A sample statement of claim to determine the procedure for using an apartment and to divide a financial personal account to pay for utilities has been prepared taking into account the norms of current legislation (Part 1 of Article 247 of the Civil Code of the Russian Federation).
How to determine the procedure for using an apartment in shared ownership and dividing utility bills between the owners of the premises? To do this, you need to file a claim in court.
In everyday life, situations are common when an apartment has several owners, and they do not quite get along with each other. In such circumstances, it is necessary to carry out a judicial procedure and establish the procedure for using real estate.
Determining the procedure for using an apartment in shared ownership
This can be done by written agreement between the parties.
However, in most cases, a claim is being prepared to determine the procedure for using the apartment. Based on the results of its consideration, the judge determines who will get which room.
Let’s make a reservation right away that the process is initiated in relation to housing that is privately owned.
In relation to real estate of municipal housing stock or social rental apartments, the legislation does not provide for the establishment of rules for the joint use of residential premises.
Determining the procedure for using an apartment means that each owner receives a separate room. The entire area of the apartment with common areas (corridors, kitchens, bathrooms) is not divided and is used equally by everyone.
The parts that go to each owner may not necessarily correspond to shares in the property.
If the areas are disproportionate, then other owners may insist on providing monetary compensation. To do this, they must provide a calculation of the market value of the disputed square meters.
Determining the procedure for using an apartment in shared ownership also involves resolving the issue of utility costs. You must first obtain an extract from Rosreestr for your share in the property.
Then you can contact resource supply organizations in order to split your personal account for utility bills. Such division is possible only between owners.
Other persons registered in the apartment cannot count on a separate personal account.
What restrictions are imposed?
Having determined the procedure for use, the highest authority of justice proclaims certain restrictions for all potential neighbors, interconnected with the ownership and use of property. The established housing nuances can bypass proceedings with one-room apartments, since one unlimited space is impractical to divide into several people. Upon completion, it goes to public use.
In judicial practice, situations have repeatedly come across, in the resolution of which one of the potential neighbors was deprived of the possibility of using common shared property. The move out of one owner is carried out at the expense of financial compensation from another tenant.
As a rule, most people are not aware of any complexities in the area related to determining the order of use of real estate, but after reading this article you will be convinced that the judicial process associated with establishing the use of real estate takes into account a huge number of nuances. The provisions of the LC determine the outcome of the proceedings, but in order to win the case, it is advisable to have the knowledge prescribed in the regulations.
Features of preparation for trial
A statement of claim to determine the procedure for using the apartment is submitted to all other owners at the same time. At the same time, it is possible that a counterclaim will follow from them.
The conflict between the owners will be considered by the district court at the location of the disputed apartment. As for the state duty, it is charged based on non-property requirements and amounts to 300 rubles.
It should be taken into account that the court has the competence to establish a different procedure for using an apartment in shared ownership compared to the one proposed in the text of the claim. A number of factors will be taken into account.
This includes the size of each owner’s share, participation in the maintenance of housing, the age of the co-owners and their state of health. In general, each situation is individual.
Before filing a claim, you should do some preparatory work. In particular, you need to take an extract from the Unified State Register of Property Rights, as well as a certificate from the Housing Office about persons permanently residing in the disputed apartment, including members of the plaintiff’s family.
Contents of the statement of claim
For the category of cases we are considering, it is important to correctly draw up documents for the court. And if it is necessary to determine the procedure for using an apartment, a sample claim can be downloaded on our website completely free of charge.
Which of its provisions, first of all, should be emphasized?
So, it is worth correctly indicating the name of the court and information about all defendants (other owners).
You need a description of your position from the description of the apartment. Write the address, the number of rooms, indicating the area of each of them. Then you should provide evidence of the tenants' ownership, indicating the size of each of them's shares.
It is advisable to attach a layout of the apartment to the claim. This way the court will have a clear idea of the location of the rooms and other important details. To do this, you need to order a technical and cadastral passport of the apartment.
A significant part of the claim should be devoted to arguing that the procedure for using an apartment in shared ownership should be exactly the same as that proposed by the author of the appeal to the court.
And here you can refer to the size of the share, the bearing of a significant part of the costs of utility bills, the state of health, and the behavior of other residents.
The requirements should indicate the distribution of rooms between the plaintiff and defendants, indicating their area. In addition, it is worth writing about the compulsion to divide your personal account for utilities.
Recommendations for filing a claim
Before submitting a document, think a few times first because:
- the court will not make a decision immediately - it will take more than two weeks;
- Hiring a lawyer is not a cheap pleasure;
- the fact of the trial will become a memorable event in the life of each participant in the trial and can harm the future neighborhood.
If you intend to go to the bitter end, then focus on a number of points:
- request a real estate property whose area is equal to your share in the ownership;
- in the absence of the actual likelihood of all owners living together and issuing the applicant a share for use equivalent to his share in the right of property from another tenant, it is advisable to demand compensation in the amount of losses suffered by the applicant;
- remember that compensation is paid by the cohabitant with the agreement of the plaintiff;
- the applicant’s child is not a reason to expand the share in the property right, since the small relative is solely the user;
- It is advisable to emphasize the factors that contribute to writing a claim. For the plaintiff, this circumstance may be the lack of living space;
- be aware that if the established procedure for using a house or apartment has not been established, the highest authority is obliged to accept the claim for consideration;
- It is not advisable to send a claim for trial if there are no plans to exploit the property.
The court's decision
As a rule, several hearings take place in a dispute, during which the judge finds out all the important details. When the claim is satisfied, the court determines which room will go to each owner for use. In addition, the issue of utility bills can be resolved.
Compensation for legal costs is also awarded. It is recovered from the remaining defendants, including on the basis of a writ of execution.
Like any other judicial act, a court decision on the use of an apartment can be reviewed by appeal. You have a month to file a complaint. After the case is considered by the appellate court, the introduced regime for using the apartment will receive full legal confirmation.
Why you shouldn’t neglect the help of a lawyer
When the court determines how the premises in the apartment should be used, then each of the residents has the right to calmly install a lock on their room. If other owners create obstacles, it is possible to resort to the help of the police or bailiffs.
Before you begin work on determining the procedure for using an apartment, it is useful to talk with a lawyer. He will study the situation and provide all necessary advice. The specialist will also tell you about all the possible risks that may lie in wait on the way to your goal.
If assistance in drawing up a claim and its support in court is needed, then a lawyer will also take on this work.
Remember that the best option would be to amicably agree on the procedure for sharing the apartment. This will help save time, nerves and finances.
Procedure for using residential premises: judicial practice
Determining the mechanism for using residential premises is one of the ways to protect property rights. Often, such disputes arise when there was a division of an apartment with maternity capital.
The court not only has the right to distribute rooms in the apartment. It is within his competence to provide access to a person whose interests are infringed.
Judicial practice shows that decisions are made to move in and transfer copies of keys to the plaintiff. In this case, the claim may raise several demands simultaneously.
When considering a case, the courts also rely on the position of other persons living in the apartment. If the proposed use option puts them in a deliberately disadvantageous position, then a refusal to satisfy the claims may follow.
Below are several examples from judicial practice. All names of participants in the cases have been changed.
The right to use a privatized apartment
Citizen Emelyanov filed a lawsuit against his ex-wife; he asked to divide the apartment. Also, the subject of the requirements was the recognition of ownership of ½ share and the determination of the procedure for using the residential premises. In particular, the plaintiff asked to assign a room of 15 square meters to him. m.
The application is motivated by the fact that during the period of the marriage, the parties to the dispute privatized the apartment without allocating shares. Subsequently, family relations were terminated. At the time of filing the claim, the defendant was obstructing the use of the property.
The Cheryomushkinsky District Court of Moscow, by its decision dated July 09, 2017, in case No. 2-1633/17, satisfied the claim. He assigned each spouse a room in a two-room apartment.
Moving into the apartment and determining the mode of its use
This problem is relevant when the owners of the apartment are strangers. The plaintiff, Fedorova, filed a lawsuit against the defendant, Petrov. In her appeal, she asked to be moved into the living space, to oblige the other party not to interfere with her stay and to hand over duplicate keys.
A separate requirement was to determine the procedure for using a three-room apartment. Fedorova asked to be given a room of 11 square meters. m..
The statement is motivated by the fact that Petrov is the owner of ¾ of the disputed property. Fedorova inherited the remaining quarter from her mother, but due to the fault of the defendant, she does not have access to it.
The Cheryomushkinsky District Court of Moscow satisfied the claims in full. By decision of March 29, 2016 in case No. 2-1986/11, the judge moved Fedorova into the disputed apartment, ordered the defendant not to create obstacles in living and divided the rooms. The auxiliary spaces remained in shared use.
Respect for the interests of other owners
When determining the procedure for using residential premises, the court takes into account the interests of other persons living in it. The following dispute can be cited as an example. Citizen Nikitina appealed to the court to the defendants Smirnova and Smirnov. She asked to be moved into the apartment and not to interfere with her use of the premises.
In addition, the question was raised about the allocation of a non-passable room. The court found that Nikitina and Smirnova own a three-room apartment in equal shares. And also, with reference to materials from law enforcement agencies, it is confirmed that Smirnova does not allow Nikitina into her home.
By the decision of the Cheryomushkinsky District Court of Moscow dated February 1, 2016 in case No. 2-176/13, the request for Nikitina’s accommodation was satisfied. At the same time, the court considered the mechanism for distributing rooms proposed in the lawsuit to violate the interests of the defendants, since they get access to the territory. Therefore, this part was rejected.
What does the court consider?
In proceedings regarding the establishment of a procedure for the use of residential premises in shared ownership, justice takes into account:
- the actually established procedure for use, which may differ significantly from the shares legally held by cohabitants in the right of common property;
- all legal properties of residents;
- physical probability of sharing;
- real estate layout, number of passages and isolated rooms;
- the marital status of the participants and the presence of children;
- What kind of relationships do the owners have? How do they relate to each other?
The actually established order means the order that prevailed before any owner applied to a higher authority. If the shares of two participants in the process are equal, but before the trial one occupied a room with an area of 12 square meters. m., and the second one is 17 sq. m. m., then the court will adhere to a similar procedure.
If the plaintiff turns out to be the owner of a row of housing, then the highest authority refuses to consider the case.
The jurisdiction of the enterprise determines its essence: the claim is sent to the address of the disputed apartment. Such situations are dealt with by the magistrate's court.
During the proceedings, the court listens to the opinions of all residents. If, at the end of the consideration of the claim, the court determines that sharing the rooms is impossible, then the claims will be denied. This can happen for various reasons - if:
- owners cannot live in the same apartment with each other due to a conflict;
- the requested footage does not correspond to the footage of the owner’s share;
- if any of the residents has a detrimental effect on the development of a minor owner;
- Do any of the owners have an alternative place to live?
The physical possibility of a divorced man and woman living in a one-room property seems to be a rare case. When considered in such a situation, the main authority rejects the claim.
Recommendations before going to court
It is necessary to determine the regime for the use of residential premises in court when a voluntary agreement has not been reached between the co-owners. The claim must provide evidence that the interested party has barriers.
Below are other useful tips:
- One of the attachments to the statement of claim should be an explication of the apartment. This will show the technical characteristics of the room the plaintiff is claiming.
- If the allocation of the desired room is due to health conditions, the presence of children, or other objective reasons, the application provides a link to the relevant evidence.
- When determining the procedure for using an apartment is inextricably linked with forced eviction, certificates from the police may be required. It is the district police officer who often records the fact of obstacles on the part of the defendant.
- In some situations, courts pay attention to the ratio in which utility bills are paid between owners. Therefore, you can attach the relevant receipts.
- Provided that the plaintiff has made repairs in the disputed room, it is recommended to include evidence of payment of the relevant expenses.
When the order of use of the living space is determined, the owner of the room has every right to put a lock on the door and use it at his own discretion. In this case, you must comply with the requirements of the Housing Code of the Russian Federation.
Author: Oleg Vladimirovich Roslyakov, source.
When should you go to court?
Sometimes a fierce war breaks out between participants in shared ownership. The first owner will put a lock on the front door, the second will get the key to the toilet. All these actions only fuel daily scandals and do not allow one to “live in peace.” In such a situation, it is advisable to draw up a written agreement with all residents to determine the procedure for using the property. The document should clarify which rooms are at the disposal of each owner. The agreement can be certified by a notary and there is no need to worry about possible violations.
But if the cohabitant does not agree to a compromise, and he is convinced that he is right, then there is only one way to resolve the conflict - an application to the main authority of jurisdiction to consider the circumstances.
