Court decision to evict a minor

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The eviction of minor children from residential premises of municipal property is also possible in the case of proof of fictitiousness of registration carried out without moving in (this circumstance is taken into account by the court with rare exceptions) or after minors reach 18 years of age.

The rights of minor children in the Russian Federation are protected by a whole range of executive, administrative, legislative and other measures. One of the main aspects of their action is the regulation of the child’s housing rights, in accordance with the provisions prescribed in the Codes.

Minor citizens must be provided with decent housing conditions, the deterioration of which is unacceptable, therefore, in the event of their eviction, the initiators of a change of place of residence are obliged to provide similar conditions.

The law also states that the eviction of minor children registered in residential premises becomes possible only after obtaining the voluntary consent of the parents or people replacing them.

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general information

Is it possible to evict a minor child from an apartment?

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

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

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

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

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

This happens due to the fact that a small citizen at his age cannot yet fully defend his rights.

Features of a claim for the discharge of a minor

A claim for deregistration from an apartment is a legal opportunity through the court to remove a tenant from the registration register. After all, deregistration of a person registered in an apartment without his consent is possible only through the court. This article will answer the question of how to correctly draw up a claim for exclusion from an apartment, a sample of which will be presented in the text

Preparing a statement of claim to court

The statement of claim for termination of a person’s right to use residential premises must indicate:

— the name of the court in which you are filing a claim; — full name of the plaintiff, his home address, contact phone number; - Full name of the defendant and his home address; — Full name and addresses of third parties (if any); - name of the claim; — a brief description of the situation, what the violation of the rights and interests of the plaintiff is; — the plaintiff’s claims and the circumstances by which these claims are justified, with references to the rules of law; — list of attached documents; - date of drawing up the application and signature of the plaintiff.

If the defendant lives in the apartment of the owner (plaintiff), indicate in the application the demand for his eviction.

The application should not include a request to deregister the defendant. The court makes a decision to terminate the right to use the apartment, on the basis of which the tenant will be discharged.

Required documents

Attach to the statement of claim:

— copies of the application and documents attached to it for the defendant; — title documents for housing (purchase and sale agreement, provision of ownership through privatization, certificate of inheritance, etc.); — an extract from the house register, a certificate of registered persons; — a document confirming the termination of the defendant’s right to use residential premises (divorce certificate, etc.); — notice of vacating the premises with a note of delivery; — other documents confirming your position; - receipt of payment of state duty.

File your claim in person or by mail in the district court that covers the area where you own your property.

The claim may be denied if:

- the tenant does not have the opportunity to live in another premises - the right to use the plaintiff’s housing can be retained for a period determined by the court; - the owner pays alimony to the tenant - the court has the right to oblige the plaintiff to provide the defendant with other residential premises; the defendant lived in the residential premises at the time of its privatization and agreed to privatization without his participation (Article 19 of the Law of December 29, 2004 N 189-FZ)

Features of a claim for the discharge of a minor

In the statement of claim for termination of the minor's right to use residential premises, the child's legal representative - one of the parents or a guardian - must be indicated. If the child is 14 years old, he will take part in the trial along with his representative.

Attach to the claim as a basis documents on the transfer of ownership of the residential premises to another person or on the termination of family relations with the parent of a minor child, also registered in the residential premises.

A minor child cannot be deregistered if his legal representative is one of the homeowners. In this case, you need to wait until he reaches adulthood.

In the statement of claim, also indicate the requirement to evict the child to another living space. The application will be considered by the district court, as in a normal case.

After the end of the litigation, receive a writ of execution and, together with an application to initiate enforcement proceedings, submit it to the bailiff service.

Sample statement of claim for the discharge of a minor child

To court

PLAINTIFF: __________________________

RESPONDENT:________________________; (in our own interests and in the interests of minor children ___________________________________, born in 2005; ___________________________________, born in 2002

3rd PARTIES:

1. Department of guardianship and trusteeship of the district _______________, address: _________________________________________________________________________; 2. Passport office of the district ___________ address:_________________________________________________________________________

STATEMENT OF CLAIM for eviction

I am the owner of the apartment at the address: ____________________________. The indicated apartment belongs to me on the basis of ________________________________________________. I am registered in this residential area, besides me, _______________________ and his minor children are also registered in the apartment: ___________________, born in 2005, ________________________, 2002. birth. In accordance with Part 2 of Art. 292 of the Civil Code of the Russian Federation (as amended by Federal Law No. 213-FZ of December 30, 2004) “The transfer of ownership of a residential building or apartment to another person is the basis for termination of the right to use the premises by family members of the previous owner, unless otherwise provided by law.” Due to the fact that I am currently the owner of the apartment, I believe that _____________________ and his minor children do not have the right to use the residential premises.

_______________ and his minor children are not members of my family. The defendant does not bear any expenses for maintaining the apartment or paying utility bills; he leads an immoral lifestyle and abuses alcohol.

_________________ interferes in every possible way with my residence and use of the premises. Minor children do not actually live in the living space, but live together with _____________________________ in _________________________________.

Based on the above, guided by art. 292 Civil Code of the Russian Federation,

I ASK: Evict __________________________________________, minors, _________________________, born in 2005, ____________________, 2002. birth from an apartment at the address: ________________________________________________________________________________; Oblige the passport office of the district “______________” to remove _________________, minors ____________________________, born in 2005, _____________________, born in 2007 from the registration register at the place of residence at the address: _______________________________________.

ANNEX 1.

2.

3.

"_____" __________ 200__g.

____________

Grounds for eviction of minor children

The grounds for eviction of a child from an apartment may be as follows:

• the owner of the apartment’s demand to leave her parents, and, of course, their young child. If an agreement is not concluded, then this will have to be done at the request of the apartment owner , but only by court decision. Such situations may arise due to late payment or noise that neighbors complain about. Usually the court gives citizens time to select a new place of residence;
• requirement of the new owner of the apartment to vacate the premises. If a minor lived and was registered in the premises, and perhaps was its owner, but with the permission of the guardianship authorities, his parents made transactions, and now the new owner is dissatisfied with the fact that strangers live on his territory;
• the basis may be a demand from the owner of municipal housing, which is most often associated with non-payment of debts for utility needs (find out the size of the debt for eviction). By law, in such cases, a family with one or more children must be provided with an alternative apartment or room. It should be noted that this applies to social employment contracts;

• 
  expiration of the period allotted for living in a service apartment. At the end of the period, you must leave the premises with your parents, but only if we are not talking about orphans whose parents were tenants of this living space.

Article 292 of the Civil Code of the Russian Federation establishes the norm under which conditions the eviction of children can occur legally: if the owner of the premises has completed a purchase and sale agreement, and the children remain registered in the premises, then the new owner of the living space has the right to evict.

Article 31 of the Housing Code of the Russian Federation secures the right to use property for minors, even after the divorce of his parents.

The rights of young children are determined by Article 65 of the Family Code of the Russian Federation, which establishes that a child, if his parents divorce, can be registered at a new residential address assigned to one of his parents.

However, the fact that a minor changes his place of residence does not affect his property rights. He still claims the property of both his father and mother by virtue of kinship.

How can an owner remove a child from an apartment?

In accordance with housing legislation, eviction of children from an apartment is allowed both at the request of the parents and by court decision.
At the same time, it is important to comply with a mandatory condition: it must be registered in another residential premises. In practice, questions arise related to the specifics of deregistration from the residential premises in which a minor and his mother are registered. There are nuances associated with deregistration of mortgage, municipal and service housing. Let's look at them in more detail.

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If a child is registered in an apartment, he is automatically given the right to live in it. When deregistering, guardianship authorities check the living conditions at the new place of registration. They should be no worse than the current ones.

Typically, a child is discharged from the premises with one or two parents and is registered with them at a new place of residence.

From mortgage housing

If an apartment is purchased using credit funds, it is pledged to the bank under a mortgage agreement. Minors are evicted from residential premises together with their parents if the loan is overdue. A credit institution has the right, on the basis of parts 1-2 of Article 209 of the Civil Code of the Russian Federation, to deregister and evict the entire family.

It happens that a family lives in an apartment under a social tenancy agreement. The owner of the premises is the municipality. If a child is registered with his parents, he cannot be evicted without providing other housing.

In cases where the initiators of deregistration are the parents, the consent of the guardianship authority must be obtained. It is given subject to the following conditions:

• living conditions in the new apartment are no worse than the current ones;
• Both parents filed a complaint.

We suggest you read: Discharge a child from a municipal apartment
The law allows you to evict minors without providing other housing if the apartment is in disrepair. Typically, in this case, temporary housing is provided from the social fund.

Service housing is provided to citizens while they perform their work duties. After termination of the employment contract or service contract, the child is evicted from the living quarters along with his parents.

If the family does not want to leave the apartment, the owner has the right to file a lawsuit for forced deregistration. Usually the request is granted. If necessary, a deferment will be granted to find alternative accommodation.

In the event of divorce between parents, the following rules apply:

• the ex-wife and children cannot be evicted until she finds another place to live;
• The child retains the right to live in the apartment.

In the event of the death of both parents, children have the right to live in official housing until they reach adulthood.

If the legal representative of a minor refuses to remove the child from registration, the home owner should contact the guardianship authorities for permission. After receiving a positive decision, you can go to court.

The algorithm of actions to evict a child is as follows:

1. The owner must establish the grounds for eviction. For example, sale of real estate, change of residence, etc.
2. Then you need to prepare documents confirming the legality of the eviction and submit an application to the guardianship authorities. Based on the results of consideration of the application, the department will send a response with permission to deregister or refuse.
3. Next, a statement of claim is drawn up and the state fee is paid. Documents are submitted to the court.
4. The owner must attend the court hearing, provide explanations, and provide additional documents if the court deems it necessary. If the demands are justified, a positive decision is made.
5. After receiving the judicial act in hand, you must visit the migration service and submit an application for eviction. The registration entry will be made by court order.

We suggest you read: Do you need a receipt to confirm the transfer of money for an apartment?

It takes up to 14 days to receive a response from the guardianship authority. The judicial procedure takes 2-3 months. Eviction is carried out three days in advance.

Where can they be evicted from their living quarters?

The place of residence of the children after the eviction procedure will be determined by where his parents or his legal representative will be . This norm is enshrined in Article 20 of the Civil Code of the Russian Federation.

Many lawyers have come to the conclusion that cases of eviction of minors are complex and it is better not to take risks, but to seek help from a qualified lawyer.

There is not a single article that clearly states that it is prohibited to evict minors . On the contrary, Article 31 of the RF Housing Code states that absolutely anyone can be evicted from an occupied apartment, regardless of their age.

But there is another point: the state must protect the rights of the child, therefore, when relocating him to conditions that do not meet sanitary and other standards affecting health and development, guardianship authorities may intervene in the matter.

Impeding conditions

There are categories of citizens who cannot remain without a roof over their heads.

These people include:

1. Children who are under eighteen years of age and do not have parents or legal guardians . This category can be evicted from housing only with the permission of the guardianship authorities, who must be convinced that the child will be provided with an alternative place of residence. This norm is enshrined in the Resolution of the Constitutional Court of the Russian Federation dated June 8, 2012 No. 13-P.
2. You cannot evict a child if he has property rights .
3. If the guardianship authorities have refused to carry out the eviction.
4. If the home where the child lives is the only one for him.
5. Another case when eviction cannot be carried out is the participation of a minor in the process of privatization of housing.
6. The apartment from which the expulsion occurs is recognized as municipal.

Procedure

In order to file a lawsuit to evict children who have not reached the age of majority from an apartment, there must be circumstances of particular importance and a lot of evidence to present them in court.

There must be strong justifications that if the case has a positive outcome, the citizen will not be left without a place of permanent residence . If the court rules in favor of the plaintiff, then this will be the official document for the eviction.

Many citizens are thinking about whether it is possible to deprive children of a roof over their heads? Only the court can answer this question, so you need to go there to get an answer.

In such proceedings, a third party is usually present - a representative of the guardianship authorities.

The judge, of course, will take into account the arguments and evidence of all sides of this complex case and make a decision based on the legislative framework and rules of law.

If the court decides in favor of eviction, then, based on the court decision, the child is discharged and registered at a new address.

The eviction of children from the apartment is carried out according to a writ of execution.

There is a possibility that some citizens will interfere with the legal eviction, then bailiffs will intervene in the matter.

Peculiarities

Can they be evicted from an apartment with minor children? Each specific situation has its own characteristics for carrying out the procedure for eviction of children.

From a mortgaged apartment

Is it possible to evict a minor child from a mortgaged apartment? Many people mistakenly believe that a bank cannot take away a mortgaged apartment from a citizen if he has minor children and has nowhere to go.

In such cases, a credit institution can be guided by Article 446 of the Code of Civil Procedure of the Russian Federation, which makes it clear that lenders should not pay attention to the fact that residents have only one home, and this applies primarily to persistent defaulters on a mortgage loan .

Since mortgaged housing is not the property of a minor citizen, but is owned by a credit institution, this means that eviction is possible.

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

From council housing

Are there grounds for evicting a minor from public housing?

to ask residents to move out of a municipal apartment without the written consent of their parents who are planning to move to another place.

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

Departure from office

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

But there is one point: if the parents died and the child remained in service housing, then they do not have the right to ask him to move out.

Reasons for eviction of a minor by the owner

Minors are protected by the court, the prosecutor's office, guardianship and guardianship authorities, as well as legislative acts on human rights, the Convention on the Rights of the Child, etc. Evicting minor children from residential premises is prohibited and almost always impracticable.

It is not possible to evict a minor from municipal housing registered after the parents have written an application. The only option for evicting a registered minor from an apartment is to prove that the registration was actually carried out without occupancy, however, judicial institutions in most such situations do not take this into account.

When considering a request to vacate a living space by a minor child, a judicial institution is obliged to:

• record the location of the minor;
• stipulate the availability of other comfortable living space at his disposal.

Before the owners of municipal housing move out, a pact is concluded to provide another comfortable living area. The stay of a minor in medical, preventive, educational organizations is not the basis for a claim for eviction.

Eviction from a hostel with a minor child is impossible, because persons living with minor children are included in the category of citizens who are not subject to this procedure.

There are special categories of young children who cannot be evicted:

• children without guardianship;
• dependent on the owner of the living space;
• orphans;
• children who have no other housing options.