Protection of housing rights of minors. To live, but not to own. Adult children have lost their right to housing Rights of the child to live in an apartment

Can a minor child be evicted from an apartment?

The state protects the rights of children, and it is almost impossible to evict a small citizen from an apartment.

The guardianship and guardianship authorities (CLO) carefully check each fact of eviction and conduct internal checks.

If a citizen under the age of eighteen, lives with father and mother or with one of the parents, but at the request of one of his relatives there is a move to another place of residence, then this situation is common and will not raise questions from the PLO.

If the move will be carried out with a legal guardian, then this is also acceptable upon presentation of the relevant documents.

The procedure for evicting a minor from a dwelling is one of the most difficult. This is due to the fact that the Civil Code of the Russian Federation and the Housing Code of the Russian Federation protect the rights of a minor citizen.

This is due to the fact that a small citizen at his age is still unable to fully defend their rights.

Grounds for the eviction of minor children

Grounds for eviction from the apartment of a child may be the following:

In such cases, a credit institution can be guided by, which makes it clear that lenders should not pay attention to the fact that residents have only one home, and this applies primarily bad mortgage defaulters.

Since mortgage housing is not the property of a minor citizen, but is owned by a credit institution, this means that it is possible to carry out an eviction.

Only one conclusion can be drawn from this: make mortgage payments on time so as not to create problems for their children. The bank will not make concessions and listen to excuses. For him, the most important thing is timely payment.

From public housing

Are there grounds for evicting a minor from public housing?

Ask tenants to move out of the municipal apartment without written parental consent who are about to move to another location seems impossible.

This is due to the fact that young children must live where their mother and father are.

Departure from office

If the period for which the agreement on providing the parents of the child with a service apartment was concluded has expired, then the child will be evicted on the same basis as his relatives. In this case, there will be no indulgence even for a mother with a small child.

But there is one point: if the parents died, and the child remained in the service housing, then they have no right to ask him to move out.

Litigation

Many issues are resolved by filing a claim. In this case, a representative of the guardianship authorities is present in the courtroom. If the parent's residence registration period has expired, then the owner can apply to the court with a petition to evict the residents and, accordingly, their children.

It turns out that only in municipal living space is a child fully protected from eviction, but in any case, it is better for parents to maintain a warm relationship with the owner of the premises, then all issues related to the search for new housing can be resolved without bringing the case to trial.

It is obvious that all disputes based on the eviction of young children must be carried out in such a way as not to inflict psychological trauma on them.

We must try to resolve the issue in the way that will least affect the health of the child and will decide his further residence in favor of the most favorable conditions.

The topic of the video consultation is the eviction of minor children from residential premises:

The rights of minors to housing are specifically protected by law. This is due to the insecurity of children and the special cynicism with which some people try to take away the rights to apartments and houses from children.

How the law protects the rights of children and what is provided in order not to deprive small citizens of the rights to real estate, we will consider together.

The State Duma once again extended the right of Russians to privatize the apartments in which they live on the rights of social tenancy. The privatization of an apartment in which a minor is registered is protected by law in a special manner.

If a minor lives in a privatized apartment, then under any circumstances he must be a co-owner of this apartment. Refusal of the child in favor of any person.

Any other person has the right to refuse his share in the privatized apartment in favor of anyone. The child is not. We can say that the law limits the child's rights to dispose of his share in the apartment.

Neither permanent. nor the temporary absence of a child in the apartment in which he is registered cannot terminate his rights to live (use) in a municipal apartment or house. Adults who are long-term absent and do not live in public housing can be unregistered without much effort.

I must say that in this way orphans who were in the orphanage are protected. And it does not matter whether this apartment was temporarily or permanently provided by the municipality to the parents of the child. Even if the apartment was provided for the duration of some work, for example, work as a janitor, but the child was registered there, then under any circumstances the child does not lose the right to this apartment.

Protection of the rights of children to housing in the event of a divorce of parents

It is known that if the apartment belonged to one of the parents before marriage, then after the divorce, the second spouse must leave the apartment and must be removed from the register. This is the law. However, this does not apply to children, even if, by a court decision, they must live with a "homeless" spouse. It doesn’t matter if we are talking about our own children or adopted ones.

Of course, in order to live in the apartment of the former spouse, the second spouse will have to go through a lot of court instances. However, if the court allows the second spouse to live in the apartment where he was registered during the marriage, then this is only for a period until the child turns 18 years old.

The issue can be resolved if there is another housing for the child, according to the characteristics no worse than the apartment where he was registered. The ideal case is when the second spouse enters into another marriage and moves to live with the new spouse who owns the apartment.

The law allows the sale of an apartment, the owner of which, in whole or in part, is a child. However, a strict rule must be observed - the new apartment must be at least as good as the one being sold. And the share of the child in it should be the same. And we are talking about the share, and not about square meters.

For example, if a child owned 1/2 share in an apartment of forty meters. That is, the child, as it were, owns 20 square meters. The apartment is for sale and a new one is bought, with an area of ​​60 meters. So in a new apartment, the share of the child should be the same 1/2 - that is, 30 meters, and not 20 meters (that is, 1/3 of the share), as in the apartment being sold.

Moreover, the guardianship authorities, which will have to take permission to sell an apartment owned by a child, will look not only at the footage of the apartment and rooms, but also at the convenience of the area, floor, type of house, transport component or proximity to school and other social facilities.

So it’s hard to imagine that someone could change a three-room apartment in the city center in a brick house for a three-room wooden barrack on the outskirts of the city near a landfill or cemetery (and we still have plenty of such houses).

In conclusion, it must be said that the rights of the child are monitored not only by the guardianship or the prosecutor's office, but also by a host of other state bodies. The school, precinct and medical structures will definitely find out about the deterioration of the child's housing rights.

And if the fact of deprivation or infringement of the child's rights to real estate reaches the supervisory authorities, then there will be a reaction to only an administrative, but also a criminal nature.

The issue of evicting minors from an apartment, whatever they may be, is very difficult. The difficulty lies in the fact that the law requires compliance with a mandatory condition: the child can only be evicted somewhere, that is, to another housing. Depending on the category of the apartment in which the child is registered, the procedure and terms of eviction are determined.

Eviction of a minor from public housing

The state considers the protection of the rights of minors and their legitimate interests to be a top priority. For this reason, it is almost impossible to evict a child from a municipal apartment without first providing a guarantee of his moving into new housing. The guardianship and guardianship authorities (CLO) strictly supervise all the facts of deregistration of children, and without their consent, it will not be possible to evict the child.

A child can live with one or two parents (who are legally married), or with a guardian, foster parents. Moving the child to a new place of residence is possible with them. This path fully complies with the law and the PLO will not raise any questions, it is enough to provide documents confirming all the circumstances of the move.

Parents or guardians will have to go to the local PLO office and submit an application that will state all the facts and apply for permission to move. Such an application can also be submitted by the parent who, after the divorce, intends to move with the child (children) to a new place of residence. The PLO will issue a permit subject to two mandatory conditions:

1. Both parents give written consent for the child to move.
2. The new living conditions are no worse than the old ones.

If the child is already 14 years old at the time of the move, then in addition to the application it is necessary to attach a statement on his behalf, which will state the desire to make the move.

The law gives minors more rights to public housing than adult family members. Parents under Art. 91 of the Housing Code of the Russian Federation can be evicted from a municipal apartment and deprive of parental rights without providing other social housing, but in this case the children will still remain the owners of this apartment and the state will establish guardianship over them.

The eviction of a minor can be carried out from municipal housing, without providing an equivalent housing, but only on condition that living in this municipal apartment threatens the life of the child (emergency state of the house). Such an eviction is still being carried out under the supervision of the PLO, which will take measures to help a family with children resolve a difficult housing issue.

If the eviction is required to be carried out through the court, then it is extremely important to take into account the following circumstance. You can try to do this only once, as the court will reject the second claim. All arguments must be weighed and properly supported by evidence.

Eviction of a minor from a service apartment

Peculiarities of the eviction of minors from service apartments consist in which of the parents or both immediately lost the right to use this housing. Any official apartment is provided to citizens for a certain period, which is indicated in the relevant contract. Usually, the term is included in the employment contract and at the end of the employee's performance of his duties, he is obliged to vacate the office apartment.

The employment contract states that the employee is hired for a certain period and during this period he himself, as well as members of his family, have the right to live in a certain service apartment. If an employee is fired before the expiration of the contract, or the contract expires, then he and all members of his family are required to leave the service apartment. In this case, the minority of one or all children does not serve as an obstacle to their eviction. This rule applies even in cases where the family has no other housing and the children have nowhere to move in immediately after the eviction.

In court, you can get a delay while the family is looking for other housing, but these are more special cases than the norm. The court will stand up for the interests of minors, and will oblige parents to take all measures to find new housing.

When parents get divorced, then exactly the same rules apply to corporate housing as to housing owned by either parent. Children after divorce do not become former members of the family. They cannot legally be evicted anywhere. It is also impossible to evict the former spouse along with the children if they have no other housing. Until the expiration of the contract of the tenant of the service apartment, the former spouse with children will have the right to live together with the tenant until they find other housing.

A special case is the death of parents in the performance of their official duty or in other circumstances. Children in this case remain without parents in a service apartment. In this case, the law establishes the right of children to live in this service apartment until they reach the age of 18. No one has the right to evict them before this time.

Eviction of a minor from a mortgage apartment

When a family is unable to pay a mortgage loan, the bank that issued a loan secured by this apartment has the right to evict the debtors along with the children. It all happens like this:

1. Mortgage borrower fails to pay current payments on time.
2. The bank that issued the loan submits a statement of claim to the court in order to recover the debt under the mortgage agreement and foreclose on the mortgaged property - the purchased apartment. In the vast majority of cases, the courts meet the banks halfway and determine public auctions by the method of selling the pledge (apartment).
3. The apartment can be sold at auction, or it can be transferred to the bank, which, after registering the transfer of ownership of it, will be able to sell this apartment to anyone. When selling an apartment at an auction, the essence of the matter does not change, the ownership will be registered to the buyer who won the auction.

Art. 78 of the Federal Law “On Mortgage (Pledge of Real Estate)” defines: foreclosure on the subject of pledge and the sale of this subject serve as a legal basis for terminating the right to use the subject of pledge of the pledgor and other persons living in this house, if the pledge was issued under a mortgage agreement, loan, in including if the loan was issued for major repairs, construction, repayment of a previously received loan.

It follows that the new owner of the apartment after the execution of the court decision, whoever he may be, has every right to evict from the apartment everyone who lived there, including minors. It will not matter that this apartment is the only place of residence for children and their parents.

Part 1 Art. 446 of the Code of Civil Procedure of the Russian Federation prohibits foreclosure on housing if it is the only one for the debtor and his household. But this ban does not apply to housing previously registered as collateral under a mortgage agreement, since, according to the law on mortgages, it can be foreclosed.

If the parents of the children are not able to give the children an equivalent replacement for the housing lost during the proceedings with the bank, then their future fate will be decided by the PLO. It is possible that the children will be temporarily assigned to an orphanage or boarding school until the parents can solve the housing problem.

Eviction of a minor by court order

The practice of resolving court cases on the eviction of minors is ambiguous. This is a special category of proceedings, governed by housing law, as well as a number of regulations aimed at protecting the rights of children. How a particular case will be decided in court is difficult to predict in advance. The court's decision will be influenced by the following factors:

1. Whether they were registered on a permanent or temporary basis and whether a minor lived in this housing.
2. What type of housing does this apartment belong to - municipal, private, service, communal.
3. What is the age of the child.
4. With whom the minor lived in the disputed apartment, with whom he left.

The most important step in the eviction procedure through the court is the formulation of the statement of claim. The requirements for such documents are contained in Art. 131 Code of Civil Procedure of the Russian Federation. When formulating a statement of claim, it is necessary to take into account the fact that the owner of the housing loses the right to it from the moment when the ownership of the new owner is registered in Rosreestr. It is from this moment that the new owner has the right to file a lawsuit in court to evict the former owner. In this case, the provisions of art. 292 of the Civil Code of the Russian Federation, but not Art. 31 LCD RF.

The applicant will need to pay the state fee and support the claims with the following documents:

1. Receipt for payment of state duty.
2. Power of attorney addressed to the representative of interests (lawyer).
3. Copies of documents confirming the basis of the claim.

All parties involved in the process should receive their copies of the documents and the claim itself. The statement must include the following facts:

1. What happened, what is the role of all parties that affects the outcome of the case.
2. Data of all witnesses.
3. Copy of marriage certificate.
4. All data for each child.
5. Information about each child: where he lives, with whom, in what conditions.
6. Who owned the subject of the dispute (parents, child).
7. Information about the income of the parties.

The next requirement after the eviction request is the requirement to remove the persons registered in the apartment from the registration at this address, carried out by the Federal Migration Service of the Russian Federation. Like the demand for eviction, the demand for deregistration is subject to fulfillment, since the court decision to evict the defendant who has lost the right to use this apartment is a sufficient basis for the FMS authorities to deregister the persons registered in the apartment.

A court decision is submitted to the FMS, after which the deregistration is carried out in accordance with paragraph 31 of the Registration Rules and the Resolution of the Russian Federation No. children's rights in our country are well protected.

However, this does not mean at all that adults can hide behind children in order to avoid difficult decisions. If the legal position of the parties requires a court decision on eviction, then it will be accepted, including in the presence of minor tenants.

Eviction of a minor from a private apartment

From an apartment owned by parents, a child can only be evicted to other housing on legal grounds. The reason for this may be the relocation of parents to another locality, divorce and departure of parents. In all cases, the guardianship authorities ensure that the child receives not the worst, but ideally the best living conditions at the new place of residence.

So, if at the previous place of residence the child had his own room, then at the new address he should also have his own, separate room. Otherwise, the consent of the PLO will not be obtained. Of course, not all families in the Russian Federation can boast such spacious housing, where each family member has his own personal room. In this case, the number of square meters for each person living in the apartment is compared, the child should not suffer when moving and move into closer housing.

It is important to note that not always moving with one of the parents after a divorce is associated with the discharge and eviction of the child. The child may be registered at the old address and retain the right to use that housing (inalienable), but be temporarily registered at the new address of the other parent. This situation does not contradict the norms of the law, especially if the parents have entered into an agreement between themselves or there is a court decision on determining the place of residence of the child.

It is extremely difficult to understand all the subtleties and nuances of such a complex issue as the eviction of children without the help of a lawyer. In each case, the court, when considering a particular case, proceeds from all the circumstances, and which of them will be decisive - an experienced lawyer will help determine.

If you have any questions regarding the eviction of a minor child from an apartment, then our online lawyer on duty is ready to answer them promptly.

The Constitution of the Russian Federation and the Family Code guarantee the child's right to housing. A child under the age of 18 is an independent subject of law and is protected by Russian law. In accordance with the Civil and Family Code, a child has the right to live with parents (guardians, adoptive parents) at their place of residence or registration. A child living with parents is a legal user of residential real estate and has the right to be the owner of this housing. Guardianship and guardianship authorities act as guarantors of the rights of minors.

Registration of newborns at the place of residence of parents

One of the duties of parents is the registration of a newborn. In accordance with Art. 20 of the Civil Code of the Russian Federation, the place of residence of a newborn and children under 14 years of age is the place of residence of the parents or legal representatives of the child. A newborn needs to be registered for several reasons. Registration at the place of residence or registration of parents is needed to obtain a compulsory medical insurance policy (CHI), to apply for a one-time, monthly child allowance and maternity capital, to enroll in a preschool institution and for other cases, including travel outside the country of residence (rest, treatment). A newborn can be registered at the place of residence of the father or mother, if they live / are registered at different addresses. You need to know that the consent of all residents registered in this apartment or house is not required. The area of ​​the room, apartment or house does not matter. For registration at the place of residence newborn necessary prepare following d Documents:

1. Birth certificate of the child (state registration in the registry office). To obtain this document, parents should contact the regional registry office within the prescribed 30 days after the birth of the child.

2. Citizenship of the child. To obtain Russian citizenship for a child, it is enough to submit to the regional department of the FMS (Federal Migration Service) the parents' passports and the child's birth certificate. After checking the documents, on the day of applying to the FMS, a stamp on the child's citizenship is placed on the back of the Certificate.

3. Passports of parents, marriage certificate or certificate of paternity; statement of the second parent that he does not object to the registration of the child at the address of residence of the mother (father). It is also necessary to submit extracts from personal accounts, which are issued at the passport office or at the EIRC (Unified Information Settlement Center) in the area of ​​residence.

4. Photocopies of all submitted documents.

The child is the owner of the property

Consider in what cases a minor child can become the owner or co-owner of residential property.

Property inheritance. In the event of the death of parents or close relatives, a minor can become an heir to residential and commercial real estate. Children are the heirs of the first order, when it comes to the property of their parents. Real estate can pass to the child by will or after the entry into the inheritance by law. It is important to know that parents cannot disinherit their minor child.

Privatization of residential real estate. In accordance with the Law on the Privatization of the Housing Fund of the Russian Federation, every citizen has the right to privatize his housing. For example, the privatization of an apartment, that is, the transfer of ownership, is possible only with the consent of all adult family members or neighbors living together. For children under the age of 14, written consent is given by the parents. As a result of privatization, minor children become owners of housing on an equal footing with adult family members or those living in this area.

Purchase and sale of real estate or donation. A child can become the owner of residential real estate as a result of a sale and purchase transaction with his participation. The law allows minors to participate in real estate transactions under certain conditions, especially to receive housing as a gift.

Can a minor child be evicted from an apartment? The answer to this question is obvious, yes you can, but much more difficult than an adult.

Eviction of minors is problematic from any type of housing. Children belong to a special category of citizens whose rights and interests are protected by guardianship, prosecutor's office and judicial authorities. Since children do not have full legal capacity until the age of 18, they are under the care of their parents or the state.

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Municipal property excludes the release of dwellings by persons who have not reached the full age of majority. Only at the age of 14 comes limited legal capacity, which allows the child the right to choose registration, but with the permission of parents or guardianship authorities.

The position of the children depends on the legal status of the mother and father. For example, if the parents live and are registered in the housing of the municipality, then only voluntary vacation of the premises is envisaged: the departure of the mother and father to another area or a change of housing.

Forced vacation of the premises of a family with young children is only possible. Thus, the housing of the municipality is the only one from which it is impossible to evict children under the age of 18.

An exception may be the fictitious registration of a minor, but in this case the court may not take this into account.

Other types of housing departmental or hostel have a different procedure for the provision and release. However, in this case, in order to resolve the issue of eviction in court, the opinion of the guardianship and guardianship authorities will be taken into account.

Own housing is regulated not only by the Housing Code, but also by the Civil Code.

The release of the owner's living space by minor children requires the consent of the guardianship authority. The decision will be obtained subject to the provision to the minor of an equivalent housing that meets the characteristics of the previous one.

An application is submitted to the guardianship authority with the attachment of documents that confirm the fact that children are provided with living space. This may be a preliminary contract for the purchase of real estate or a notarial obligation, as well as executed documents for a new apartment, for example, a donation agreement.

Children are evicted from their own housing along with their mother or father, with whom they will live.

The resettlement of minors is a specific category of cases in court, because, in addition to the Housing Code, such issues are regulated by other regulations and provisions on the protection of children.

The decisions of the courts can be different and will depend on the circumstances of the case:

Based on the termination of marital relations and the separation of parents, the place of residence of the child may be determined by agreement of the parents or established by a court decision.

Is it possible to evict minor children from service housing?

Service living space is specific and is allocated for the period of work or service for a certain period. A contract is concluded with an employee or employee, which specifies the conditions for living with a family.

If the main tenant quit at the end of the contract or of his own free will, or was fired for violating labor discipline, he is obliged to vacate the living space together with his family.

Children under the age of 18 are not an obstacle in this case, even if there is no other property to live in. The only way out in such a situation is the provision by a court decision of a delay in the execution of a court decision while searching for a new place of residence.

However, even in departmental housing, the interests of children are protected. For example, if a parent of a child died while performing labor or official duties under a contract, then the law prohibits the eviction of a minor under 18 years of age from an apartment.

Eviction of tenants from an apartment with a minor child

Under a lease agreement, housing is provided for temporary use and for a fee.

The release of the owner's property by tenants can be carried out in the following cases:

• use of housing for purposes other than residential;
• destruction of the owner's property;
• non-observance of the interests of persons living nearby;
• failure to pay rent and utilities;
• subletting housing;
• other conditions stipulated by the agreement.

If an agreement on the lease of housing has not been concluded, then the judicial authorities will not help in this case. There is only one option, contacting law enforcement agencies with a statement that unauthorized persons are in the apartment and refuse to leave it.

If the tenants have changed the locks, then it is necessary to call the Ministry of Emergency Situations, while having documents for the dwelling and a passport that indicate ownership.

Not a problem for the property owner, but homeowners are reluctant to rent apartments to such families. A property owner without a contract may demand to vacate the premises immediately or give a deadline.

The situation is more complicated with housing rented under a lease agreement. If the tenants refuse to vacate the premises, then the owner should apply to the judicial authorities with a request to terminate the contract. A stay of execution may be granted by a court decision.

Therefore, the best solution is to include the time delay in the terms of the contract. If temporary registration is issued on the living space of a family with a child, then it is better not to do this. The body of guardianship and guardianship may not give consent to the deregistration of the child.

Eviction of children from the hostel

Dormitories are specific housing in Russia. Almost all dormitories have been transferred to the management of municipal property and can be provided for the duration of study, work, or in other cases, for example, used as a resettlement fund. Such housing is not subject to privatization.

Legislation prohibits the resettlement of mothers or fathers of singles from hostels without allocation of other housing. A minor with his family can be evicted if the premises were provided after the entry into force of the new housing code of the Russian Federation in 2005.

In addition, if the statute of limitations of three years for presentation to the judicial authorities is missed, the court will refuse to consider the case for this reason.

However, the law does not prohibit the eviction of a family with minor children under the following circumstances:

1. There was a large debt to pay for services.
2. Residents repeatedly violate the rules of the hostel, and this is documented.
3. Causing significant damage to residential premises.
4. Termination of the employment agreement at the initiative of the employee with the organization that provided housing.

However, as in other cases, the consent of the guardianship authorities is required for such resettlement with children. In court, the circumstances of each case for the forced evacuation of families with children from hostels are considered strictly individually.

Eviction of a child from non-privatized real estate

Non-privatized real estate is housing in respect of which there were no privatization actions at all. The living area of ​​an apartment can be privatized by some users, while others could refuse in favor of any family members. Children cannot refuse in favor of other family members, they do not have full legal capacity.

In most cases, non-privatized real estate is municipal housing, departmental housing and a hostel. The resettlement of minor children from non-privatized housing is a problematic process.

For example, from any type of housing.

How can an owner evict a minor from an apartment?

The housing legislation provides that the judicial authorities may oblige the owner to provide another living space for the former spouse or spouse in whose favor the maintenance obligation is being fulfilled.

If the court comes to such a decision, then it states:

• the deadline for the owner of the property to fulfill the obligation;
• characteristics of the property;
• location of the dwelling on the basis of and;
• on what grounds the owner provides other housing: a contract of sale, gift or lease.

This is how the issue of how to evict a minor is solved, only by providing similar housing. The housing provided may be located in another locality, but consent will be required for the former family member to move to another city.

When determining the living space, the court proceeds from the financial situation of the owner and other circumstances that deserve attention.

If the owner of the property does not have any blood ties with the minor and the child is simply registered in the property, then this issue is decided by the owner.

For forced eviction, you must apply to the court. There will be no problems in considering such an application. In this situation, the child falls under the care of the state and can be placed in an orphanage in the absence of parents.

The Plenum of the Supreme Court of the Russian Federation gave a clear indication in the clarifications () that when considering cases, the courts should be guided by the principles of reasonableness, justice, humanism and the real possibilities of the property owner.

Children cannot be former members of the family based on the provisions of Art. 31 of the Housing Code of the Russian Federation and the fulfillment of maintenance obligations.

Conclusion

Summing up what has been said, we can say that children are an unprotected category of persons. The issues of resettlement of children under the age of majority are considered taking into account the opinion of the guardianship authorities in any type of housing. In addition, orphans from departmental housing and hostels cannot be resettled.

Cases involving the eviction of children under the age of majority are complex and placed in a special category. The state takes care of the protection of the rights and interests of young children.

If you have any questions about the topic of this article, ask them in the comments or the duty lawyer of the site. Also, you can always call us at the numbers listed on the site.