Hospitals 

Resolution on the provision of a room in a communal apartment. How to get a vacant room in a communal apartment

Legal opinion
on the issue of providing vacated room
in a communal apartment on the terms of social employment
and under the sales contract

As follows from the court decision, the plaintiffs went to court with the requirements (taking into account the clarifications):

  • on the recognition of the right to conclude a social employment contract;
  • on the recognition of K.'s illegal registration in the vacated living quarters (room);

The courts refused to satisfy the claims.

Position of the plaintiffs:

“In 2008, a room was vacated in a communal apartment. We submitted an application for providing it to us under a social employment agreement in accordance with Article 59 of the RF LC. We were refused, since K. (the defendant) had already been registered there.

We are on the turn in the municipality as those in need of better housing conditions on the basis of living in a hostel since 1994. According to the rate of provision of the area, we do not have enough, according to the accounting rate, there is enough area. In response, the Administration filed a lawsuit. The courts have lost. In the city court in accordance with Art. 6 of the Introductory Law, although we have not been removed from the register, we have lost the grounds to be included in this register, tk. the status of a hostel was canceled, but we were registered on the basis of living in a hostel, and according to the accounting norm, there is enough space.

The regional court found this decision correct and well-grounded. The refusal was considered correct, but they also added that at the time of arrival the house had the status of a hostel.

Our position: the status of the house has been removed by virtue of the law (Article 7 of the Introductory Law), those registered before March 5, 2005 are on this register before receiving housing under a social rent agreement (Article 6 of the Introductory Law), at least provision rates (Article 47 of the LC RF). Art. 59 of the RF LC is to be applied ".

The plaintiffs were registered as those in need of better housing conditions until 2005 on the basis of living in a hostel.

The disputed room is located in the hostel, which, on the basis of the decision of the Council of Deputies of the city from ... 2003. and the act of ... 2003. taken into municipal ownership.

In 2008, the enterprise and K. entered into a social lease agreement for the disputed room, but later than the date of the social lease agreement, as follows from the court's decision, the previous employer left the disputed room. Accordingly, the defendant K. was granted the disputed room until the actual termination of the right to use this room of the previous tenant.

1. Who should be given a vacant room in a communal apartment?

Provision of vacated living quarters in a communal apartment

1. The vacated dwelling in a communal apartment in which several tenants and (or) owners live, on the basis of their application, is provided under a social rental agreement to the tenants and (or) owners living in this apartment, if they are recognized at the time of vacating the dwelling or can be recognized as poor and in need of housing in accordance with the established procedure.

2. In the absence of citizens specified in part 1 of this article in a communal apartment, the vacated living space is provided under a social rental agreement to tenants and (or) owners living in this apartment, who can be recognized as poor in the established manner and who are provided with a total area of ​​living space per family member less than the provision rate, based on their application.

3. In the absence of citizens specified in parts 1 and 2 of this article in a communal apartment, the vacated dwelling is provided under a sale and purchase agreement to citizens who are provided with a total area of ​​dwelling per one family member less than the provision rate, on the basis of their application.

4. In the absence of the citizens specified in parts 1 - 3 of this article in the communal apartment, moving into the vacated dwelling is carried out on the basis of a social rental agreement in the manner prescribed by this Code.

As can be seen from the above article, the provision of vacated living quarters in a communal apartment in the second, third and fourth stages is possible in the absence of applicants from the previous stages.

According to Part 1 of Article 59 of the LCD, a vacant room can be provided to poor and needy tenants of this apartment. At the same time, it should be noted that based on the construction of the rule of law ("recognized or can be recognized as needy"), the right to provide a room is not related to the presence or absence of information from the authorized authority about the need for residential premises of persons applying for the provision of premises in accordance with Article 59 of the RF LC. In a court session, the court establishes the presence or absence of the right to be registered with as those in need of living quarters at the time of the release of the premises (room) in the apartment.

I believed that this resolution was illegal and violated the rights of Penzeva V.I., since the transfer of a residential building used by a state enterprise as a hostel to the jurisdiction of a local government and a change in its status by virtue of law, as well as the exercise of the right to privatize the occupied room were not specified in the law as grounds for removing citizens from the register of those in need of housing.

By the decision of the judicial collegium of the regional court, a decision was made to dismiss the claim, while the court of cassation indicated the following.

As follows from the case materials, Penzeva The.AND. was put on the apartment register since 01/09/1994 due to the fact that she lived in a private apartment and was registered in a hostel.

In accordance with the Decree of the Mayor dated 26.10.2004 "On the transfer of a building from the category of specialized residential premises (dormitories) to the status of residential buildings" the building acquired the status of a residential building.

On the basis of an agreement on the transfer of the premises of a communal apartment to the private ownership of citizens dated 9.03.2005, Penzeva V.I. acquired the property of living space No. 24 with an area of ​​11.8 sq.m.

As follows from the case materials, 09/01/1994. Penzeva V.I. was registered in need of better housing conditions as a person living in a hostel and having no other living space in accordance with paragraph 5 of Art. 29 LCD of the RSFSR.

Since the composition of the family Penzeva V.I. is 1 person, then in connection with the acquisition of the ownership of a room, living area of ​​11.8 sq.m., Penzeva V.I. has become a secured living space at a rate of more than 9 square meters per person.

In this way, with the purchase of living quarters from V.I. Penzeva. the grounds fell away, giving her the right to receive residential premises under a social tenancy agreement, which, by virtue of the aforementioned norms of law, is the basis for removing her from the register as in need of residential premises.

Since Penzeva V.I. reached the level of housing provision according to the rate of provision of residential premises, the grounds that, prior to the entry into force of the Housing Code of the Russian Federation, gave her the right to receive residential premises under social tenancy agreements, at the time of the adoption of the contested decision, were lost, in connection with which the contested decision is legal and reasonable and cannot be canceled.

2) Extract from the decision of the Kamyshinsky City Court of the Volgograd Region dated August 24, 2010 in case No. 2-1752 / 10:

Mut I.G. went to court with a claim, asked the court to declare illegal the resolution of the City Administration to deregister him as needing residential premises, to recognize him retaining the right to be registered as needing improvement in living conditions, and to oblige the Administration to accept it. on the registration of citizens as needing to improve their living conditions with the subsequent provision of him with a separate comfortable housing.

The court dismissed the claim, stating the following.

Mut I.G. was registered for queuing up for municipal housing as a dormitory resident in accordance with Art. 29 item 5 of the LCD of the RSFSR.

By the resolution of the City Administration, the status of the hostel was changed and this building was given the status of a residential building.

In accordance with paragraph 2 of Art. 6 of the Federal Law of December 29, 2004 "On the Enactment of the RF Housing Code", citizens registered for the subsequent provision of living quarters to them until 2005, which include I. G. Mut, retain the right to remain on this account until they receive them living quarters. These citizens are removed from the register on the grounds provided for in clauses 1, 3-6 h. 1 of Art. 56 of the Housing Code of the Russian Federation, as well as in cases where they lost the grounds that, prior to the introduction of the Housing Code of the Russian Federation, gave them the right to receive residential premises under a social tenancy agreement.

The grounds provided for in clauses 1, 3-6 h. 1 of Art. 56 ZhK RF for removing Mut I. G. from the register is not available.

At the same time, as established by the court, Mut I. G. was registered as a person living in a hostel. The status of the dwelling in which he lived has been changed. The former hostel was established with the status of a residential building, in connection with which, Mut I.G. actually lost the grounds that gave him the right to register him for receiving residential premises under a social tenancy agreement, as a person who lived in a residential building, and not in connection with a change in the established minimum living space, as Mut I.G. mistakenly believes.

The Supreme Court of the Russian Federation on the provision of a vacant room in a communal apartment under a social contract

In support of the position, according to which (apart from other provisions of Article 6 of the Introductory Law), “citizens registered before March 1, 2005 for the purpose of subsequent provision of residential premises to them under social tenancy agreements retain the right to be registered in this register until they receive residential premises under social rental contracts "you can often find a reference to the ruling of the Supreme Court of the Russian Federation of July 7, 2009 N 85-B09-10. The Supreme Court concluded that citizens registered as needing housing under a social tenancy agreement (before March 1, 2015) have the right to be provided with a vacant room in a communal apartment, regardless of whether they are recognized as poor. The court, in particular, indicated that “since F. and F.T. were registered as needing residential premises in 1992, at the time of the dispute (May 2008) on the provision of vacated residential premises under a social lease agreement in the communal apartment continued to be on this account, then not only Article 59 of the RF LC, but also part 2 of Article 6 of the Introductory Law in their normative legal unity was subject to application to the legal relations that arose ":

"F. filed a lawsuit against the city administration of the urban district" City of Kaluga ", the city administration (hereinafter - UGH) of Kaluga to declare illegal the refusal to provide a living room under a social tenancy agreement, forcing to conclude a social tenancy agreement for When considering the present case of this nature, a significant violation of the norms of substantive law was admitted by the court of first and second instances, which was expressed in the following.

The court established that F. with his minor son F.T., born in 1992 registered and live in room N 17 with an area of ​​11.7 sq. m, located in an eight-room communal apartment with a total area of ​​204.1 sq. m.

Previously, house No. 20 on the street. Ogareva in Kaluga had the status of a hostel. In 2007, it was transferred to the municipal housing stock. On August 22, 2007, a social tenancy agreement No. 49504 was concluded with the plaintiff for the occupied room, the son was included in the agreement as a member of the tenant's family.

Since 1992, the plaintiff has been registered as needing to improve housing conditions both in the general waiting list and in the list of persons in need of priority provision of housing. In 2008, a room with a total area of ​​12.9 square meters was vacated in the controversial apartment. The D.'s family, who occupied this room, received other housing in order to improve their living conditions and left, vacating it.

No one is registered in the vacated room, the personal account is closed.

F. applied to the Kaluga Department of State Administration with an application for the vacated room on the basis of a social tenancy agreement.

The plaintiff received a response from the head of the Kaluga State Administration Office of May 19, 2008, which indicated that there were no grounds for providing her with a vacant room.

In resolving the case and refusing to satisfy the requirements, the court proceeded from the fact that there were no grounds for recognizing F. as poor, while this requirement is mandatory when providing vacated housing under a social tenancy agreement in accordance with Art. 59 LCD RF. The cassation court agreed with the conclusions of the first instance court as legitimate and well-grounded.

However, the Judicial Collegium considers that the court's conclusions are based on an incorrect interpretation and application of substantive law to the relations of the parties.

In accordance with h. H. 1, 2, Art. 59 of the Housing Code of the Russian Federation, the vacated living space in a communal apartment in which several tenants and (or) owners live, on the basis of their application, is provided under a social hiring agreement to tenants and (or) owners living in this apartment, if they are recognized at the time of vacating the living space or can be, in accordance with the established procedure, recognized as poor and in need of living quarters. In the absence of citizens specified in part 1 of this article in a communal apartment, the vacated living space is provided under a social rental agreement to tenants and (or) owners living in this apartment, who can be recognized as poor in the established manner and who are provided with a total area of ​​living space for one family member is less than the provision rate, based on their application. According to Part 2 of Art. 6 of the Federal Law of the Russian Federation of December 29, 2004 N 189-FZ "On the Enactment of the Housing Code of the Russian Federation", citizens registered before March 1, 2005 in order to subsequently provide them with residential premises under social tenancy agreements retain the right to be this account until they receive residential premises under social tenancy agreements. These citizens are removed from this register on the grounds provided for in clauses 1, 3 - 6 h. 1 of Art. 56 of the Housing Code of the Russian Federation, as well as in the event that they lost the grounds that, prior to the introduction of the Housing Code of the Russian Federation, gave them the right to receive residential premises under social tenancy agreements. These citizens are provided with living quarters under social tenancy agreements in the manner prescribed by the RF LC, taking into account the provisions of this part.

From the above norms, Part 2 of Art. 6 of the Introductory Law it follows that the citizens named in it retain the right to be registered as needing residential premises under a social tenancy agreement, as well as the right to provide residential premises under this agreement, regardless of whether they are recognized as poor, while after enactment Of the Housing Code of the Russian Federation, that is, after March 01, 2005, in accordance with Part 2 of Art. 49 and part 2 of Art. 52 of the RF LC, only low-income citizens or citizens belonging to a category defined by federal law, decree of the President of the Russian Federation or the law of a constituent entity of the Russian Federation have the right to be registered.

At the same time, Part 2 of Art. 6 of the Introductory Law makes no exceptions for those provided for in Art. 59 of the RF Housing Code of cases of providing vacated living quarters in a communal apartment under a social rental agreement.

Since F. and F.T. registered as those in need of residential premises in 1992, at the time of the dispute (May 2008) about the provision of vacated residential premises in a communal apartment under a social rental agreement, they continued to be on this account, then not only Art. 59 of the RF LC, but also part 2 of Art. 6 of the Introductory Law in their normative legal unity. However, the court of Part 2 of Art. 6 of the Introductory Law did not apply to the disputed legal relations of the parties.

In view of the above, the court decisions adopted in the present case cannot be recognized as lawful. They were adopted with a significant violation of the norms of substantive law, expressed in non-application to the disputed relations of the parties, Part 2 of Art. 6 of the Introductory Law and incorrect, without taking into account Part 2 of Art. 6 of the Introductory Law, interpretation of the provisions of Art. 59 LCD RF ".

It should be noted that the plaintiff in the above case, considered by the Supreme Court of the Russian Federation, was registered, including as in need of priority provision of housing... Recall that according to Article 36 of the Housing Code of the RSFSR, first of all, living quarters were provided to those in need of improving their living conditions:

1) invalids of the Great Patriotic War and families of dead or missing soldiers (partisans) and persons equated to them in accordance with the established procedure;
2) Heroes of the Soviet Union, Heroes of Socialist Labor, as well as persons awarded the Orders of Glory, Labor Glory, "For Service to the Motherland in the Armed Forces of the USSR" of all three degrees;
3) persons suffering from severe forms of certain chronic diseases listed in the list of diseases approved in accordance with the procedure established by the legislation of the USSR;
4) persons who were in the active army during the Civil and Great Patriotic Wars and during other military operations to defend the USSR, partisans of the Civil and Great Patriotic Wars, as well as other persons who took part in military operations to defend the USSR;
5) invalids of labor of I and II groups and invalids of I and II groups from among the military;
6) families of persons who died in the performance of state or public duties, fulfillment of the duty of a citizen of the USSR to save human life, to protect socialist property and law and order, or perished in the workplace as a result of an accident;
7) workers and employees who have worked in good faith for a long time in the field of production;
8) mothers who have been awarded the title "Mother-Heroine", large families (with three or more children) and single mothers;
9) families at birth of twins;
10) teachers and other pedagogical workers of general education schools and vocational and technical educational institutions;
11) rescuers of professional emergency rescue services, professional emergency rescue teams.
(Clause 11 introduced by Federal Law of August 22, 1995 N 151-FZ)
Under the legislation of the USSR and the RSFSR, the right of priority receipt of housing may be granted to other categories of citizens.

That is, the plaintiff in the above case No. 85-B09-10, considered by the Supreme Court of the Russian Federation, did not lose the grounds (in this case, provided for by Article 36 of the Housing Code of the RSFSR), which, prior to the entry into force of the Housing Code of the Russian Federation, gave her the right to receive housing under a social employment contract.

Provision of a vacant room in a communal apartment in the order of Part 2 of Article 59 of the RF LC

According to part 2 of article 59 of the RF LC, in the absence of citizens specified in part 1 of this article in a communal apartment, the vacated living space is provided under a social rental agreement to tenants and (or) owners living in this apartment, who can be recognized in the prescribed manner the poor and which are provided with a total living space per family member less than the provision rate, based on their application.

As follows from the norm, the vacant room can be provided to the tenant of the premises in the apartment if he:

  • 1) recognized or may be recognized as poor;
  • 2) provided with an area for one family member less than the provision rate.

From the commented case, it follows that there is only a second condition for the provision of premises under Part 2 of Article 59 of the LC RF, and evidence of the recognition of the plaintiffs as poor (or that can be recognized as such) was not provided to the court.

Provision of a vacant room in a communal apartment in accordance with Part 3 of Article 59 of the RF LC

In the absence of citizens specified in parts 1 and 2 of this article in a communal apartment, the vacated living space is provided under a sale and purchase agreement to citizens who are provided with a total area of ​​living space per family member less than the provision rate, on the basis of their application.

Thus, the plaintiffs have the right to provide them with vacated living space under a sale and purchase agreement

To do this, you need to contact the owner of the residential building (to the authorized body) with a corresponding statement. As a general rule, in case of a positive solution to the issue, the parties conclude an agreement, in case of refusal (as well as lack of response to the application), you should go to court.

It would be quite logical to refuse to provide a room in the order of Part 3 of Article 59 of the RF LC, because the defendant is currently registered and lives there.

However, it seems that within the framework of a new claim, the court has the right to verify the legality of the move in of this person, because the requirements (subject of the claim) will differ from those previously stated.

What to look for and what to indicate in a claim

1) Claims

The pleading part of the claim can be formulated as follows:
- to invalidate the decision ... of ... on the provision of living space to the defendant under a lease agreement ...;
- to invalidate the contract of lease of living quarters ... from ... concluded ... with the defendant;
- to evict the defendant without providing other living quarters;
- to recognize the right of the plaintiffs to provide the vacated living space - room No. ... located in .... under the contract of sale in accordance with Part 3 of Article 59 of the RF LC;
- oblige the defendant (the owner, the person authorized by the owner) to conclude a contract for the sale and purchase of residential premises ... on the following conditions ... (the redemption price must be indicated);

2) Justification of requirements

In terms of recognizing the decision to grant housing and the contract invalid, it is worth taking into account the clarifications of the Supreme Court of the Russian Federation (concerning social hiring).

Clarifications are contained in clause 23 Resolutions of the Plenum of the Supreme Court of the Russian Federation dated 02.07.2009 N 14"On some issues that have arisen in judicial practice when applying the Housing Code of the Russian Federation"):

"23. ... A citizen, organization, local self-government body or other authorized body that made a decision on the provision of residential premises under an agreement has the right to apply to declare invalid the decision on the provision of residential premises under a social tenancy agreement and a social tenancy agreement concluded on its basis social hiring, if they believe that these decisions and contracts violated their rights (paragraphs 2, 6 of part 3 of Article 11 of the RF LC, paragraph 5 of Article 12 of the Civil Code of the Russian Federation, paragraph 2 of Article 166 of the Civil Code of the Russian Federation), as well as the prosecutor (part 1 of Article 45 Code of Civil Procedure of the Russian Federation).

The court has the right to invalidate the decision on the provision of residential premises under a social tenancy agreement if it is established that:

Since an invalid transaction does not entail legal consequences, with the exception of those related to its invalidity, and it is invalid from the moment of its execution (paragraph 1 of Article 167 of the Civil Code of the Russian Federation), then in case of invalidation of the decision to provide a citizen with residential premises under a social hiring agreement, it is recognized the social tenancy agreement concluded on the basis of this decision is also invalid, and persons living in a dwelling are subject to eviction from it to the dwelling previously occupied by them, and in case of impossibility of eviction to the previously occupied dwelling, based on the specific circumstances of the case, they may be provided residential premises similar to those previously occupied (paragraph 2 of Article 167 of the Civil Code of the Russian Federation) ".

At the first appeal to the court, the plaintiffs asked to recognize the right to provide housing on the terms of social rent, while they did not have such a right, and therefore the court refused to satisfy derivative claims related to the unlawfulness of the defendant's resettlement, indicating that the subjective right of the plaintiffs was not violated, with which it is difficult to disagree. Thus, the court did not actually check the legality of the defendant's move in.

In the "new" case, the court will be obliged to check whether the rights of the plaintiffs have been violated by the provision of premises to the defendant and, having established that the right to provide a room under the contract of sale has been violated, it will have to invalidate the decision.

Firstly, it should be borne in mind that "the Russian Federation, which presents the possibility of settling a vacated dwelling in a communal apartment, is itself aimed at protecting the housing rights of citizens, does not establish the procedure and deadlines for submitting applications for the provision of a vacated room in a communal apartment ..." (definition of the Constitutional Court of the Russian Federation of 19.02.2009 N 160-О-О).

Secondly, the norm of Part 4 of Article 59 of the LC RF begins with the words ".. in the absence of citizens specified in parts 1 - 3 in the communal apartment of this article ... "From the literal interpretation of the norm it follows that the owner's right to provide the vacated room under the lease agreement can only be exercised in the absence of other claimants(living in a communal apartment) citizens, i.e. the obligation to notify, identify citizens who have the right ... lies with the owner, and not with the employers themselves, who often objectively cannot know whether a room is vacated or its tenant is simply temporarily (for 1-2 years or more) absent ... also corresponds to the norm of Article 57 of the LC RF.

According to Art. 57 of the Housing Code of the Russian Federation, rooms under social employment contracts can be provided only in the case provided for in part 4 of article 59 of this Code. In other words, it is forbidden to provide a room under a social tenancy agreement, except in the case when no persons have been identified (or refused) who expressed a desire to provide a room in accordance with Article 59 of the LC RF.

For example, as indicated in the ruling of the Supreme Court of the Republic of Karelia dated 01.04.2011 in case N 33-882 / 2011,

"... the court found that on 12 August 2010 the administration of the Kostomuksha urban district to the tenants and owners of residential premises of a communal apartment ... notifications were sent about the vacated room N 531 in the above apartment with invitation to submit statements on the provision of this room under a social contract. Kh., V. and F. applied for the vacated room. By the decision of the commission on housing issues under the administration of the Kostomuksha urban district N dated 23.09.2010, it was decided to provide the vacated room N 531 to Kh., Which occupies a bed in room N 543. By the decree of the Head of the Administration of the Kostomuksha urban district of September 27, 2010 N 1146, room N 531 in a communal apartment ... was provided by Kh. And her daughter I. "

Providing a room to a third party in the presence of tenants of an apartment who wish to exercise the right under Art. 59 of the LCD of the Russian Federation, in the absence of notifications from the representative of the owner of a residential building about the vacated room, it cannot be recognized as legal.

As other violations of the procedure for granting, one can point to Article 65 of the LC RF, according to which the landlord of a residential premises under a social tenancy agreement is obliged to transfer to the tenant a residential premises free from the rights of other persons. As seen from the court's decision, the defendant was provided with a room before the departure of the previous tenant.

As an example from judicial practice, one can also cite an extract from the ruling of the Supreme Court of the Russian Federation dated 06.07.2010 N 42-B10-2):

"... The court has the right to invalidate the decision on the provision of residential premises under a social tenancy agreement if it is established that:

a) citizens provided false information that served as the basis for their registration as needing residential premises (for example, on the composition of the family, on the sources and level of income, as well as on the property of family members subject to taxation);

b) the rights of other citizens to the specified dwelling have been violated (for example, the sequence of provision of dwelling has been violated);

c) illegal actions were committed by officials when deciding on the provision of living quarters;

d) there were other violations of the procedure and conditions for the provision of residential premises under a social tenancy agreement provided for by the Housing Code of the Russian Federation, federal laws, presidential decrees, laws of a constituent entity of the Russian Federation.

The court, having established that Ubushaeva N.K. had the preemptive right to the provision of living space - room N 306 "b" by virtue of Article 59 of the Housing Code of the Russian Federation, came to the correct conclusion that the requirements of N.K. Ubushaeva on invalidating the resolution of the First Deputy Mayor of the City of Elista of the Republic of Kalmykia N 487 of April 9, 2009 "On approval of the decision of the housing commission under the Mayor's Office of Elista dated April 8, 2009", invalidating the contract of social tenancy of residential premises N 681 of 13 April 2009, concluded with V.B. Muchaev, recognition of the preemptive right to provide room N 306 "b"<...>are subject to satisfaction.

At the same time, the court did not take into account that in case of invalidation of the decision to provide a citizen with dwelling under a social tenancy agreement and invalidation of the social hiring agreement also concluded on the basis of this decision, the persons living in the dwelling are subject to eviction from it to the previously occupied by them. living quarters. In case of impossibility of eviction to the previously occupied residential premises, based on the specific circumstances of the case, they may be provided with residential premises similar to those previously occupied (paragraph 2 of Article 167 of the Civil Code of the Russian Federation). "

As for the appeal to the Constitutional Court of the Russian Federation, as well as to the European Human Rights Court, I can say that there are no grounds ... I do not see any ambiguity in law enforcement practice or the inconsistency with the Constitution of the norms of the law applied when resolving this case.

The European Court, on the other hand, hears cases on complaints of citizens against the state, and not on the basis of defendants in a specific case. The result of the consideration may be the awarded compensation, but not the restoration of rights (including to the dwelling).

I draw your attention to the fact that both the ECHR and the Constitutional Court of the Russian Federation are not judicial instances for the review of civil cases, this is not within their competence.

It will be empty until you redeem it.
Grigoriev Ruslan

If they do not apply for a buyout, they can also settle in a communal apartment for social rent

MOSCOW CITY COURT

First Instance Judge: E.E. Koroleva

The Judicial Collegium for Civil Cases of the Moscow City Court composed of the presiding judge S.G. Kuprienko,
judges Olyunina M.V., Ovsyannikova M.V.,
with the secretary K.S.,
Having examined in open court on the report of Judge Ovsyannikova M.The. on M.'s appeal against the decision of the Butyrsky District Court of Moscow dated March 27, 2014 in the case of M.'s claim against the Moscow City Property Department on recognizing the right to buy out a room and imposing the obligation to conclude a sale and purchase agreement, on termination of the lease agreement,

Installed:

M. filed a lawsuit against the Moscow City Property Department (Moscow City Property Department) with a claim to recognize the right to redeem a room and to impose the obligation to conclude a sale and purchase agreement, to terminate a lease agreement, indicating that on the basis of a sale and purchase agreement dated December 05, 2014 acquired the ownership of room No. 2 in a communal-type apartment located at the address: Moscow, st., 20, apt. 189. The apartment consists of two living rooms with a total area of ​​45.4 square meters. m, residential 30.0 sq. m On December 23, 2014, the plaintiff received a notice of the right to redeem room No. 1 within ten days in the name of R., who is the previous owner of the room. On December 29, 2014, the plaintiff filed an application for the redemption of room No. 1 to the Department of Housing Policy and Housing Stock of the City of Moscow. As it became known to the plaintiff, on December 29, 2014, in violation of the ten-day period, the defendant entered into a social tenancy agreement in relation to the vacated room No. 1 with a third person - K.M. Pointing out that the plaintiff has been living in room No. 2 since October 2014, the defendant, in violation of the law, entered into a social rent agreement with K.M., M. asked the court to recognize his right to buy out room No. 1 in communal apartment No. 189 located in the house 20 on the street in Moscow, to impose on the defendant the obligation to conclude with the plaintiff an agreement for the sale and purchase of room No. 1 at the market price, to terminate the social tenancy agreement concluded with K.M.
During the consideration of the case, the plaintiff insisted on the stated requirements, asked to satisfy them.
The representative of the defendant, the Moscow City DGI, did not appear at the hearing, presented the court with a response, from the content of which it follows that the defendant does not admit the claim on the grounds set out in the written response.
Involved in the process as a third person - K.M. appeared at the hearing, objected to the satisfaction of the claim.
The court rejected the claim.
On the grounds of the appeal M. asks to cancel the court decision, referring to the violation of the norms of substantive and procedural law.
At the meeting of the judicial collegium M., the representative of the DGI of Moscow did not appear, they were informed about the day of the trial. Based on Art. 167 of the Code of Civil Procedure of the Russian Federation, the judicial board considers it possible to consider the case in their absence.
Having checked the materials of the present case, after hearing the explanations of K.M., who objected to the satisfaction of the complaint, having discussed the arguments of the complaint, the panel of judges finds no grounds for canceling the decision of the court.
Resolving claims, the court reasonably guided by Art. 59 of the Housing Code of the Russian Federation, according to which, the vacated living quarters in a communal apartment in which several tenants and (or) owners live, on the basis of their application, is provided under a social employment contract to tenants and (or) owners living in this apartment, if they are at the time of release residential premises are recognized or can be recognized in the prescribed manner as poor and in need of residential premises. 2. In the absence of citizens specified in part 1 of this article in a communal apartment, the vacated living space is provided under a social rental agreement to tenants and (or) owners living in this apartment, who can be recognized as poor in the prescribed manner and who are provided with a total area of ​​living space per family member less than the provision rate, based on their application. 3. In the absence of citizens specified in parts 1 and 2 of this article in a communal apartment, the vacated dwelling is provided under a sale and purchase agreement to citizens who are provided with a total area of ​​dwelling per one family member less than the provision rate, on the basis of their application. 4. In the absence of the citizens specified in parts 1 - 3 of this article in the communal apartment, moving into the vacated dwelling is carried out on the basis of a social tenancy agreement in the manner prescribed by this Code, since Art. 38 of the Law of the City of Moscow N 29 of June 14, 2006 "On the provision of residents of the city of Moscow for living quarters", which regulates similar relations for the provision of vacated rooms in communal apartments, contradicts the provisions of Art. 59 LCD RF.
The court found that apartment N 189 in the house 20 on the street. in Moscow is communal and consists of two rooms.
09/02/2013 room N 1 with a total area of ​​16.5 sq. m was released due to the departure of P.
M., on the basis of a contract for the sale and purchase of a room dated December 05, 2014 concluded with R. and a certificate of state registration of rights dated December 22, 2014, is the owner of room No. 2 with a total area of ​​13.6 sq. m. Registered at the place of residence since December 23, 2014.
By order of the DZHP and ZhF of the city of Moscow N R52-12177 dated December 29, 2014 K.M. (for one person) provided a living space - room N 2 apartment N 189, house 20 on the street. in Moscow with deregistration of those in need of better housing conditions. December 29, 2014 between JP and ZhF of Moscow and K.M. a social lease agreement was concluded for residential premises - rooms with a living area of ​​16.5 sq. m in apartment N 189 at 20 on the street. in Moscow.
Taking into account the norms of the law, the court made the correct conclusion that the living quarters that were vacated at the time of residence in this apartment of citizens claiming it in accordance with Art. 59 LCD RF. For citizens who moved into an apartment in which there was already a room that was not occupied by another tenant, the specified room is not vacant, but a free living space, therefore, it cannot be provided to them in accordance with Art. 59 of the Housing Code of the Russian Federation, therefore, for M., this room is not vacant, the grounds for acquiring the right to the disputed room on the basis of Art. M. has no 59 LCD RF.
R., who lived at the time of P.'s departure in apartment no. 2, by virtue of the provisions of Art. 59 of the RF LCD, had the right to the vacated living space, however, she did not apply to the Office with a corresponding statement and made the alienation of the room No. 2 M.
Based on the explanations given in paragraph 23 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 02.07.2009 N 14 "On some issues arising in judicial practice when applying the Housing Code of the Russian Federation", violation of the requirements of the Housing Code of the Russian Federation when deciding on the provision of housing under a social employment contract, taking into account the provisions of clause 2 of part 3 of article 11 of the Housing Code of the Russian Federation and part 4 of article 57 of the Housing Code of the Russian Federation, can serve as a basis for filing claims in court for the recognition of this decision, as well as the social hiring contract concluded on its basis as invalid and eviction of residents living quarters of persons.
Room No. 1 in the said apartment was provided by K.M. in order to improve housing conditions and a social rental agreement has been concluded with him.
Thus, the conclusion of a social lease agreement is derived from the decision of the executive authority on the provision of housing.
The order of the DZhP and ZhF of the city of Moscow of December 29, 2014 N R52-12177 is not contested by the plaintiff. The plaintiff filed a claim to terminate the social employment contract with a third party K.M., while M. is not a party to the said contract. This requirement is not based on law.
The reference in the appeal to the fact that at the time of M.'s submission of the application for the redemption of the disputed room, the question of providing it to K.M. was not resolved, does not refute the conclusion of the court, that the room is not vacated for the plaintiff, and therefore there are no grounds for the application of Art. 59 LCD RF on the requirements of the plaintiff.
From Art. 59 of the RF LCD it follows that the vacant is the dwelling that was vacated at the time of residence in this apartment of citizens applying for it. For citizens who moved into an apartment in which there was already a room that was not occupied by another tenant, the specified room is not vacant, but a free living space, therefore, it cannot be provided to them in accordance with Art. 59 LCD RF.
The plaintiff's reference to his right to buy out the disputed room as free housing is untenable, since this room was provided by K.M. under a social employment contract in accordance with Part 4 of Art. 59 ZhK RF in order to improve housing conditions.
A reference to the consideration of the case in the absence of the plaintiff does not indicate a violation by the court of the norms of procedural law, since M. was notified of the day of the trial, which is confirmed by a receipt with his signature (ld 251).
Violations of the norms of substantive and procedural law, which could entail the cancellation of the contested court decision, were not allowed by the court. The circumstances established by the court were confirmed by the case materials and the evidence examined by the court, which the court gave a proper assessment. The conclusions of the court correspond to the established circumstances.
The judicial board does not find grounds for canceling the contested decision of the court on the grounds of the appeal.
Based on the above, guided by art. 328 Code of Civil Procedure of the Russian Federation, judicial board

Defined:

The decision of the Butyrsky District Court of the city of Moscow dated March 27, 2015 - to leave unchanged, M.'s appeal - dismissed.

Hello!

Unfortunately, very few people can boast that they are fully satisfied with the size of their living space. And the inhabitants of communal apartments are even less among them.

And it is not surprising that in the case when a room in a communal apartment is vacated, each of the tenants is not averse to moving to live in the vacant premises.

It should be borne in mind that by "vacated premises" is meant, from the point of view of legislation, not just a room that suddenly became empty, but one that was vacated due to the following reasons:

In connection with the relocation of the tenant;

In connection with the loss of the right to use the housing by the tenant;

In connection with his death;

Due to the absence of persons living with the tenant, who also have the right to conclude a contract of employment.

However, in this case, you should not rush and in a hurry to drag your household utensils into a free room, you first need to find out who the premises in this apartment are decorated for. The answer to this question will determine all further actions. The most common option is the situation when the inhabitants of a communal apartment have only a share in this apartment: one owner of the room owns some share of housing and some share of common areas.

You should also keep in mind what type this room belongs to. It can be:

1. Adjacent, that is, is not an independent subject of the lease agreement. Such situations are now rare. And in this case, the right to this vacated room is given to the owner of the premises adjacent to this room.

2. Isolated - that is, it is an independent subject of the contract.

The decisive factor in this case is the concept of footage. The state provides for two types of contracts: a contract of employment and a contract of social employment. In the case when a room in a communal apartment is vacated, priority remains with the social tenancy agreement, according to which the premises are provided to persons who expect an improvement in their living conditions. This option is implemented if the area of ​​12 square meters is not exceeded per each resident as a result of the accession. Moreover, the size of the living space to be connected increases by the size of this additional area, if the tenant has the right to additional footage.

There are two options here:

If at the moment the area is less than 12 square meters for each tenant at this time, but as a result of its joining, the footage will exceed the established norm, the tenants will be offered to use the lease agreement.

If at the moment the area is more than 12 square meters per resident, the vacated dwelling can be offered to the tenant who has entered into a lease agreement, but only if, as a result of joining, the communal apartment will become a separate apartment. At the same time, the living space, including the additional one, should not exceed two times the size of the living space norm per person.

What actions need to be taken to occupy a free room in a communal apartment, if the footage allows you to hope for the long-awaited expansion of space?

The administration is obliged in writing to offer the residents of the communal apartment to draw up a lease agreement or a social employment agreement within 1 month from the date of the release of the dwelling. Within 1 month from the date of receipt of this notification, employers must give written consent, or refuse the received offer.

In the case of the consent of several tenants, the Administration determines with whom to conclude an agreement, independently on a legal basis. Those tenants who were refused to conclude a contract are given the opportunity to appeal against the decision in court.

Often there are cases when a room in a communal apartment is vacated, but none of those living in it is in a hurry to take the opportunity to conclude an agreement. Then this room is populated by third parties in the manner prescribed by law.

Also, the reason for going to court is the situation when people who had not previously lived there suddenly appeared in the vacated premises, and the residents of this communal apartment did not receive any offers to conclude an agreement from the Administration.

“And I also heard somewhere that it is forbidden to create communal apartments ...” - but in your case, a communal apartment has already been created. Moreover, the communal apartments are now becoming with the allocation of shares in kind from apartments that are in common ownership.

According to:

Article 49. Provision of residential premises under a social rental agreement

1. Under a social lease agreement, dwelling premises of the state or municipal housing stock shall be provided.
2. Low-income citizens recognized on the grounds established by this Code as in need of residential premises provided under social tenancy agreements shall be provided with residential premises of the municipal housing stock under social tenancy agreements in accordance with the procedure established by this Code. For the purposes of this Code, poor citizens are citizens if they are recognized as such by a local government body in the manner prescribed by the law of the relevant constituent entity of the Russian Federation, taking into account the income attributable to each family member and the value of property owned by family members and subject to taxation.
3. Residential premises of the housing stock of the Russian Federation or the housing stock of a constituent entity of the Russian Federation under social tenancy agreements are provided to other categories of citizens specified by federal law, by decree of the President of the Russian Federation or by law of a constituent entity of the Russian Federation, recognized by the categories of citizens established by this Code and (or) federal law, by decree of the President Of the Russian Federation or the law of a constituent entity of the Russian Federation for reasons in need of residential premises. These living quarters are provided in accordance with the procedure established by this Code, unless another procedure is provided for by the specified federal law, decree of the President of the Russian Federation or the law of a constituent entity of the Russian Federation.
(Part three as amended by Federal Law of December 29, 2006 N 250-FZ)
4. The categories of citizens specified in part 3 of this article may be provided, under social rental contracts, with residential premises of the municipal housing stock by local authorities in the event that these bodies, in accordance with the procedure established by law, are vested with state powers to provide these categories of citizens with residential premises. Residential premises of the municipal housing stock under social tenancy agreements are provided to the specified categories of citizens in the manner prescribed by this Code, unless a different procedure is provided for by federal law, a decree of the President of the Russian Federation or the law of a constituent entity of the Russian Federation.

Article 50. Rate of provision and accounting rate of living space

1. The norm for the provision of living space under a social tenancy agreement (hereinafter referred to as the provision rate) is the minimum size of the living space on the basis of which the size of the total living space provided under a social tenancy agreement is determined.
2. The provision rate is established by the local self-government body, depending on the level of provision of residential premises, provided under social tenancy agreements, achieved in the respective municipality, and other factors.
3. Federal laws, decrees of the President of the Russian Federation, laws of the constituent entities of the Russian Federation establishing the procedure for the provision of residential premises under social rental contracts to the categories of citizens specified in Part 3 of Article 49 of this Code, these categories of citizens may establish other provision rates.
(as amended by Federal Law of December 29, 2006 N 250-FZ)
4. The accounting standard for the area of ​​living quarters (hereinafter referred to as the accounting standard) is the minimum size of the area of ​​the living quarters, on the basis of which the level of provision of citizens with the total area of ​​the living quarters is determined in order to register them as needing residential quarters.
5. The accounting norm is established by the local government. The size of such a norm cannot exceed the size of the provision norm established by this body.
You need to decide whether you have the right to improve your living conditions, then get on the waiting list and only after that you have the right to apply for a room in your communal apartment.