in the main claim and her representative, lawyer O.S. Zhukova. and the defendant in the counterclaim and her representative by proxy, O.A. Lavrentyeva, fully supported the main claims, taking into account clarifications and changes, objected to the counterclaim, citing the fact that the procedure proposed by the defendant for using the apartment does not correspond to the parties’ shares in the ownership of the her. At the same time, the plaintiff in the counterclaim explained to the court that she and the defendant’s minor daughter S. live in the disputed apartment, while the plaintiff in the main claim lives as a separate family and has an independent budget and household. The plaintiff in the counterclaim and her daughter occupy a room measuring 12.2 sq.m., a room measuring 15.4 sq.m. occupied by the plaintiff in the main claim. Housing and communal services for the apartment are paid by the plaintiff in the main claim.

The defendant in the main claim and the plaintiff in the counterclaim appeared at the court hearing and objected to the main claims regarding the determination of the order of use, since the room measured 15.4 sq.m. will give up; explained that she and her daughter S. occupy a room measuring 12.2 sq.m., a room measuring 15.4 sq.m. occupied by the plaintiff in the main claim, no one lives in the room measuring 18.4 square meters. The defendant in the main claim considered the main claims regarding the determination of shares for payment of housing and communal services, the obligation to issue two separate payment documents for payment of housing and communal services to be satisfied. She supported the counterclaims and explained that the option she proposed was based on the existing actual procedure for using the apartment, while she would like to retain the opportunity to use the balcony (loggia).

A representative of a third party of the PLO of the VMO Taganskoye Municipality in Moscow did not appear at the court hearing, was duly notified, and asked to consider the case in his absence. Previously, a conclusion was presented on the merits of the dispute, according to which the Municipality does not object to satisfying the plaintiff’s claims in the main claim.

The representative of the defendant in the main claim of the State Property Management Committee of the Tagansky District of Moscow appeared by proxy, submitted a written response, and left the resolution of the main and counterclaims to determine the procedure for use at the discretion of the court. I considered the main claims regarding the determination of shares of payment for housing and communal services to be justified and subject to satisfaction, and since the court decision to determine the shares of payment is the basis for the issuance of separate payment documents, the resolution of the main claims regarding the obligation of the State Institution "Engineering Service of the Tagansky District" In the city of Moscow, the representative of this organization left it at the discretion of the court to issue two separate payment documents in accordance with the shares established by the court for payment of housing and communal services.

The court, having heard the explanations of the parties and their representatives, and examined the written materials of the case, comes to the following conclusions.

At the court hearing it was established that the disputed living space is a separate three-room apartment located at the address: Moscow, st. Stanislavsky, 3. The apartment consists of three isolated rooms. 1/3 share in the right of common ownership of the said apartment belongs to the defendant in the main claim on the basis of the decision of the Tagansky Court that has entered into legal force and the certificate of state registration of the right issued by the Moscow Registration Committee dated January 12, 1998. 2/3 share of the right of common ownership of the said apartment the apartment belongs to the plaintiff in the main claim on the basis of the decision of the Tagansky Court that has entered into legal force and a certificate of the right to inheritance according to the law, issued by the Moscow notary Muravyova, as well as a certificate of state registration of the right issued by the Office of Rosreestr in Moscow.

The following persons are registered in the disputed living space: the plaintiff, the defendant and her minor daughter (the plaintiff’s granddaughter). In fact, the listed persons live in this apartment.

These circumstances are confirmed by the case materials, explanations of the parties, are not disputed, are not refuted in any way, and do not raise doubts in the court.

According to Part 1 of Article 30 of the Housing Code of the Russian Federation, the owner of a residential premises exercises the rights of ownership, use and disposal of residential premises belonging to him on the right of ownership in accordance with its purpose and the limits of its use, which are established by this Code.

In accordance with clause 2 of Article 31 of the Housing Code of the Russian Federation, family members of the owner of a residential premises have the right to use this residential premises on an equal basis with its owner.

By virtue of Part 1 of Article 209 of the Civil Code of the Russian Federation, the owner has the rights to own, use and dispose of his property.

In accordance with Article 288 of the Civil Code of the Russian Federation, the owner exercises the rights of ownership, use and disposal of residential premises belonging to him in accordance with its purpose. Residential premises are intended for the residence of citizens. A citizen owner of a residential premises can use it for personal residence and residence of his family members.

In accordance with Article 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 falling on his share, appropriate compensation.

From the explanations of the parties, including data at the court hearing, it follows that at present the following procedure for using the disputed three-room apartment has developed: the plaintiff occupies a room measuring 15.4 square meters, the defendant and her minor daughter S. occupy a room measuring 12.2 square meters .m. No one lives in a room measuring 18.5 square meters, which has access to a loggia.

The plaintiff in the main claim proposed, based on the size of the parties' shares in ownership, the following procedure for using a three-room apartment - rooms measuring 15.4 sq.m. and 18.5 sq.m. to allocate to the plaintiff in the main claim, a room measuring 12.2 sq.m. . - the defendant in the main claim.

The plaintiff in the counterclaim proposed, taking into account the actually established order, the following procedure for use: for the plaintiff in the main claim to allocate a room measuring 15.4 square meters for use. m., to the plaintiff in the counterclaim - a room measuring 12.2, and leaving the remaining room measuring 18.5 sq.m for the common use of the parties.

However, the court, taking into account the size of the living space of the disputed apartment in relation to the size of the plaintiff and defendant’s shares in the property right, cannot agree with the procedure for use proposed by the defendant, since it does not correspond to the shares of the parties.

At the court hearing, the defendant explained her intention to use a room measuring 18.5 square meters with a loggia, which would allow her to dry clothes on the loggia and provide the child with the opportunity to breathe fresh air.

Thus, taking into account the above, assessing all the evidence collected in the case in its entirety in conjunction with the norms of the current legislation, based on the size of the shares of the co-owners, and also taking into account the interests of minor S., the daughter of the defendant, living in the disputed living space, the court considers it necessary to satisfy the main and counter claims for determining the procedure for use in part - to determine the procedure for using apartment No. located at address: xx and allocate for use:

• the plaintiff - an isolated room measuring 12.2 sq.m. and an isolated room measuring 18.5 sq.m.
• the defendant - an isolated room measuring 15.4 sq.m.

At the same time, the room allocated to the plaintiff in the counterclaim measuring 15.4 square meters is also entitled to be used by a registered member of her family - her minor daughter.

Resolving the main claims regarding the determination of shares for payment of housing and communal services, the obligation to issue two separate payment documents for payment of housing and communal services, the court comes to the following.

In accordance with Article 153, paragraph 1 of the Housing Code of the Russian Federation, citizens are obliged to pay for residential premises and utilities on time and in full.

By virtue of Article 153, paragraph 2, paragraph 5 of the Housing Code of the Russian Federation, the obligation to pay for residential premises and utilities arises from the owner of the residential premises from the moment the ownership of the residential premises arises.

According to clause 3 of Article 30 of 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.

At the same time, by virtue of Article 210 of the Civil Code of the Russian Federation, the owner bears the burden of maintaining the property belonging to him, unless otherwise provided by law or contract.

Moreover, by virtue of Article 249 of the Civil Code of the Russian Federation, each participant in shared ownership is obliged, in proportion to his share, to participate in the payment of taxes, fees and other payments on common property, as well as in the costs of its maintenance and preservation.

From clause 1 of Article 158 of the Housing Code of the Russian Federation, it follows that the owner of premises in an apartment building is obliged to bear the costs of maintaining the premises belonging to him, as well as to participate in the costs of maintaining common property in an apartment building in proportion to his share in the right of common ownership of this property by contributing fees for maintenance and repair of residential premises.

According to the explanations of the Plenum of the Supreme Court of the Russian Federation (resolution No. 14 of 07/02/2009), Part 4 of Article 69 of the Housing Code of the Russian Federation established the independent responsibility of the former family member of the tenant of the residential premises under a social tenancy agreement, who continues to live in this residential premises, for his obligations arising from from the relevant social tenancy agreement. Therefore, he has the right to demand that the landlord and the tenant enter into a separate agreement with him, defining the procedure and amount of his participation in the costs of paying for the rental of residential premises and utilities, repairs and maintenance of residential premises. A proposal to conclude such an agreement may also come from the employer. Disputes arising in connection with the refusal of the landlord and (or) the tenant to enter into such an agreement or in connection with the failure to reach an agreement between the parties on its contents are resolved in court.

The court, when considering these disputes, has the right, in relation to the provisions of parts 4, 5 of Article 155, Article 156 of the RF Housing Code and Article 249 of the RF Civil Code, to determine the procedure and amount of participation of a former member of the tenant’s family in the costs of paying for living quarters and utilities, based on the amount attributable to him shares total area residential premises, with the imposition on the landlord (management organization) of the obligation to conclude an appropriate agreement with the former family member of the tenant and issue him a separate payment document for payment of residential premises and utilities. If there is an agreement between persons living in residential premises under a social tenancy agreement to determine the procedure for using this residential premises (for example, former member the tenant's family uses a separate room in the apartment), then the above-mentioned expenses can be determined by the court taking into account this circumstance.

Under such circumstances, assessing the evidence collected in the case in its entirety and in connection with the above norms of the current legislation, taking into account the factual circumstances of the case established by the court, based on the size of the shares of the co-owners of the disputed apartment, the court finds the main claims in the above part subject to satisfaction and determines the shares according to payment of housing and communal services for residential premises in the form of an apartment as follows: 2/3 share - for the plaintiff in the main claim, 1/3 share - for the defendant.

At the same time, the court obliges the State Institution “Engineering Service of the Tagansky District” of Moscow to issue separate payment documents to the plaintiff and defendant to pay for housing and communal services for the apartment in accordance with the specified shares.

Based on the above and Articles 210, 245, 247, 249 of the Civil Code of the Russian Federation, Articles 30, 31, 153, 158 of the Civil Code of the Russian Federation, guided by Articles 12, 56, 57, 67, 194-199 of the Civil Procedure Code of the Russian Federation , court

DECIDED:

Determine the procedure for using residential premises - a three-room apartment located at the address: Moscow, st. Stanislavsky, 3 and allocate for use:

• the plaintiff in the main claim - an isolated room measuring 12.2 sq.m. and an isolated room measuring 18.5 sq.m.
• the defendant in the main claim - an isolated room measuring 15.4 sq.m.

The common areas in this apartment shall be left for the joint use of the parties.

Determine the share of payment for housing and communal services for residential premises:

• 2/3 share - for the plaintiff in the main claim;
• 1/3 share goes to the defendant in the main claim.

To oblige the State Institution “Engineering Service of the Tagansky District” of Moscow to issue separate payment documents to the parties for payment of housing and communal services for an apartment at the address: Moscow, st. Stanislavskogo, 3 in accordance with the indicated shares.

The decision can be appealed to the Moscow City Court within a month.