An escheated and privatized apartment after the death of the owner - who is entitled to it without a will and with it? Other nuances

Is it possible to bequeath a non-privatized apartment?

A non-privatized apartment is a residential premises that belongs under the right of ownership to the state or municipality. Such housing is provided to those in need of improved living conditions under a social rental agreement.

To obtain ownership of an apartment, it is necessary to privatize it. If a citizen has not formalized privatization, then he does not have the right to dispose of this premises. That is, he cannot sell it or give it away.

A will is a one-sided transaction. Unlike other methods of transferring ownership, such as sale or gift, any property can be specified in a will. Including those that do not belong to the testator. Perhaps the citizen is just planning to formalize privatization, so he includes an apartment in the declaration of will in advance.

When registering a will, the notary does not ask the testator to provide him with title documents. Therefore, a citizen is free to enter into the document absolutely any property that he already owns or is planning to acquire.

Thus, the tenant of an apartment under a social tenancy agreement or members of his family (living in it) can bequeath a non-privatized apartment.

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Rights of the tenant and residents

Since the spring of 2005, written agreements have been mandatory. In particular, old orders are being reissued. Such documents describe in detail:

• rights and obligations of the parties;
• terms of payment for housing under a social rental agreement;
• penalties.

General rules establish that it is mandatory to obtain the consent of other residents. The municipality has the right to establish individual restrictions, guided by sanitary standards for area per person. Without additional permits, the procedure is performed to register minor children in a non-privatized apartment at the parents’ place of residence. Similar benefits apply when it comes to close relatives. Unlawful actions of performers can be protested in court.

In accordance with the basic rules of a standard social tenancy agreement, responsibilities apply equally to the responsible tenant along with family members. It is understood that even in the case of long-term absence of residents, timely payment of housing and communal services is necessary. It is permissible to collect debt in court with fines and compensation for associated costs. A delay of more than six months is sufficient grounds for forced eviction.

It is recommended to clarify the actual terms and conditions in the text of the contract. Thus, the landlord is obliged to notify in advance about the change:

• tariffs;
• payment procedure;
• standards for the consumption of energy and other resources.

Repair issues

A significant advantage of living under a social tenancy agreement is the absence of responsibilities for maintaining common property. Major repairs are carried out by the municipality at its own expense. If these obligations are violated, the residents of the apartment (house) file a complaint with the housing commission and the prosecutor's office.

Tenants are required to independently carry out routine repair work in the premises received under the contract. However, in addition to redevelopment, any significant changes to general and local engineering systems are prohibited. If the heating radiator is damaged, it must be restored (replaced) independently. To move partitions, it is necessary to fix the new configuration of rooms in technical terms in agreement with the municipality. A similar permit will be needed to replace an electric stove with a gas one.

Some landlords list in the contract the permissible independent actions of tenants (example):

• painting walls, creating other decorative and protective coatings;
• installation of lamps, sockets and switches;
• repair and replacement of faucets;
• installation of new door and window units.

The rights of a tenant in a non-privatized apartment are supplemented by certain responsibilities. The employer must:

• maintain good sanitary and technical condition of the property transferred to him;
• ensure free access for maintenance personnel and authorized administration employees for maintenance and control checks;
• promptly inform responsible officials about identified construction defects and emergency situations.

According to standard conditions, upon termination of a social tenancy agreement, the non-privatized apartment must be returned to the owner in a condition suitable for habitation. You will have to pay for damaged equipment and restoration work. For a comparative assessment, you can use the transfer and acceptance certificate signed upon receipt of housing.

To generate additional income, you can rent out a non-privatized apartment to third parties. To complete the transaction correctly, you need permission from other residents and the municipality. It should be emphasized that such an action does not relieve the responsible tenant and his family members from fulfilling their obligations under the main contract.

Is it possible to rent out a non-privatized apartment without approval? The correct answer depends on the initial conditions. In this case, notarization of the agreement is not required. If the transaction is free of charge, it can be concluded orally. If the period does not exceed 12 months, registration with Rosreestr is not required.

Is it possible to rent out real estate for a fee to strangers without undue risk? For an objective assessment, it is recommended to take into account:

• the need to pay tax on income received;
• possibility of verification by the municipality;
• lack of constant monitoring of the condition of the property.

If significant violations are detected, the owner has the right to terminate the social tenancy agreement. If neighbors report hidden profits to the Federal Tax Service, you will have to pay a large fine in addition to personal income tax.

Sharing an apartment requires following certain rules. In some situations, it does not matter who owns the property. It is necessary to respect the legal rights of residents:

• ensure freedom of passage and silence at night;
• do not impede the use of common premises.

It is necessary to preserve the intended purpose of the apartment. It is prohibited to use the property for commercial or social activities. It is forbidden to create warehouses, production facilities, or workshops in living rooms.

The municipality has the right to establish additional restrictions for buildings located near highways classified as objects of historical value. In particular, visible changes to facades are prohibited:

• glazing of balconies and loggias;
• installation of external units of air conditioners and satellite antennas;
• installation of window frames that do not match the color of a specific design.

Is it possible to inherit a non-privatized apartment?

But with the inheritance of a non-privatized apartment, the situation is more complicated. As a general rule, heirs have no rights to it.

A non-privatized apartment is the property of the municipality or the state. The testator does not have ownership rights to it, therefore, the heirs cannot claim it.

That is, if the heirs turn to a notary to include a non-privatized apartment in the inheritance, he will refuse them. But the law provides a number of ways to inherit such housing.

Options for inheriting a non-privatized apartment

Heirs can obtain rights to a non-privatized apartment as follows:

1. Complete the privatization started by the testator. This procedure is carried out in court. It can only be initiated by the heir of the deceased.
2. Renew the social tenancy agreement. This opportunity is available to family members who lived with the deceased (even if they are not part of the heirs).

Let's take a closer look.

Completion of privatization

As judicial practice shows, heirs have the opportunity to formalize the privatization procedure if the testator began it during his lifetime.

In order for the court to satisfy the requirement to include a non-privatized apartment in the inheritance, it is necessary that:

1. The testator collected documents for privatization.
2. The testator submitted an application to the authorized body.
3. The applicant did not submit a request to withdraw the documents.

Law of the Russian Federation dated July 4, 1991 No. 1541-1 establishes a two-month period for checking documents and making a decision on privatization by specialists of the district administration. Therefore, a situation may well occur where the applicant dies before receiving an answer.

In accordance with Art. 8 By Resolution of the Plenum of the Armed Forces of the Russian Federation dated May 29, 2012 No. 9, if the testator did not have properly executed documents for the apartment confirming ownership, the heirs must go to court:

• before the expiration of 6 months from the date of death of the owner - on inclusion in the inheritance;
• after the expiration of 6 months - on inclusion in the estate and recognition of property rights in the order of inheritance.

In the second situation, the heirs receive rights to the apartment without additional contact with a notary office. Registration of property rights in Rosreestr in this case is carried out on the basis of a court decision.

Conclusion of a social tenancy agreement

If the testator died before submitting documents for privatization, then it will not be possible to include the property in the inheritance. But the law provides for the possibility of transferring a social tenancy agreement to family members of the deceased.

In accordance with Art. 69 of the Housing Code of the Russian Federation, family members of the deceased can contact the district administration to re-register the contract in their name. A prerequisite is the fact of living in the apartment after the death of the tenant.

That is, re-registration of a social tenancy agreement has nothing to do with inheritance. Legal successors do not receive ownership of the apartment. But they can continue to live indoors if the following conditions are met:

• citizens lived in the apartment together with the testator;
• the heirs had permanent registration in this premises;
• citizens are included in the social tenancy agreement as a member of the employer's family.

Thus, if the heir did not live in the apartment and did not have registration for it, then he does not have rights to the apartment.

After the social tenancy agreement has been reissued, the heirs can independently privatize the housing in their own name.

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Who inherits a non-privatized apartment?

If the apartment is not privatized, then only citizens who are included in the social tenancy agreement as family members have rights to the premises. Other persons cannot claim the property.

From the moment the housing is included in the inheritance, the following may claim rights to the property:

• compulsory heirs (Article 1149 of the Civil Code of the Russian Federation);
• heirs under the will (if the apartment is indicated in the will);
• heirs at law (if the premises are not included in the will).

Separately, it is necessary to identify compulsory heirs. This is a special category of legal successors. A compulsory heir is a spouse, child, parent or other person who was dependent on the deceased.

Obligatory heirs claim a share of no less than ½ share of the property provided by law. If the testator did not provide for a share for them in the expression of will, then they will be able to claim a share in the non-privatized apartment after including it in the estate.

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How to inherit by law?

In the absence of a will, inheritance of privatized housing occurs in order of priority in accordance with the norms of the Civil Code of the Russian Federation.

Required documents

To apply for acceptance of inheritance, the following documents must be submitted::

• death certificate of the owner;
• documents confirming family ties with the deceased;
• extract from the place of residence of the deceased;
• applicant's passport;
• privatization agreement;
• extract from the Unified State Register of Real Estate;
• check for payment of state duty.

Deadlines

According to Art. 1154 of the Civil Code of the Russian Federation, regardless of how the apartment is inherited, the period for accepting the inheritance is six months from the date of opening of the inheritance. The date of opening of the inheritance is considered to be the day of death of the testator.

State duty

Regardless of how the apartment is inherited, close relatives must pay a state fee in the amount of 0.3% of the cost of the privatized housing , but not more than 100 thousand rubles, to obtain a certificate of inheritance.

If the heirs are not close relatives of the testator, then the state duty will be 0.6% of the cost of the apartment, but not more than 1 million rubles. (clause 22 of article 333.24 of the Tax Code of the Russian Federation).

By will

There are 2 types of wills:

1. General. The text of the document states that all property, no matter where it is located and no matter what it is, passes to a specific recipient.
2. With the distribution of property. The testator himself distributes the property among the heirs.

If the testator has included a non-privatized apartment in the will, then in accordance with the general will, the heir will be able to formalize it when he includes it in the inheritance.

If the will distributes the property of the deceased, then the heirs under the will will be able to claim the apartment only if the testator has included it in the document. Otherwise, even if it is included in the inheritance, the rights to the apartment will be transferred to the heirs by law.

Arbitrage practice

If the testator contacted the district administration, submitted all the documents and submitted an application for privatization, then it will not be difficult for the heirs to declare their rights. It is enough to initiate a lawsuit.

Example. Victor went to court in order to recognize the privatization agreement as valid, to include the non-privatized apartment in the inheritance and to recognize the right of ownership through inheritance. The man explained that he is the heir of the first stage of the property of his late wife. But the woman just submitted documents for privatization, and did not have time to receive a response from the district administration. The applicant believes that the death of the applicant is not a reason for refusing privatization. Therefore, he asks to include the disputed apartment in the inheritance estate. The district administration did not object. Therefore, the court satisfied the applicant’s demands (Decision of the Central City Court of Komsomolsk-on-Amur, Khabarovsk Territory dated February 27, 2020 in case No. 2-461/2018).

As practice shows, the district administration extremely rarely objects, forgiving the claim. But to recognize the heirs’ right to an apartment, specialists need a court decision. Therefore, if the testator initiated the privatization process before his death, then it will not be difficult for the heirs to certify their rights through the court.

Receipt of the property of the deceased according to the legal principle

Only personal property can be transferred by inheritance, so the heirs of the tenant will have to file a claim for recognition of ownership rights in the court at the location of the state apartment. The application will be approved if there is evidence that the privatization process has begun. Cases from judicial practice will help you prepare for the hearing and anticipate the outcome:

Lawyer's answers to frequently asked questions

My father and his half-brother were registered in a non-privatized apartment. Father died. Can I claim a share in the apartment?

If the father did not apply to the administration to privatize the apartment, then you do not have a claim to a share in the housing.

The grandmother lived in a municipal apartment with her son. She died. And her son registered a stranger in the apartment. How can I protect it from scammers and will I be entitled to a share?

A municipal apartment is the property of the district administration. Therefore, you are not entitled to a share in the inheritance. Strangers will not be able to take away the apartment from the grandmother's son, since he does not have ownership rights to it.

I live in a non-privatized apartment. Until recently, my father lived with me. Now he is dead. And the collectors claimed rights to the property, since he owed 50,000 rubles. Collectors claim that I accepted the inheritance because I live in an apartment. Do they have the right to take away housing?

No. The inheritance cannot pay off the debts of the deceased if the property is in a municipal fund. If you have not actually accepted other objects of the deceased’s property, then you may not enter into an inheritance so as not to pay the debts of the deceased.

After my grandfather's death, I was left with a municipal apartment. No one is registered in it, but I was registered before. Can I privatize it?

If you are listed in the social tenancy agreement as a member of the employer’s family, then you can try to apply to re-register the social tenancy agreement. The district administration can satisfy your request.

A grandmother and grandson lived in a municipal apartment. After the death of her grandmother, her daughter wants to get a share in the apartment. Can she privatize the apartment?

If at the time of the grandmother’s death the citizen is not registered in the apartment, then she will not be able to lay claim to the property.

How can the relatives of the deceased use the apartment?

If the deceased was a tenant of the apartment under a social tenancy agreement, then with his death the agreement becomes invalid. But his relatives (spouse, children, parents and other family members) can re-register the contract for themselves.

After which, they will legally reside in this apartment.

When will the apartment be returned to the state?

If the testator did not apply to the district administration to privatize the apartment, and other family members were not registered in the premises, then the contract is considered terminated and the housing is considered vacant.

A similar situation arises if citizens actually live in the apartment, but they are not included in the social tenancy agreement. This is considered unauthorized entry. Therefore, the tenants are subject to eviction, and the apartment is to be returned to the state fund.

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Legal status of municipal housing

Municipal housing is the property of the municipality. Citizens live in a municipal apartment on the basis of a social rental agreement, which is concluded with all family members or with one of them.

Under a social tenancy agreement, the authorized local government body, acting on behalf of the owner of the housing stock, transfers housing to the citizen for possession and use. At the same time, the right to dispose of real estate remains with the owner (Article 60 of the Housing Code of the Russian Federation).

You should know! If a social tenancy agreement is concluded by only one of the spouses, the second has the right to live together with him. At the same time, husband and wife have equal rights and responsibilities in relation to municipal housing (for example, they are obliged to pay utilities, have the right to live in the premises).