The right to exchange residential premises, types of exchange, grounds for its implementation.

Is it possible to exchange municipal housing?

Municipal housing provided under a social tenancy agreement can only be exchanged for residential premises provided to another tenant on the same basis. In other words, you can only exchange a non-privatized apartment for the same one .

After the adoption of the law on free privatization and its extension for an indefinite period, there is less and less municipal housing left. It is quite difficult to choose an option that would suit all family members.

Professional real estate agencies do not undertake transactions related to the exchange of non-privatized housing - you will have to search for an apartment and prepare documents yourself.

If one of the living family members disagrees, permission to exchange will have to be sought through the court. If the family mutually agrees to the transaction, the landlord's permission will be required, which is not always positive.

Important! Clause 5, Article 72 of the Housing Code of the Russian Federation, allows the exchange of municipal premises both in one and in different constituent entities of the Russian Federation.

Exchange and exchange of living quarters

The exchange of residential premises is a voluntary exchange of one party with another of certain things that are equivalent in value, unless another follows from the terms of the contract (This is a transaction in which one party transfers property to the second party and in return receives other property from it. Such a transaction is concluded between owners and is formalized by an exchange agreement. The exchange can be equivalent if the values of the exchanged real estate objects are recognized as the same (often the value is taken as the value according to the BTI assessment), or unequal if their values are different. In the latter case, the transaction for the exchange of real estate occurs with an additional payment of the difference).

An exchange agreement is, by law, an independent civil legal act and is similar to a purchase and sale agreement. A distinctive feature from a purchase and sale agreement is that an exchange agreement implies the transfer of a specific product not for money, as in a purchase and sale agreement, but in exchange for another product. The ownership of the acquired real estate is transferred to the parties after the state registration procedure, and not after the conclusion of an exchange agreement. Residential premises that are subject to exchange, according to the contract, must be equal in value unless otherwise provided for by the contract itself. All costs for acceptance and transfer of goods are borne by the parties depending on the terms of the agreement. If in the exchange agreement the goods or living quarters are not equal in price, then the party who accepts the more expensive product is obliged to pay the difference, which is also indicated in the agreement.

The exchange of residential premises is a mutual transaction between tenants of residential premises who occupy them in accordance with a social tenancy agreement and with the consent of the landlords who provided these premises and provides for the exchange of residential premises as a result of which a new social tenancy agreement is concluded with the tenants at a new location. In simple terms, a tenant renting residential premises under a tenancy agreement can exchange the rented premises for residential premises provided to the other party under the same social tenancy agreement. The subject of such an exchange can only be individual rooms and apartments that are rented under a social tenancy agreement. Any actions related to the exchange of premises in which incompetent family members or young children live can only be carried out with the consent and permission of the guardianship authorities.

The existing differences between the exchange and exchange of residential premises are presented as follows:

All actions specified in the exchange agreement for residential premises provided under a social tenancy agreement are carried out in accordance with the Housing Code; all rules of the exchange agreement are prescribed in the Civil Code.

Only owners of residential premises can enter into an exchange agreement, while an exchange agreement can be carried out between tenants of residential premises in accordance with a social tenancy agreement.

An exchange agreement provides for the transfer of ownership rights from one person to another, while an exchange agreement provides for the transfer of use rights from one tenant to another.

Consequently, from the above, a barter agreement and an exchange agreement are two different types of agreements with different conditions and legal framework.

Who has the right to make a transaction with an apartment provided by the state?

According to Article 72 of the Housing Code of the Russian Federation, the exchange of premises provided under a social tenancy agreement is possible with the consent of all living and temporarily absent family members.

The right to exchange municipal housing is granted not only to the responsible tenant, but also to all family members living with him. If you live together with minor children or incapacitated citizens, permission from the guardianship authorities will be required to complete the transaction.

Regulation of relations regarding the exchange of residential premises

The topic we have touched upon is regulated by Articles 72-75 of the RF Housing Code. They spell out the basic conditions for the procedure for the exchange of apartments allocated under social tenancy agreements, determine the main rights and obligations on the part of both the landlord and the tenant, if an agreement is concluded for the exchange of residential premises, and also identify the key reasons that may become a determinant of refusal to carrying out the exchange.

If we refer to Art. 72 of the Housing Code of the Russian Federation, this rule of law states that the tenant can carry out the procedure for exchanging an apartment under a social tenancy agreement, who will receive consent, fixed in writing, from the landlord, as well as members of his entire family, even if one of the subjects will be temporarily absent.

In recent years, the exchange of residential premises has been one of the most pressing topics in legal practice. And this is due to the fact that citizens who were allocated housing on the basis of a social rental agreement can improve their living conditions. However, it should be noted that improving living conditions can be achieved only in two ways:

redevelopment or refurbishment of housing, which is aimed at modifying the house;
exchange of an apartment for living space of a different (smaller) size, which is prescribed in Art. 81 Housing Code of the Russian Federation. Such a right arises in cases where the living space of an apartment under a social tenancy agreement exceeds the minimum permissible limits of the accounting norm.

Procedure

The exchange of municipal square meters occurs in several stages:

selection of premises options corresponding to this type of transaction;
signing an exchange agreement between the parties involved;
collection of necessary documents;
direct exchange, with the termination of the social tenancy agreement at the previous place and the conclusion of a new one.

Search for options

In many large cities there is a database of municipal residential premises suitable for exchange. You can find out about the presence or absence of such a database at your nearest MFC. Placing advertisements in newspapers or on specialized real estate portals on the Internet will speed up the process of finding a potential candidate for exchange.

Where to contact?

Registration of non-privatized real estate does not require registration with Rosreestr . In different regions of the Russian Federation, issues related to social employment contracts are resolved in specialized institutions. These could be: departments of the municipal housing stock, administrations of local municipalities, etc. You can find out accurate information for the desired region on the State Services portal or at the territorial MFC.

List of documents

Before submitting documents for consideration, it is advisable to consult with a specialist from the real estate department or another organization involved in the registration of municipal housing.

The main list of documents for exchange includes:

Application for exchange of residential premises.
Passports of all applicants and persons living with them (for children - birth certificates).
A social tenancy agreement, warrant or other document confirming the basis for the right to use residential premises.
Notarized consent to exchange, from temporarily absent persons.
Exchange agreement, with signatures of all parties to the transaction.
In the case of living together with children and incapacitated citizens - permission from the guardianship and trusteeship authorities.
Certificates of absence of debts on utility bills.
Other documents, depending on the region.

Where to submit documents?

You can submit documents to the territorial government authority authorized to manage municipal housing. In large cities, documents are submitted to the MFC.

Cost and processing time

The exchange of municipal area does not involve registration of property , so the state fee does not exceed 300 rubles. The period for consideration of an application for exchange is 10 days from the date of registration.

Drawing up an agreement

The social housing exchange agreement is drawn up in simple written form. It must be signed by the employers of both parties. Based on the drawn up agreement and the written consent of all participants, a new social rental agreement will be drawn up, so you should pay attention to the correctness of its drafting.

The contract must indicate:

Accurate identification details of both parties.
Characteristics of the exchanged living space such as: size, number of rooms, exact address, etc.
Specify the rights and obligations of the parties after signing the agreement.
Indicate the extent of liability for violation of all clauses of the contract.

Registration of a transaction

After receiving permission, it is necessary to terminate the social employment agreements of both employers and enter into new ones. The application is submitted to the MFC or other municipal housing authority of the constituent entity of the Russian Federation.

A new social rental agreement is concluded on the basis of a previously received permit, so to submit an application you only need identification documents of the participants in the exchange and their families .

Reasons and grounds for refusal

Based on Article 73 of the RF Housing Code, the exchange of residential premises between tenants of these premises under social tenancy agreements is not permitted if:

a claim has been brought against the tenant of the exchanged residential premises for termination or amendment of the social tenancy agreement for residential premises;
the right to use the exchanged residential premises is disputed in court;
the residential premises being exchanged are recognized in accordance with the established procedure as unfit for habitation;
a decision has been made to demolish the relevant house or renovate it for other purposes;
a decision has been made to overhaul the relevant house with reconstruction and (or) redevelopment of residential premises in this house;
As a result of the exchange, a citizen suffering from one of the severe forms of chronic diseases specified in paragraph 4 of part 1 of Article 51 of the Housing Code of the Russian Federation moves into a communal apartment.

Also, if, as a result of the exchange, the living conditions for minor children and incapacitated citizens become worse than the previous ones, or the accounting norm of square meters for each family member is significantly lower than that established in the region, the transaction may be refused.

Exchange of living quarters types and conditions.

The right to exchange residential premises provided under social tenancy agreements

1. The tenant of residential premises under a social tenancy agreement, with the consent in writing of the landlord and members of his family living with him, including temporarily absent members of his family, has the right to exchange the residential premises occupied by them for residential premises provided under a social tenancy agreement to another to the employer.

2. Members of his family living together with the tenant have the right to demand from the tenant the exchange of the residential premises they occupy under a social tenancy agreement for residential premises provided under social tenancy agreements to other tenants and located in different houses or apartments.

3. If an exchange agreement has not been reached between the tenant of a residential premises under a social tenancy agreement and the family members living with him, any of them has the right to demand a forced exchange of the occupied residential premises in court. At the same time, attention-worthy arguments and legitimate interests of persons living in the exchanged residential premises are taken into account.

4. The exchange of residential premises that are provided under social rental agreements and in which minors, incompetent or partially capable citizens who are members of the families of the tenants of these residential premises live, is allowed with the prior consent of the guardianship and trusteeship authorities. The guardianship and trusteeship authorities refuse to give such consent if the exchange of residential premises provided under social tenancy agreements violates the rights or legitimate interests of these persons

Is compulsory order possible?

Forced exchange is the exchange of an apartment or other non-privatized housing through the court , if a peace agreement has not been reached between those living together. Claims of this kind are not common in judicial practice recently, but they are among the most complex.

Reasons for this exchange:

divorce between spouses and the impossibility of further residence in the same territory;
one of the residents leads a lifestyle that interferes with the quiet life of those around him;
the illness of one of the residents threatens the health of the people living with him.

Reference! The emergence of hostile relationships in the family and the inability to reach an agreement lead to litigation, which does not always end positively for both parties.

What laws govern?

Article 72, paragraph 3 of the Housing Code of the Russian Federation states: “if an exchange agreement has not been reached between the tenant of a residential premises under a social tenancy agreement and the members of his family living with him, any of them has the right to demand a forced exchange of the occupied residential premises in court. At the same time, attention-worthy arguments and legitimate interests of persons living in the exchanged residential premises are taken into account.”

According to Article 69, paragraph 1 of the Housing Code of the Russian Federation, the following can file a claim for forced exchange :

spouse of the employer;
parents or children;
other relatives and dependents, if they were installed by the employer as family members and ran a common household with him;
in exceptional cases, other persons may be recognized as family members of the tenant of a residential premises under a social tenancy agreement in court.

Features of filing a claim

To file a claim for forced exchange of living space, you must first draw up a social tenancy agreement if it has not been drawn up previously. Without an agreement, the court will not consider the claim. When considering the case, the court will rely on the laws of the Russian Federation and take into account the interests of all parties. If during the exchange the rights of one of the family members are violated, the claim will be refused. Also, the cases presented in Article 73 of the RF LC are not subject to satisfaction.

Important! For a positive decision when choosing living space for exchange, it is imperative to comply with all norms of housing legislation, such as: size of living space, compliance with sanitary standards, etc.

What can you claim?

Basically, apartments provided on social rent are small premises of old buildings that can only be exchanged for a few rooms in a communal apartment or dormitory.

If the apartment is large, there will be no problems with exchange. Having selected smaller options, in accordance with the norm of square meters for each tenant, you can file a claim. In this case, there is a high probability that he will be satisfied.

The right to exchange residential premises, types of exchange, grounds for its implementation.

Residential exchange agreement

A residential premises exchange agreement is an agreement according to which one person, who has the right to residential premises, undertakes to transfer the residential premises belonging to him or occupied by him to another person, who in turn undertakes to transfer a certain residential premises in return. The exchange of residential premises between their owners (citizens or legal entities) is carried out not under an agreement for the exchange of residential premises, but under an exchange agreement, although taking into account the specifics of the subject of exchange.

The rules governing the exchange of residential premises occupied under a social tenancy are contained in Art. 72 – 75 LCD. Only the tenant acts as a party to the exchange agreement for such residential premises . The housing rights of his family members living with him, including those temporarily absent, are taken into account by the legislator, who provides for the mandatory consent of these persons to the exchange in writing.

Members of his family living together with the tenant have the right to demand from the tenant the exchange of the residential premises they occupy under a social tenancy agreement for residential premises provided under social tenancy agreements to other tenants and located in different houses or apartments.

Several tenants may be parties to the residential premises exchange agreement, i.e. The exchange agreement can be either bilateral or multilateral.

The exchanged residential premises can be located either in the same or in different localities on the territory of the Russian Federation.

If an exchange agreement has not been reached between the tenant of a residential premises under a social tenancy agreement and the members of his family living with him, any of them has the right to demand a forced exchange of the occupied residential premises in court. At the same time, attention-worthy arguments and legitimate interests of persons living in the exchanged residential premises are taken into account (Article 72 of the Housing Code).

In accordance with Art. 74 of the Housing Code, the agreement on the exchange of residential premises is concluded in writing by drawing up one document signed by the relevant tenants.

The specified agreement is presented by the tenants who concluded it to each of the landlords with whom they have concluded social rental agreements for the exchanged residential premises, in order to obtain consent to carry out the exchange. The landlord's refusal to consent to the exchange may be challenged in court.

The agreement on the exchange of residential premises and the consent of each landlord of the exchanged residential premises for the exchange are the basis for the termination of previously concluded and the simultaneous conclusion of new social tenancy agreements.

Article 73 of the Housing Code provides for cases in which the exchange of residential premises between tenants of these premises under social tenancy agreements is not allowed.

Current legislation does not provide for the exchange of residential premises between tenants and owners of residential premises, between tenants of residential premises under social and commercial tenancy agreements, between tenants of residential premises under commercial tenancy agreements, and the exchange of residential premises occupied under a rental agreement for specialized residential premises is expressly prohibited ( Part 4 of Article 100 of the Housing Code), from which it follows that all of the listed types of exchange cannot be carried out. In addition, the exchange of residential premises occupied under commercial lease agreements would be contrary to the nature of the relations that develop when concluding such agreements between the tenant and the landlord.

Grounds and procedure for preserving the right to residential premises for an absent tenant.

Norms Art. 71 LCs are often used in judicial practice and appear in court decisions.

Preservation of residential premises for a temporarily absent tenant or a member of his family is one of the ways to protect the housing rights of individuals.

The “preservation of residential premises” in the commented article should be understood as the protection by law of the right to living space in residential premises for temporarily absent tenants and members of their families.

The reasons for absence do not matter if such absence lasted up to 6 months. If this period is exceeded, the court must find out the reasons. Art. 71 of the Housing Code establishes an exhaustive list of reasons for the absence of a citizen for more than 6 months, which is the basis for preserving housing for the absent tenant or members of his family.

2. Clause 10 of the resolution of the Plenum of the Supreme Court of Ukraine dated April 12, 1985 No. 2 “On some issues that have arisen in the practice of applying the Housing Code of Ukraine by courts” explains the application of Art. 71 LCD:

In cases where a tenant or a member of his family is recognized as having lost the right to use residential premises (Article 71 of the Housing Code), it is necessary to find out the reasons for the defendant’s absence beyond the established time limits. If they are important (staying on a business trip, for people in need of care, due to the unlawful behavior of other family members, etc.), the court may extend the missed deadline.

When an absentee returns to the living space with the consent of family members, he cannot be considered to have lost the right to the living space. If he moved into the residential premises against the will of family members and was absent for more than the established period without good reason, then the court has the right to recognize him as having lost the right to living space. When members of the family of the person who was absent did not remain in the residential premises, his return to this premises until the dispute is considered in court is a significant circumstance, but it cannot be an indisputable basis for refusing a claim, but must be assessed in conjunction with other circumstances.

The presence of a court decision on a citizen’s right to use residential premises is not an obstacle to the consideration and satisfaction of a claim to recognize him as having lost this right on the grounds that after the decision entered into legal force or after its execution he was absent for more than six months, including in those cases when the period for execution of the decision has not expired.

If the tenant or a member of his family has missed more than the period established by law without good reason, the court has the right, for these reasons, to refuse the claim for the protection of the violated right (movement, exchange, division of living quarters, etc.).

3. The fact of the temporary absence of an individual and the associated legal consequences should be separated from the fact of the permanent absence of a person in the residential premises due to the departure of the tenant and his family members for permanent residence in another locality or in another residential premises in the same locality ( Article 107 LC).

In case of temporary absence, the person continues to intend to treat the residential premises as his permanent place of residence. When leaving for permanent residence in another residential premises, a person loses not only the actual possession of the residential premises, but also intends to return.

4. A person who has lost the right to residential premises due to a long absence may return to the previous living space only in accordance with Art. 65 of the Housing Code (the tenant’s right to move other persons into the residential premises he occupies).

5. In the cases provided for in the commented article, the living quarters of temporarily absent persons for more than 6 months are automatically preserved; such persons must not perform any actions: obtain the consent of family members living together, the landlord, or register their absence.

6. This article concerns the preservation of residential premises for temporarily absent tenants in the public housing stock.

Retention of the right to use in the event of a temporary absence of an individual is also provided for private housing stock. According to Art. 405 of the Civil Code, family members of the owner of the housing living with him have the right to use this housing in accordance with the law.

The residential premises they have the right to occupy are determined by its owner.

A family member of the homeowner loses the right to use this housing if the family member is absent without good reason for more than one year, unless otherwise established by agreement between him and the homeowner or by law.

Judicial procedure

The trial, depending on the complexity of the situation, may drag on indefinitely.

Before contacting the courts, you must:

select housing for exchange (preferably several options);
collect a complete package of documents;
competently draw up a statement of claim.

Where to contact?

Cases related to housing disputes are civil and are heard in district courts of general jurisdiction. Required documents The list of documents required for the court may differ from those presented and depends on the reason for filing an application for forced exchange.

The main documents are:

written permission from the landlord to exchange;
copies of identity cards for everyone who is currently registered in the disputed apartment;
social rental agreement;
certificate of registration in the disputed housing;
certificate of family composition;
consent from the board of trustees, if there are children;
a copy of the divorce certificate (if available);
applications from tenants of apartments for exchange, certified by a notary;
receipt of payment of state duty;
other documents, depending on the situation under consideration;
claim for forced resettlement;
copies of personal accounts;
plans of the exchanged premises.

Instructions for drawing up a statement of claim

To draw up a statement of claim, it is advisable to contact an experienced lawyer.

You can file a claim yourself by following a plan:

The name of the court where the plaintiff is filing the application.
Plaintiff's passport details.
Defendant's passport details.
The essence of the violation or threat of violation of the rights of the plaintiff, the basic requirements of the plaintiff.
The circumstances on the basis of which the claims were brought.
Evidence confirming the circumstances stated in the application.
List of documents attached to the application.
Date of preparation of the document.

Reference! According to Article 72 of the Housing Code of the Russian Federation, the court must provide the plaintiff's arguments worthy of attention.

It can be:

Certificates from medical institutions, if the defendant is a person with a disease dangerous to others.
Certificates from the district police officer, if the defendant is rowdy and living with him is impossible.
Testimony of witnesses confirming the plaintiff's words.

Costs and timing of decision making

If everything was completed correctly, the court should make a decision one month after registering the statement of claim . The amount of the state duty established by the state is currently paid by the plaintiff when submitting an application and is 300 rubles for individuals. The price for drawing up a statement of claim may vary depending on the level of the lawyer or law office. The average price is usually 1000 rubles.