Eviction of a former family member of the owner

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Having officially dissolved the marriage, the former spouses cease to be relatives, and all their joint obligations cease or change. In particular, the spouse who is the owner of the residential premises has the right to evict the other from the apartment belonging to him.

If the ex-husband (or wife) leaves the living space voluntarily, then no problems will arise, but often the ex-relative does not want to move out. The reasons may be different: he does not have alternative housing, the disputed apartment is more comfortable for living, the ex-husband hopes that if they continue to live together, the marriage will be restored.

In this case, the apartment owner can only evict the unwanted “neighbor” through the court.

When you can and when you cannot evict your ex-spouse

Evicting a non-owner's ex-spouse from a residential premises is an inalienable right of the owner of an apartment or house. His powers are based on his legal right to use, own and dispose of residential premises in his ownership.

But there are often situations when one spouse-owner cannot evict the other, even through the court. Eviction is not possible if:

1. The residential premises are the joint property of the former spouses. in this case, they both have equal rights to the apartment and, accordingly, it is impossible to evict either one or the other.
2. A marriage contract was drawn up, according to which the non-owner spouse retains the right to reside in the residential premises after the divorce.
3. The husband-owner pays his wife alimony for their joint child. In this case, the court will grant a deferment on the eviction of the mother and child until she finds alternative housing. Moreover, the court may oblige the ex-husband to find such alternative living quarters for his ex-wife.
4. One of the former spouses refused privatization in favor of the other. In this case, the law guarantees the non-owner the right to lifelong residence in the residential premises of the former spouse-owner.

Let's summarize. Eviction from a residential premises is possible only after termination of the right to use. In cases where this right is retained even after a divorce, eviction of the second spouse is either impossible under any circumstances or is associated with great difficulties.

So, you have divorced, you are the owner of the living space and you want your ex-spouse to leave it. What to do? The first and mandatory step is to notify your former relative that he has lost the right to use your apartment and invite him to voluntarily move out. Sometimes this notice is enough for the unwanted tenant to leave your apartment.

Compliance with the pre-trial settlement procedure (notice of eviction) is a mandatory stage in the eviction of a former spouse. Without such notification, the court will not accept the eviction claim.

And only if the ex-husband or wife does not respond to your notice and does not want to leave the premises on their own, you, as the owner of the apartment, have the right to proceed with forced eviction by filing a claim in court.

How to evict an ex-family member

If a former relative does not want to voluntarily leave the apartment, then he can only be evicted through a judicial procedure.

Algorithm of actions of the owner to evict a former relative

To evict a tenant who does not agree with the eviction, the owner must take a number of sequential actions:

1. It is necessary to establish the fact of termination of family ties . This could be divorce, deprivation of parental rights, etc.
2. Try to force a former relative to move out voluntarily . To do this, the owner can notify the tenant orally, or give him a written notification that he must leave the residential premises due to the termination of family ties.
3. Give the tenant some time to make a decision.
4. Collect the necessary documents .
5. Draw up a statement of claim to evict a former relative.
6. Pay the state fee .
7. Submit the claim with attached documents to the court secretariat.
8. Take part in the court hearing .
9. Get a writ of execution.
10. Submit the writ of execution to the SSP and write an application to open enforcement proceedings .
11. Wait until your ex-relative evicts you.

Under no circumstances should you attempt to evict a tenant yourself. If you try to take out the things of a former relative, or change the lock in the apartment in order to limit the access of an unwanted tenant, or try to kick him out by force, you may find yourself as a defendant in another lawsuit - about arbitrariness.

Documents for eviction

To evict through court, it is not enough to file a statement of claim. It will be necessary to collect a certain package of documents, which will include:

• several copies of the statement of claim (according to the number of participants in the process);
• a copy of any identification document of the plaintiff;
• if you want to evict your ex-spouse - a certificate of divorce;
• if it is necessary to evict a father or mother who has been deprived of parental rights, a court decision to deprive them of their parental rights;
• an extract from the house register indicating everyone registered in the residential premises;
• notification of the need to vacate the apartment;
• receipt of payment of state duty;
• other documents that may influence the outcome of the case.

All documents, except the receipt for payment of the state duty, are attached to the claim in copies; the payment document must be attached in the original.

In addition to the above, the plaintiff may additionally attach to the claim documents proving the defendant’s loss of the right to reside in the residential premises, or facts of violation of the rights and interests of neighbors, for example:

• collective complaint of residents of an apartment building;
• protocols on administrative offenses of the defendant;
• appraisal acts that will attest to the fact of damage by the defendant to the plaintiff’s property.

Deadlines

Any owner wants to get rid of a former relative as quickly as possible, so everyone is concerned about the question: how soon the defendant will be evicted.

The minimum period for consideration of housing disputes is 2 months from the date of filing the claim. But usually such disputes last much longer, since the defendants resist eviction with all their might and delay the legal process. There are cases where eviction claims took more than a year to be considered.

State duty, cost

When filing a claim for eviction, the plaintiff must pay a state fee; for claims of a non-property nature it is 300 rubles. To obtain some certificates you will also have to pay a certain amount, for example, an extract from the house register will cost 200 rubles.

Few citizens are so sophisticated in jurisprudence that they would risk filing a statement of claim for the eviction of a former relative. Usually, the drafting of the document is entrusted to a competent lawyer, the cost of the service ranges from 1 to 3 thousand rubles.

The court may impose all the costs of the plaintiff when making a decision in his favor on the defendant, obliging him to compensate the plaintiff for legal costs.

How to properly file a lawsuit to evict your ex-spouse

The most correct step when drawing up a statement of claim for eviction is to seek help from lawyers. This will avoid possible mistakes and, accordingly, delaying the eviction process.

Of course, this procedure is not free; assistance in drawing up documents will cost, depending on the region, from one to several thousand rubles. But if a clause is added to the claim requiring the defendant to recover all the plaintiff’s legal expenses, ultimately, in the event of a positive court verdict, all the plaintiff’s expenses will be reimbursed by the defendant.

The plaintiff can draw up a claim on his own; to do this, it will be necessary to understand some of the nuances and legal subtleties necessary to draw up a statement of claim.

1. The most correct way would be to compile the document in electronic form. In this case, the plaintiff will be able to quickly make the necessary amendments and changes, add necessary items and delete unnecessary ones.
2. It is necessary to adhere to the template, that is, you cannot skip any points or change their places.
3. The document must be drawn up in legally competent language, without the use of slang words, offensive definitions, spelling or legal errors are unacceptable.

If these rules are not followed, the court may either not accept the claim for consideration at all, or return it for revision and correction, in which case the eviction process may be delayed.

How to file an eviction claim (algorithm):

1. Decide exactly what claims you want to make and how legal they are.
2. Find an application form or a sample. You will find a sample of filling out a statement of claim to evict a former spouse below.
3. Draw up a statement of claim, following the prepared template. It must be remembered that the sample document only shows an example of what the claim should look like; you must draw it up based on your specific situation.
4. It is necessary to indicate information about all participants in the process: the judicial body to which you are submitting the application, the plaintiff and defendant, as well as third parties whose presence in the process will be necessary.
5. Attach the required documents, listing them in a numbered list.
6. At the end of the statement of claim, you will need to put the date of filing the claim and sign (with the obligatory decoding of the signature).

Filing a lawsuit and hearing a case

After drawing up a statement of claim in the appropriate number of copies (according to the number of parties involved in the case) and attaching to it all copies of documents and a receipt for payment of the state fee (original), it must be sent to the judicial body whose jurisdiction allows the consideration of such disputes.

A claim can be filed in several ways:

• take it personally to the court office;
• use by sending a registered letter;
• Some judicial authorities allow filing an application by sending it by email to the official website of the court.

Jurisdiction

This statement of claim is subject to consideration in a court of general jurisdiction (district) at the place of registration of the real estate. Other district courts cannot accept eviction claims (if the area of ​​registration of housing and the judicial authority are different).

Was there a child born in your second marriage? Find out how to file a claim to reduce your child support. We draw up a claim under a loan agreement according to the sample provided at the link.

State duty

For consideration of a claim, the law provides for an appropriate fee (state duty). Thus, according to paragraph 3 of Article 333.19 of the Tax Code, claims for the eviction of an unwanted tenant relate to property claims, but do not have a material valuation, and accordingly the state fee for consideration of such a claim will be 300 rubles (for individuals).

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Documentation

As mentioned above, the number of statements of claim and the package of documents attached to them must be as large as the number of participants in the proceedings.

The package of attached documents includes:

• documents confirming ownership of real estate (copies);
• confirmation of the conclusion or dissolution of a marriage relationship (copies of certificates);
• if the tenant is the tenant, a copy of the tenancy agreement;
• a copy of the tenant's eviction notice/notice;
• confirmation of payment of the state fee (receipt, check).

The limitation period is the period of time during which a person who has learned of a violation of his legal rights can file a lawsuit with a judicial authority to restore them. According to the Civil Code, this period is calculated as three years after the discovery of the violation.

In relation to a claim for eviction, this period is considered to be the moment the right of residence in the occupied living space ends (end of the tenancy agreement, termination of family relationships, etc.). This period does not apply to illegally residing persons.

To provide more complete information when considering a case, you can involve third parties from both the plaintiff and the defendant, as well as prosecutors, disinterested experts (housing inspection, if serious damage was caused to the residential premises), etc.

The plaintiff and defendant have the right to involve witnesses, lawyers and other representatives. To attract third parties, the parties must submit a petition both in the statement of claim before filing the court, and already at the court hearing itself.

Sample statement of claim for eviction of ex-spouse 2020

The statement of claim for eviction of a former spouse must have the following content:

1. Details of the judicial authority to which the claim is filed.
2. Personal information of the plaintiff and defendant.
3. Information about third parties involved in the process (if any).
4. Information about witnesses in the case who must be invited to court.
5. Grounds for filing a claim.
6. Description of the reasons why the plaintiff lost the right to use the residential premises.
7. Mention of attempts at pre-trial settlement and how they ended.
8. Substantiation of the plaintiff's claims with references to legal acts, according to which the defendant lost the right to reside in the apartment.
9. The claims to the court, in this case they will sound like this: “to evict the person who has lost the right to use the residential premises _________.”
10. Numbered list of attached documents.
11. Date and signature.

Sample letter of claim for eviction

Where to apply for forced eviction?

Consideration of eviction cases is within the jurisdiction of courts of general jurisdiction. You should contact the district court at the location of the property, because in this case the rule of exclusive jurisdiction applies (Part 1 of Article 30 of the Code of Civil Procedure of the Russian Federation).

If the current place of residence of the defendant is unknown, then what was known to the plaintiff as the last should be indicated - as a rule, this is the address of the disputed living space. Yes, most likely, the defendant will not receive notice of the summons to court and will miss the process. However, there is no flaw in this logic.

Registration provides information to all third parties about a person’s location. If for some reason he does not receive correspondence sent to such an address, then he is responsible for this (Part 1 of Article 1651 of the Civil Code of the Russian Federation).

Be prepared, however, for the fact that if the defendant does not appear at the trial due to failure to receive a subpoena, the period for consideration of the case will increase significantly, since in such cases the courts postpone court hearings twice in order to avoid challenging the decision in the future due to the lack of proper notification to one of the parties to the case.

To summarize, it should be noted that disputes about eviction from an apartment are among the most unpredictable and difficult to prove due to the absence of any clear algorithm of actions. They should pay great attention to evidence and to ensure that it meets such properties as reliability, admissibility and relevance. This must be done at the stage of consideration of the case in the court of first instance, since the appeal stage, as a general rule, does not provide for the possibility of presenting new evidence.

Below is an example of the successful implementation of an eviction by an employer of an ex-wife by the staff of our Laboratory:

The article was prepared taking into account the edition of regulatory legal acts in force as of October 3, 2018.

Author of the article: Maya Sablina, Director of the Law Laboratory

Sources:

[1] Housing conditions // Official website of the Federal State Statistics Service. URL: https://www.gks.ru/wps/wcm/connect/rosstat_main/rosstat/ru/statistics/population/housing/# (access date: 09/30/2018)

[2] Demography // Official website of the Federal State Statistics Service. URL: https://www.gks.ru/free_doc/new_site/population/demo/05-06.htm (access date: 09/30/2018)

Estimated cost of services to support cases of eviction from an apartment in the Maya Sablina Law Laboratory:

We also recommend watching a video about the eviction of a former family member on our YouTube channel:

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State duty

The state duty for any claim of a non-property nature is 300 rubles. To pay the state fee, the plaintiff must clarify the details in the district (or city) court where he intends to file a claim. Payment can be made:

• at any bank through the cash desk;
• in any terminal that supports such a function;
• using online banking.

In the second and third payment options, you will need to have the receipt certified by the credit institution that holds the account from which you paid the state fee.