Service living quarters article 31 of the housing complex of the Russian Federation. Leninsky District Court

1. The Housing Code of the Russian Federation refers to the family members of the owner of the living quarters of the following persons living together with this owner in the living quarters belonging to him:

his spouse;
his parents (including adoptive parents in accordance with Article 2 of the RF IC);
his children (including those adopted in accordance with Article 2 of the RF IC).

Other relatives, disabled dependents, in exceptional cases - other citizens can be recognized as members of the owner's family if they are moved in by the owner as members of his family. They are not directly members of the owner's family; such persons only have the right to use the dwelling on an equal basis with family members.

2. It is understood that the family members of the owner are moved into the owner's living quarters on the basis of his application and are permanently registered in the manner prescribed by law. At the same time, the family members of the owner who are permanently registered in his residential premises have only the right to use such residential premises, albeit on an equal basis with the owner, but they cannot, by virtue of law, dispose of the property - the owner's residential premises. The right to use implies the right to consume property within the boundaries determined by its purpose, established by law... In other words, family members of the owner have the right only to live in such a residential building, ensuring its safety. If the rights of use of the family members of the owner are violated, they have the opportunity to protect their rights and demand the elimination of violations of their rights, including from the owner. In particular, the family members of the owner may file a claim with the court to avoid obstacles in the use of the residential premises in which they are permanently registered against the owner of the premises, if he prevents them from living in such premises.

3. The right to use living quarters generates not only a good, but also a duty. This Code has determined the obligation of legally capable family members of the owner of a dwelling to bear joint and several liability with him for obligations arising from the use of this dwelling, unless otherwise established by an agreement between the owner and his family members.

By general rule capable citizens are persons who have reached the age of majority - eighteen years of age (Article 21 of the Civil Code of the Russian Federation). Citizens who marry before they reach the age of eighteen, from the moment of marriage, can be recognized as capable until the onset of majority. Investigative Committee of the Russian Federation determines the possibility to marry from the age of sixteen if there are valid reasons with the permission of local authorities.

A minor who has reached the age of sixteen may be declared fully capable by decision of the guardianship and guardianship authorities (with the consent of both parents, adoptive parents, trustees) or by a court decision (in the absence of such consent), if he works under an employment contract, including under a contract , or with the consent of the parents, adoptive parents or guardian, is engaged in entrepreneurial activity.

The obligation arising from the use of a dwelling is the burden of maintaining the dwelling, ensuring its safety, using it for its intended purpose, paying on an equal basis with the owner of utility bills, respecting the rights and interests of neighbors, etc.

4. The rights and obligations of citizens living together with the owner in the residential premises belonging to him have changed radically.

Previously, if a citizen was moved in and registered in a dwelling as a family member, he had an unlimited right to use the dwelling. He had the same rights, and when he became former member the owner's family, it was impossible to evict him. It was possible to sell an apartment only with an encumbrance in the form of former family members. As a rule, no one bought such apartments, that is, the owner could not get rid of unwanted former family members in any way, since earlier in the Civil Code of the Russian Federation there was a rule establishing that the transfer of ownership of a residential building or apartment to another person is not a reason for terminating the right use of the living quarters by family members of the previous owner.

From January 1, 2005, the transfer of ownership of a residential building or apartment to another person is the basis for the termination of the right to use the residential premises by family members of the previous owner, unless otherwise provided by law (clause 2 of Article 292 of the Civil Code of the Russian Federation as amended by the Federal Law of December 30, 2004 "On amendments to part one Civil Code Russian Federation").

This article says: if the owner and a member of his family (persons listed in paragraph 1 of this article) have ceased to associate family relations (for example, as a result of divorce, deprivation of parental rights, etc.), then the right to use the residential premises is not preserved, unless otherwise not established by agreement between them.

However, you need to take into account some restrictions in the application of this provision.

Firstly, if the owner of the dwelling is one of the spouses (the dwelling is registered in his name), and such a dwelling was acquired during the marriage, then in the absence of a marriage contract between the spouses, the dwelling is the joint property of the spouses and, accordingly, their common property, regardless of of the one in whose name it is registered.

In accordance with the RF IC (Chapter 7), the property acquired by spouses during marriage is their joint ownership... The property acquired by the spouses during marriage (common property of the spouses) includes the income of each of the spouses from work, entrepreneurial activity and the results of intellectual activity, pensions, benefits received by them, as well as other monetary payments that do not have a special purpose (amounts material assistance, amounts paid in compensation for damage due to disability due to injury or other damage to health, and others). The common property of the spouses is also acquired at the expense of total income spouses movable and immovable things, securities, shares, deposits, shares in capital contributed to credit institutions or in other commercial organizations, and any other property acquired by the spouses during the marriage, regardless of the name of which of the spouses it was acquired or in the name of whom or by which of the spouses the funds were deposited. In addition, the right to the common property of the spouses also belongs to the spouse who, during the period of marriage, carried out the household, caring for children or for other valid reasons did not have an independent income.

The division of property can be carried out at the request of any of the spouses voluntarily - by agreement or compulsorily - through the court.

The property that belonged to each spouse before marriage is not subject to division, as well as property received by one of the spouses during marriage as a gift, by way of inheritance or other gratuitous transactions (this includes privatization) (property of each of the spouses) is his property. At the same time, such property can also be recognized as joint property of the spouses, if it is established that during the marriage at the expense of common property spouses or property of each of the spouses or the labor of one of the spouses, investments were made that significantly increase the value of this property ( overhaul, reconstruction, re-equipment and others).

When the property of the spouses is divided and the shares in this property are determined, the shares of the spouses are recognized as equal, unless otherwise provided by the agreement between the spouses.

Based on the foregoing, a former family member of the owner of a dwelling that is jointly acquired property during the marriage period may file a claim for division of property against the spouse in whose name the disputed premises are registered.

If a marriage contract was concluded between the spouses, then the property regime between the spouses is determined by its provisions.

Secondly, according to the Introductory Law (Art. 19), the provisions of part 4 of this article do not apply to former family members of the owner of the privatized residential premises, provided that at the time of privatization of this residential premises, these persons had equal rights to use this premises with a person, his privatized, unless otherwise provided by law or contract. In other words, if the persons were registered before the privatization of residential premises, and then one of them privatized such premises, and the other accordingly refused in favor of the first, then the second cannot be evicted on the basis of the provisions of paragraph 4 of this article, unless otherwise provided by law or agreement ...

If the former family member of the owner does not have another home to which he could return, as well as the property status or other noteworthy circumstances (for example, health, age) do not allow him to provide himself with other living quarters, the court may retain the right to use the premises for such a former family member at a certain period... In the first version of the Code, a period of 1 year was determined. Now it can be any term: a month, five years, for life. The court also has the right to oblige the owner to provide other living quarters ex-spouse and other family members (at their request), to whom the owner has alimony obligations. The law does not establish on what right the owner must provide such persons with dwelling, which means that if he has another dwelling, he can provide it on the basis of an agreement gratuitous use, and if there is no other dwelling, then the owner can conclude a commercial lease agreement in favor of such persons.

5. The Housing Code of the Russian Federation establishes the consequences for the former family member of the owner upon the expiration of the term of use of the living quarters established by the court decision, adopted taking into account the provisions of part 4 of this article, and also considers cases of termination of the right to use the former family member before the expiration of the specified court decision.

Upon the expiration of the term of use of the living quarters established by the court decision, adopted taking into account the provisions of part 4 of this article, the corresponding right to use the living quarters of the former family member of the owner shall be terminated.

Before the expiration of the term for the use of a residential premises established by a court decision, the right to use a former family member is terminated in the following cases:

at the same time (automatically) upon transfer of ownership of a given dwelling to another person (the norm is similar to clause 2 of article 292 of the Civil Code of the Russian Federation);
on the basis of a court decision, if the circumstances that served as the basis for retaining the right to use the residential premises have disappeared, for example, a former family member has the opportunity to purchase his own home.

6. A former family member of the owner of a dwelling, whose right to use was retained on the basis of a court decision (part 4 of this article), shall bear obligations arising from the right to use, on an equal basis with the owner of such premises and other family members of the owner in the event that the former family member is competent. Thus, the Housing Code of the Russian Federation gives the former family member of the owner of the residential premises the right to use equal to the right to use the owner and his other family members, leading both to the good and bearing the obligation to use the premises for their intended purpose, to ensure its safety, etc., limiting only given right use of a former family member for a period established by a court decision.

7. The owner of a residential premises has the right to grant possession and (or) for use of the residential premises belonging to him by right of ownership to a citizen on the basis of a lease agreement, an agreement for gratuitous use or otherwise. legal basis(part 2 of article 30 of the LC RF). The rights of such citizens who are not members of the family of the owner of the dwelling (whose rights and obligations are defined in part 1 of this article), but who have been brought into the given premises by the owner, are determined by an agreement between the owner and such persons.

1. The family members of the owner of a residential premises include his spouse, who live together with this owner in the residential premises belonging to him, as well as the children and parents of this owner. Other relatives, disabled dependents and, in exceptional cases, other citizens may be recognized as members of the owner's family if they are moved in by the owner as members of his family.

2. Family members of the owner of a residential premises have the right to use this residential premises on an equal basis with its owner, unless otherwise provided by an agreement between the owner and members of his family. Family members of the owner of a living space are obliged to use this living space for its intended purpose, to ensure its safety.

3. The family members of the owner of the living quarters who are capable and have limited legal capacity by the court shall bear joint and several liability with the owner for the obligations arising from the use of this living quarters, unless otherwise established by an agreement between the owner and his family members.

(as amended by Federal law from 24.04.2008 N 49-FZ)

4. In the event of termination of family relations with the owner of a residential premises, the right to use this residential premises for the former family member of the owner of this residential premises shall not be retained, unless otherwise established by an agreement between the owner and the former member of his family. If the former family member of the owner of the residential premises has no grounds for acquiring or exercising the right to use another residential premises, and also if the property status of the former family member of the owner of the residential premises and other noteworthy circumstances do not allow him to provide himself with other residential premises, the right to use the residential premises belonging to the specified owner, may be retained by a former member of his family for a specified period on the basis of a court decision. In this case, the court has the right to oblige the owner of the living quarters to provide other living quarters for the former spouse and other members of his family, in whose favor the owner fulfills alimony obligations, at their request.

5. Upon the expiration of the term of use of the living quarters established by the court decision, adopted taking into account the provisions of part 4 of this article, the corresponding right to use the living quarters of the former family member of the owner shall be terminated, unless otherwise established by an agreement between the owner and this former member of his family. Prior to the expiration of the specified period, the right to use the living quarters of the former family member of the owner shall be terminated simultaneously with the termination of the ownership right to the given residential premises of this owner or, if the circumstances that served as the basis for the preservation of such right have disappeared, on the basis of a court decision.

6. A former member of the owner's family who uses the dwelling on the basis of a court decision, adopted taking into account the provisions of part 4 of this article, has the rights, bears the duties and responsibilities provided for in parts 2-4 of this article.

7. A citizen using a residential premises on the basis of an agreement with the owner of this premises has the rights, obligations and responsibilities in accordance with the terms of such an agreement.

Comments on the article

1. Special legal regulation require a relationship between the citizen who is the owner of the dwelling and other citizens who, along with the citizen-owner, live in the dwelling belonging to the latter. The nature of these relations depends, first of all, on the grounds for the emergence of the right to use the living quarters of the owner-citizen, in other words, the right to reside in this living quarters. Taking into account the grounds, two groups of citizens can be distinguished in relation to the citizen - the owner of the dwelling.

The first group is the family members of the owner, which include, firstly, the owner's closest relatives: spouse, children and parents. Since the concepts of “family” and “family member” are used in the LC in relation to housing legal relations, the necessary feature of a family in this context is the residence of its members in a dwelling belonging to the owner, together with him. Secondly, other relatives (brothers, sisters, uncles, aunts, grandfathers, grandmothers, etc.) and disabled dependents who are not relatives of the owner can be classified as members of the family of the owner of the dwelling; in exceptional cases, citizens who are not in any kindred or inherent relationship with the owner of the home and are not his disabled dependents may also be recognized as members of the owner's family. The condition for the recognition of this group of citizens as members of the owner's family is that at one time they were moved by the owner into the living quarters belonging to him on the right of ownership precisely as members of his family (acclimatizers). Such cases in themselves are an exception in relation to the concept of a family as an association of citizens living together, connected by marriage or other family ties. However, moving in as family members and subsequent living in a dwelling together with the owner and other members of his family become decisive factors that ensure the unity of citizens living together, including those who live together, and are the basis for determining the composition of the family of the owner of the dwelling.

The second group of citizens living with the owner is citizens who are not members of the owner's family; they are moved by the owner into the premises belonging to him not as members of his family, but nevertheless, by virtue of the move, acquire the right to use the premises (the right to reside in it). This right is limited in comparison with the right of the owner himself and his family members. The specific scope of this right, as well as other rights, duties and responsibilities of the universed citizen who is not a member of the owner's family - the citizen-user - are determined by an agreement between this citizen and the owner of the dwelling.

2. The scope of the rights and obligations of family members of the owner of a dwelling is determined by an agreement between the owner, on the one hand, and his family members, on the other. With such an agreement, for example, in the use of family members of the owner, separate rooms in the owner's apartment can be assigned, the procedure for use is established common areas in the apartment, the terms of payment are determined utilities, other issues are settled.

The Code does not contain special requirements to the procedure for concluding and the form of agreements between the owner of the dwelling and members of his family, as well as between the owner and the citizens who are moved in by him, who are not members of his family. Such agreements can be concluded orally, in particular, through the performance of implicit actions. The establishment of their content by the court in the event of a dispute can be carried out with the help of various evidence, including testimony. If it is impossible to establish the content of the agreements concluded between the owner and his family members, or they do not regulate the basic conditions for the use of residential premises, then the provisions of the dispositive norms of paragraphs 2 and 3 of the commentary apply. Art .: family members of the owner of the living quarters use this living quarters on an equal basis with him, i.e. the scope of their right of use (right of residence) is equal to the scope of the right of the owner himself. When exercising the right to use, the family members of the owner are obliged to use the dwelling for the intended purpose, ensuring its safety.

Unless otherwise established by an agreement between the owner and members of his family, capable members of the owner's family are jointly and severally liable with the owner for the obligations arising from the use of the dwelling.

3. Agreements between the owner of a dwelling and members of his family, as well as agreements between the owner of a dwelling and citizens universed by him, who are not members of the owner's family, are a type of civil law transaction (agreement) and the rules of the Civil Code of the Russian Federation on transactions apply to them (chapter 9, Articles 153-181).

An agreement between the owner of a dwelling and members of his family may provide for the consequences that arise regarding the right to a dwelling in the event of the termination of family relations between them. The consequences can be very different - from the loss of the right to use a dwelling (the right to live in it) to the preservation of rights and obligations in the same volume.

The LCD norms governing the relationship between the owner of a dwelling and former members of his family (clauses 4, 5 and 6 of the commentary article) are for the most part dispositive: they apply only to the extent that the relevant issues are not regulated by an agreement between the owner living quarters and a member (former member) of his family. First of all, this refers to the question of the possibility of a former family member to continue to live in the owner's living quarters. As a general rule, unless otherwise provided by an agreement between the owner and a member of his family (former member), from the moment of termination of family relations, the right to use the living quarters of the former family member of the owner is terminated. Termination of the right to use (right of residence) is the basis for the eviction of the former family member of the owner from the occupied dwelling without providing another dwelling.

The legislator, however, takes into account the situation of a former family member who may find himself in a situation where he has no place to live at all. The court, when considering the claim of the owner of the residential premises against the former family member for eviction, has the right, taking into account all the specific circumstances, to establish the period during which the former family member - the defendant in the claim - retains the right to reside in the owner's residential premises. The legislator does not exclude the possibility that the situation may change and a new agreement may be reached between the owner of the dwelling and the former member of his family, according to which the former family member retains the right to use the owner's dwelling under certain conditions stipulated by this agreement. Unless otherwise provided by an agreement between the owner and a former member of his family, the latter, after the expiration of the period established by the court, is subject to eviction.

The specific circumstances that served as the basis for the court to retain the right of a former family member to live in the owner's living quarters must be special, respectful, for example, a serious illness of a former family member. If these circumstances disappear earlier than the term established by the court, the right of the former family member should be terminated with his subsequent eviction at the request of the owner.

The same consequences - the termination of the right of use for a former family member - occurs when, for whatever reason, the owner's right to ownership of a dwelling is terminated.

It should be borne in mind that the text of clause 2 of article 292 of the Civil Code of the Russian Federation FZ of December 30, 2004 N 213-FZ "On Amendments to Part One of the Civil Code of the Russian Federation" has been amended (the words "is not" are replaced by the word " is ”) and according to new edition of this norm, upon transfer of ownership of a dwelling to another person, the right to use this dwelling is lost not only by former family members, but also by real family members of the former owner of this dwelling (RG. 2004, December 31).

4. A completely exceptional situation arises in the relationship between the owner of a dwelling as a person liable for alimony and his ex-spouse, as well as other members of his family, in whose favor the owner fulfills alimony obligations. At the request of the named persons, the owner may be obliged by the court to provide them with other living quarters, i.e. these persons must be provided with housing by the owner and at his expense.

In the comment. Art. it says: "In this case, the court has the right." It can be assumed that the mere existence of the owner's alimony obligation is clearly not enough. Special exceptional circumstances must be identified by the court, for example, the duration of the marriage, the duration of the residence of a former family member in the owner's living quarters, etc. Only in the presence of such circumstances will a court decision obliging the owner of a living quarters to provide former members of his family with another living quarters, will it comply with the principles of social justice and humanism, on which the modern Russian legal system is based.

ZhK RF Article 31. Rights and obligations of citizens living together with the owner in the living quarters belonging to him

(see text in previous edition)

ConsultantPlus: note.

Part 4 of Art. 31 does not apply to former family members of the owner of the privatized housing who at the time of privatization had equal rights with the owner, unless otherwise provided by law or agreement (Federal Law of December 29, 2004 N 189-FZ).

Commentary on Art. 31 ZhK RF

1. According to the previous legislation, the family members of the owner of the dwelling were the owner's spouse, their children and parents. Other relatives, disabled dependents, and in exceptional cases, other persons could be recognized as family members of the owner of the dwelling if they lived with him and kept a common household with him (part 2 of article 127, as well as part 2 of article 53 ZhK RSFSR).

In the latest legislation, the circle of family members is narrowed.

Considering part 1 of the commented article, it is necessary to note a clear division of the citizens named in it into two groups.

First, the spouse, his children and his parents are members of the family of the owner of the dwelling. Unlike the previous legislation, the family members of the owner do not include the children of his spouse (for example, from a previous marriage) and the parents of this spouse.

Only a marriage registered in accordance with the established procedure has legal significance.

For the recognition of the named persons as family members of the owner of the dwelling, it is required to establish only one fact - the fact of cohabitation with the owner. It does not matter whether these persons run a common household, whether they provide each other with mutual support, etc.

Secondly, other relatives, disabled dependents, and, in exceptional cases, other persons can be recognized as family members of the owner of the home, if they are moved in by the owner as members of his family. It should be borne in mind that family relations are characterized, in particular, by mutual respect and mutual concern of family members, their personal non-property and property rights and responsibilities, common interests, responsibility to each other, maintaining a common economy (clause 11 of the Resolution of the Plenum of the RF Armed Forces of July 2, 2009 N 14).

The degree of relationship does not matter (even "the seventh water on jelly").

The family members may include the dependents of the owner, but not those who support the owner, and only disabled dependents. Citizens who have reached retirement age, who are disabled, as well as persons under the age of 18 are recognized as incapacitated.
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When determining the circle of persons related to disabled dependents, the courts should be guided by clauses 2, 3 of Art. 9 of the Federal Law of December 17, 2001 N 173-FZ "On labor pensions in the Russian Federation", which provides a list of disabled persons, and also establishes the signs of a dependent person (he is fully supported or receives assistance from another person, which is for him a permanent and main source of livelihood) (paragraph 11 of the Resolution of the Plenum of the RF Armed Forces of July 2, 2009 N 14).

Other persons can be recognized as members of the owner's family only in exceptional cases. This rule is designed for situations such as, for example, when the parents of the spouse of the owner of the living quarters, cohabitant, etc. move into the dwelling. The named citizens can be recognized as family members of the owner of the dwelling in the presence of two legal facts: a) Cohabitation with the owner of the property; b) settling in by the owner as members of his family.

Registration of a person at the place of residence at the request of the owner of a residential premises or its absence is not a determining factor for resolving the issue of recognizing this person as a family member of the owner of a residential premises. The presence or absence of a person's registration in a residential building is only one of the evidence in the case (paragraph 11 of the Resolution of the Plenum of the RF Armed Forces of July 2, 2009 N 14).

Family members of the owner of a dwelling are not entitled to other persons to move into the given dwelling. At the same time, the court may recognize that the family members of the owner have the right to move in their minor children (clause 12 of the Resolution of the Plenum of the RF Armed Forces of July 2, 2009 N 14).

In the opinion of an inexperienced reader, the rule under consideration and the above reasoning do not have any meaning (“If the owner of an apartment (house) considers someone a member of his family, then it is”). In fact, defining the circle of family members of the owner of a dwelling is extremely important, but more on that later.

2. The family members of the home owner are equal with him in the rights to use the dwelling. The owner always has more rights(he is the owner!). But in use they are equal. This means that no one (and even the owner) has an advantage in using separate rooms(rooms, kitchen, bathroom, etc.), in terms of access to living quarters, etc. Others may be provided by agreement between the owner and his family members (individual family members). Thus, an agreement may establish that a family member of the owner of a living space does not use the entire apartment (not the entire house), but only separate premises (rooms) of the apartment (house). Such an agreement can be concluded both upon the arrival of a family member, and subsequently (in the process of use). Such agreements are governed by the rules of the Civil Code of the Russian Federation on civil transactions (Art. Art. 153 -) (clause 12 of the Resolution of the Plenum of the RF Armed Forces of July 2, 2009 N 14).
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See about this: Transactions: Clause-by-clause commentary to Chapter 9 of the Civil Code of the Russian Federation / Ed. P.V. Krasheninnikov. M .: Statut, 2009.

3. Since the dwelling is intended exclusively for the residence of citizens (Art. 288 of the Civil Code, Art.,), Then the family members of the owner of the dwelling are obliged to use it for its intended purpose (for living).

4. An indication that members of the family of the owner of a dwelling are obliged to ensure the safety of the dwelling cannot be understood as imposing on them the costs of repairs, maintenance of dwellings, etc. , deterioration quality characteristics etc.

5. Part 3 of the commented article refers to the obligation to pay for utilities, although the wording “obligations arising from the use of this dwelling” suggests that it is possible to impose on family members not only the obligation to participate in paying for utilities.

Part 3 of this article says: "The family members of the owner of the living quarters who are legally capable and limited by the court in legal capacity bear joint and several liability with the owner ..." This means that until the obligation (to pay for utilities) is fully fulfilled, you can demand performance in whole or in part both from the owner of the home and from any capable member of his family.

The creditor has the right to demand the fulfillment of a joint and several obligation (payment of utilities) both from all debtors jointly and from any of them separately (both from the owner of the living quarters and his family members jointly, and from any of them separately), moreover, both completely and in terms of debt.

The fulfillment of the obligation by one of the debtors in full terminates the obligation to the creditor. At the same time, an obligation arises between this debtor and his co-debtors. The debtor who has fulfilled the obligation has the right to claim the fulfilled from the rest of the debtors (co-debtors) in equal shares minus the share falling on him. If, for example, the owner and three members of his family use the dwelling and the owner (a member of his family) paid utility bills in the amount of 1 thousand rubles, then he (who paid) can demand 250 rubles from everyone living with him (on joint and several obligations see Art. Art. 322 - 326 of the Civil Code).

Only capable citizens and citizens with limited legal capacity bear joint and several liability with the owner.

The legal capacity of a citizen arises in full with the onset of majority, i.e. upon reaching the age of 18. If the law allows marriage before reaching 18 years of age, then a citizen who has not reached this age acquires full legal capacity from the time of marriage (Article 21 of the Civil Code).

In the presence of certain conditions, a minor who has reached the age of 16 may be declared fully capable (emancipated) (Article 27 of the Civil Code).
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See about this: The legal status of a citizen in private law: An article-by-article commentary on Chapter 3 of the Civil Code of the Russian Federation / Ed. P.V. Krasheninnikov. M .: Statut, 2009.S. 111 - 119.

The court may restrict the legal capacity of a citizen who, due to the abuse of alcoholic beverages or drugs, puts his family in a difficult financial situation (Article 30 of the Civil Code).

By agreement of the owner of the living quarters with all members of his family or with any of the family members, joint and several liability can be eliminated. For example, the elderly owner of a dwelling, when bringing in any of the relatives, stipulated that they would pay for all utilities. A similar (or other) agreement can be reached in the course of use.

The form of the agreement has not been established (the norms of the Civil Code apply).

The assumption of an agreement on the elimination of joint liability for obligations arising from the use of residential premises raises some problems. Suppose the owner does not pay for utilities and, when filing a claim against him, refers to the fact that by agreement with one of his family members, the corresponding responsibility is assigned to this family member. A written agreement can also be presented (another matter when it is made). How to be? It is unlikely that such situations will arise often (including due to the legal ignorance of citizens). But they are possible, and, unfortunately, the law does not indicate the criteria that should be followed when resolving such conflicts.

6. Termination of family relations with the owner of a residential premises entails termination of housing rights. Now the former members of his family are obliged to vacate the dwelling (move out of it).

Family relationships can end for a variety of reasons. First of all, of course, as a result of the dissolution of the marriage of the owner of the living quarters with his spouse or the recognition of the marriage as invalid. But in connection with the numerous "comments" of Art. 31 of the RF LC, which distort the essence of the rules set out in it, it must be emphasized that the children of the owner of the living quarters cannot become former family members. The family relationship between the owner of the home and his children cannot end. Therefore, the reasoning so widespread today that in the event of a dissolution of marriage, the (ex) wife and children should go out into the street have no grounds. Children, despite the dissolution of marriage by their parents, retain the right to use the living quarters belonging to one of the parents in which they lived.
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Judicial practice in this regard was rather contradictory. The Resolution of the Plenum of the Armed Forces of the Russian Federation of July 2, 2009 N 14 explains: the termination of family relations between the parents of a minor child living in a dwelling owned by one of the parents does not entail the child's loss of the right to use the dwelling in the context of the rules of Art. 4 tbsp. 31 of the RF LC (clause 14).

A child in respect of whom the parents (one of them) have been deprived of parental rights retains the right to use the living quarters.

Naturally, despite the termination of family relations, the owner of the dwelling may agree (not object) to the now former family member to live in the premises he owns.

7. The court may (but is not obliged) to establish a certain period during which a former family member of the owner of a residential premises is entitled to use this premises.

Part 4 of the commented article 31 of the JK of Russia provides an approximate list of criteria that should be followed by the court. A former family member, by a court decision, can retain the right to use the home if:

- there are no grounds for acquiring the right to use other residential premises. For example, a former family member is ready to purchase another home, but cannot do so due to the lack of offers;

- there are no grounds for exercising the right to use another dwelling (the former family member does not own another dwelling, did not retain the right to use the dwelling in which he previously lived on the terms social recruitment, etc.);

- the property status of a former family member does not allow him to provide himself with other living quarters (no Money).

This indicative list is rather illustrative, as it “overlaps” more general indication: The court may consider other noteworthy circumstances that make the former family member nowhere to live.

The court may decide to retain the right to use only for a certain period (for example, one year). It is unacceptable to retain this right with an indication that it exists "indefinitely", "until the acquisition of housing" by a former family member, etc. It cannot be established that "the term is determined by the agreement of the parties." It is clear that such an agreement can and will be taken into account by the court. But the term must be specified in the court decision.

As a general rule, the very fact of termination of family relations entails the termination of the right to use the dwelling by former family members. By agreement between the owner and a former member of his family, otherwise may be established. The agreement in this case is understood extremely broadly. This can be an agreement (in writing or orally) that a former family member will live in a dwelling for a certain or indefinite period, free of charge or for a fee, will use only a certain part of the dwelling, etc. etc. Strictly speaking, if a former family member continues to use the property and the owner does not object, then this also indicates that there is an agreement.

8. A former family member of the owner of a dwelling, for whom the court retained the right to use the dwelling for a certain period, uses the dwelling on an equal basis with the owner, unless otherwise provided by an agreement, while he must use the dwelling for its intended purpose, ensure its safety. He is jointly and severally liable with the owner for the obligations arising from the use of the residential premises, unless otherwise provided by the agreement.

9. During the course of the period determined by the court or after its expiration, the owner of the living quarters and a former member of his family may conclude an agreement providing for the preservation of the right of use by the former family member (for a certain period, an indefinite period, etc.; see clause 7 of this comment ). But as a general rule, at the end the deadline the right to use is terminated. A former family member of the owner of a residential premises is obliged to vacate the premises.

In addition, the right to use is terminated if the ownership right is terminated (the existence of the right to use depends on the ownership right).

The right to use may be terminated by a court decision if the circumstances that served as the basis for retaining the right to use have disappeared. For example, a former family member bought a home.

Although this is not indicated in the commented article, there is no doubt that a former family member, for whom the right of use is retained by a court decision for a certain period, can at any time waive this right (vacate the dwelling). Termination of the right to use within a period specified by the court is possible by agreement of the parties.

10. The court may (but is not obliged) to impose on the owner of a dwelling the obligation to provide the former members of his family with another dwelling, but only if the owner bears alimony obligations to these persons.

Considering this final provision of Part 4 of the commented article, it is necessary to pay attention to the following.

Firstly, this rule is designed primarily for the former spouse and children of the owner of the dwelling. It is no coincidence that the commented article 31 of the JK refers to former family members, and in this case - to provide housing for “the former spouse and other members of his family”. But children cannot become former family members if they live with the owner, just like their parents.

Regardless of what meaning was put into the analyzed norm when it was formulated, it follows from the text of the law that it applies to all former family members. And if it comes on the provision of housing for the ex-spouse and minor children will live with this ex-spouse, then the court may oblige to provide housing for the children (although they are not "former family members").

Secondly, the rules on alimony obligations are concentrated in the Family Code of the Russian Federation (hereinafter referred to as the RF IC) (Articles 80 - 120).

Parents are obliged to support their minors, as well as disabled adult children. Able-bodied adult children are obliged to support their disabled parents who need help.

A disabled needy spouse, wife during pregnancy and within three years from the date of birth of a common child, a needy spouse caring for a common disabled child until the child reaches the age of 18, or for a common child disabled since childhood can demand the payment of alimony from the other spouse. Group I. In some cases, the former spouse is eligible for post-divorce support. V provided by law In cases, alimony obligations are borne by brothers and sisters, grandparents, grandchildren, pupils in relation to their actual educators, stepsons and stepdaughters.

The owner may be obliged to provide housing for former members of his family, if he bears alimony obligations in relation to these persons.

Third, a court decision establishing the owner's obligation to provide former family members with other living quarters may provide for the provision of housing to these former family members under contracts of commercial tenancy or gratuitous use. Moreover, this can be housing owned by both the owner (evicting former family members) and third parties. The court may oblige the owner of the dwelling to purchase other housing for the former family members in their common property etc.

Fourthly, when making a decision, the court must take into account specific circumstances. The decision must be enforceable. So, if the owner does not have sufficient funds and there is no way to get them, then no matter how many decisions are made (on the purchase of housing for former family members, etc.), they will not be executed.

Fifthly, the court can make such a decision only if a corresponding demand is made.

Sixth, the rules under consideration can also be applied in the event that family relations between the owner of the dwelling and a member of his family living together with the owner in the dwelling belonging to him were terminated before the RF LC came into effect (clause 18 of the Resolution of the Plenum of the Armed Forces RF dated July 2, 2009 N 14).

If the court comes to the conclusion that it is necessary to impose on the owner of the living quarters the obligation to provide a former member of his family with another living quarters, then the court decision must determine the time period for the owner of the living quarters to fulfill such an obligation, the main characteristics of the other living quarters provided and its location, as well as on what right the owner provides a former member of his family with other living quarters. With the consent of the former family member of the owner of the residential premises, the other residential premises provided to him by the owner may be located in another locality... As for the size of the living quarters provided by the owner to a former family member, the court, taking into account the material capabilities of the owner and other noteworthy circumstances, should determine only his minimum area(Clause 16 of the Resolution of the Plenum of the RF Armed Forces of July 2, 2009 N 14).

11. Very important rule on the application of the norms included in Part 4 of the commented article is contained in Art. 19 of the Introductory Law to the RF LCD. These norms do not apply to former family members of the owner of a privatized residential premises, provided that at the time of privatization of this residential premises, these persons had equal rights to use this premises with the person who privatized it, unless otherwise provided by law or agreement. Therefore, the termination of the family relationship of such persons with the owner of the home does not entail the termination of their housing rights. Accordingly, there is no need to establish a period for which the right to use is retained, as well as to oblige the owner to provide former family members with other housing. The right to use the living quarters in such cases does not depend on the existence of family relations.

True, the owner of a living space can sell it, donate it or dispose of it in any other way, entailing the termination of ownership. In such situations, former family members are defenseless. Their right to use is terminated. This follows from the "letter" of the law. In this regard, the plenum of the Supreme Court of the Russian Federation formulated new norms: clause 2 of Art. 292 of the Civil Code of the Russian Federation ("The transfer of ownership of a residential building or apartment to another person is the basis for the termination of the right to use the residential premises by family members of the previous owner, unless otherwise provided by law"), they retain the right to use the appropriate ground to another person (for example, purchase and sale, exchange, donation, rent, inheritance); similarly, when the ownership of a dwelling is transferred to another person, the issue of retaining the right to use this dwelling for the former family member of the owner of the dwelling, who previously exercised his right to privatize the dwelling, and then moved into another dwelling as a member the tenant's family under a social tenancy agreement and, while living in it, gave the consent necessary for the privatization of this dwelling (paragraph 18 of the Resolution of the Plenum of the RF Armed Forces of July 2, 2009 N 14). Such decisions appear to be fair.

12. Contrary to the assertion contained in part 7 of the commented article 31 Housing Code, a citizen who uses a residential premises on the basis of an agreement with the owner of the premises has rights, bears obligations and can be held liable not only in accordance with the terms of the agreement. It is also subject to numerous requirements of the law on the need to use housing for its intended purpose, to ensure its safety, on the inadmissibility of violating the rights and legally protected interests of neighbors, etc.

Housing Code, N 188-FZ | Art. 31 ZhK RF

Article 31 of the LC RF. The rights and obligations of citizens living together with the owner in the living quarters belonging to him ( current edition)

6. A former member of the owner's family who uses the dwelling on the basis of a court decision taken with due regard for the provisions of part 4 of this article has the rights, bears the duties and responsibilities provided for in parts 2-4 of this article.

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Commentary on Art. 31 ZhK RF

1. The rights and obligations of family members of the owner of a residential premises for the use of this premises are determined by Art. 31 LCD RF. Article 292 of the Civil Code of the Russian Federation provides that family members of the owner who live in the residential premises belonging to him have the right to use this premises under the conditions stipulated by housing legislation. According to the named article of the Civil Code of the Russian Federation, family members of a home owner can demand elimination of violations of their rights to living quarters from any persons, including the owner of the premises.

2. Family members of Art. 31 names the spouse of the owner, his children and parents, if they live with the owner in the dwelling that belongs to him.

Other relatives, disabled dependents and, in exceptional cases, other citizens can be recognized as family members if they are introduced by the owner in this capacity.

It must be admitted that the wording is more than vague, there is no clear concept of family members. Proceeding from this, difficulties may arise regarding the evidence - in the event of a dispute over the recognition of persons introduced into the dwelling as members of the owner's family. Recall that the previous legislation was more intelligible in this matter: the decisive factor for the recognition of a citizen as a member of the family of the owner of a dwelling was cohabitation and running a common household (the proof was, in particular, the presence of a common budget).

3. The right of use, which the family members of the owner have, may not coincide with the right of use of the owner himself. According to part 2 of the commented article, the family members of the owner have an equal right of use with the owner, unless otherwise provided by an agreement between them. The agreement may provide (for example) a restriction on the use of a room occupied by the owner himself; found that family members can use certain rooms, etc.

4. Able members of the family of the owner of the dwelling shall bear joint and several liability with the owner for the obligations arising from the use of the dwelling (unless otherwise established by an agreement between the owner and his family members).

Joint responsibility of capable family members means that, for example, a demand for payment for housing, utilities can be addressed both to all family members and to any of them separately (Article 323 of the Civil Code of the Russian Federation).

5. Family members of the owner of a residential premises are obliged to use the premises for their intended purpose, to ensure their safety, to comply with the rules for using the residential premises.

The Housing Code does not contain a rule that would regulate the relationship between the owner of a dwelling and his family members in the event that a family member of the owner violates the rules for using the dwelling.

In accordance with Part 1 of Art. 7 of the RF Housing Code in these cases, housing legislation is applied, which regulates similar relations.

The Supreme Court of the Russian Federation on this issue has given the following clarification.

Article 35 of the LC RF provides for the grounds for the eviction of a citizen whose right to use the living quarters has been terminated, which violates the rules for using the living quarters.

Based on the foregoing and taking into account the provisions of Part 1 of Art. 7 of the RF Housing Code, a family member of the owner of a dwelling, violating the rules for the use of a dwelling, in accordance with Part 2 of Art. 35 of the RF Housing Code can be evicted on the basis of a court decision at the request of the owner. (Overview judicial practice RF Armed Forces for the IV quarter of 2005)

6. Part 4 of Art. 31 regulates the relationship between the owner of the home and the former members of his family in terms of the use of this home.

Former family members of the owner lose the right to use the dwelling, unless otherwise provided by an agreement between them and the owner (for example, a marriage contract). In other words, when the family relationship is terminated, the former family members of the owner must vacate the dwelling; otherwise, they may be evicted through the courts.

The Supreme Court of the Russian Federation has provided clarifications on a number of issues related to the loss of the right to use housing by former family members of the owner of the residential premises (listed below).

The provisions of Art. 31 of the RF Housing Code are not made dependent on the moment when family relations between the owner of the residential premises and a former member of his family were terminated. Therefore, regardless of when the family relationship was terminated (before or after the entry into force of the Housing Code), the provisions of the JK apply to former family members. (Review of the judicial practice of the RF Armed Forces for the III quarter of 2005)

According to Part 4 of Art. 31 of the Housing Code of the Russian Federation, in the event of termination of family relations with the owner of a residential premises, the right to use this residential premises for a former family member of the owner of this residential premises is not retained, unless otherwise established by an agreement between the owner and a former member of his family.

At the same time, in accordance with the Family Code of the Russian Federation, a child has the right to protection of his rights and legal interests, which is carried out by his parents (clause 1 of article 56). Parents are responsible for the upbringing and development of their children, they are obliged to take care of the health, physical, mental, spiritual and moral development of their children (clause 1 of article 63 of the RF IC).

The rights of the child and the obligations of his parents are preserved even after the dissolution of the marriage of the child's parents.

Based on this, the deprivation of the child of the right to use the living quarters of one of the parents - the owner of this premise, may entail a violation of the rights of the child.

Therefore, by virtue of the provisions of the Family Code of the Russian Federation on the responsibilities of parents in relation to their children, the right to use the living quarters owned by one of the parents should remain with the child even after the dissolution of the marriage between his parents. (Review of judicial practice of the RF Armed Forces for the III quarter of 2007)

Decision of the Supreme Court: Determination N 85-KG17-19, Judicial Collegium for Civil Cases, cassation

According to Part 1 of Article 31 of the Housing Code of the Russian Federation, family members of the owner of a residential premises include his spouse, who live together with this owner in the residential premises belonging to him, as well as the children and parents of this owner ...

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