Neither the Civil nor the Housing Codes of the Russian Federation contain a definition of the concept of “eviction”.
The essence of eviction is to vacate the premises both from the debtor and from his things (property) located in the premises.
Therefore, if the premises are not actually occupied, the things of the alleged defendant or third parties are not there, then it makes no sense to go to court with a claim for eviction.
In relation to housing relations, if a citizen, while maintaining registration at the place of residence, does not actually live in the residential premises and has not left any property, it is worth filing a demand to recognize the defendant as having lost the right to use the residential premises, or to recognize the right to use as not having acquired it. The court's decision to recognize the defendant as having lost the right, or not having acquired... will be the basis for deregistration at his place of residence.
Is it possible to evict your ex-wife?
According to the law, the spouse is one of the family members of the owner of the apartment, and therefore has the full right to live in the residential premises (Clause 1, Article 31 of the Housing Code of the Russian Federation). If the apartment belongs to the husband, he issues registration for his wife. Joint ownership, i.e. The common property of the husband and wife belongs to both on an equal basis (with the exception of the terms of the marriage contract).
Divorce of spouses is considered the termination of family relations. Immediately after receiving the divorce certificate, the wife loses the right to use her husband’s apartment (Clause 4, Article 31 of the Housing Code of the Russian Federation). It is assumed that the spouse is the sole owner of the residential premises. The opposite situation is in the case of a shared apartment - the wife owns exactly half of the property.
Thus, in order to evict an ex-wife, two conditions are necessary:
- Divorce in the registry office or court;
- Loss of the right to use housing by the ex-wife.
Following this, the divorcees will have to decide how exactly they plan to carry out the eviction: will the wife visit the “passport office” on her own or entrust the housing issue to the court?
Forced eviction from the debtor's residential premises
Requirements for the release of non-residential premises, storage facilities from the presence of the debtor and his property in them are subject to execution with the establishment of a period for the voluntary fulfillment of the requirements of the writ of execution. In fact, we are talking about the eviction of the debtor and involves the release of non-residential premises, a storage facility specified in the executive document, from the evicted person, his property and a prohibition for the debtor to use the vacated premises. The eviction is carried out with the participation of witnesses, and, if necessary, with the assistance of employees of the internal affairs bodies, with the drawing up of an eviction act and an inventory of the debtor’s property issued in connection with the vacancy of non-residential premises, a storage facility in the fulfillment of the requirements of the writ of execution.
The law specifies that enforcement measures include other measures taken in accordance with federal laws that ensure the execution of the executive document, i.e. the list of these measures is not defined and, therefore, is not exhaustive. The main conditions for the application of these measures are that they must be taken within the framework of the law and ensure the implementation of the jurisdictional act.
Grounds for eviction
So, one of the grounds for evicting an ex-wife from an apartment is an official divorce.
Not all spouses have separate housing, so they often live in a municipal apartment. The manager of the property is not the husband, but the municipal authority. Therefore, a divorce certificate alone will not be enough to evict an ex-wife. The employer (husband) will need to provide compelling reasons for his ex to move out.
Reasons for eviction of the ex-wife from a municipal apartment:
- Long-term absence from the place of residence (for example, if a woman moved to a new partner);
- Systematic violation of the rights of neighbors (see “How to evict noisy neighbors from an apartment”);
- Abuse of alcohol, drugs, and illegal substances are grounds for deprivation of parental rights if there is a child;
- Debt for housing and communal services for more than six months (see “Eviction from an apartment for non-payment of utilities”);
- Damage or damage to property in the apartment;
- Use of housing for purposes other than its intended purpose.
Features of eviction of an ex-wife
The living conditions of the spouses influence the further resolution of the housing dispute. Let's look at the main nuances of eviction of a former relative:
From a privatized apartment
The joint privatization of an apartment complicates the future eviction of one of the members of the disbanded cell. If a husband and wife participated in privatization together, they will receive a share in the privatized apartment. The legal concept of “former relative” loses its meaning. One option with eviction is allowed - voluntary.
Example:
The Kovalevs lived in a municipal apartment for 5 years, after which they submitted documents for privatization. Since there were no other applicants for the apartment, the Kovalevs transferred the property into joint ownership. The subsequent divorce raised the question head on: how to divide a privatized apartment? Kovalev wanted to evict his ex-wife, believing that he had more rights to housing. The man provided the court with receipts for utility bills, checks for repairs, as well as for the purchase of furniture and equipment. However, the court turned him down - the privatized apartment is jointly owned by both spouses. When dividing property, you will need to allocate the shares of the husband and wife, and if this is not possible, exchange the apartment. Kovalev could not evict his ex-wife from a privatized apartment, just as the ex-wife could not do the same in relation to her former chosen one.
From a council apartment
Just living in a municipal apartment does not give spouses ownership rights to residential premises (at least until privatization). Both spouses have permanent registration. It does not matter who is the responsible employer under the social tenancy agreement - the husband or wife.
It follows that the spouse will not be able to expel his ex from the municipal apartment on the grounds of divorce alone . You will need a whole list of reasons that we reported above. Let us remind you that this is deprivation of parental rights, damage to property, non-payment of utilities, violation of silence, etc.
If registered
Registration of a wife in her husband's apartment is limited by the latter's wishes. If the owner wants to evict his ex-wife, no difficulties will arise.
The basis is clause 4 of Art. 31 of the Housing Code of the Russian Federation, from which it follows that in the event of termination of family relations, the wife loses the right to use her husband’s apartment. Before you evict your ex-spouse, you first need to sign her out:
- through OVM or MFC - with consent;
- by filing a claim in court - if you do not want to evict yourself.
Difficulties arise if the ex-wife has nowhere to live. For example, she is experiencing financial difficulties or needs constant care for health reasons. In such situations, eviction will be delayed for at least six months.
If not registered
The simplest development of events is if the ex-wife does not have registration in her husband’s apartment. This happens quite rarely, for example, if the wife is registered in her parents’ apartment in the same locality.
The ex-husband can evict his wife from his apartment without involving the court. It is enough to write a statement to the district police officer, draw up a report on the persons living in the apartment, and then oblige the wife to vacate the living space.
How to evict your ex-wife from an apartment if she is registered - through the court
The presence of registration and the reluctance of the ex-wife to leave the apartment complicates the life of the owner. As practice shows, litigation is the only way to rid yourself of the presence of an annoying spouse. We talked about this in detail in the article “How to evict your ex-spouse from the owner’s apartment.”
Step-by-step instructions: stages
The wife’s categorical refusal to move out of her husband’s apartment leads to litigation, where it will be determined whether the ex-wife will be evicted or given a deferment due to financial difficulties.
Stages of evicting an ex-wife from an apartment:
- Try to resolve the issue at the pre-trial stage
Submit an eviction notice or demand. Certified mail or personal delivery of the notice in the presence of two witnesses will do. There is no need to worry if your spouse refuses to move out voluntarily - at least you will have evidence of an amicable attempt to resolve the dispute.
- Make a statement of claim
It is advisable to consult a lawyer and find a sample of filling out the form. It will be necessary not only to evict the ex-wife, but also to recognize her as having lost the right to use the residential premises.
- Defend your rights and get a court decision
The plaintiff’s convincing arguments, coupled with a reference to the law (clause 4 of Article 31 of the RF Housing Code) increase the chances of success in the upcoming case. The district judge issues the order, after which there is a period for appeal. If the spouse does not file an appeal, the plaintiff will only have to take a copy of the writ of execution and take it to the Bailiff Service.
- Ex-wife's statement
Before resorting to eviction, the husband must remove his wife from registration. To do this, you need to fill out an application at the “passport office”. The basis will be a writ of execution. (see “How to write out your ex-wife?”).
- Move your ex-spouse
Give your former family member time to move: removing furniture, equipment, pets, cleaning the apartment - this may take from 5 to 7 days. If, after the agreed period, the ex-wife has not moved out, contact the Bailiff Service (BSR) at your place of residence.
List of documents
Judicial eviction of an ex-wife involves filing a statement of claim.
Simultaneously with the claim, the apartment owner must prepare a package of documents, which includes:
- a copy of the Russian passport - you will also need the original;
- a copy of the marriage certificate;
- a copy of the divorce certificate - issued by the registry office;
- a copy of the extract from the Unified State Register of Property Rights (new) or the old Certificate;
- a copy of the house register - an extract on the number of residents;
- receipt of payment of state duty;
- power of attorney + copy of the representative’s passport – if the spouse entrusted judicial participation to his proxy;
- a copy of the defendant’s notice of filing a claim in court - an innovation from October 1, 2020;
- evidence of rights violated by the spouse - for example, complaints from neighbors, statements of personal accounts (debt), protocols from the district police officer, a court decision to deprive the mother of parental rights, etc.
The collected documents are drawn up in a single package - the plaintiff must prepare at least 3 packages with copies of documentation: for himself, for the defendant and for the district court.
The Central Bank asks creditors to establish a moratorium on their evictions
The Central Bank recommended that creditors not evict debtors from foreclosed apartments until the end of September. At the same time, the regulator expanded the ability of banks to restructure loans provided to citizens. Experts note that these measures will support both creditors and citizens. However, they consider direct subsidies from the state for borrowers in difficult situations to be a more appropriate solution.
On Friday, the Bank of Russia issued a press release in which it recommended that banks, microfinance organizations and credit consumer cooperatives (CCCs) “suspend until September 30, 2020, procedures for the forced eviction of debtors (former owners and persons living together with them) from residential premises on which the creditors had previously foreclosed.” And when taking actions to return overdue debt, limit face-to-face interaction with debtors and not hold meetings with them.
At the same time, to facilitate the restructuring of loans issued to citizens, the regulator provided banks with reserve relief. When calculating risk premiums, they will be able not to recognize the loan as restructured from March 1 to September 30, 2020. This will allow credit institutions to apply the same, lower risk surcharges in these cases, regardless of the date of restructuring.
According to the Central Bank, as of March 1, the volume of issued mortgage loans exceeded 7.65 trillion rubles. The average loan volume is 2.45 million rubles. At the same time, overdue loans amounted to less than 1% - about 74 billion rubles.
According to experts, in the current situation of force majeure, any relief for borrowers is appropriate and relevant. “For credit institutions, in turn, relaxations on provisioning will somewhat smooth out the negative effect on financial results from the expected decline in the quality of loan portfolios, which will occur even taking into account all the current support measures,” notes investment strategist at BCS Premier Alexander Bakhtin. However, he reminds that credit holidays and restructuring are not a panacea, but only a postponement of the problem, especially if the borrower loses his job and then cannot find one for a long time.
The Central Bank recommends bankers to convince debtors not to rush to go on credit holidays
“So direct subsidies from the state for citizens facing serious financial difficulties due to the consequences of the coronavirus may be a more effective measure,” the expert believes. “If there is sufficient support through direct subsidies, a number of borrowers may not need the proposed relief, especially if the monthly the payment does not exceed 10% of previous income.”
The property of problem debtors, which has already been foreclosed on, mostly remains with the creditors, notes Alor Group analyst Alexey Antonov. “Transfer to collectors is carried out in the most extreme cases, when other methods of influence are useless,” he adds. At the same time, in his opinion, in the current situation, creditors whose borrowers are in arrears and must pay with their property find themselves in a more protected position, since the Central Bank has allowed such loans not to be recognized as restructured when calculating risk premiums.
Svetlana Samuseva
Arbitrage practice
Analysis of judicial practice allows us to identify common points that attract attention. It is forbidden to make a decision without weighing all the facts, ignoring the opinion of the other party and, in particular, the financial capabilities of the spouses.
The nuances of considering cases of eviction of an ex-wife:
- If the spouse is incompetent, has lost the ability to work, or is a disabled person of group I-II, it is impossible to evict her.
- If the wife cannot provide herself with new housing, the court decides to defer the eviction. Based on practice, this period can range from 3-6 months to a year.
- If a spouse wants to evict his ex from a municipal apartment, a divorce certificate alone is not enough. If there are no other grounds, the wife will retain the right to live in a non-privatized apartment.
- If the property is jointly owned, it will not be possible to evict the ex-spouse. The most affordable option is to exchange an apartment. At the same time, the deal should not run counter to the interests of both parties. If the wife refuses the options proposed by her husband, the husband has the right to go to court to force the exchange of real estate.
Example:
After 40 years of marriage, the couple decided to divorce. Both retired due to old age, their children had already grown up and lived in other cities. The husband got the apartment from his grandmother; the wife only had a residence permit. I had to resolve the issue of evicting my ex-wife from her husband’s apartment. The woman did not want to move out voluntarily, citing her small pension and lack of other housing. The husband demanded that the court forcefully evict his ex-wife. The reason was stated to be divorce. However, the court rejected the claim, citing the status of the defendant. The ex-wife is considered disabled (retirement), has no alternative place of residence, and the plaintiff himself cannot provide his ex-wife with new housing. Hence the ban on eviction and discharge as such.
Forced eviction from a residential premises through a court decision
When a residential premises is declared unfit for habitation, or it is subject to demolition, or is transferred to non-residential premises, but the residents do not want to voluntarily leave their apartments, the court has the right to file a claim for eviction. At the same time, citizens should be provided with other comfortable living quarters. The newly provided premises may not suit citizens; in this case, they have the right to remain in their apartments and, together with lawyers, competently fight for their rights.
However, many homeowners use tricks and fraudulently try to evict residents from the apartments they rent, so that they can then make repairs, buy components for railings, and then rent out the property to investors on more favorable terms. They file a lawsuit to evict the tenants.
