Absentee Decision
In the name Russian Federation
Samara District Court of Samara, composed of judge E.V. Antonova, with secretary M.N. Breenkova,
with participation:
representative of the plaintiff B. - Malafeev V.A., acting on the basis of a power of attorney,
having considered in open court civil case No. on the claim of B. to S. for recognition of the loss of the right to use residential premises and deregistration,
Installed:
B. filed a lawsuit against S. for deregistration, indicating that with DD.MM.YYYY, on the basis of a purchase and sale agreement, she is the owner of a two-room apartment located at the address:<адрес>. In the disputed apartment, at the time of signing the sale and purchase agreement, the following were registered: Full name5, S.S.V., Full name6, Full name7 According to the terms of the apartment purchase and sale agreement, within the period of DD.MM.YYYY, these persons are required to be deregistered. Defendant S.S.V. has not yet been deregistered from the apartment at the address:<адрес>. S. does not live in the disputed apartment, her things are not in the apartment, she lives at a different address, she is not a member of the plaintiff’s family, the place of actual residence of the defendant is unknown to the plaintiff. The formal registration of the defendant in the disputed apartment prevents the plaintiff from fully exercising ownership rights.
For the stated reasons, the plaintiff asked to remove S. from registration at the address:<адрес>.
At the court hearing, the plaintiff’s representative clarified the claims and asked to recognize S. as having lost the right to use the apartment located at:<адрес>, remove S. from registration in the specified apartment.
Defendant S. did not appear at the court hearing; she was duly notified of the time and place of the trial at her registered address; the judicial notice was returned to the court due to the expiration of the storage period. The risk of consequences of failure to receive a court notice at the place of registration rests with the defendant.
Representative of a third party of the Federal Migration Service of Russia for<адрес>did not appear at the court hearing and asked to consider the case in his absence.
Taking into account the opinion of the plaintiff's representative, the court decided to consider the case in absentia proceedings.
Having heard the explanations of the plaintiff’s representative and examined the evidence presented, the court considers the claim to be justified and subject to satisfaction on the following grounds.
In accordance with Art. 56 of the Code of Civil Procedure of the Russian Federation, each party must prove the circumstances to which it refers as the basis for its claims and objections, unless otherwise provided by federal law.
By virtue of Part 1 of Art. 209 of the Civil Code of the Russian Federation, the owner has the rights to own, use and dispose of his property.
According to Part 1. Art. 288 of the Civil Code of the Russian Federation, the owner exercises the rights of ownership, use and disposal of residential premises belonging to him in accordance with its purpose.
Article 304 of the Civil Code of the Russian Federation gives the owner of a residential premises the right to demand the elimination of any violations of his rights, even if these violations were not associated with deprivation of possession.
According to Part 1 of Art. 30 of the Housing Code of the Russian Federation, the owner of a residential premises exercises the rights of ownership, use and disposal of the residential premises belonging to him by right of ownership in accordance with its purpose and the limits of its use, which are established by this Code. The owner of a residential premises has the right to provide possession and (or) use of residential premises belonging to him by right of ownership to a citizen on the basis of a lease agreement, a contract of gratuitous use or on other legal grounds, as well as to a legal entity on the basis of a lease agreement or on other legal grounds, taking into account requirements established by civil legislation, this Code (Part 2 of Article 30 of the Housing Code of the Russian Federation).
In accordance with Part 1 of Art. 31 of the Housing Code of the Russian Federation, members of the family of the owner of a residential premises include his spouse living together with this owner in the residential premises belonging to him, as well as the children and parents of this owner. Other relatives, disabled dependents and, in exceptional cases, other citizens may be recognized as members of the owner’s family if they are settled by the owner as members of his family.
According to Part 2 of Art. 31 of the Housing Code of the Russian Federation, family members of the owner of a residential premises have the right to use this residential premises on an equal basis with its owner, unless otherwise established by agreement between the owner and members of his family. Family members of the owner of a residential premises are obliged to use this residential premises for its intended purpose and ensure its safety.
The court found that plaintiff B. owns a two-room apartment with a total area of 29.06 sq.m., located at the address:<адрес>.
The plaintiff’s ownership of the apartment arose on the basis of a purchase and sale agreement dated DD.MM.YYYY, which is confirmed by the agreement itself, a certificate of state registration of rights dated DD.MM.YYYY (case sheets 6-8).
At the time of signing the purchase and sale agreement dated DD.MM.YYYY, the following names were registered in the disputed apartment: FULL NAME5, S.S.V., FULL NAME6 and FULL NAME7
According to clause 4 of the purchase and sale agreement dated DD.MM.YYYY, the specified persons undertook to deregister at the address before DD.MM.YYYY:<адрес>.
According to the certificate from MP g.o. Samara “Unified Information and Settlement Center” dated DD.MM.YYYY, in the disputed apartment at present, in addition to the plaintiff B., her daughter FULL NAME8, the defendant S. is registered, who is not a relative of the owner of the apartment B.T.V. (ld. 5).
Thus, defendant S. is not and has never been a member of the plaintiff’s family, does not live in the disputed apartment, and does not bear the costs of its maintenance; S.’s registration in the disputed apartment is of a formal nature and prevents the plaintiff from fully exercising the right of ownership.
In accordance with Article 3 of the Law of the Russian Federation dated DD.MM.YYYY No. “On the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and residence within the Russian Federation”, the purpose of registration of citizens of the Russian Federation at the place of stay and place of residence within Russian Federation is to ensure necessary conditions for a citizen of the Russian Federation to exercise his rights and freedoms, as well as to fulfill his duties to other citizens, the state and society.
In accordance with paragraph 2 of the Resolution of the Constitutional Court of the Russian Federation dated DD.MM.YYYY No.-P, the mere fact of registration or the absence thereof does not give rise to any rights and obligations for a citizen and, according to part two of Article 3 of the Law of the Russian Federation “On Law citizens of the Russian Federation to freedom of movement, choice of place of stay and residence within the Russian Federation” cannot serve as a basis for restriction or a condition for the implementation of the rights and freedoms of citizens provided for by the Constitution of the Russian Federation, federal laws and legislative acts of the constituent entities of the Russian Federation.
According to Art. 7 of the Law of the Russian Federation dated DD.MM.YYYY No. “On the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and place of residence within the Russian Federation”, the removal of citizens of the Russian Federation from registration at the place of residence is carried out by the registration authority in the event of loss of the right to use living space.
Taking into account the above, defendant S. has lost the right to use the disputed residential premises and is subject to deregistration in this residential premises.
Guided by Art. Art. 194-199, 233-235 Code of Civil Procedure of the Russian Federation, court
DECIDED:
B.'s claim against S. for recognition of the loss of the right to use residential premises and deregistration is satisfied.
Recognize S. as having lost the right to use the apartment located at:<адрес>.
Remove S. from registration at the address:<адрес>.
The decision is the basis for deregistration of S. at the specified address in the bodies of the Federal Migration Service of Russia for<адрес>.
The defendant has the right to file with the court that made the default decision an application to cancel this court decision within seven days from the date of delivery of a copy of this decision.
A decision in absentia can also be appealed by the parties on appeal to the Samara Regional Court through the Samara District Court<адрес>within a month after the expiration of the deadline for the defendant to file an application to cancel this court decision, and if such an application is filed, within a month from the date of the court’s ruling refusing to satisfy this application.
The final decision was made by DD.MM.YYYY.
Judge E.V. Antonova
You can view another practice of lawyer Anatoly Antonov in the public domain
Sample statement of claim for recognition of the loss of the right to use residential premises, eviction and deregistration. Sample from the website of the Zelenogorsk District Court of St. Petersburg. Comments:
3) From 01/01/2017, state cadastral registration, state registration of the emergence or transfer of rights to real estate are certified by an extract from the Unified State Register of Real Estate (Part 1, Article 28 of the Federal Law of July 13, 2015 N 218-FZ “On State Registration of Real Estate”).
To the Zelenogorsky District Court of St. Petersburg
Plaintiff: (full name, address, telephone, e-mail)
Respondents: (full name, address, telephone, e-mail)
Statement of claim
on recognition as having lost the right to use residential premises,
eviction and deregistration
I, ... (full name of the plaintiff) own a residential premises located at the address: __________. I acquired the ownership of this residential premises "____" _______ on the basis of a purchase and sale agreement (agreement on the transfer of ownership of the apartment through privatization, a gift agreement, etc.).
Based on the specified purchase and sale agreement (agreement on the transfer of ownership of an apartment through privatization, a gift agreement, etc.), I received a Certificate of State Registration of Rights issued by _______ (the body carrying out state registration of rights to real estate and transactions with him).
"____" _______ year I registered at the place of residence in the residential premises belonging to me _______ (full name of the person or persons in residence).
The defendant refuses to vacate the premises and de-register.
Currently, at the address: ________, according to a certificate from the passport office of the DEZ (REU, Housing Administration, Homeowners' Association, etc.), the defendant remains registered.
Without an application and the personal presence of the defendant himself, I was refused to remove him from the registration register at the passport office of the DEZ (REU, housing department, HOA, etc.).
The defendant has not been a member of my family since _________; there are no contractual obligations between us.
Registration and residence in the defendant’s residential premises owned by me significantly limits my rights to own, use and dispose of the residential premises.
Based on the above and in accordance with Art. 304 Civil Code of the Russian Federation, Art. Art. 31, 34 Housing Code of the Russian Federation, Art. Art. 131 - 132 Code of Civil Procedure of the Russian Federation,
I ask the court:
1. Recognize ________ (full name of the defendant) as having lost the right to use the residential premises located at the address: __________.
2. Evict the defendant ____ (full name) from the residential premises I own;
3. Oblige __________ (the body that carries out registration of citizens at the place of residence, deregistration of citizens) to deregister at the above address.
Application:
1. Copies of the statement of claim;
2. Copies of the purchase and sale agreement for residential premises;
3. Copies of the Certificate of State Registration of Rights;
4. Copies of a certificate from the place of residence about family composition;
5. A copy of the power of attorney (in case the claim is filed not by the plaintiff himself, but by an authorized representative);
6. Receipt for payment of state duty.
The form of the document “Claim for recognition of a citizen as having lost the right to use residential premises” belongs to the heading “Statement of Claim”. Save the link to the document in social networks or download it to your computer.
District Court of the city___________
Plaintiff: _________________________________
________________________
Legal representative: __________________
Respondent: _______________________________
_______________________________
STATEMENT OF CLAIM
ON RECOGNITION OF A CITIZEN AS HAS LOST THE RIGHT TO USE RESIDENTIAL PREMISES AND REMOVAL FROM REGISTRATION
The plaintiff, ___________________, _________ year of birth, is the owner of ½ share in the right of common shared ownership of an apartment located at the address: ____________________________, in whose interests _____________ acts as a legal representative.
The remaining ½ share belongs to the minor _________________, born __________.
The ownership right was acquired on the basis of a purchase and sale agreement for shares of the apartment dated ________ No. ____ No. _________ dated ______, which is confirmed by a certificate of state registration of rights (copies are attached).
The total area of the apartment is ____ sq.m., living area is ____ sq.m.
There are currently 3 (three) people registered in the apartment:
- ______________________________ (mother) (Defendant)
- ______________________________ ½ share
_______________________________ owner of ½ share.
The defendant is registered in this residential premises but without the right to residential premises.
The defendant has not lived in the disputed apartment since ___________.
This disputed residential premises is for rent, the rent of which is _________ rubles. He took his personal belongings, lives in another place, does not pay for utilities and household services, and does not bear the burden of maintaining the property.
In addition, the Defendant, on the basis of the Decision of the __________ District Court of the city __________ dated ___________, was deprived of parental rights in relation to two minor children.
According to paragraph 1 of Art. 71 of the Family Code follows that parents deprived of parental rights lose, firstly, all rights based on the fact of kinship with the child in respect of whom they are deprived of parental rights, and we are talking not only about those rights that they had before the children reached age of majority, but also others arising from both family and other legal relations.
The defendant does not work and abuses alcohol.
The fact that the defendant was absent from the apartment for long term confirmed by the testimony of witnesses living in neighboring apartments.
The fact of non-payment of household and utilities is confirmed by the fact that all payments in full were made by the legal representative of the plaintiff at his own expense and on his own behalf, also paying for the defendant in order to avoid the accumulation of debt.
The advisability of further joint residence in the residential premises of the child and parents (one of them), deprived of parental rights, is decided by the court in the manner and on the grounds established by housing legislation (clause 3 of Article 71 of the Family Code).
In accordance with Art. 31 part 4 of the Housing Code of the Russian Federation in case of termination family relations with the owner of a residential premises, the right to use the residential premises for a former family member of the owner of this residential premises is not retained, unless otherwise established by agreement between the owner and the former member of his family.
According to Art. 209, 288 of the Civil Code of the Russian Federation, the owner has the rights to own, use and dispose of his property. The owner exercises the rights of ownership, use and disposal of residential premises belonging to him in accordance with its purpose.
In accordance with Art. 304 of the Civil Code of the Russian Federation, the owner may demand the elimination of any violations of his rights, even if these violations were not associated with deprivation of possession.
In accordance with subparagraph “e” of paragraph 31 of the “Rules for registration and deregistration of citizens of the Russian Federation at the place of stay and place of residence within the Russian Federation”, approved by Decree of the Government of the Russian Federation No. 713 of July 17, 1995, deregistration of a citizen registration at the place of residence is carried out by the registration authorities in the event of eviction from the occupied premises or recognition of the loss of the right to use the residential premises on the basis of a court decision that has entered into legal force.
Registration in the defendant's residential premises owned by the plaintiff significantly limits their rights to own, use and dispose of the residential premises.
Based on the above and in accordance with Article 71 of the RF IC, 31 RF LC 209,288,304 RF Civil Code, Art. 131-132 Code of Civil Procedure of the Russian Federation,
1. Recognize the defendant as ___________________ having lost the right to use residential premises located at the address: _____________________________________
2. Oblige the Department of the Federal Migration Service to deregister ____________________ at the above address.
APPLICATIONS:
1.Copies of the statement of claim by number of parties;
2. Copy of the apartment purchase and sale agreement
3. Copy of the certificate of state registration of rights
4. Copy of the certificate of state registration of rights
5. Copy of birth certificate
6. Copies of certificates of registered persons
7. Copy of birth certificate
8. Copy of personal account statement
9. Copy of the court decision dated ____________
10. Copies of payment receipts. services on 7 sheets;
11. Receipt for payment of state duty.
“___”____________ Legal representative
______________
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Oktyabrsky District Court of Kr-ska
Address: Kr-sk, Lenin Ave., 2
Tel.: 41-92-81
Plaintiff: Ivanova Tatyana Ivanovna,
Address: 664019, Kr-sk,
st. Lenina, 15, apt. 20
Tel. 914 813 6140
Defendant: Petrov Petr Petrovich,
Address: 664019, Kr-sk,
st. Lenina, 15, apt. 20
Tel. 913 815 7385:
Statement of claim
on recognition as having lost the right to use residential space and deregistration
I, Ivanova Tatyana Ivanovna, am the owner of a residential premises located at the address: Kr-sk, st. Lenina, 15, apt. 20, where I am registered.
In April 1997, in this residential premises, I registered Petrov Petrov Petrovich as my common-law husband. Later, on October 10, 2001, the marriage between us was officially registered.
On June 30, 2005, the marriage between me and Petrov Petrovich was dissolved. Petrov P.P. moved out of this residential premises, but was not deregistered.
Registration of Petrova P.P. in the residential premises owned by me significantly limits my right to own, use and dispose of the residential premises. Petrov P.P. he does not bear the burden of expenses for maintaining the living quarters, there are no personal belongings in the house, and he did not try to move into the apartment after the divorce.
By virtue of Art. 304 of the Civil Code of the Russian Federation, the owner may demand the elimination of any violations of his rights, even if these violations were not associated with deprivation of possession.
In accordance with Art. 31 of the Housing Code of the Russian Federation, members of the family of the owner of a residential premises include his spouse living together with this owner in the residential premises belonging to him, as well as the children and parents of this owner. Other relatives, disabled dependents and, in exceptional cases, other citizens may be recognized as members of the owner’s family if they are settled by the owner as members of his family.
By virtue of 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 the former member of his family.
Any agreement between former family member P.P. Petrov. and me, who is the owner of a residential premises located at the address: Kr-sk, st. Lenina, 15, apt. 20 about the preservation of P.P. Petrov. the right to use the apartment has not been concluded.
According to Art. 27 of the Constitution of the Russian Federation, the Law of the Russian Federation “On the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and residence within the Russian Federation”, the mere fact of registration of a citizen at any address does not prove that he permanently resides at the specified address, and cannot serve as a basis for exercising his right to provide residential premises.
According to the current legislation, the resolution of the Constitutional Court of the Russian Federation dated April 25, 1995 No. 3 - P (clause 4) and dated February 2, 1998 No. 4 - P (clause 2), registration at a specific address does not automatically generate unconditionally the right to use this residential premises.
by virtue of Art. 7 of the Law of the Russian Federation “On the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and residence within the Russian Federation” dated June 25, 1993 No. 5242-1, clause “e” of Art. 31 Rules for registration and deregistration of citizens of the Russian Federation at the place of stay and at the place of residence within the Russian Federation, approved by Decree of the Government of the Russian Federation of July 17, 1995 No. 713 in the absence of a citizen’s application for deregistration at the place of residence or unwillingness to do so provide deregistration of a citizen is carried out in the event of eviction from an occupied residential premises or recognition as having lost the right to use residential premises on the basis of a court decision that has entered into legal force
Based on the above, I request:
1. Recognize Petrov Petrovich as having lost the right to use residential premises at the address: Kr-sk, st. Lenina, 15, apt. 20.
2. Remove Petrov Petrovich from the registration register at the address: Kr-sk, st. Lenina, 15, apt. 20.
Application:
1. Certificate of state registration of ownership of residential premises series__, issued by _________________.
2. Certificate from the passport office about citizens registered in residential premises at the address: Kr-sk, st. Lenina, 15, apt. 20.
3. A copy of the divorce certificate.
4. Receipt for payment of state duty.
5. A copy of the statement of claim.
Ivanova Tatyana Ivanovna
"_____" ______________-G.