Eviction of an ex-spouse by court. A court decision to evict a former spouse. The nuances and difficulties of evicting an ex-husband

There are situations when spouses dissolve the marriage relationship, but still continue to live together. Sometimes this is due to affection for each other, sometimes due to the fact that the apartment is shared. But some former couples cohabitate because the spouse simply does not know how to evict her husband. There are several ways that, within the framework of the law, will help get rid of an unwanted “tenant”.

Reasons

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Many are afraid to evict their ex-husbands after a divorce for fear of not finding grounds. In this case, it is worth carefully studying the Housing Code of the Russian Federation. The legislative document indicates that the most significant factor for eviction is the divorce in the registry office or carrying out this process through the court.

However, it is worth noting that eviction may be difficult or impossible. For example, in situations where the former spouse is a co-owner or full owner of the home.

Difficulties may also arise when the apartment was purchased during marriage. Such real estate is classified as joint ownership.

Law

If you have the required preparation, the chance of a successful outcome increases several times.

Sample statement of claim

The statement of claim is filed in the district court corresponding to the place where the disputed property is located. When preparing paper, many nuances should be taken into account.

Thus, the document must contain the following information:

Full name of the applicant and respondent, residential address of each party to the conflict.
The name of the judicial authority where the application is submitted and its location.
Brief information about the property: its size, tenants' rights. This section must also contain information about when and how the defendant moved into the apartment.
Information about divorce.
Information confirming attempts to peacefully resolve the conflict.
A link to a legislative document (an article in the Housing Code of the Russian Federation), which establishes the right of the applicant to demand the eviction of the defendant.
The requirement to terminate the defendant’s rights to use property, supported by Articles 131 and 132 of the Code of Civil Procedure of the Russian Federation.
List of documents included in the application.
Date and signature with transcript of the plaintiff.

List of required documents

In addition to the application itself, several more documents must be submitted to the court that will help the court during the proceedings:

A copy of the claim that will be presented to the defendant. A few more copies will also be required, but only if third parties are involved.
A document that certifies that the plaintiff has all necessary rights to the property.
Certificates of marriage and divorce issued by the registry office.

In addition, a receipt confirming payment of the state duty must be attached to the package of papers.

The court's decision

Most often, with the correct collection of documents, the court takes the plaintiff’s side and makes a decision to evict the ex-spouse from the owner’s apartment.

In this case, the case is transferred to the bailiffs. The latter, together with representatives of law enforcement agencies, must carry out the procedure for the forced eviction of a citizen.

Time frame for searching for new housing

As mentioned earlier, the court can accommodate not only the wife, but also the ex-husband, even in his absence. This happens if the latter does not have his own home.

The judicial authority, when making a decision in such situations, gives the man a certain period within which he must find a new apartment.

The time given to find housing in 2020 has strict limits. Such a deferment can range from six months to 12 months. However, it may end much earlier than the appointed time. For example, this may happen because the spouse decides to sell the apartment.

2.1. the apartment is the property of the spouse

Let me start by saying that I am against divorce. But if this happens, then the spouse becomes a former spouse. And, unfortunately, the question arises about the eviction of the former spouse from the apartment or residential building in which the spouses previously lived together.

What will we talk about?

Today we will look at the following questions:

— what laws must be followed when evicting a former spouse and protecting the former spouse from eviction;

- when a spouse can file a demand to evict a former spouse;

- when the spouse cannot file a claim to evict the former spouse;

— what actions must the spouse take in order to evict the ex-spouse;

— what actions can the spouse who is being evicted take?

1. Regulatory regulation of the grounds for eviction of a former spouse and protection of the former spouse from eviction

When evicting a former spouse, first of all, they are guided by the norms of Article 31 of the Housing Code of the Russian Federation “Rights and obligations of citizens living together with the owner in residential premises belonging to him.”

Part 1 of Article 31 of the Housing Code determines that members of the family of the owner of a residential premises include his spouse living together with this owner in the residential premises belonging to him.

Part 4 of Article 31 of the Housing Code established that in case of termination family relations with the owner of a residential premises, the right to use this residential premises for a former family member (former spouse) of the owner of this residential premises is not retained.

However, former spouses have the right to enter into an agreement that establishes the rights of the former spouse to use residential premises owned by the owner.

If the former spouse of the owner of the residential premises does not have grounds for acquiring or exercising the right to use another residential premises, and also if the property status of the former spouse of the owner of the residential premises and other noteworthy circumstances do not allow him to provide himself with another residential premises, the right to use the residential premises belonging to the said owner , may be retained by the ex-spouse for a certain period of time based on a court decision.

In this case, the court has the right to oblige the owner of the residential premises to provide other residential premises for the former spouse, in whose favor the owner fulfills alimony obligations, at his request.

When evicting a former spouse, it is necessary to take into account the provisions of the article 19 of the Federal Law of December 29, 2004 N 189-FZ “On the entry into force of the Housing Code Russian Federation", according to which:

The provisions of Part 4 of Article 31 of the Housing Code of the Russian Federation do not apply to former family members of the owner of the privatized residential premises (in our case, the former spouse), provided that at the time of privatization of this residential premises, these persons had equal rights to use this premises with the person who privatized it .

In addition to the above, when considering the grounds for eviction of a former spouse, it is necessary to take into account the explanations given in Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 2, 2009 N 14 “On some issues that arose in judicial practice when applying the Housing Code of the Russian Federation”.

Clause 13 of the Resolution. By general rule, in accordance with part 4 of article 31 The Housing Code of the Russian Federation, in the event of termination of family relations with the owner of a residential premises, the right to use this residential premises for a former family member of the owner of this residential premises is not retained. This means that former family members of the owner lose the right to use the residential premises and must vacate it (Part 1 of Article 35 of the Housing Code of the Russian Federation). Otherwise, the owner of the residential premises has the right to demand their eviction in court without providing another residential premises.

Within the meaning of parts 1 and 4 of Article 31 of the Housing Code of the Russian Federation, former family members of the owner of a residential premises include persons with whom the owner’s family relations have been terminated. Under the termination of family relations between spouses should be understood as the dissolution of a marriage in the civil registry office, in court, and the recognition of a marriage as invalid.

Paragraph 15 of the Supreme Court Resolution. When considering a claim of the owner of a residential premises against a former family member for termination of the right to use the residential premises and eviction, the court, if the defendant objects to the satisfaction of the claim, in order to ensure a balance of interests of the parties to the disputed legal relationship, based on the provisions of Part 4 of Article 31 of the Housing Code of the Russian Federation, must resolve the issue of the possibility of preserving the property. by a former family member the right to use residential premises for a certain period of time, regardless of whether they present a counterclaim for this.

A court decision to preserve the right to use residential premises for a former family member for a certain period is allowed part 4 of article 31 The Housing Code of the Russian Federation when the following circumstances are established:

a) the former family member of the owner of the residential premises has no grounds for acquiring or exercising the right to use another residential premises (that is, the former family member of the owner does not own another residential premises, does not have the right to use another residential premises under a lease agreement; the former family member is not a participant in an agreement on shared participation in the construction of a residential building, apartment or other civil legal agreement for the purchase of housing, etc.);

b) the inability of a former member of the owner’s family to provide themselves with other residential premises (buy an apartment, enter into a rental agreement for residential premises, etc.) due to their financial status (no income, insufficient funds) and other noteworthy circumstances (health status, age-related disability or health status, the presence of disabled dependents, loss of work, study, etc.).

When determining the length of the period for which the former family member of the owner of the residential premises retains the right to use the residential premises, the court should proceed from the principle of reasonableness and fairness and the specific circumstances of each case, taking into account the financial situation of the former family member, the possibility of the parties living together in the same residential premises and other noteworthy circumstances.

Paragraph 16 of the Supreme Court Resolution. When deciding the issue of preserving the right to use residential premises for a certain period of time for a former family member of the owner of the residential premises, the court, in accordance with Part 4 of Article 31 of the RF Housing Code, also has the right, at the request of a former family member of the owner, to simultaneously impose on the owner of the residential premises the obligation to provide other residential premises for the former the spouse in whose favor the owner fulfills alimony obligations.

Article 90 of the Family Code “The right of the former spouse to receive alimony after divorce.”

The following have the right to demand alimony in court from a former spouse who has the necessary means for this:

— ex-wife during pregnancy and within three years from the date of birth of a common child;

- a needy ex-spouse caring for a common disabled child until the child reaches the age of eighteen or a common child who has been disabled since childhood, group I;

- a disabled, needy ex-spouse who became disabled before the dissolution of the marriage or within a year from the date of dissolution of the marriage;

- a needy spouse who has reached retirement age no later than five years from the date of divorce, if the spouses have been married for a long time.

When deciding on the possibility of imposing on the owner of residential premises the obligation to provide other residential premises for the ex-spouse, the court must proceed from the specific circumstances of the case, taking into account, in particular:

— the duration of the spouses’ marriage;

- duration of cohabitation of the owner of the residential premises and the former spouse in the residential premises;

- age, state of health, financial situation of the parties;

- the period of time during which the owner of the residential premises has fulfilled and will be obliged to fulfill alimony obligations in favor of the former spouse;

- the owner of the premises has Money to purchase another residential property for a former family member;

- the presence of the owner of the residential premises, in addition to the residential premises in which he lived with a former member of his family, other residential premises in the property, one of which can be provided for residence by a former family member, etc.

If the court comes to the conclusion that it is necessary to impose on the owner of the residential premises the obligation to provide the ex-spouse with another residential premises, then the court decision must determine:

- the deadline for the owner of the residential premises to fulfill such obligations,

- the main characteristics of the other residential premises provided and its location,

- and also on what right the owner provides the ex-spouse with other residential premises.

With the consent of the former spouse of the owner of the residential premises, another residential premises provided to him by the owner may be located in another locality. As for the size of the living space provided by the owner to the former spouse, the court, taking into account the financial capabilities of the owner and other noteworthy circumstances, should determine only its minimum area.

Taking into account that in Part 4 of Article 31 of the Housing Code of the Russian Federation there is no indication in what order, on what conditions and right the owner of a residential premises must provide a former member of his family, in respect of whom he fulfills alimony obligations, with another residential premises (on the right property, the right to hire, the right of gratuitous use), the court must decide this issue, based on the specific circumstances of each case, guided by the principles of reasonableness, and execute the court decision. Therefore, the court has the right to oblige the owner of a residential premises to provide a former member of his family with another residential premises, both under a rental agreement or free use, and on the right of ownership (i.e. buy residential premises, donate, build, etc.).

Paragraph 17 of the Supreme Court Resolution. The operative part of the court decision on the claim of the owner of a residential premises for the termination of the right of use of the owner's former spouse of this residential premises and his eviction must contain exhaustive conclusions of the court, arising from the factual circumstances of the case established in the reasoning part, on the satisfaction of the claim or on the refusal to satisfy the claim in full or in part. It must clearly state what exactly the court ruled both on the initially stated claim of the owner of the residential premises and on the counterclaim of the former family member (defendant), if one was stated. The court must also resolve other issues specified in the law so that the decision does not cause difficulties in its implementation.

Paragraph 18 of the Supreme Court Resolution. At the same time, when considering the claim of the owner of a residential premises to recognize the ex-spouse as having lost the right to use this residential premises, it is necessary to keep in mind that, in accordance with Article 19 of the Introductory Law, the provisions of Part 4 of Article 31 of the RF Housing Code do not apply to former family members of the owner of a privatized residential premises provided that at the time of privatization of this residential premises, these persons had equal rights to use this premises with the person who privatized it. According to parts 2 and 4 of Article 69 of the Housing Code of the Russian Federation, members of the tenant's family and former members of the tenant's family who continue to live in the occupied residential premises have equal rights with the tenant of residential premises under a social tenancy agreement in the state and municipal housing stock, including the right to use this premises. .

Paragraph 2 of Article 292 of the Civil Code of the Russian Federation cannot be applied to the former family members of the owner of the residential premises named in Article 19 of the Introductory Law, since when giving consent to the privatization of residential premises occupied under a social tenancy agreement, without which it would have been impossible, they proceeded from the fact that that the right to use this residential premises for them will be of an indefinite nature and, therefore, it must be taken into account when transferring ownership of the residential premises on the appropriate basis to another person (for example, purchase and sale, exchange, donation, rent, inheritance).

2. Cases when a spouse can file a demand to evict a former spouse

2.1. the apartment is the personal property of the spouse

Let's consider when a spouse can file a demand to evict a former spouse?

When the apartment (residential building) is the property of the spouse who is demanding the eviction of the former spouse.

In accordance with the Family Code of the Russian Federation (Article 36 of the Family Code of the Russian Federation), property that belonged to each of the spouses before marriage, as well as property received by one of the spouses during marriage as a gift, by inheritance or through other gratuitous transactions (the property of each spouse ), is his property.

Let's look at an example. The wife owned the apartment before marriage. After marriage, the spouse began to live in the apartment. A few years later, the marriage was dissolved and family relationships were terminated. The husband became a former spouse, and the spouse, in accordance with Article 31 of the Housing Code, demanded that the former spouse’s right to use the apartment be terminated.

The court satisfied the wife's demands, since the apartment was purchased before marriage and was her personal property, and the ex-husband had no reason to continue to use this apartment.

Similar to the above example, the spouse’s demands for eviction of the former spouse are subject to satisfaction if the apartment or residential building was received during the marriage as a gift or by inheritance.

3. Cases when a spouse cannot file a claim to evict a former spouse

Now let's look at cases where a spouse cannot file a demand to evict a former spouse, and if he does, he should be denied this.

3.1. the apartment is the common joint property of the spouses

The first case is when the apartment was purchased during marriage and registered in the name of one of the spouses.

In accordance with the Family Code, property acquired by spouses during marriage is their joint property, regardless of which spouse it is registered in the name of.

If a claim is brought against the ex-spouse for termination of the right to use the apartment, he has the right to object on the grounds that he is also the owner of the apartment and lawfully uses the apartment. Without being listed as the owner, but in reality being one, the former spouse can protect his right by filing a claim in court to recognize the right to a share in an apartment registered in the name of the other spouse.

What happens if the ex-spouse does not know that a claim has been brought against him for termination of the right to use the apartment, and for this reason he does not appear in court? The position taken by the Presidium of the Moscow City Court (that is, the third court) in several court cases is noteworthy.

Let's consider one of them as an example. During the marriage, an apartment was purchased in the name of the wife. The husband gave notarized consent to its acquisition. Subsequently, the marriage was dissolved. The wife filed a claim against her ex-husband to terminate the right to use the apartment and deregister him. The ex-husband did not appear in court and, accordingly, did not object to the stated demands. The district court refused to satisfy the spouse's claim, citing the fact that the apartment was acquired during the marriage, therefore, it was property jointly acquired with the former spouse. The second instance upheld the decision, but the third instance overturned the court's decision, since the defendant did not declare any counterclaims for the division of the apartment and recognition of ownership of a share in the apartment. The case was sent for a new trial to the district court, which was recommended to take additional measures to establish the actual location of the defendant in order to notify him of the claims presented.

In connection with the case considered as an example, it can be recommended that spouses, when purchasing an apartment (residential building and other real estate) during marriage as joint property, draw up documents in such a way that both spouses are indicated as owners in the Unified Register of Rights to Real Estate and Transactions with It .

This is done when:

— in the contract for the purchase of real estate, both spouses are indicated as buyers;

- if one spouse is indicated in the contract, but both spouses apply for registration of joint ownership rights;

- if one spouse applies for registration of the right of joint ownership, but asks to register the right of joint ownership indicating both spouses.

3.2. the apartment was privatized with the consent of the ex-spouse

The next case when a spouse cannot file a claim to evict a former spouse is when the apartment was privatized by the spouse who owns the apartment with the consent of the former spouse.

Let's also consider this situation with an example.

The wife lived in the apartment under a social tenancy agreement, got married and the husband began to live with her in this apartment. Next, the wife decided to privatize the apartment, the husband gave his consent to this, and the apartment was privatized. Subsequently, the marriage was dissolved, and the wife filed a claim to recognize the former spouse as having lost the right to use the apartment.

In this situation, it must be borne in mind that, in accordance with Article 19 Federal Law of December 29, 2004 N 189-FZ “On the implementation of the Housing Code of the Russian Federation” The provisions of Part 4 of Article 31 of the Housing Code of the Russian Federation (on termination of the right to use the apartment of a former spouse) do not apply to former family members of the owner of a privatized residential premises, provided that at the time of privatization of this residential premises, these persons had equal rights to use this premises with the person who privatized it .

According to parts 2 and 4 of Article 69 of the Housing Code of the Russian Federation, members of the tenant's family and former members of the tenant's family who continue to live in the occupied residential premises have equal rights with the tenant of residential premises under a social tenancy agreement in the state and municipal housing stock, including the right to use this premises. .

Having established that at the time of privatization the defendant lived in the residential premises, was registered there at the place of residence and had an equal right to use this premises with the plaintiff, the courts refuse to satisfy claims for termination of the right to use the residential premises.

Thus, it is impossible to evict a former spouse who was using it at the time of privatization of the residential premises.

This must also be taken into account when the spouse - the owner of the premises as a result of privatization - chooses such a method of terminating the right to use the apartment by the former spouse as purchase and sale, donation, rent.

Paragraph 2 of Article 292 of the Civil Code of the Russian Federation (which establishes the rule on termination of the right to use an apartment upon transfer of ownership) cannot be applied to the former spouse of the owner of a residential premises, since by giving consent to the privatization of residential premises occupied under a social tenancy agreement, without which she was would be impossible, he proceeded from the fact that the right to use this residential premises for him would be of an indefinite nature and, therefore, it should be taken into account when transferring ownership of the residential premises on the appropriate basis to another person (for example, purchase and sale, barter, donation, rent, inheritance).

However, the rule of Art. 19 of Federal Law No. 189-FZ of December 29, 2004 applies only to former spouses of the owner of privatized residential premises who live together with the owner in the residential premises belonging to him. If a former family member of the owner of a privatized residential premises has moved to another place of residence, then the right to use the residential premises in which he lived together with the owner of the premises may be terminated from the former spouse, regardless of the fact that at the time of privatization of the disputed premises he had an equal right to use this premises with the person who privatized it.

4. Actions of the spouse who evicts the ex-spouse

What actions must be taken by a spouse who wants to evict his ex-spouse?

I am for peaceful out-of-court solutions to issues.

To begin with, just try to calmly invite your ex-spouse to voluntarily move out and register at his place of residence in another apartment. Nobody needs long, exhausting, nerve- and money-consuming legal proceedings. It is possible that your spouse will follow your request.

Another peaceful option is to enter into an agreement with the ex-spouse, which establishes the rights of the ex-spouse to use the residential premises belonging to the owner. Agree on some period of time convenient for both parties, during which the ex-spouse will continue to use the premises and then voluntarily vacate it.

If peaceful options do not work, you will have to file a lawsuit.

4.1. What lawsuit should a spouse file to evict her ex-spouse?

Main claim:

- on recognition of the defendant as having terminated the right to use the residential premises and eviction.

Additional claim:

- on deregistration of the defendant at the address of the residential premises.

The defendant in this claim is the former spouse of the owner of the residential premises, that is, the person with whom the owner’s family relationship has been terminated. The termination of family relations between spouses means the dissolution of a marriage in the civil registry office, in court, or the recognition of a marriage as invalid.

4.2. What circumstances must a spouse prove in order to evict her ex-spouse?

1. There is no agreement between the owner of the residential premises and the former spouse on preserving the right to use the residential premises for the former spouse.

It is assumed that the agreement to retain the right to use residential premises for the defendant as a former family member must be made in writing.

2. Family relations with the owner of the residential premises have ceased, which is confirmed by the following circumstances: the marriage of the owner of the residential premises with the spouse (former member of the owner’s family) was dissolved by the civil registry office, in court, or declared invalid.

This can be confirmed:

— Certificate of divorce

— A copy of the court decision on divorce that has entered into legal force (in case of divorce by court decision)

— An extract from the civil register declaring the marriage invalid (if the marriage is declared invalid) and a copy of the court decision declaring the marriage invalid (if the marriage is declared invalid).

3. The former spouse of the owner of the residential premises refused (does not maintain) a common household with the owner.

4. The former spouse of the owner of the residential premises and the owner do not have a common budget or common household items.

This can be confirmed by witness testimony.

5. The former spouse of the owner of the residential premises does not fulfill the obligation to pay for the residential premises and utilities.

This can be confirmed by receipts for payment of housing and utilities.

6. The ex-husband of the owner of the residential premises moved to another place of residence

This can be confirmed:

— Certificate of registration of ownership of another residential premises;

— Social tenancy agreement for another residential premises;

— A lease agreement for another residential premises;

— Certificate of a new marriage by the former spouse (when the former spouse of the owner of the residential premises lives with the new family in another residential premises);

— Financial personal account, extract from the house register, other housing documents;

— Information from the passport office;

— Documents confirming the defendant’s registration at the new place of residence.

7. There are no personal belongings of the owner’s former spouse in the residential premises (in particular, due to their removal).

This can be confirmed:

— Witness testimony;

— An act of inspection of the living conditions of the disputed residential area.

8. There are conflicting relations between the owner of the residential premises and the former spouse, which exclude the possibility of them living together.

This can be confirmed:

— Witness testimony;

— Copies of applications to law enforcement agencies and copies of decisions made on such applications.

9. The former spouse creates obstacles for the owner of the residential premises in using the premises.

What is confirmed:

— Appeal of the owner of the residential premises to the internal affairs bodies;

— Application from the owner of the residential premises to the authorized bodies local authorities on the fact of obstructing his use of the premises;

- Witness testimony.

5. Actions of the ex-spouse who is being evicted

However, the ex-spouse may not agree that he is being evicted from his apartment or residential building. He can object by filing a counterclaim against the owner of the premises.

5.1. What counterclaim should a spouse who is being evicted file?

In this category of disputes, the defendant may file counterclaims (counterclaim) for the possibility of retaining the right to use this premises for a certain period of time as a former family member of the owner of the residential premises.

If the defendant has not filed such a counterclaim, but objects to the satisfaction of the claim of the owner of the residential premises to terminate the defendant’s right to use the residential premises, then the court must decide the issue of the possibility of preserving the defendant’s right to use the residential premises for a certain period.

If, by a court decision, the defendant is granted the right to temporary use of residential premises for a certain period and this period has expired, but the defendant does not vacate the residential premises voluntarily, then the plaintiff has the right to file a lawsuit in court and evict the defendant and remove him from the registration register.

It should be borne in mind that the length of the period for which the defendant, as a former family member of the owner of the residential premises, retains the right to use the residential premises is determined by the court in each specific case. This takes into account:

- financial situation of the defendant,

- the possibility of his living together with the owner in the same residential premises;

- length of stay of the defendant in the premises,

- the fact that the defendant bears the costs of paying for housing and communal services,

- the defendant has a disability,

- the defendant is retired,

- small income of the defendant,

— the presence of a dependent adult disabled child,

- the defendant is on parental leave,

- the working age of the defendant,

- the defendant owns real estate in the territory of another state.

If the owner of a residential premises fulfills alimony obligations in relation to the defendant, a former spouse, then in addition to a counterclaim to preserve the defendant, as a former member of the owner’s family, of the right to use the residential premises for a certain period, one can also demand that the owner be obliged to provide the defendant with another residential premises.

5.2. What circumstances must be proven to the spouse who is being evicted in order to extend the right to use the apartment?

1. The former spouse of the owner of the residential premises has no grounds for acquiring or exercising the right to use another residential premises, that is:

- the former member of the owner’s family does not own any other residential premises;

- the former member of the owner’s family does not have the right to use another residential premises under a rental agreement;

- a former family member is not a party to an agreement on shared participation in the construction of a residential building, apartment or other civil legal agreement for the purchase of housing.

This can be confirmed:

— Certificate, notification from the Rosreestr Office;

— A certificate from the Department of Housing Policy and Housing Fund or other authorized body;

- Witness testimony.

2. The former spouse of the owner of the residential premises does not have the opportunity to provide himself with another residential premises, that is:

- To buy an apartment;

— conclude a rental agreement for residential premises;

— conclude an agreement on shared participation in construction

due to property status(no income, insufficient funds, a former family member bears the cost of renting another living space) and other noteworthy circumstances(health status, disability due to age or health condition, presence of disabled dependents, loss of job, study, etc.).

This can be confirmed:

— Documents confirming the income of the owner’s former spouse;

— Documents confirming the health status of the owner’s ex-spouse, including the presence of chronic diseases, the defendant’s being under treatment (certificates, extracts, medical records from medical institution);

— Documents confirming the incapacity to work of a former member of the owner’s family due to age or health status (retirement age, disability, etc.);

— Documents confirming that the former family member of the owner has disabled dependents;

Documents confirming that the former family member of the owner does not have a job (certificates from the employment service, etc.);

Documents confirming that a former member of the owner’s family completed training (certificates, extracts from an educational institution).

3. The residential premises are the only permanent place of residence of the former family member of the owner of the residential premises.

This can be confirmed:

— Certificate, other documents from the Office of Rosreestr for the city of Moscow;

— An extract from the house register.

In conclusion, I would like to note that at present, extensive judicial practice has already developed in the category of disputes between former spouses we have considered. And before filing a claim, we recommend contacting lawyers in order to study previously adopted judicial acts and formulate a winning position for you.

Boytsova E. A.

Lawyer of the Moscow Bar Association

"Center for Legal Expertise"

Any divorce process is always accompanied by the division of joint property. If such property is a living space, then it is also divided equally. What if the apartment belongs to one of the spouses, for example, the wife? And the second one doesn’t want to lose the right to use this apartment after the divorce?

Former spouses can sort things out endlessly, but regarding the right to use housing after a divorce, the law speaks clearly and clearly: the spouse who is not the owner of the residential premises, after the divorce, loses the right to live in the apartment of the second spouse-owner.

Is it possible to evict your ex-spouse?

If he is not a co-owner of the apartment, then in the vast majority of cases, yes, he can be evicted.

The annulment of a family relationship (which is what happens after the divorce) automatically terminates the right of the second spouse to use the residential premises. Moreover, by the term “use” the legislation defines not only registration, but also residence in the apartment of the spouse-owner.

When can you evict?

Eviction from a residential premises after a divorce is possible in cases where:

The owner of the apartment is one of the spouses, but the other has no right to it. This is possible in cases where the apartment was purchased by the wife before marriage or was already inherited during marriage or received as a gift.
A marriage contract was not concluded between the spouses, or it was concluded, but the husband’s right to use the residential premises after the divorce was not stipulated.

The above situations are sufficient grounds for eviction of the husband after termination marital relations.

In what cases is it not possible to evict?

There are often situations when it will not be possible to evict a former spouse even through the court, or eviction will be difficult. Such situations include:

Availability marriage contract, which indicates the husband’s right to use residential premises belonging to his wife even after a divorce.
Joint purchase of residential premises during marriage. In this case, the husband has the same right to the apartment as the wife.
Alimony obligations. If the ex-spouse pays child support, the court may grant him a deferment to find alternative housing.
The apartment belongs only to the husband; the wife is neither the sole owner nor a co-owner. In this case, naturally, she does not have the right to evict her ex-husband; on the contrary, she will have to leave the living space.

For example, the spouses Victor and Lyudmila Nadezhdin lived in a rented apartment for several years after marriage. In 2016, Victor inherited a three-room apartment from his father, into which he moved with his wife.

Six months later, Lyudmila decided to divorce Victor and filed a claim for divorce and division of joint property, including a three-room apartment. Victor Nadezhdin, having received a copy of his wife’s statement of claim, filed a counterclaim for divorce and Lyudmila’s eviction from the living quarters due to her loss of grounds for living in the inherited apartment.

The court, having considered all the materials of the case, decided: to satisfy Nadezhdin’s counterclaim in full, to dissolve the marriage between Lyudmila and Viktor Nadezhdin and to recognize the defendant as having lost the right to reside in the plaintiff’s apartment. This decision was made on the basis of a legal norm, according to which all inherited property is personal and is not subject to division during a divorce, which means that after a divorce the defendant loses the right to use such property.

Reasons and methods of eviction

Causes

So, in order to evict ex-husband from the apartment belonging to the wife, it is enough to dissolve the marriage with him. But what to do if the apartment is municipal, that is, it actually does not belong to either the wife or the husband?

In this case, the grounds for eviction may be:

actual long-term residence of the husband in another place, but one must remember that if he spends the night outside the house from time to time, then this fact cannot become a reason for eviction;
the husband’s use of the residential premises for other purposes, for example, he turned the apartment into a warehouse or office;
immoral behavior, and such behavior will become a reason for eviction only if it is malicious and repeated, and not one-time, for example, if the ex-husband made a row once, and the rest of the time he behaves quietly, then the court is unlikely to make a decision on eviction;
debt on utility bills for more than six months (the problem here is that it is quite difficult to prove that it is the ex-husband who does not pay for the utility bills; in court he can declare that he gives his wife the money in her hands and that she does not pay the rent );
intentional damage to residential premises, unauthorized redevelopment of an apartment, damage to communication systems and engineering structures.

Methods

There are two ways to evict your ex-husband from a living space:

voluntary;
forced.

Of course, the first method is preferable, but the husband does not always leave his ex-wife voluntarily, then forced eviction remains.

A forced eviction procedure involves contacting the judicial authorities, and then, after the court decision enters into legal force, contacting the bailiff service. Only these two authorities have the right to make decisions and measures to discharge and evict an unwanted tenant.

An ex-wife can resort to forced eviction in the following situations:

The owner of the residential premises applies to the court with a claim to evict her ex-spouse and demand to recognize him as a person who has lost the right to use the residential premises. Having received the court decision, she can contact the Department of the Ministry of Internal Affairs of the Russian Federation with a copy of the court decision and remove her ex-husband from the registration register. After this, if the husband continues to persist and does not move out, she applies to the SSP to open enforcement proceedings and the bailiffs are already engaged in forced eviction.
The owner can transfer the apartment to third parties (sell or donate) and the new owners are already engaged in eviction. Often, such eviction options are practiced in cases where the ex-wife does not want or is afraid to meet with her ex-husband even on neutral territory (in court) and transfers ownership of the apartment to close friends or relatives.
It is not uncommon for a married couple to occupy residential premises under a lease agreement. After a divorce, a woman can renew the contract only for herself; in this case, the apartment owners have the right to file a lawsuit to evict the ex-husband of their tenant.

In cases where a marriage contract was signed at the time of marriage, disputes regarding the use of residential premises after a divorce are resolved in accordance with the agreement, for example, if the contract states that the husband can live in the residential premises even after the divorce, then evict him, even According to the court, it won't work.

For example, the Vasiliev spouses, immediately after marriage, entered into a marriage contract, according to which, in the event of divorce, if the couple has children together, the husband leaves the apartment, which is his personal property, to his wife and children, and he himself leaves the living quarters.

The couple were married for eight years and had two children. Further family life things didn't work out, the couple decided to divorce. But the husband refused to leave the apartment, since at that time things were not going well for him, he did not have the funds to purchase another apartment, and he did not want to rent a house.

He filed a claim with the court to deregister his wife and evict her from his apartment, citing the fact that after the divorce she lost the right to use the apartment. In court, the ex-wife presented the marriage contract concluded between her and her ex-husband and filed a counterclaim for the eviction of her ex-husband.

The court took into account the marriage contract and decided to deregister and evict citizen Vasilyev, motivating the decision by the conditions specified in the contract.

Procedure for eviction of ex-husband through court

When evicting your ex-husband, you must follow a certain procedure (algorithm) of actions:

The first thing you need to do is decide on what grounds you can evict your ex-spouse.
The second step should be notification that he has lost the right to live in your apartment and must move out. You should try to convey the notification to in writing, if this is not possible, then inform about the need to evict in the presence of two witnesses, who will subsequently be able to confirm in court that the defendant was notified of the need to move out.
If you receive a refusal, or your ex-husband ignores the request, you can begin preparing for court hearings.
The next step is to prepare a statement of claim and collect necessary documents.
After the entire package of documents has been collected and the statement of claim has been drawn up, it is necessary to pay the state fee and submit the documents to the court.
The next mandatory step is participation in court hearings. Moreover, the plaintiff can either be present in court or resort to the help of his legal representative. In this case, you will need to take care in advance of a power of attorney to transfer your powers. Any person you trust can become a legal representative: a lawyer, a relative, a close friend, even a good neighbor.
After the court makes a decision, it will be necessary to wait for it to enter into legal force (if the defendant has not filed an appeal, then the court decision will enter into legal force one month after the verdict is issued).
Obtaining a copy of the court order and writ of execution from the court office.
Transferring a copy of the court decision for deregistration, usually issued by the migration service.
If the ex-husband still does not want to move out, ignoring the court decision, then your next step is to visit the bailiff service with a statement to initiate enforcement proceedings.
Next, the SSP enters into the eviction process, if necessary, involving the police in forced eviction.

In no case should you try to forcibly evict the defendant yourself or with the help of loved ones, even after the court decision has entered into force. This is fraught with serious consequences for both you and your assistants; it may happen that you become a defendant in a case for compensation for moral, material or physical harm.

For example, citizen Vorobyova won a lawsuit against her ex-husband to evict him from a residential building owned by Vorobyova. Having received the court decision, she did not contact the SSP, but asked her brother to help her kick out the unwanted “guest.” The plaintiff’s brother, taking his friend to help, tried to force Vorobyova’s ex-husband out of the house and throw away his things. He resisted. As a result, the defendant’s expensive equipment was broken, and he himself received moderate injuries.

The plaintiff’s ex-husband, “armed” with a certificate from the hospital, as well as checks for the purchase of equipment and bank statements, filed a claim for compensation for moral, material and physical damage against Vorobyova’s brother in the amount of two hundred thousand rubles and won the court.

Statement of claim

Documentation

A certain package of documents must be attached to the claim. Depending on the situation, the list of papers may vary, but some of them are required in almost all cases, namely:

a copy of the plaintiff's passport;
title documents for the disputed housing;
certificate of divorce;
notice of eviction and, if available, a response to it;
receipt of payment of state duty;
witness testimony (provided that the witnesses personally confirm them in court).

All documents, except the receipt for payment of the state duty, are submitted in copies. The original receipt must be attached.

The court may require additional documents. At the same time, he can request some of them from one or another authority on his own; the court may oblige the plaintiff or defendant to present some documents at the next court hearing.

Timing and cost

It is impossible to determine exactly how long a particular legal dispute will last; everything will depend on the readiness of the plaintiff and defendant for the court hearing, the availability of evidence, grounds for eviction, the defendant’s agreement or disagreement with the eviction, the financial or physical condition of the plaintiff and defendant. The entire process can take from one or two months to several years.

It is also impossible to determine how much the lawsuit will cost the plaintiff. The cost of the state fee is 300 rubles; if the plaintiff does not intend to resort to the help of lawyers, then it is quite possible that the costs of the trial will be limited to this.

But not every citizen understands jurisprudence; often, in order not to lose the lawsuit, the plaintiff turns to lawyers for help, in which case the amount that will have to be spent will, of course, increase. If the court's decision is positive, the defendant usually pays all legal costs.

The nuances of eviction of an ex-husband:

From a council apartment

He is registered

It is quite difficult to discharge an ex-husband from a municipal housing unit if he is registered there and does not violate the rules of the hostel. If the apartment is large, then you can try to apply to the local municipality with a request to allocate, for example, two one-room apartments instead of one three-room apartment, but in practice this option is almost impossible. We will have to somehow negotiate and try to resolve the problem peacefully.

Not registered

In this situation, it is much easier to evict your ex-husband. After a divorce, the bougie ceases to be a member of the family and has no right to be in the living quarters. In this case, it will be enough to file a complaint with the local government, or in particularly difficult cases, involve the police.

From a privatized apartment

He is registered

Registration in a privatized apartment gives the husband the right to use this housing, but only as long as he is a relative of the owner of the residential premises. Once the marriage is dissolved, the ex-husband loses his right of residence and may be evicted.

It must be borne in mind that if the ex-husband does not have alternative living space, the court may allow him to remain in the residential premises for three months or more, or, in some cases, until he finds other housing.

Not registered

In this case, eviction of an unwanted tenant is much easier. The right to stay in residential premises can only be given (or taken away) by the owner, therefore, after a divorce, a wife can evict her ex-husband “to nowhere” even without the help of the judiciary.

Owner

The most difficult option. Russian legislation prohibits the alienation of property from a citizen if it was acquired legally. It is not possible to evict the owner under any circumstances.

If a husband and wife are co-owners of a property, then the only option to separate from the ex-spouse will be either the sale of the property and the subsequent division of the proceeds, or the purchase from the ex-husband of his share in the residential premises.

The presence or absence of registration in the disputed housing does not play any role.

Not the owner

The easiest option when divorcing your husband, if he is not registered and is not the owner. If the relationship with your ex-husband remains normal, then you can simply ask him to move out; if the request is not heard, then go to court. At the court hearing, the wife will have to prove that she is the sole owner of the disputed meters.

Arbitrage practice

When considering each claim for eviction, the court carefully examines all the evidence presented by both the plaintiff and the defendant, takes into account the interests of each participant in the process, as well as third parties, if they are interested in one or another outcome of the case.

Analyzing judicial practice, we can come to the conclusion that the court will never satisfy a claim for eviction of a disabled person or incompetent citizen, if the defendant does not have alternative housing.

The court also especially carefully considers eviction claims where the rights of minor family members are affected.

For example, if the son remains with his father, then the court is unlikely to decide to evict the ex-husband without providing him with alternative living quarters. Or he will generally allow the ex-husband to stay with his son in the living quarters until he reaches adulthood.

Housing law lawyer Evgeniy Volkov is with you.

Eviction of ex-spouse- a fairly pressing question for many residential property owners who have recently divorced their significant other.

And this question arises only because in the overwhelming majority of cases, the former spouse of the owner of the residential premises voluntarily refuses to leave the apartment or house in which the spouses (now former) previously lived together.

Why did I decide to write a detailed article about eviction of an ex-spouse?

The fact is that before writing the article, I spent a long time studying what was written on other legal and legal-related websites about the eviction of an ex-spouse from an apartment, and came to the conclusion that a good, detailed, high-quality article on the topic of eviction from a residential premises the former spouse is simply not on the RuNet at the moment.

In addition, as my experience of communicating with clients shows, our citizens in the overwhelming majority of cases (97% of clients who contact me) do not distinguish between the eviction of a former spouse from an apartment and the termination of the right to use residential premises.

For them it is the same thing. However, legally, these are two completely different legal categories.

I will talk about the termination of the right to use the residential premises of a former spouse in a separate article, but here I will only touch upon it in passing.

So, the right to housing is enshrined in Part 1 of Article 40 of the Constitution of the Russian Federation, which contains a number of guarantees for its implementation, including the inviolability and inadmissibility of arbitrary deprivation of housing to citizens.

As stated in the Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 2, 2009 No. 14 “On some issues that arose in judicial practice when applying the Housing Code of the Russian Federation” (hereinafter referred to as the Resolution of the Plenum of the Supreme Court of the Russian Federation),

this right is recognized not only in Russia, but throughout the world, which is reflected in international legal acts, in particular in the Universal Declaration of Human Rights (Article 25), the International Covenant on Civil and Political Rights (Article 12), the European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 8).

The main legal act regulating housing legal relations in the Russian Federation is the Housing Code of the Russian Federation, which came into force on March 1, 2005.

In terms of legal force, it ranks second after the Constitution and is in fact the foundation of all housing legislation.

In this article:

Grounds for termination of the right to use residential premises by a former spouse

It is no coincidence that in my article on eviction I included a section on the grounds for termination of the right to use residential premises.

Why? Because the grounds for eviction of the former spouse arise from the grounds for termination of his right to use the residential premises.

So, the current housing legislation of the Russian Federation provides that the basis for the right to use the residential premises of family members of the owner of the residential premises are only family relationships.

Let's consider two situations.

Situation No. 1. The residential premises are owned by one of the spouses

Is the spouse a family member of the owner of the residential premises?

In accordance with part 1 of Art. 31 Housing Code of the Russian Federation

Members of the family of the owner of a residential premises include his spouse living together with this owner in the residential premises belonging to him

Accordingly, the ex-spouse is already a former family member of the owner of the residential premises.

In the event of termination of family relations with the owner of a residential premises, the right to use this residential premises for a former family member of the owner of this residential premises is not retained, unless otherwise established by an agreement between the owner and the former member of his family.
If a former family member of the owner of a residential premises has no grounds for acquiring or exercising the right to use another residential premises, and also if the property status of a former family member of the owner of a residential premises and other noteworthy circumstances do not allow him to provide himself with another residential premises, the right to use the residential premises owned by the specified owner may be retained by a former member of his family for a certain period based on a court decision.
In this case, the court has the right to oblige the owner of the residential premises to provide other residential premises for the ex-spouse and other members of his family, in whose favor the owner fulfills alimony obligations, at their request.

So what you need to remember is that the only one legal basis termination of the former spouse's right to use residential premises is the termination of family relations (unless otherwise established by agreement between the owner and the former spouse).

The termination of family relations between spouses means the dissolution of a marriage in the civil registry office, in court, or the recognition of a marriage as invalid.

If a dispute arises, the issue of recognizing a person as a former family member of the owner of the residential premises is decided by the court, taking into account the specific circumstances of each case.

At the same time, I note that since maintaining a common household between the owner of the residential premises and the person moved into this residential premises by him is not a mandatory condition for recognizing him as a member of the family of the owner of the residential premises, then the absence of maintaining a common household between the owner of the residential premises and the specified person or termination their management of a common household, for example, by mutual agreement, cannot in itself indicate the termination of family relations with the owner of the residential premises.

This circumstance must be assessed in conjunction with other evidence presented by the parties to the case.

Refusal of other persons to maintain a common household with the owner of the residential premises, lack of a common budget or common household items with the owner, failure to provide mutual support to each other, etc., as well as departure to another place of residence may indicate the termination of family relations with the owner residential premises, but must be assessed in conjunction with other evidence presented by the parties.

Taking into account the above, the right to use the residential premises of a spouse with whom the owner has not dissolved his marriage, although family relations with him have actually been terminated, cannot be terminated on the grounds of Part 4 of Article 31 of the Housing Code of the Russian Federation.

Situation No. 2. Residential premises are provided to spouses under a social tenancy agreement.

As in the first case, the spouse is a member of the employer's family. This is indicated in Part 1 of Art. 69 Housing Code of the Russian Federation

Family members of a residential tenant under a social tenancy agreement include his spouse living with him, as well as the children and parents of this tenant

In accordance with part 4 of Art. 69 Housing Code of the Russian Federation

If a citizen ceases to be a member of the family of the tenant of the residential premises under a social tenancy agreement, but continues to live in the occupied residential premises, he retains the same rights as the tenant and members of his family.
The said citizen is independently responsible for his obligations arising from the relevant social tenancy agreement.

Thus, “by default” the former spouse’s right to use residential premises in this situation does not automatically terminate.

Circumstances that the court determines when considering a case of eviction of a former spouse

Based on my own judicial practice on the issue under consideration, I can say that the legally significant circumstances in disputes about the eviction of a former spouse are the grounds for acquiring ownership of residential premises.

Such grounds may be:

- agreement of purchase and sale, donation of an apartment, etc.

If this basis is a privatization agreement, the court determines whether the former spouse at the time of privatization had an equal right to use this premises with the owner.

In this case, the stated claims will be resolved by the court, taking into account the provisions of Article 19 of the Federal Law of December 29, 2004 No. 189-FZ “On the entry into force of the Housing Code of the Russian Federation”, according to which

Part 4 of Article 31 of the Housing Code of the Russian Federation does not apply to former family members of the owner of a privatized residential premises, provided that at the time of privatization of this residential premises, these persons had equal rights to use this premises with the person who privatized it, unless otherwise established by law or agreement.

- the presence of previous family relations between the plaintiff and the defendant, the fact of termination of these relations;

- absence of an agreement between the owner and a former member of his family on the former family member retaining the right to use the residential premises;

- absence (presence) of a former member of the owner’s family of grounds for acquiring or exercising the right to use another residential premises;

- the property status of the former family member of the owner of the residential premises, as well as other circumstances indicating his ability to provide himself with other residential premises.

What requirements should the plaintiff present in court?

If you are familiar with judicial practice on this issue, then you probably may have noticed that apartment owners, trying to evict their ex-spouse, make a variety of demands.

Some owners, for example, simply declare the termination of the right to use the residential premises by their former spouse and the removal of the former spouse from the registration register.

Others add to these same requirements a requirement for eviction.

So which is correct? To answer this question, let us turn to judicial practice.

Decision of 04/11/2016 of the Perm District Court Perm region in case 2-875/2016

Requests for eviction, removal of the defendant Pichugin D.I. from registration records are derived from demands to recognize the right to use residential premises, which the plaintiffs were denied, as having lost their right to use. Consequently, these requirements cannot be satisfied either.

Decision dated June 21, 2016 Kineshma City Court Ivanovo region in case No. 2-1140(2016)

Claims for deregistration of the defendant are derived from claims for termination (loss) of the right to use residential premises. If the defendant is recognized as having lost the right to use the residential premises, he must be deregistered from the disputed residential premises.
The court considers that the defendant’s right to use the disputed residential premises has been terminated and, accordingly, he does not have the right to have registration at the address of the specified residential premises.

Appeal ruling of the judicial panel for civil cases of the Supreme Court of the Republic of Mordovia dated November 12, 2015. in case No. 33-2807/2015

The requirement for deregistration at the place of residence is derived from the initially stated requirements for the loss of the right to use residential premises.

Also, let's take a look at Part 1 of Art. 35 Housing Code of the Russian Federation

If a citizen’s right to use residential premises is terminated on the grounds provided for by this “Code”, other federal “laws”, an agreement, or on the basis of a court decision, this citizen is obliged to vacate the corresponding residential premises (stop using it).
If this citizen does not vacate the said residential premises within the time period established by the owner of the relevant residential premises, he is subject to eviction at the request of the owner based on a court decision.

At the same time, the decision on what claims to make in the statement of claim does not depend on whether your ex-spouse currently lives in your apartment or has already vacated the premises.

It doesn’t matter whether your ex-spouse lives together with you, whether he is registered in your apartment, or if the spouse does not want to vacate the apartment, or his things remain in the apartment, or the spouse does not give up the keys to the apartment, etc. - in any case, your initial action should be to file a claim on termination of the right to use residential premises by the former spouse.

At the same time, in the claim you need to ask the court to indicate that the court decision is the basis for deregistering the former spouse.

Yes, that's exactly what you should ask. But you should not ask to remove your ex-spouse from registration, as this is contrary to current legislation.

In this case, the court, if there is sufficient evidence presented by the plaintiff, will make a decision recognizing the defendant as having terminated the right to use the apartment and indicate that the decision is the basis for deregistering the defendant.

Here is a correct example from judicial practice.

Recognize Kozhevnikov FULL NAME8, DD.MM.YYYY year of birth as having terminated the right to use the apartment<адрес>. This decision is the basis for deregistration of Kozhevnikov FULL NAME9 at the address:<адрес>(see Decision dated 08/09/2015 of the Pravoberezhny District Court of Lipetsk in case No. 2-2701/2015)

Then, having received a court decision to satisfy your claims, you give your ex-spouse a period for him (she) to pack up his things and vacate the apartment.

And only if the ex-spouse did not comply with your demand on time (that is, he did not voluntarily move out) - you file a second statement of claim, but it will be called “ On the defendant’s obligation to vacate the apartment and on eviction from the apartment«.

I will also present you with a sample of this claim in the next section of my article.

This simple procedure is provided for by the current housing legislation of the Russian Federation. By the way, here is an example from judicial practice to confirm my words.

The court found that since no agreement was concluded with the owner of the disputed apartment on the defendants’ use of this apartment after the court decision dated DD.MM.YYYY recognizing them as having lost the right to use the apartment, the plaintiff, as the owner of the residential premises, has the right to demand elimination of the violation of his rights, including by vacating the apartment and eviction of the defendants from the residential premises belonging to him.
Court decision dated DD.MM.YYYY recognizing Mironova G.N. and Full Name2, who have lost the right to use the disputed residential premises and the owner’s demand to vacate the apartment, are grounds, by virtue of the provisions of Part 1 of Article 35 of the RF Housing Code, for satisfying the plaintiff’s claims to oblige the defendants to vacate the disputed apartment and evict them from this apartment (see Decision dated 18.05 .2016 of the Konakovo City Court of the Tver Region in case No. 2-665/2016).

You can ask me: Evgeniy, why is it not possible to state in one statement of claim a demand for termination of the right to use residential premises by the former spouse, for the removal of the former spouse from registration and for eviction?

I answer. The court does not have the right, in one decision, to terminate the former spouse’s right to use residential premises and at the same time evict the former spouse.

Because the court's decision on eviction must be based on the former family member's refusal to vacate the premises.

That is why, if a former family member has not actually stopped using the residential premises, the issue of his eviction must be resolved in court when an independent claim for eviction is brought against him.

I told you how everything should be “according to the letter of the law.”

However, in the practice of our Russian courts, there is still no consensus on what demands should be made by plaintiffs, which causes certain inconvenience for the Plaintiff, the owner of the apartment.

To give you an idea of what kind of decisions judges make, let us again turn to examples from judicial practice.

Claims of Mishina L.S. to satisfy.
Terminate the right to use the residential premises of Otroshka I.I. residential premises located at:<адрес>.
Evict Otroshka I.I. from a residential premises located at:<адрес>.
This decision to evict Otroshka I.I. is the basis for deregistration in a residential premises located at the address:<адрес>. (see Decision of May 21, 2013 of the Ust-Ilimsk City Court of the Irkutsk Region in case No. 2-1166/2013).

In this decision, the judge terminated the right to use the residential premises and at the same time evicted the Respondent, indicating that the decision was the basis for deregistering the Respondent.

The claim of the administration of the Stodolishchenskoye rural settlement ... to be satisfied.
Recognize V.P. Sidorenkova who lost the right to use residential premises at the address: ....
Evict V.P. Sidorenkova from ... located in ... without providing other residential premises.
Remove Sidorenkova V.P. from registration at the address: .... (see Decision dated February 24, 2016 of the Pochinkovsky District Court of the Smolensk Region in case No. 2-169/2016

)

And in this case, the court generally ordered to remove the defendant from the registration register. Not only did the court not involve the relevant registration body of the Federal Migration Service to participate in the case as a third party, resolving a dispute about the responsibility of a person not involved in the case, but it also violated the requirements of the law.

The court had no right to indicate in the court decision Remove Sidorenkova V.P. from registration

Because the removal of a citizen from registration at the place of residence if he is recognized as having lost the right to use residential premises is the competence of the registration authorities and is not subject to court approval.

To confirm my words, an example from judicial practice

At the same time, the demands to deregister the defendant at the specified address should be refused, taking into account the fact that the plaintiff does not challenge the legality of the actions of the territorial branch of the Federal Migration Service of Russia to register S.V. Shelest. in the disputed residential area.
In accordance with clause 31 of the Decree of the Government of the Russian Federation of July 17, 1995 N 713 “On approval of the Rules for registration and deregistration of citizens of the Russian Federation at the place of stay and at the place of residence within the Russian Federation and the list of officials responsible for registration” The deregistration of a citizen at the place of residence is carried out by the registration authorities in the event of eviction from an occupied residential premises or recognition as having lost the right to use the residential premises - on the basis of a court decision that has entered into legal force.
Thus, the removal of a citizen from registration at the place of residence if he is recognized as having lost the right to use residential premises is the competence of the registration authorities and is not subject to permission by the court, and therefore, in satisfying the specified claims, Boldyreva S.E. the panel of judges finds it necessary to refuse (see the appeal ruling dated July 12, 2016 of the Kemerovo Regional Court in case No. 33-8529).

As you can see, judicial practice on the issue of termination by a former spouse of the right to use residential premises, eviction and deregistration is not uniform and is characterized by one capacious definition: who cares what!

By the way, if you dig deep and not on the surface, then according to Article 7 of the Federal Law “On the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and residence within the Russian Federation”,

A court decision is the basis (obligation) for the registration authority to remove a citizen from registration.

Also, in accordance with subparagraph “E” of paragraph 31 of the Rules for registration and deregistration of citizens of the Russian Federation at the place of stay and place of residence within the Russian Federation and the list of officials responsible for registration, approved by Decree of the Government of the Russian Federation of July 17, 1995 No. 713,

The deregistration of a citizen at the place of residence is carried out by the registration authorities in the event of eviction from an occupied residential premises or recognition as having lost the right to use the residential premises - on the basis of a court decision that has entered into legal force.

That is, in the Rules there is not a word about termination of the right to use residential premises, and in the law (Housing Code of the Russian Federation) - not a word about recognition as having lost the right to use residential premises.

Idiocy, isn't it?!

The courts come out of this situation as follows:

In accordance with clause 31 of the Rules for registration and deregistration of citizens of the Russian Federation at the place of stay and place of residence within the Russian Federation (approved by Decree of the Government of the Russian Federation of July 17, 1995 N 713, deregistration of a citizen at the place of residence is carried out by the registration authorities in case: eviction from an occupied residential premises or recognition as having lost the right to use residential premises - on the basis of a court decision that has entered into legal force.
Since deregistration due to termination of the right to use is not expressly stated in the Rules, a court decision cannot be the basis for deregistration, and leaving the defendants on the register will not contribute to the full protection of the rights of the plaintiff.
The court believes it is possible to apply this rule to controversial legal relations by analogy (see the Decision of the Ust-Ilimsk City Court of the Irkutsk Region dated May 15, 2013 in case No. 2-1192/2013).

If you do not want to prolong the dubious pleasure of visiting the courts, it is better to entrust the preparation of the statement of claim to a professional and be sure that everything will go like clockwork.

Otherwise, it is far from a fact that the court will satisfy all your demands.

So, a lot has been written in this section. Let me sum it up.

When formulating the operative part of decisions, judicial practice proceeds from completely different considerations.

There is no unity of judicial practice on this issue, as shown by my analysis of court decisions.

If you want your ex-husband to virtually disappear from your apartment (take your clothes, give the keys to the apartment, move to another place of residence) and the author of the article, housing law lawyer Evgeniy Volkov https://site legally (checked out of the apartment, that is deregistered), then in my opinion, you need to take three steps:

First file a claim to terminate the ex-spouse’s right to use the residential premises and ask the court to indicate that the court’s decision will be the basis for deregistering the ex-spouse.
Request in writing from your ex-spouse that he or she vacate the premises within the time period you set. If your ex-spouse has not voluntarily vacated the premises after the expiration of the period set by you, then proceed to the third step.
File a claim with the court to oblige the ex-spouse to vacate the apartment and to evict the ex-spouse from the apartment.

The strategy I have proposed is entirely based on the norms of the Housing Code of the Russian Federation and is confirmed in judicial practice. In any case, if you follow the path I suggested, your chances in court will increase dramatically.

But I don’t want to say that I’m the smartest and you need to do as I advise you.

On the contrary, I strive to ensure that in each of my major studies the question is considered with different sides, various approaches to solving the issue are presented, etc.

I have shown you that most plaintiffs do not always adhere to the scheme I indicated, but declare all their claims at once.

That is, they make demands for termination of the right to use residential premises, deregistration and eviction.

And the courts, surprisingly, are quite loyal to the claims made by the plaintiffs. And satisfy them. But still not always.

Therefore, if you decide to file a lawsuit and state all the demands en masse in one lawsuit, then whether the court will satisfy all the demands you made in one lawsuit is a big question.

But here you must decide for yourself how you will act.

My task was to show you what the law says on this issue and how things currently stand in judicial practice.

I hope that my analysis of judicial practice will help you make the right choice.

Statement of claim for eviction of ex-spouse (correct sample)

Finding a sample statement of claim to evict a former spouse on the Internet is not difficult.

Why do I say this?

As a housing law lawyer, I have helped dozens of my clients win similar disputes.

However, among my clients there were often those (Plaintiffs) who needed my help in appealing a court decision to refuse to satisfy a claim for eviction of a former spouse, or my help in a situation where the court satisfied the plaintiff’s demands only in part.

In the process of preparing appeals, I always request from clients a copy of the statement of claim, according to which the court made a decision to refuse eviction or a decision to only partially satisfy the plaintiff’s claims.

An analysis of all these claims showed that all these claims are based on templates taken from dubious sources on the Internet. They were copied exactly, only the dates and names were changed.

Therefore I say again: free cheese only in a mousetrap.

Save on preparing a claim and get a court decision that is not the one you would like to receive.

You can check the correctness of my words in practice, unless, of course, you want to appeal the court decision later, instead of immediately preparing a competent statement of claim for the eviction of your ex-spouse the first time and winning the case.

But decide for yourself whether to turn to a pro and be confident of victory, or prepare a claim yourself and then be in nervous tension.

Unfortunately, many of our citizens do not pay much attention to the fact that they use a crooked template to win in court.

And, of course, the template of the statement of claim for the eviction of the ex-spouse subsequently taken from the Internet will also affect the court’s decision, of course, not in favor of the plaintiff.

What should a lawsuit to evict a former spouse look like?

I can show you my version of the statement of claim, but only in terms of volume and design, so that you can roughly imagine this document.

The texts and wording that I use in my version of the statement of claim for the eviction of my ex-spouse are hidden from reading by me.

The logic here is simple: thoughtlessly copying wording from someone else’s claim will not lead to anything good.

And, by the way, I did not present you with a template, but one of the many eviction lawsuits I prepared, in which the plaintiff’s demands were fully satisfied by the court.

Whether to follow me, trust my experience or not is up to you to decide. One thing I can say quite definitely:

Do you need a professionally drafted claim to evict your ex-spouse from an apartment, taking into account your specific situation? - Contact me, I’ll make it up. And together we will win the case! The contact details for contacting me are below.

Okay, we have more or less sorted out the claim for eviction of an ex-spouse, and I hope it has settled in your head that template claims for eviction of a former spouse will not be suitable for winning in court.

Only the painstaking work of a professional to study your personal situation and make a choice the right strategy preparing a claim taking into account the latest trends in judicial practice in your region can bring you success in the case of eviction of your ex-spouse from the apartment.

I hope you understand this. If not, then I sincerely sympathize with you.

Where to file a claim to evict your ex-spouse?

In accordance with Art. 46 of the Constitution of the Russian Federation

everyone is guaranteed judicial protection of their rights and freedoms.

Based on this constitutional norm, Part 1 of Article 11 of the Housing Code of the Russian Federation establishes the priority of protecting violated housing rights by the court in accordance with the jurisdiction of cases established by procedural legislation.

According to clause 1, part 1 of Art. 22 Code of Civil Procedure of the Russian Federation

courts of general jurisdiction consider and resolve cases involving citizens, organizations, government bodies, local government on the protection of violated or disputed rights, freedoms and legitimate interests in disputes arising from housing legal relations.

According to Art. 24 Code of Civil Procedure of the Russian Federation

Civil cases on the eviction of citizens, taking into account the subject composition and the nature of the legal relations that have arisen, are subject to consideration by the district court as a court of first instance.

According to paragraph 3 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 2, 2009 N 14 “On some issues that arose in judicial practice when applying the Housing Code of the Russian Federation”

housing disputes (on recognition of the right to residential premises, on eviction from residential premises, on termination of the right to use residential premises of a former family member of the owner of this residential premises, on maintaining the right to use residential premises for a former family member of the owner of this residential premises, on the seizure of residential premises from owner through redemption in connection with seizure land plot for state or municipal needs, on the provision of residential premises under a social tenancy agreement, on the invalidation of the decision on the provision of residential premises under a social tenancy agreement and the social tenancy agreement concluded on its basis, on the forced exchange of occupied residential premises, on the invalidation of the exchange of residential premises and others) based on the provisions of Art. Art. 23 and 24 of the Code of Civil Procedure of the Russian Federation are considered at first instance by the district court.

Thus, you file a claim for eviction in the district (or city, if your city does not have a district division) court at the defendant’s place of residence.

What is important for a defendant in an eviction case to know?

My article would be incomplete if I focused only on caring for the interests of the plaintiff.

I also saved a lot of useful information for defendants in eviction cases.

So listen, taste, absorb what I have written below.

So, keep in mind that the length of the period for which the defendant, as a former family member of the owner of the residential premises, retains the right to use the residential premises is determined by the court in each specific case.

At the same time, the financial situation of the defendant, the possibility of his living together with the owner in the same residential premises and other circumstances are taken into account (clause 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 07/02/2009 N 14).

Thus, when determining the period of temporary use of residential premises in relation to the defendant, the court may take into account the following factors:

— the length of time the defendant lived in the premises;
- the fact that the defendant bears the costs of paying for housing and communal services;
- whether he has a disability;
- the defendant is retired, his income is small;
— the presence of a dependent adult disabled child;
— the defendant is on parental leave.

Also, when establishing this period, the court may take into account the working age of the defendant, whether he owns real estate in the territory of another state (see, for example, the Appeal Rulings of the Moscow City Court dated July 2, 2014 in case No. 33-25531, dated March 26. 2014 in case No. 33-9683).

A defendant who does not voluntarily vacate the residential premises after the expiration of the period of temporary use of the premises determined by the court should take into account that in such a situation the plaintiff has the right to apply to the court with a claim to evict the defendant and deregister him (for example, the Appeal Ruling of the Moscow City Court dated 08/06/2014 in case No. 33-31195).

If the owner of the residential premises fulfills alimony obligations in relation to the defendant, then in addition to the counterclaim for the preservation of the defendant, as a former member of the owner’s family, of the right to use the residential premises for a certain period, one can also demand that the owner be obliged to provide the defendant with another residential premises (clause 16 of the Resolution of the Plenum Supreme Court of the Russian Federation dated July 2, 2009 N 14).

In the counterclaim, in addition to the demand that the defendant, as a former family member of the owner of the residential premises, retain the right to use this premises for a certain period of time, it is also possible to indicate demands for the defendant to move into the residential premises and the obligation not to interfere with his use and residence in the residential premises (see, for example, Determinations of the Moscow City Court dated July 23, 2013 No. 4g/5-6557/13, dated February 6, 2013 in case No. 11-1683, Appeal determinations of the Moscow City Court dated February 26, 2014 in case No. 33-4296, dated 02/14/2014 in case No. 33-6738, from 12/20/2013 in case No. 11-41090, from 05/20/2013 in case No. 11-13242).

In order for the court to make a decision in an eviction case in favor of the defendant, you, as the defendant in the case, must prove the following circumstances:

№1. The former family member of the owner of the residential premises has no grounds for acquiring or exercising the right to use another residential premises, that is:

- the former member of the owner’s family does not own any other residential premises;
- the former member of the owner’s family does not have the right to use another residential premises under a rental agreement;
- the former family member is not a party to an agreement on shared participation in the construction of a residential building, apartment or other civil legal agreement for the purchase of housing;
- another.

These circumstances can be confirmed by a certificate or notification from the Rosreestr Office, as well as by witness testimony.

Here are examples from judicial practice in eviction cases for your own study:

— clause 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 2, 2009 No. 14.
— Determination of the Moscow City Court dated December 18, 2014 No. 4g/3-13052/14.
— Determination of the Moscow City Court dated December 12, 2014 No. 4g/8-12472.
— Determination of the Moscow City Court dated 09.09.2014 No. 4g/6-9332/14.
— Determination of the Moscow City Court dated June 30, 2014 No. 4g/1-6466.
— Appeal ruling of the Moscow City Court dated June 30, 2014 in case No. 33-23054.
— Appeal ruling of the Moscow City Court dated June 24, 2014 in case No. 33-22656\14.
— Appeal ruling of the Moscow City Court dated February 26, 2014 in case No. 33-4296.

№2. The former family member of the owner of the residential premises does not have the opportunity to provide himself with another residential premises, that is:

- To buy an apartment;
— conclude a rental agreement for residential premises, etc. due to property status (no income, insufficient funds, a former family member bears the cost of renting another residential premises) and other noteworthy circumstances (health status, disability due to age or health condition, presence of disabled dependents , loss of job, study, etc.)

The defendant can confirm these circumstances:

Documents confirming the income of a former family member of the owner;

Documents confirming the health status of the former member of the owner’s family, including the presence of chronic diseases, the defendant’s being under treatment (certificates, extracts, medical records from a medical institution);

Documents confirming the disability of a former family member of the owner due to age or health status ( retirement age, disability, etc.);

Documents confirming that the former family member of the owner has disabled dependents;

Documents confirming that the former family member of the owner does not have a job (certificates from the employment service, etc.);

Documents confirming that a former member of the owner’s family has completed training (certificates, extracts from an educational institution).

To help for self-study Here are a few more examples from judicial practice in eviction cases:

Clause 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated July 2, 2009 No. 14;
-Decree of the Supreme Court of the Russian Federation dated November 20, 2012 No. 38-KG12-11;
-Decree of the Moscow City Court dated December 18, 2014 No. 4g/3-13052/14;
-Decree of the Moscow City Court dated December 12, 2014 No. 4g/8-12472;
-Decree of the Moscow City Court dated 09.09.2014 No. 4g/6-9332/14;
-Appeal ruling of the Moscow City Court dated June 24, 2014 in case No. 33-22656\14;
-Appeal ruling of the Moscow City Court dated February 26, 2014 in case No. 33-4296;
-Appeal ruling of the Moscow City Court dated November 6, 2013 in case No. 11-34026.

No. 3. The residential premises are the only permanent place of residence of the former family member of the owner of the residential premises

This can be confirmed by a certificate, as well as other documents from the Office of Rosreestr, as well as an extract from the house register (see, for example, Determination of the Moscow City Court dated December 18, 2014 No. 4g/3-13052/14).

That's all! We exhaled. In any case, let me complete my article, I hope the materials in my article will help you in your practical activities.

Attention: I do not provide telephone consultations on the issues outlined in the article. The article outlines my vision of the situation and provides a working solution to the problem. If you still have questions about the topic of the article, please ask them in the comments below. Thank you!

The life of spouses together is not always a holiday, romance and understanding. Often, after living with each other for some time, people begin to think that they made a mistake by entering into a marriage relationship, and after a while they decide to divorce.

Unfortunately, it is not always possible to resolve the situation peacefully, and the most common problem is housing issue. Evicting a former spouse from an apartment can become a real headache for the owner of the living space if you do not have an idea of your rights as prescribed by current legislation.

This article is devoted to how to cope with a difficult situation, and which belongs to a citizen by right of ownership or is listed on the balance sheet of the municipality.

Rights and obligations of the parties

Judicial practice regarding the eviction of a former spouse from the owner’s apartment suggests that such a problem arises when, after the dissolution of the marriage, the former spouse does not intend to move out of the apartment and continues to live there.

Then the matter will be carried out by bailiffs in the presence of witnesses. The main basis for this action can only be a court decision made during the trial and made taking into account the provisions of the current legislation.

There are enough reasons for filing a claim for eviction and deregistration of a former spouse to do this forcibly, but according to the law. On the one hand, the Constitution of the Russian Federation (Article 25 and Article 40) guarantees respect for the citizen’s right to housing, however, eviction is considered a forced measure and in some cases may occur.

The validity of such a decision is that the residence of an ex-husband (wife) in an apartment is not always legal, which means that the constitutional rights of such a person will not be violated. There are a number of parameters that the court pays attention to.

To have an idea of how to evict your ex-husband from an apartment if he is registered in the home or is its owner, you need to carefully study the situation and note the following nuances:

Is the former spouse the owner of all (or part) of the residential premises;
Does the citizen who needs to be evicted have;
What legal status does the living space have - was it purchased, privatized, received as a gift, or are the residents using it on the basis of a social tenancy agreement?

In exceptional situations, the judge may place all responsibility for providing housing for one of the spouses on the shoulders of the plaintiff. Here we are talking about cases when a child or children remain living with the ex-husband (or wife).

How to evict your ex-husband

Divorce provides for the property that was acquired by the spouses during the marital relationship. The division of real estate causes the greatest difficulties, since here we are talking about a large sum money and place of residence. If the situation cannot be resolved peacefully, then you will have to go to court.

In the absence of a marriage contract, the division of the apartment occurs on a general basis, that is, in equal shares. An exception is real estate received as a gift or by will.

Some nuances arise in relation to apartments that are purchased with or on a mortgage, as well as during the privatization of housing or when using municipal housing.

Upon completion of the divorce and property division procedures, the question arises regarding how to evict the ex-husband from an apartment purchased during marriage or from a home that has a different legal status. In fact, situations may be different, so we will consider each option in more detail.

From a privatized apartment

To eliminate possible difficulties and problems associated with eviction of a former spouse, you should first analyze in detail what rights he has in relation to the residential premises.

If the husband (wife) was directly involved in the privatization of the apartment, then upon its completion, he (she) also becomes the owner of the property. In this case, the share ratio of holdings is equal. In this case, it is not possible to evict the spouse from the home, since he is also considered the owner of the home and has all legal rights to it, including the right of residence.

In Art. 292 of the Civil Code of the Russian Federation spells out one point that you should definitely pay attention to before you begin to draw up a claim in court. If during privatization a citizen was registered in an apartment, but wrote a refusal to participate in the procedure in favor of the second spouse, he receives a lifetime right to use this premises. Under such circumstances, it is also not possible to discharge him from his home.

The only option on how to evict an ex-husband from an apartment if he is not the owner involves filing a lawsuit, but provided that the citizen was not registered in it during the privatization of the apartment and did not write any refusal documents.

From a donated or inherited apartment

The law explains how to evict a husband from his apartment after a divorce, if we are talking about residential real estate received by the spouse or. In this case, it does not matter at all in what period of time the wife acquired housing - before marriage or during the marital relationship. In such a situation, the decision is made automatically, after the dissolution of the marriage.

If the marriage is terminated, the second spouse loses the right to reside in the premises. In case of refusal, the eviction will be carried out forcibly, after the relevant court decision is made. The basis for this may be a gift agreement or a certificate of non-inheritance. If there is a complete list of necessary documents, the court will oblige the defendant to evict within a certain period.

From a council apartment

Some difficulties may arise when. The likelihood that you will be able to fulfill your intentions is very low, because the social lease agreement for each specified tenant provides equal rights, including to live in the apartment.

Even if the spouse does not act as a tenant, but is registered in the apartment, the law retains his right to own such living space. There will be only one way to resolve the situation - to find suitable option exchange of housing.

If the spouse constantly refuses to make an exchange, then you can go to court and force him to do it forcibly. It is worth filing an application with the court only when there is an option for exchange.

An exception to the situation is the condition when. There is an opportunity to evict a citizen forever. The reason for eviction may be the citizen’s move to another city or housing.

If he is not the owner

There will be no difficulties with the fact that the apartment belongs to the second spouse. After the dissolution of the marriage, the spouse's right to use residential premises automatically terminates.

If he refuses to fulfill this condition, then the owner of the apartment may demand to evict the citizen through the court. A sample statement of claim for eviction of a former spouse can be easily found on the Internet or contact a lawyer.

The owner may demand to evict a citizen without allocating another home. Under such circumstances, the law will protect the owner's right and will most likely accept it. In the future, this can be done forcibly with the help of bailiffs.

The list of documents for eviction of your ex-husband can also be found from a lawyer, obtained from the court, or read at the end of this article. There are also a number of rules under which the other spouse can remain living in the apartment, regardless of the owner’s appeal to the court:

If the second spouse has obligations to pay alimony to his ex-wife (husband), then demands for housing may be put forward as a replacement;
When the ex-spouse does not have the opportunity to buy or rent housing, the court agrees to meet him and will allow him to live in the apartment for up to a year, until he finds such an opportunity.

If the owner decides to sell the home, the court decision is terminated and the ex-spouse must move out.

From service housing

It also has a number of nuances. There is a special procedure for using an apartment, which is the property of the employer’s organization. The agreement on the provision of living space clearly states that the tenant’s relatives do not have the right to use the dwelling separately, and are obliged to move out in such a situation.

An exception is considered to be circumstances when relatives do not have the financial ability to provide themselves with another place to live. Then they temporarily retain the right to be in the premises, but only for a specific period announced by the court.

If the tenant loses his right to use housing, for example, quits, then his spouse will also not be able to occupy the apartment. During a divorce, the decision is made unequivocally. The second spouse is forcibly evicted from official housing at the request of a company employee

Procedure in case of such situations

The article has already noted that eviction can be voluntary or forced. In the first case, and in the future, they independently set the deadlines for vacating the apartment. With this option, going to court is not required.

The second method is forced eviction. The apartment owner resorts to this option when the ex-spouse does not want to voluntarily check out. To ensure that you get rid of an unpleasant tenant, you should carefully draw up the statement of claim and attach all the necessary documents to it.

The trial can be significantly complicated by the presence of minor children, as well as various nuances relating to the apartment itself. Additional circumstances can significantly increase the duration of the trial and negatively affect the outcome of the case.

Watch useful video

What documents are needed to file a lawsuit?

To go to court, you will need to prepare a package of documentation that confirms that the plaintiff is right. The following documents can serve as evidence:

Title documents for residential premises;
Home Book;
Extract from the Unified State Register;
Certificate of termination of marital relations;
Receipt for payment of state duty (for individuals- 200 rubles);
An extract from the personal account confirming the absence of rent arrears;
Written evidence of the case or testimony.

You should be as careful as possible in the preparation of documents, because the judge will check all the attached papers and make a final decision based on them.

Eviction deadlines

When making a final decision, the court takes into account various external factors. Attention is paid to the financial security of the citizen and whether he has other real estate. If conditions are satisfactory, eviction should take place as soon as possible - within seven days.

Sometimes it happens that this is not possible, and in this case, the court meets the ex-spouse halfway and allows him to live in the apartment for some time while he solves his housing problems. Here the period can range from two months to a year, but the judge has the right to increase this period taking into account individual circumstances.

Results of judicial practice

To evict a former spouse from an apartment, you must have legal grounds. The easiest way to cope with the problem is for owners of their own property, which was privatized without the participation of a husband or wife, and was also inherited or transferred as a gift. In other circumstances, the eviction may not take place because it is contrary to the law.