Under a lease agreement for specialized residential premises, one party - the landlord (the public owner of housing or a public authority authorized by him or another person authorized by him) undertakes to transfer to the other party - a citizen-tenant - a specialized living quartersfor a fee for possession and use for temporary residence in it(Clause 1, Article 100 of the LCD).

In its own way legal nature this agreement is bilateral, consensual, reimbursable And urgent. It is in writing, the content of which is determined by the Federal Government-approved Model Contract of Employment for Specialized Residential Premises, which is by law. normative act, and not a standard form developed by one of the parties to the contract.

Although the contract of employment of specialized residential premises resembles a contract of social employment (primarily by the presence of administrative and legal prerequisites, as well as the predetermination of a significant part of its content by the imperative rules of the law), nevertheless, it is not a variety of it. It differs from social recruitment temporary(which causes the corresponding features of its termination and termination) and mandatory compensatory use, as well as the absence of any opportunities for the tenant to dispose of housing (in the form of sub-lease, exchange, etc.). The content of the administrative and legal prerequisites for concluding social tenancy agreements and hiring specialized housing also differs significantly: in the latter case, the state is not required to be registered as in need of housing, the norms and rules for providing housing under a social tenancy agreement are also not applied, however, housing is provided only specially categories of citizens defined by law.

Landlord under a rental agreement for specialized housing, has the same rights and bears the same obligations as the landlord in a social rental agreement (Article 65, clause 5, Article 100 of the LC), in particular entitled demand timely payment by the tenant of the residential premises and public utilities but from my side must provide the tenant with an appropriate living space, carry out its overhaul and ensure the provision of utilities of the proper quality to the tenant.

Employer under this agreement, he is obliged to use specialized residential premises strictly for their intended purpose, ensure its safety and maintain its proper condition, including current repairs, as well as timely pay for residential premises and utilities and bear other obligations stipulated by law and the contract (clause p. 3 and 4, Article 67 of the LCD).

Family members of the employer specialized housing, the composition of which coincides with the composition of the tenant's family members under a social contract of employment, as a general rule, have a similar legal status co-tenants(Article 69 of the LCD). In this regard, they are also indicated in the contract of employment of specialized residential premises.

However, in such a version of this agreement as office space rental, members of the tenant's family, although they acquire an equal right with him to use the provided premises and bear joint and several liability with him for the obligations arising from the use of this residential premises (unless otherwise established by agreement between them), but as a general rule lose this is their right in the event of termination of family relations with the employer (clause 4 of article 31 and clause 5 of article 100 of the LC), which significantly distinguishes their status from the position of former family members of the employer under a social contract of employment.

There are three statutory types of rental contracts:

  • A social tenancy agreement is an agreement concluded between representatives of the state or municipal housing stock and a citizen of the Russian Federation.
  • Specialized lease agreement - an agreement in which the object of the lease is a specialized premises.
  • Commercial lease agreement - an agreement in which the Landlord is presented as an entrepreneur and the premises are rented out for profit.

All of these types of contracts have certain general trends and features. All of them regulate the relationship of hiring housing. For all of them, the parties are: on the one hand, the Landlord, who transfers the residential premises for use and for living, on the other hand, the Tenant, who accepts the premises for use and agrees to the terms of the contract.

From a legal point of view, these are bilateral, compensated contracts, since each party has its own rights and obligations, as well as living and using real estate provides for material compensation in the form of a monthly fee for living. Some exceptions are granted in relation to social tenancy agreements, for which a gratuitous transfer is provided and the Tenant may be exempted from paying for the use of such premises. All of the above contracts are of a consumer nature, since they are designed to satisfy a person's consumer needs for housing. All types of residential lease agreements can be executed in writing.

However, there are differences between these contracts.

Commercial employment contracts are regulated by the Civil Code of the Russian Federation, while specialized and social employment contracts are regulated by Housing Code. Contracts for specialized and social hiring can only be concluded with a party that has a state or municipal housing stock. In this case, the other party must have necessary prerequisites in order to be able, according to the law, to conclude such contracts, namely, a citizen and members of his family must be recognized as poor citizens and in need of improved housing conditions, and must also stand in line for apartment registration.

Commercial lease agreements are civil law agreements in which the parties are free to independently determine the terms and conditions of the agreement.

Rights and obligations of the tenant and landlord

Under a tenancy agreement, the owner of a dwelling place or a person authorized by him (landlord) undertakes to provide a citizen (tenant) and members of his family with a dwelling place for use for a fee.

Rights and obligations of the employer

The tenant has the right:

  • - move, in accordance with the procedure established by law, to the living quarters occupied by him of his spouse, children, parents, other relatives, disabled dependents and other persons, subject to the established norm of living space, having received the written consent of all adult members of his family. The consent of their family members is not required to move in with the parents of their children who have not reached the age of majority;
  • - with the written consent of adult family members living together with him, including those temporarily absent, and in the presence of minors - with the consent of the guardianship and guardianship authority, to exchange the occupied living quarters in the prescribed manner;
  • - to keep the living quarters in the temporary absence of him and his family members, on condition and in the cases provided for by the housing legislation of the Republic of Kazakhstan. Living space, which is retained by a temporarily absent tenant or members of his family, is not considered excessive;
  • - sublease the occupied premises or part of it in the cases and in the manner established by the current legislation;
  • - allow, by mutual agreement with the adult members of his family living with him, temporary residence in the residential premises that they use for other citizens (temporary residents) without charging a fee for using the premises. Move-in of temporary residents for a period of more than one and a half months is allowed, subject to compliance with the established norm of living space;
  • - demand, with the consent of family members, in cases established by law, changes in the contract for renting the occupied premises;
  • - with the consent of family members at any time to terminate the contract of employment of residential premises;
  • - with the consent of all cohabiting adult family members, acquire the occupied residential premises in the property in the prescribed manner;
  • - to reorganize, redevelop residential and auxiliary premises according to a project agreed upon in the manner prescribed by law;
  • - to exercise other rights for the use of residential premises, provided for by the legislation of the Republic of Kazakhstan and regulatory legal acts.

The tenant is obliged:

  • - comply with and comply with the requirements stipulated by law for the use of residential premises, the maintenance of a residential building and adjacent territories;
  • - use the living quarters, as well as auxiliary premises and equipment without infringing on the housing, other rights and freedoms of other citizens and strictly in accordance with their purpose;
  • - take care of the living quarters, sanitary and other equipment, ensure their safety and proper operation; provide unimpeded access to the rented premises to the representatives of the lessor to inspect the premises and production repair work. If faults are found in the premises, immediately take possible measures to eliminate them, if necessary, report them to the renter or to the appropriate emergency service;
  • - take care of the residential building, adjacent territory, landscaping and green spaces;
  • - keep clean and tidy residential and utility rooms, balconies, loggias; keep cleanliness and order in the entrances, elevator cabins, stairwells and other public places; take out the trash, food and household waste to designated areas. Do not allow garbage and waste clogging the sewer to be dumped into the sanitary unit, do not drain liquid food waste in the garbage chute;
  • - observe fire safety rules when burning stoves and kitchen hearths, when using electrical, gas and other appliances, do not allow the installation of home-made safety plugs, blocking corridors, passages, stairwells, emergency exits, comply with other fire safety requirements;
  • - economically spend water, gas, electric and thermal energy;
  • - carry out in a timely manner, but at least once every five years, current repairs of the occupied premises and utility rooms in the apartment.

The current repairs carried out by the tenant at his own expense include the following works: whitewashing, painting and pasting walls, ceilings, doors, painting floors, window sills, window casings from the inside, radiators, as well as replacing window and door appliances, repairing interior and electrical wiring .

If the performance of these works is caused by a malfunction of individual structural elements of a residential building or equipment in it, or is associated with the production of major repairs and reconstruction of a residential building, then they are carried out at the expense of the landlord;

  • - to eliminate damage to the residential premises at their own expense, as well as to repair or replace damaged sanitary or other equipment, if these damages occurred through the fault of the tenant or other persons living together with him;
  • - not to reorganize, redevelop residential and auxiliary premises, reinstall or additionally install sanitary and other equipment without obtaining an appropriate permit;
  • - in a timely manner, no later than the tenth day of the following month, pay for housing, as well as utilities at duly approved tariffs;
  • - not to allow the performance of work in the apartment or the commission of other actions that lead to damage to residential premises or create increased noise or vibration that violates the normal living conditions of citizens in other residential premises.

The use of televisions, radios and other loud-speaking devices is allowed only if the audibility is reduced to a degree that does not disturb the peace of the residents of the house. Silence must be observed from 23.00 to 07.00;

  • - move with members of his family for the period of major repairs or reconstruction of the residential building in which he lives (when repairs cannot be made without evicting the Tenant), to another residential premises provided by the landlord that meets sanitary standards, without terminating the lease agreement;
  • - to produce in houses where there is no central heating, during the heating season, heating of the dwelling.

In the temporary absence of the tenant and members of his family, the tenant is not released from the obligation to heat the dwelling to maintain normal temperature in it in order to ensure the safety of a residential building;

  • - daily clean stairwells and corridors in one- and two-story apartment-type residential buildings in accordance with the schedule established by the residents of the building based on the number of residents living in this building;
  • - when moving from a residential area to another permanent place of residence with the whole family, vacate and hand over to the landlord residential and utility rooms, sanitary and other equipment according to the act in proper condition.

Failure by the tenant to carry out work on current repairs, which is his responsibility, as well as to eliminate existing malfunctions, is recorded in the act of delivery of the residential premises. In this case, the cost of the specified repair and the cost of repairing the damage shall be reimbursed by the Hirer.

The act of delivery of residential premises by the tenant is drawn up and signed by the landlord, the Tenant and the representative public organization or any other independent person.

Rights and obligations of the landlord

The landlord is obliged:

  • - to provide the tenant with a dwelling in proper condition;
  • - in accordance with the rules and regulations for the operation and repair of housing stock:
  • - systematically inspect (at least 2 times a year) residential buildings and residential premises and preventive maintenance of sanitary and other equipment located in it, timely repair a residential building, ensure uninterrupted operation of sanitary and other equipment located in it ;

timely carry out the necessary major repairs in the Tenant's apartment, replace the main structures of the house, doors, window frames, floors due to normal wear and tear, relocate stoves (in houses where there is no central heating), repair sanitary and other equipment;

  • - carry out intra-apartment current repairs of the Tenant's residential premises in cases where such repairs are associated with the elimination of malfunctions of individual structural elements of a residential building or equipment in it, or with the production of major repairs or reconstruction;
  • - fix malfunctions of sanitary and other equipment in the Tenant's apartment within the time limits stipulated by the standard upon receipt of the Tenant's application, and in the event of an accident - immediately;
  • - to carry out daily cleaning of entrances, lobbies, vestibules, stairwells, elevator cabins and other common areas of residential buildings (except for one- and two-story apartment-type buildings), as well as the adjacent territory;
  • - provide the Tenant and members of his family for the period of major repairs or reconstruction of a residential building (when repairs cannot be made without evicting the Tenant) a residential building for the period of repair (reinforcement of load-bearing structures) that meets sanitary standards, without terminating the contract, or other well-maintained premises for permanent use. The relocation of the Tenant and members of his family from the residential premises occupied by them to another residential area and back (upon completion of the repair) is carried out by the landlord at his expense;
  • - timely prepare residential buildings, sanitary and other equipment located in them for operation in winter conditions.

The Landlord provides the Tenant with utilities that meet the mandatory requirements of norms and standards, sanitary rules and regulations and the terms of the contract, as well as information about these services.

Non-standard parameters of utility services are set by energy supply organizations only upon agreement with the executive authorities and local self-government, while these same authorities change the payment for services.

If the energy supplying organizations fail to provide the proper quality of public services, the Landlord has the right to apply penalties to them to compensate the Tenant for material and moral damage.

The landlord has the right to demand termination of the contract in court (except for eviction from houses that threaten to collapse) and (or) bringing to administrative or other liability in the manner prescribed by law:

  • - if the Tenant uses the rented premises not in accordance with its purpose;
  • - if the Tenant does not pay for housing and services;
  • - if the Tenant intentionally worsens the rented accommodation;
  • - if the Tenant violates the rights and interests of neighbors;
  • - in other cases established by the legislation.

Family members of the Tenant, living together with him, enjoy all the rights on an equal basis with the Tenant and bear all the obligations arising from the contract. Adult family members are jointly and severally liable with the tenant for the obligations arising from the contract.

The amount of payment for housing and utilities under the contract is calculated in accordance with the established procedure.

The amount of payment for rented accommodation and utilities may be reviewed by the Landlord in the event of a change in the relevant tariffs.

The landlord cannot change the tenancy agreement without the consent of the tenant and members of his family, except as provided by applicable law.

After a decision has been made to provide the Tenant and members of his family with another dwelling in order to improve housing conditions, registration, division of personal accounts, exchange and privatization of the rented premises are prohibited.

When the Tenant and members of his family leave for permanent residence in another place, the contract of employment is considered terminated from the date of departure.

The Landlord and the Tenant agreed that if the Tenant or a member of his family receives an order for another dwelling with the inclusion of all cohabiting family members who have given the obligation to vacate the occupied dwelling, the contract shall be terminated from the date of issuance of the warrant.

Disputes that may arise between the parties under the contract are resolved judiciary or other authorized bodies in accordance with their competence.

In the event of the adoption of regulatory legal acts that change the rights and obligations of the Landlord or Tenant, the contract must be brought into line with these acts.

  • - the subject of the contract;
  • - rights and obligations of the parties;
  • - procedure for settlements;
  • - the term and conditions of the contract;
  • - the procedure for terminating the contract;
  • - additional conditions, addresses;
  • - passport data, signatures of the parties.

Attached to the rental agreement:

  • - payroll or receipt for the transfer of the agreed amount of money;
  • - act of acceptance and transfer of the object of the contract;
  • - inventory of property;
  • - additional agreement (if necessary).

Subject of the contract. The purpose of the rental agreement is to ensure the transfer of the residential premises at the specified address for temporary use. This section gives the characteristics of the rental object and the condition of the sanitary equipment.

An important point is a link to a document confirming the ownership of the landlord. It is in the interests of the tenant to check the availability of a certificate of ownership, which is confirmed by a privatization, sale, donation, testament agreement.

It is the owner who has the right to rent out the property. If he cannot be present at the conclusion of the transaction in person, then a person who has special permission for this - a power of attorney issued by a notary acts on his behalf. If the leased premises has several owners, it is necessary that all of them sign the lease agreement if it is a tripartite agreement. When their presence cannot be ensured, at the conclusion of the contract, a notarized consent of all co-owners to lease the premises is submitted.

The tenant must understand that if the dwelling is leased to him by an unauthorized person, then the lease agreement is considered invalid.

In addition to confirming the right of ownership, the lessor must guarantee that before the conclusion of the agreement, the object was not sold to anyone, transferred, pledged, encumbered with other lease agreements, is not in a dispute or under arrest, and is not burdened with other obligations in relation to third parties.

If, together with the tenant, the dwelling will be rented by other persons, then information about them must also be entered in this contract.

Rights and obligations of the parties. According to this section, the tenant undertakes to pay the rent in a timely manner (it is necessary to indicate penalties for each day of delay in payment), use the facility for its intended purpose, and ensure the safety of the premises and the property located in it. If damage to the premises occurs due to the fault of the tenant, then he must eliminate it at his own expense. In addition, a temporary tenant does not have the right to redevelop housing without obtaining permission from the landlord. It is forbidden to sublease the object without the prior written consent of the owner of the living space. Upon the expiration of the contract, the tenant undertakes to release the object and return the property to the lessor in good condition, taking into account natural wear and tear.

Viewing of the object can take place in the presence of the agent, landlord and tenant. It is important to make sure that the agent is really an employee of a professional real estate company. An employee of the agency conducting the transaction must carry and present to the client:

  • - passport;
  • - a power of attorney for the right to conclude an agreement on renting an apartment and receive commissions on behalf of the agency, or in a number of firms, agent certificates with a hologram or bar code are used. If the agent presents a power of attorney, do not hesitate to check the agent's passport details with those specified in the power of attorney, and also pay attention to its validity period, the signature of the general director and the seal.

Before renting an apartment, it must be carefully inspected. A scrupulous study of potential housing will save you from unpleasant surprises in the future. And no matter how difficult the situation between the owner and the tenant may be, the latter must remember that, having a lease agreement in hand, he can safely defend his rights in court.

If you are satisfied with the housing, you, together with the representative of the agency, need to carefully check the documents of the owner of the apartment confirming the right to own the object (passport with registration at the address of the object, certificate of ownership of the object, which is issued on the basis of a contract of sale, privatization, donation, etc. .).

Signing a contract of employment. When renting an apartment, a bilateral rental agreement is concluded between the landlord (landlord) and the tenant (tenant). The presence of a realtor in this case must be confirmed by a special protocol. It is necessary to include a clause in the rental agreement in which the landlord confirms that he has agreed on the issue of renting the premises with all interested parties. To verify the data, you can ask for a certificate of form 9, which lists all citizens registered in this apartment.

The text of the agreement must include:

  • - passport details of both parties (details legal entities);
  • - the amount of rent; the procedure for paying rent (terms, penalties in case of delay in payment);
  • - Penalties in case of violation of the terms of the contract;
  • - conditions for possible termination (at the initiative of the tenant, the contract is considered terminated regardless of the consent of the landlord only if there was a prior warning of the landlord and the consent of citizens permanently residing with the tenant. in court and only on the grounds provided for by law) and the responsibility of the parties;
  • - the amount of the security deposit and how it is used;
  • - consent in writing of all persons living in the territory of the object of hiring (all residents of a communal apartment, all registered in a separate apartment);
  • - the date of conclusion of the contract;
  • - contract time.

When signing a room lease agreement, the tenant receives the right not only to live in the room, but also to operate common areas (MOP). Therefore, the tenant must secure his rights to use the residential premises in the lease agreement, specifying in as much detail as possible all the conditions for using the room and public places. The more detailed these conditions are reflected in it, the less likely it is that in the future there will be disagreements with the owner or apartment neighbors.

Attached to the rental agreement:

  • - act of acceptance of the transfer of the apartment (room);
  • - an inventory of the property transferred together with the apartment (room);
  • - receipt of settlements between the parties; consent of all residents (in writing);
  • - an agreement (agreement) on the provision (and payment) of the company's services (if such a form is adopted).

The lease agreement is drawn up and signed in two copies, one of which remains with the tenant, the second - with the landlord. After signing the contract, payment is made for accommodation for the agreed period, as well as agency services (if any) under the contract (agreement). At the same time, the agent must issue a copy of the contract, a receipt for the receipt of money and a credit note from the company.

Prerequisites for the conclusion of the SDS of the residential premises

In the context of the continuing shortage of relatively cheap state and municipal housing and the impossibility for the public authorities to bear all the costs of its maintenance, and on the other hand, the emergence of various new forms of meeting the housing needs of citizens, the free provision of housing for use is no longer the main one, as before , but by an exceptional way of solving the housing problem, accessible only to the least socially protected and, therefore, the most needy categories of citizens. In this regard, the legislation strictly regulates the conditions, procedure for the provision and use of such housing, which creates a special legal regime of obligations arising on the basis of the contract in question. First of all, this refers to the order of their occurrence, which is determined not by the free mutual expression of the will of the parties, but by the presence of administrative and legal prerequisites determined by law.

To the prerequisites (conditions) under which a citizen can apply for free housing from the state or municipal housing stock (fund social use) under a social contract of employment include:

  1. recognition of his need for housing (clauses 2 and 3 of article 49 of the LCD) and,
  2. his acceptance by the local self-government body as in need of housing (clause 1, article 52 of the LCD).

Housing legislation no longer considers permanent (and earlier often long-term) residence in a given locality as necessary condition for the provision of state or municipal housing for use (especially when replacing the previous requirements for registration with the rules on registering one's stay, which is necessary for the real functioning of the right of citizens to choose a place of residence provided for in Article 18 of the Civil Code).

Need in this case is understood as an urgent need for better living conditions. this citizen and his family, which is determined not by a citizen's subjective assessment of his living conditions, but by objective criteria provided for by law. At the same time, the law (clause 1, article 51 of the LC) contains an exhaustive list of grounds for recognizing citizens as in need of residential premises.

In the presence of the above conditions and their documentary confirmation, the citizen has the right to demand registration as a person in need of housing. If he has several grounds for registration, a citizen, at his choice, has the right to demand that he be registered on one or several (all) grounds (for example, as a poor person and at the same time belonging to one of those determined by law other categories of citizens). This requirement in the form of a written application with the necessary documents attached is addressed to the local self-government body that carries out registration.

The latter, based on the results of consideration of the application, must make an appropriate decision (paragraphs 3-6 of article 52 of the LC). Refusal to accept a citizen for registration as in need of housing in accordance with paragraph 1 of Art. 54 of the LCD is allowed only if he does not have the necessary documents (if they are not presented or do not confirm his right to be on such a register) or if a citizen deliberately takes actions as a result of which he can be recognized as needy for the purposes of registration (for example, in case of deliberate deterioration of their living conditions by selling their housing or exchanging it for a worse one or additionally introducing new people into it). In the latter case, a citizen can be registered, but not earlier than five years from the date of the specified actions. The decision to refuse registration may be appealed by a citizen to the court as unreasonable.

From the moment of registration, a citizen has the right to be registered (clause 2, article 52 of the LC) as an element of the relevant housing relationship, the subjects of which are the citizen and the body that carries out registration. By its nature, this relationship is administrative-legal. Accounting consists in the fact that a citizen who has submitted a corresponding application (with the necessary documents attached) is recorded in a special book containing a list of persons who have submitted similar applications.

The right of a citizen to be registered as needing housing is protected by law. It is retained by the citizen until he receives a dwelling or until the grounds provided for by law for deregistration are identified. Deregistration is allowed only in cases provided for in paragraph 1 of Art. 56 LCD. In case of unjustified deregistration, a citizen has the right to apply to the court with a complaint about the illegal actions of local governments that committed the violation.

Under a tenancy agreement one party - the owner of the residential premises or a person authorized by him (landlord) - undertakes to provide the other party (tenant) with residential premises for a fee for possession and use for living in it (Article 671 of the Civil Code of the Russian Federation).

In the state and municipal housing stock of social use, living quarters are provided to citizens under a social tenancy agreement(Article 672 of the Civil Code of the Russian Federation), under a contract for renting a dwelling of a housing fund for social use.

Under a social tenancy agreement one party - the owner of the residential premises of the state housing stock or municipal housing stock (the authorized representative acting on his behalf government agency or an authorized body of local self-government) or a person authorized by him (landlord) undertakes to transfer to the other party - a citizen (tenant) a dwelling for possession and use for living in it on the terms established by the LC RF.

If there are prerequisites established by law, residential premises are provided under social rental agreements to registered needy citizens in order of priority based on the time of their registration and the availability of appropriate residential premises. Two categories of citizens in accordance with paragraph 2 of Art. 57 ZhK residential premises under social tenancy agreements are provided out of turn (and, as a rule, even without being registered as needy):

  1. citizens whose living quarters are recognized in accordance with the established procedure as unfit for habitation and are not subject to repair or reconstruction;
  2. citizens suffering from severe forms of chronic diseases specified in paragraph 4 of part 1 of Art. 51 of this Code list.

The decision to provide housing under a social tenancy agreement, adopted by the local government, entails the termination of the housing (administrative) legal relationship that arose from the fact that a citizen was registered with those in need of residential premises. At the same time, it also becomes the basis for concluding a social tenancy agreement within the period established by it (clause 4, article 57 of the LC), by virtue of which the landlord has an obligation to transfer appropriate housing to the citizen-tenant.

At the same time, the decision to provide housing under a social tenancy agreement and the agreement concluded on its basis may be declared invalid in court in relation to the rules of Art. 168 of the Civil Code at the request of interested persons or the prosecutor, which will entail the eviction of citizens who have received such housing.

Disputes about eviction, when the landlord wants to evict the tenant, and the tenant wants to keep the living space, are considered in the courts, but they cannot be classified as simple. In connection with changes in housing laws and judicial practice, it is better to use the experience of an eviction lawyer when such a dispute arises. It is a professional lawyer with extensive experience in housing disputes who will help resolve a situation of any level of complexity.

Residential premises as an object of a social tenancy agreement

Moreover, separate (isolated) living rooms in residential apartments (“parts of apartments”) can become an independent subject of a social tenancy agreement only in two cases expressly provided for by law:

  1. when such a room is vacated in a communal apartment (clause 6, article 57, clause 4, article 59 of the LCD);
  2. exceeding the established norm for the provision of housing under this agreement (clause 2, article 58 of the LCD).

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In the first case rooms vacated in communal apartments are provided under a social tenancy agreement, first of all, to other residents of the same apartments, who, based on the above criteria, are recognized or can be recognized as poor and in need of residential premises. In the absence of such citizens, the vacated room can be provided under this agreement to those poor tenants of the apartment who are provided with housing less than the provision rate (greater than the accounting rate) per person. In the absence of such applicants for the vacated room, it can be sold under a sale and purchase agreement to tenants who are not poor, but who are provided with housing less than the norm for one person. Only in the absence of such persons, the vacated room is populated on the basis of a social tenancy agreement by an outsider (Article 59 of the LC).

In the second case the case concerns situations where housing under a social tenancy agreement is forced to be provided to a citizen in excess of the provision rate (for example, housing is provided to a lonely person or a citizen suffering from one of severe forms chronic diseases, in which cohabitation with him is impossible). Since the norm for providing housing per person here cannot be exceeded more than twice (clause 2, article 58 of the LCD), he may not be provided with a separate apartment, but only an isolated room.

However, without the consent of citizens it is not allowed to settle the same room by persons of different sexes(except for spouses), and regardless of their age (clause 1, article 58 of the LCD). This is a significant benefit to citizens, by virtue of which, for example, a single mother with a young son can apply for a two-room apartment or two rooms, regardless of the size of the excess of the housing provision that arises.

The rate of providing housing under a social contract of employment is minimum size the total area of ​​residential premises, established by the local government, depending on the level of provision of residential premises achieved in the relevant municipality and other factors (clauses 1 and 2 of article 50 of the LCD). In all cases of providing housing under a social tenancy agreement, the total area per person should not be less than the specified norm. This is its legal (civil law) significance. The norm of providing housing usually exceeds the accounting norm used to determine the need for registration. Citizens who are registered on the basis of federal laws and the laws of the constituent entities of the Russian Federation not as poor, these laws may establish other norms for the provision of housing from the state housing stock under social rental agreements (clause 3, article 50 of the LC) .

At the same time, housing is provided to citizens at their place of residence (according to paragraph 5 of article 57 of the LC - within the boundaries of the corresponding settlement, which does not exclude, for example, the resettlement of citizens from its center to the outskirts).

The suitability of a dwelling for permanent residence of citizens is determined by its compliance with established sanitary and technical standards and other legal requirements, including those related to its improvement (paragraph 2, clause 1, article 673 of the Civil Code, clause 2, article 15 of the LCD) (currently, the requirements that a residential building must meet are established by the Regulations on recognizing the premises as residential premises, residential premises unsuitable for habitation and apartment building emergency and subject to demolition or reconstruction, approved by Decree of the Government of the Russian Federation of January 28, 2006 No. 47).

It does not come down, therefore, only to a certain area (size) of housing, but concerns a complex of its various parameters: the capital character of the building, intended for the residence of citizens in all seasons of the year; availability of centralized heating, hot water supply and other utilities, etc. At the same time, the law speaks of well-being “in relation to the conditions of the respective locality” (cf. paragraph 1 of article 89 of the LC), thereby considering it as a relative, and not an absolute, characteristic of the housing provided. From this point of view, the category unsuitable for habitation, in any case, includes premises in barracks and emergency houses; basements and semi-basements; rooms without natural light; premises for auxiliary use (halls, kitchens, corridors, storerooms, etc.) and other similar premises that cannot be the object of a housing lease.

Conclusion of a social tenancy agreement and the emergence of the right to living space

A social tenancy agreement is concluded on the basis of an administrative and legal decision on the provision of housing from the housing stock for social use (clause 1, article 63 of the LC).

It can be concluded only for the premises specified in this decision and corresponding to the above-mentioned legal requirements. That's why the subject of this agreement is not agreed upon by its parties, and also cannot be changed or clarified by them. In the same way, the conditions for using the housing provided under a social tenancy agreement are imperatively determined by housing legislation, and not by agreement (mutual will) of the parties. Thus, the very civil law agreement of the parties on the conclusion of this contract is possible only if there is an administrative-legal decision on the provision of housing.

At the same time, the future landlord is bound by the named decision, primarily in the sense of the impossibility of refusing to conclude a social tenancy agreement with the citizen indicated in the decision, and the latter, freely agreeing to conclude an agreement, is bound by an administrative-legal decision in the sense of the impossibility of changing the proposed subject and a number of other essential conditions of the contract concluded by him.

The resulting agreement is subject to obligatory writing(Article 674 of the Civil Code) according to the standard form. A model contract for social rental of residential premises is approved by the Government Russian Federation.

At the same time, it should be recognized that the legal relationship of hiring a specific residential premises and, accordingly, the right of citizens to use this residential premises arise only from a contract for hiring a residential premises. The decision to provide housing entails the emergence of an independent, complex housing relationship for the conclusion of a social contract of employment (with its own subject composition, content and all other attributes). After all, until the contract of social hiring is not concluded, the legal relationship of hiring a dwelling does not arise; a citizen, despite the decision to provide housing, does not have the right to use the premises indicated in it, there is no obligation to pay a fee for using it, etc. All these rights and obligations can be acquired only from the moment of conclusion of the contract.

The premises provided under a social tenancy agreement from the state or municipal housing stock are transferred to the intended possession and use of its tenant (clause 1, article 60 of the LC). Strictly speaking, for the sake of acquiring these opportunities by a citizen-employer, this contract is concluded. The content of these powers consists in the possibility of living in the residential premises of the tenant himself, as well as members of his family. At the same time, the tenant, having concluded the contract, also acquires certain elements of the right of disposal, for example, the right to exchange the rented premises, sublease it, etc. (clause 1, article 67 of the LCD). In the aggregate, the authority to own and use a rented dwelling (taking into account the elements of the right of disposal) is often called the right to living space.

A note on the essence of a right arising from a contract

In its essence, this right is the right of the tenant (and members of his family) arising from the contract to a thing belonging to another person, i.e. the right to use someone else's real estate (residential premises) within the limits provided by law and the contract. Previously, a rather hasty conclusion was sometimes made from this about the nature of this right as a limited real right, despite the lack of some necessary signs of real rights (the absolute nature and real-law protection of the relationship between the landlord and tenant; state registration of this right , corresponding to the "principle of publicity" characteristic of property rights, etc.).

The main thing, however, is that the right to living space, which is imperatively defined by law, in terms of its legal content and socio-economic nature, is in fact legal way free distribution among the poor and other citizens of scarce state and municipal housing, and not civil legal registration of objectively necessary economic relations for the use of someone else's (private) real estate. Therefore, from a civil law standpoint, it can be characterized as an obligatory right to use an immovable thing that is in public ownership, arising on the basis of administrative and legal prerequisites, the content of which is imperatively determined by law.

The foregoing fully explains the strictly targeted nature of the right to living space, which also distinguishes it from traditional rights in rem.

Residential premises are provided to the tenant and members of his family for living in it, i.e. to meet their housing needs (clause 1, article 17 of the LCD, part 1 of article 678 of the Civil Code). The tenant, under a social tenancy agreement, is obliged to use the residential premises only for living, he is not entitled to transfer him to a non-residential premises for use for other purposes without observing the conditions specially provided for by law (Articles 22-24 of the LC). Placement in residential premises is not allowed trade enterprises, offices of legal entities, their use for the needs of an industrial nature, for warehouses, etc. The use of residential premises for other purposes becomes (subject to the conditions provided for by law) the basis for terminating the contract for renting residential premises without providing other housing (clause 1 of article 91 of the LC, paragraph 2 of clause 4 of article 687 of the Civil Code).

Contents of a social tenancy agreement

Under a social tenancy agreement, one party - the landlord (the public owner, a body authorized by him or a person authorized by him) undertakes to transfer to the other party - a citizen (tenant) the dwelling for possession and use for living in it on the conditions established by law (clause 1, article 60 of the LCD).

By its legal nature this agreement is consensual, bilateral and mutual (synallagmatic); it can be both reimbursable and gratuitous (in the cases provided by law for the exemption of the tenant from the rent).

An important feature of a social contract of employment is its indefinite nature, since it does not include a term condition in the interests of the employer (and its termination for reasons related to the expiration of the term is not allowed).

The landlord in social hiring is the public owner of the dwelling or the state body or local self-government body (public authority) acting on his behalf. To operate the housing stock belonging to him, he usually creates special housing maintenance organizations with the rights of a legal entity (housing maintenance offices (ZHEKs), building maintenance directorates (DEZs), directorates of a single customer (DEZs), etc.), which gives the right to conclude contracts for the rental of residential premises. The landlord (authorized to do so by the public owner or public authority) in the contract under consideration can also be a unitary enterprise or institution that has a housing stock on its balance sheet as a legal entity, or a housing maintenance organization created by them.

Change of the owner (or, respectively, the subject of the right of economic management or operational management), i.e. the landlord of the premises, according to the rule of art. 64 of the LCD (Article 675 of the Civil Code) does not entail either termination or changes in the terms of the contract of social employment. In this case, the tenant's (tenant's) traditional for hired relations also becomes an important guarantee of observance of the housing rights and interests of citizens.

Tenant in a social tenancy agreement only a citizen can act, for which a decision has been made about providing him with housing. The administrative-legal nature of such a decision excludes the assignment of the right to receive housing. However, after the conclusion of the contract, it is possible to replace the tenant with another capable family member(clause 2, article 82 of the LCD).

The landlord, under a social tenancy agreement, is obliged to transfer to the tenant the subject of the agreement - a dwelling that meets the requirements of housing legislation and is free from the rights of other persons (subclause 1, clause 2, article 65 of the LC). It should be assumed that this refers not only to possible encumbrances of the right to the provided premises (including servitude-type rights), but also to obligations for its maintenance (repair, payment of utilities, etc.).

According to paragraph 2 of Art. 65 of the LCD, the obligations of the landlord under this agreement also include the overhaul of the residential premises and ensuring the provision of the tenant with the necessary utilities (connecting it to water, electricity and (or) gas supply), as well as participating in maintenance and repair common property apartment building in which the rented premises are located. By virtue of the instructions of the housing legislation or the contract of social employment, other obligations may also be assigned to the landlord.

This last "duty" of the landlord is, in fact, an attempt recognized by law to shift onto the tenants a part of the usual burden on the owner-landlord for the maintenance of the common property of the house belonging to him in order to encourage tenants to use it more carefully and accurately.

In case of non-performance or improper performance by the landlord of his obligation to overhaul the residential premises or other property of the house in which it is located, the tenant has the right, at his choice, to demand

  • reduction of payment for the use of the relevant property, or
  • eliminate the relevant shortcomings with reimbursement of expenses at the expense of the landlord, or
  • recover from him the damages caused (clause 2, article 66 of the LC).

The landlord's rights consist in the ability to demand from the tenant the timely payment of housing and utility bills, as well as the fulfillment of other obligations stipulated by housing legislation.

The tenant under a social tenancy agreement is obliged to use the residential premises only for living, ensure its safety and maintain it in proper condition, carry out its current repairs, and also pay the payment for the residential premises and utilities in a timely manner and, in addition, inform the tenant - the modator about changes in the grounds and conditions for the right to use housing under this agreement, for example, about changes in the composition of citizens living with him (clause 3, article 67 of the LC, article 678 of the Civil Code). Federal laws or the contract may provide for other obligations of the employer.

The rights of the tenant in the obligation of social tenancy of a dwelling are determined by law. He has the right to demand from the landlord the timely overhaul of the housing he occupies, “proper participation” in the maintenance of the common property of an apartment building, as well as the provision of the necessary utilities (subclause 5, clause 1, article 67 of the LCD). He has the right to use the common property of the house in which the premises provided to him are located (elevators, landings, basements and attics, adjacent territory, etc.).

In cases of temporary absence of the tenant (as well as family members living with him or all these citizens together) in the residential premises, he retains all rights and obligations arising from the obligations of social hiring (Article 71 of the LC), regardless of the rank of such absence (for example, due to being called up for service in the Armed Forces of the Russian Federation, a long business trip, staying in another place for other reasons, including serving a criminal sentence in places of deprivation of liberty). The law does not provide for any time limits for such absence.

In addition, the tenant also owns some of the possibilities directly provided for by law to dispose of the housing he occupies in the form of rights:

  • for the settlement of other persons;
  • sublease of premises;
  • permission to live in the premises occupied by him to temporary residents;
  • exchange or replacement of the occupied premises.

Federal laws and the contract of social employment may provide for other rights of the employer.

Legal status of family members of the employer

The right to permanent use of residential premises under a social tenancy agreement has not only the employer, but also members of his family, since they acquire equal rights and obligations under this agreement with the tenant (clause 2 of article 69 of the LCD, clause 2 of article 672 of the Civil Code), thereby becoming participants in the obligations arising on its basis for the use of residential premises . Capable members of the employer's family, by virtue of the law, bear joint responsibility with him under the obligations arising from the contract of social hiring-ma.

Thus, all members of the employer's family, in fact, are co-tenants, and therefore must be indicated in the social contract of employment (clause 3 of article 69 of the LC, paragraph 1 of clause 2 of article 677 of the Civil Code). All other persons living with the tenant do not have permanent use rights, falling into the category of "temporary residents". In this regard, the concept of "member of the employer's family" acquires special significance.

As members of the family of a tenant of housing under a social tenancy agreement, citizens usually move into the corresponding residential premises on the basis of a decision to provide it. Furthermore, in accordance with Art. 70 of the LCD, the tenant, under the conditions specified by law, has the right to move other citizens into the living quarters he occupies as members of his family, which entails corresponding changes in the social contract of employment. Determining the circle of members of the employer's family, the LCD in paragraph 1 of Art. 69 highlights:

  1. persons who are treated as family members by direct indication of the law,
  2. persons who can be recognized as family members, in disputable cases - on the basis of a court decision.

The law includes only the spouse of the employer, his children and parents as members of the employer's family. The right of the citizens mentioned above to use this dwelling is based on the fact of the indicated family-legal connection and, in addition, on the fact of cohabitation with the tenant. No other conditions are required for their recognition as members of the employer's family and subjects of the corresponding obligations.

Along with this, some persons may be recognized as family members (in disputable cases, by a court decision). These include:

  • other relatives of the employer (including relatives of his spouse), regardless of the degree of relationship;
  • disabled dependents;
  • in exceptional cases - and other persons (in particular, persons who are with the employer or with any of his family members in actual marital relations).

For the recognition of any of the named citizens as a member of the family, except kinship or being dependent, it is required not only to have a joint residence with the employer, but also to maintain a common household with him (joint budget, general expenses for food, purchase of things, repair of an apartment and payment of utilities, etc.). In judicial practice, great importance is also attached to the evidence of whether these citizens moved in as family members or for other reasons. In the absence of the above conditions, persons living on the premises of the tenant are not recognized as members of his family and are considered as temporary residents who do not have the right to independently use the premises.

The composition of the employer's family may change. If a person ceases to be a family member, but continues to live in the occupied residential premises, he retains the right to use this premises under the same conditions (in particular, the former spouse of the tenant or the spouse of a family member in the event of divorce). At the same time, it also bears independent (and not joint and several, as before) responsibility for its obligations from the social contract of employment (for paying the corresponding part of utilities and housing, repairing it, etc., clause 4 of article 69 of the LCD ).

The composition of the family also changes in cases where the tenant moves into the residential premises occupied by him and his family of other citizens on the rights of family members. According to paragraph 1 of Art. 70 of the LCD, the tenant has the right, with the written consent of all members of his family (including those temporarily absent), to move his spouse, children and parents into the living quarters he occupies, and if there is an additional written consent of the landlord, also other citizens as jointly family members living with him. Such consent is not required only when moving in with the parents of their minor children.

At the same time, when moving new tenants into a rented residential premises, certain restrictions are established in order to comply with sanitary and hygienic norms and requirements, as well as the rules for registering citizens as those in need of residential premises (in particular, in order not to artificially increase the queue of citizens who are on such a record - Article 53 of the LCD). Therefore, the landlord may prohibit the occupancy of citizens as members of the tenant's family, if as a result of this the total area of ​​\u200b\u200bthe dwelling per one family member is less than the accounting norm. In addition, when moving in new citizens for joint permanent residence with the tenant, compliance with the rules of registration is required.

When determining the scope of rights and obligations for the use of residential premises by the tenant himself and citizens permanently residing with him as members of his family, the law proceeds from the principle of equality of their rights and duties. This principle cannot be changed by agreement of the parties: the relationship between the employer and citizens permanently residing with him in accordance with the imperative norms of paragraph 2 of Art. 69 LCD and par. 2 p. 2 art. 677 of the Civil Code are determined by law. A tenant under a social tenancy agreement does not have any advantages over other members of his family in terms of rights to housing. His role is that he represents the interests of his family members related to the use of the premises, i.e. is their representative by virtue of law (clause 1 of article 182 of the Civil Code).

However, the principle of equality of rights and obligations of family members of the employer under a social contract of employment has exceptions. First of all, we are talking about cases when, when new family members moved into a dwelling, an agreement was reached between the tenant, members of his family and moving in citizens (even if verbally) on the procedure for using the dwelling. For example, when moving in the wife of a married son of an employer, an agreement may be made that the young spouses will live in one of the rooms of the apartment specified in the agreement. If in the future the question of exchanging (exchanging) living space would arise, only part of the area of ​​this room, but not the entire apartment, should be allocated to the “share” of the son’s wife who moved in (taking into account the rights of her spouse and children living with them) .

Residential lease agreement

Among the subjective rights of the tenant arising from the contract of social tenancy of a dwelling is the right to rent out the dwelling he has rented or part of it to another person - the subtenant by concluding a sublease agreement with him.

Under a lease agreement the tenant, with the consent of the landlord, transfers for a period part or all of the premises rented by him for use by the subtenant (clause 1 of article 685 of the Civil Code, clause 1 of article 76 of the LC).

By its legal nature, the sublease agreement is real, bilateral, reimbursable and urgent. The rights and obligations arise for the parties not at the moment of agreement, but at the moment of transfer of the subject of sublease, i.e. moving the subtenant into the stipulated premises.

The parties to the lease agreement are

  • a tenant who occupies a dwelling under a social tenancy agreement,
  • subtenant.

The tenant under the main contract of social employment in this case acts as a landlord.

The subject of the lease agreement(unlike a social tenancy agreement) there may be a part of the residential premises occupied by the tenant, including part of the room, and in case of temporary departure - the entire premises. In any case, the tenant remains responsible to the landlord under a social tenancy agreement (clause 3, article 76 of the LC), since the subtenant is not legally connected with the landlord. At the same time, the sublease agreement must indicate all citizens who move into the dwelling together with the subtenant.

An essential condition of this agreement is a payment for the use of residential premises, which can be expressed

  1. in the form of a monetary amount (which is the most common),
  2. in the form of other provision (for example, by transferring things, performing work, providing services).

The amount, procedure, terms and conditions for paying a fee for the use of residential premises are determined by agreement of the parties (clause 2, article 78 of the LCD). Another essential condition of the law recognizes the period during which the subtenant may live in the premises. If the sublease agreement is concluded without specifying a period, it is considered concluded for one year (clause 3, article 77 of the LC).

A contract for the sublease of a dwelling provided under a social contract must be concluded in writing, and a copy of such an agreement is subject to transfer to the landlord (clause 1, article 77 of the LCD).

The conclusion by the tenant of a sublease agreement is possible only if the following conditions (prerequisites) are simultaneously present, provided for in Art. 76 LCD:

  • written consent of the landlord;
  • written consent of members of his family cohabiting with the employer;
  • when renting out residential premises in a communal apartment - the consent of all other tenants and members of their families living with them (and if there are privatized residential premises in such an apartment, all owners and members of their families living with them);
  • the total area of ​​​​the dwelling must be sufficient so that after the subtenant moves in, one resident has at least the accounting rate, and in a communal apartment - at least the provision rate;
  • the absence in the family of the tenant (and in the communal apartment - and among all other citizens living in it) of persons suffering from one of the severe forms of certain chronic diseases indicated in the list approved by the federal government (such a person, of course, cannot be and the subtenant or all citizens jointly with him);
  • the absence of other prohibitions provided for by federal laws.

When moving in a subtenant, the current rules on the registration of citizens at the place of temporary residence must also be observed.

By virtue of the sublease agreement, the subtenant has the right to use the occupied premises. However, this right is not independent (clause 3, article 76 of the LC), it is derivative and dependent on the rights of the tenant and is limited. The subtenant does not participate:

  • in resolving issues of using residential premises (for example, his consent is not required when moving in new permanent users, when deciding on the reorganization of residential premises, repairs, etc.);
  • in the performance of duties that arise for the employer and members of his family.

Termination of the sublease agreement

The main grounds for termination of the sublease agreement is the expiration of its validity. In this case, the subtenant is obliged to vacate the premises, and in case of refusal, he is subject to eviction in court without providing another premises (clause 5, article 79 of the LC). In the same manner, he is also evicted if the right of the tenant to the premises that he occupied under a social contract of employment has terminated ahead of schedule (for example, in connection with his departure to another place of residence, death, etc.) , since in the event of termination of the lease for any reason, the subtenant does not have any legal grounds occupy the premises that were the subject of sublease.

Termination of the sublease agreement and eviction of subtenants in case of social employment is also possible by agreement of the parties or in case of violation by the subtenant of the terms of the contract sublease. If the sub-tenant or persons cohabiting with him use the received residential premises for other purposes, systematically violate the rights and legitimate interests of neighbors or mismanage the occupied residential premises, allowing it to be destroyed, the tenant may warn them about the need to eliminate committed violations, including the implementation of the necessary repairs, and if these requirements are not met and (or) such actions continue, they have the right to terminate the sublease agreement and evict the subtenant and the citizens settled together with him (clause 4, article 79 of the LC). The subtenant has the right to withdraw from the contract at any time and vacate the occupied premises subject to payment for the time spent, unless otherwise provided by the contract. This conclusion can be substantiated by applying, by analogy, the norm of paragraph 2 of Art. 83 of the LCD, relating to social hiring.

Agreement on moving in temporary residents

One of the elements of the right of disposal of the tenant, which is part of his right to living space, is the recognized opportunity for him to move into the dwelling not only subtenants, but also other persons - temporary residents (users). Usually relatives of the tenant and members of their family, their acquaintances, etc. move in in this capacity. The legal status of temporary residents is determined by Art. 80 LCD and art. 680 GK. The move-in of a temporary tenant occurs with the permission of the tenant and members of his family living with him. Consequently, there is a citizen's request to allow him temporary residence and in response to it - the consent (permission) of the tenant and the persons living together with him, i.e. offer and acceptance. Thus, the move-in of a temporary tenant and his residence in the tenant's residential premises takes place on the basis of an agreement.

The agreement on moving in temporary residents is consensual, bilateral, gratuitous and urgent. The law does not establish special requirements for the form of this agreement, which implies the application of general rules on the form of transactions to it.

The prerequisites for concluding this agreement and moving in temporary tenants are prior notice to the landlord and the existence of such a total area of ​​\u200b\u200bthe residential premises so that after moving in temporary residents, each person living in a separate apartment would have at least the accounting norm, and in a communal apartment - no less than the area provided. The law does not provide for the need to obtain the direct consent of the landlord for the tenant to move in temporary residents. However, if the tenant does not use the specified amount of the total area, the landlord has the right to prohibit the residence of temporary residents, i.e. prevent the conclusion of the contract.

Temporary residents acquire, on the basis of a concluded contract, the right to temporary use of the tenant's residential premises. This right, like the similar right of the sub-tenant, is dependent on the right of the tenant, not an independent right (clause 3, article 80 of the LC). The tenant is responsible for their actions to the landlord. However, given right differs from the right of the sub-tenant: for temporary residents, the deadline for their residence in the premises of the tenant is set - no more than six months in a row (clause 2 of article 80 of the LC, part 1 of article 680 of the Civil Code). After this period, the landlord may prohibit their further residence.

If the parties have agreed on the period of residence of temporary tenants (within a six-month period), they are obliged to vacate the premises after this period. In the absence of an agreed period of residence, they are obliged to vacate the premises at the request of the tenant or a member of his family living with him (no later than seven days from the date of presentation of the corresponding request). In case of refusal to vacate the dwelling in the presence of the above circumstances, temporary tenants, at the request of the tenant or persons living together with him, are subject to eviction in court without providing another dwelling (clause 5, article 80 of the LC). Similar consequences for temporary residents occur in the event of termination of the social tenancy agreement, since they do not acquire any independent right to the residential premises they occupy.

Agreement for the exchange of residential premises provided under social tenancy agreements

The tenant of a dwelling under a social tenancy agreement has the right to exchange this premises for a dwelling provided under a social tenancy agreement to another tenant (clause 1, article 72 of the LCD).

The purpose of this exchange usually there is a change (improvement) in the living conditions of the tenant and (or) members of his family: bringing the housing closer to the place of work or residence of other relatives and close people, changing the floor on which the residential premises are located in an apartment building, changing the area residence for other reasons, etc. At the same time, at present, the role of housing exchange as an additional way to improve the living conditions of citizens has significantly decreased. On the one hand, the tenants under a social contract of employment are poor citizens who are not able to acquire housing as a property and bear the ever-increasing burden of its maintenance. On the other hand, for relatively well-to-do people who are not entitled to claim free housing for use under a social tenancy agreement, there are new and diverse opportunities for acquiring property with installment payment (in particular, by receiving mortgage loan on the security of future housing) and, on the contrary, the possibilities of privatization of housing received during the exchange have been lost.

As a result housing legislation allows the exchange of residential premises occupied by citizens under social tenancy agreements, only between their tenants under these agreements - within the limits of the housing fund for social use, i.e. exclusively within the framework of state and municipal housing.

It is no longer possible to exchange residential premises used under a social tenancy agreement for privately owned residential premises (including cooperative housing for which the corresponding share contribution has not been fully paid).

The exchange of residential premises provided under social tenancy agreements (hereinafter referred to as the exchange of residential premises) can be considered as one of the elements of the subjective right of the tenant of residential premises - his right to exchange. The exchange can also be interpreted as one of the cases of changing the obligation of the social rent of a dwelling or even its termination. It is necessary to agree with the opinion expressed in the literature that the exchange cannot be completely summed up under any of these cases.

Residential exchange agreement- this is an agreement of their tenants, according to which the tenant, under a social tenancy agreement, undertakes to transfer the residential premises occupied by him to another similar tenant, who, in turn, undertakes to transfer to the first in return the residential premises occupied by him.

Consequently, in such an exchange, the residential premises occupied by them under social rental contracts are transferred from one tenant to another. But at the same time, the exchange also implies the mutual transfer of the corresponding rights and obligations to these premises. At the same time, the termination of the rights to housing for some participants in the exchange means their simultaneous occurrence with other participants. Both of these sides of the exchange are inextricably linked: it is impossible to transfer only residential premises under an exchange agreement without transferring rights to it, but it is equally impossible to transfer one right without transferring residential premises. If, for example, after the mutual transfer of documented rights and obligations by the parties, it turns out that one of the exchanged premises does not exist in nature, this will entail

The exchange of residential premises used under a social tenancy agreement for a specialized (in particular, “departmental”) residential premises, also provided under a rental agreement (clause 1, article 100 of the LC), is excluded for reasons of purposeful and temporary (urgent) the nature of the relationship of hiring specialized residential premises. The commercial lease agreement is also urgent (clause 1, article 683 of the Civil Code), not to mention the amount of payment for commercial housing, which also excludes the possibility of its exchange for housing provided under a social rental agreement.

Parties to a housing exchange agreement are only citizens - tenants of housing under social rental agreements. Not only sub-tenants and temporary tenants who do not have an independent right to housing, but also members of the tenant's family cannot act in this capacity. The latter only give the tenant their consent to the exchange, and also have the right to demand from him the forced exchange (exchange) of the residential premises occupied by them for other residential premises located in different houses or apartments (paragraphs 1-3 of article 72 of the LCD).

The subject of the exchange agreement there may be residential premises located both in one and in different settlements on the territory of the Russian Federation, and the number of participants in the exchange is not limited (clause 5 of article 72 of the LCD) - it is only important that all of them be tenants of housing under social tenancy agreements.

A note on "related" share exchange

Previously, the law allowed an adult family member of the tenant, with the written consent of the tenant and other family members, to exchange the living space attributable to him for the living space of another person, provided that the entrant moves in as a member of the family of the tenant of this premises. In practice, such an exchange received the name "kindred", or "intra-family". Now it is not provided by the current housing legislation.

Prerequisites for concluding a residential exchange agreement:

  1. Obtaining the written consent of persons whose housing rights and interests may be significantly affected by the exchange (if among the latter there are minors, incapacitated or partially capable citizens, then prior consent to the exchange of guardianship and guardianship authorities is required, even if such legal representatives, such as parents).
  2. Written consent of the landlord.
  3. The presence in use by the exchanging participants of residential premises of such an area that, as a result of the exchange for one member of the family of each of the tenants, the area of ​​\u200b\u200bthe residential premises would be at least the accounting norm (i.e. there would be no intentional deterioration of living conditions in order to acquire the right to consist registered as those in need of housing).

The law comprehensively provides for the conditions under which the exchange of residential premises between their tenants is not allowed (Article 73 of the LC). It's about about cases where:

  1. a claim has been brought against the tenant of the exchanged residential premises for the termination or amendment of the contract for the social rental of residential premises;
  2. the right to use the exchanged residential premises is disputed in court;
  3. the exchanged dwelling is recognized in accordance with the established procedure as unsuitable for habitation;
  4. a decision has been made to demolish the house in question or refurbish it for other purposes;
  5. a decision was made to overhaul the relevant house with the reconstruction and (or) redevelopment of residential premises in this house;
  6. as a result of the exchange, a citizen suffering from one of the severe forms of chronic diseases specified in the stipulated paragraph 4 of part 1 of Art. 51 of this Code list.

In the presence of any of these conditions, the landlord may refuse consent to the exchange, however, his refusal in any case can be appealed to the court.

Agreement on the exchange of residential premises is concluded in writing by drawing up and signing by tenants a single document(clause 2, article 74 of the LCD). Each of the landlords is provided with a copy of the contract to obtain their consent to the exchange.

With the consent of the landlords, the social tenancy agreements previously concluded by them with the exchanging citizens are terminated and at the same time new social tenancy agreements are concluded with the relevant tenants specified in the residential exchange agreement. The law now does not provide for any exchange warrants or the issuance by landlords of a special joint decision on the exchange of residential premises.

A completed exchange agreement, like any civil law transaction, may be invalidated based on general rules civil law on the invalidity of transactions, including in the case of its commission in violation of the requirements of the LCD (clause 1, article 75); in particular, if it was committed under the influence of delusion, which is of significant importance (Article 178 of the Civil Code), or under the influence of deceit, violence, threats (Article 179 of the Civil Code). The participants in the exchange agreement, recognized as invalid, return to their original position, i.e. relocate to their previously occupied dwellings. If the exchange agreement is declared invalid due to the illegal actions of one of the parties, according to paragraph 3 of Art. 75 of the LCD is obliged to compensate the other party for losses incurred due to the invalidity of the exchange (for example, the costs of moving, repairing and reorganizing the apartment, etc.).

Changing obligations from a social tenancy agreement

In a housing legal relationship that arose from a social tenancy agreement, during the period of its validity, changes (transformation) of its individual elements may occur while maintaining the legal relationship itself. Such cases are usually interpreted as a change in the contract of social employment. It may relate to such elements as the subject, subjects, rights and obligations of the parties, and occur on various legal grounds: the agreement of the parties, the unilateral will of one of them, etc. At the same time, in order to change the housing contract, the consent of all persons is required to whom it applies - the tenant, members of his family and the landlord. However, the law provides for cases when the tenant and members of his family have the right to demand a change in the contract without the consent of the landlord. Sometimes the contract can be changed at the initiative of the landlord, subject to the established guarantees of the rights of citizens living in this room.

A change in a social tenancy agreement is possible at the request of citizens living in the same apartment and using living quarters in it under separate rental agreements, if they are united into one family (for example, upon marriage, adoption) (paragraph 1 of article 82 LCD). The change in the legal relationship of hiring is expressed here in the fact that instead of several lease agreements with any of the family members (by their agreement), one agreement is concluded for all the premises occupied by them (due to the frequent absence of a written housing agreement in previous practice This situation is called "merging personal accounts"). At the same time, the subjects, the subject and, possibly, some conditions of the contract of employment are changed. The landlord's refusal to conclude one lease agreement may be challenged in court.

It is allowed to change the lease agreement by replacing the tenant in the previously concluded agreement with a capable member of his family (for example, the father wants to transfer the rights of the tenant to his son). Such a change in the contract requires the consent of the tenant and the rest of his family members, as well as the consent of the landlord (clause 2, article 82 of the LCD). In the event of the tenant's departure or his death, the obligations also, as a rule, do not stop, since one of the able-bodied members of his family becomes the tenant. If the only person entitled to the occupied premises is a minor, the contract is concluded on his behalf by a guardian or trustee. The replacement of the tenant, in principle, does not affect the scope of the rights and obligations of family members, because all of them, as participants in a housing relationship, have the same rights and obligations. However, if the tenant dies or leaves, the amount of the rent for the use of the dwelling may change.

The legal relationship of social hiring may change as a result of the reorganization and redevelopment of residential premises at the initiative of the tenant or landlord. They are allowed only with the consent of the landlord (part 2 of article 678 of the Civil Code) and on the basis of a positive decision of the local government, the refusal of which can be challenged in court (clause 1 of article 26 and clause 3 of article 27 of the Civil Code). Unauthorized reconstruction or redevelopment of housing, carried out in the absence of a decision of the local government or in violation of their project, approved in the prescribed manner, entails for the tenant the obligation to restore the residential premises to their previous state. In turn, failure to fulfill this obligation becomes the basis for the judicial termination of the contract of social employment and the eviction of the tenant and his family members (unless the court, taking into account the rights and legitimate interests of citizens and the absence of a threat to their life or health, decides to preserve the living quarters in a converted or re-planned state).

At the initiative of the landlord, it is possible to carry out major repairs or reconstruction of a residential building. At the same time, for the duration of the relevant work, it may be necessary to relocate tenants and members of their families to other residential premises without terminating the social employment contracts concluded with them. In this case, under a rental agreement for specialized housing, for the period of repair or reconstruction, they are provided with residential premises of the maneuvering fund (clause 2, article 106 of the LCD), and their relocation to these residential premises and back is carried out at the expense of the landlord (with refusal of resettlement, it can be carried out by a court decision in a coercive manner) (clause 1, article 88, clause 1, article 95 of the LC). With the consent of the tenant and members of his family, it is also possible to provide him with another well-appointed living quarters with the conclusion of a new social tenancy agreement and termination of the contract in relation to the previously occupied premises.

After the completion of a major overhaul or reconstruction of a residential building, the residential premises previously occupied by the tenant and members of his family can not only be preserved in an improved form, but also change in area both upwards and downwards, or even disappear altogether . If the area of ​​this premises decreases so much that the tenant and members of his family can be recognized as needing residential premises, or, on the contrary, significantly exceeds the rate of provision for each member of the tenant's family or this premises is not saved at all, the tenant and members of his Even before the start of a major overhaul or reconstruction, a family should be provided with another living space with the conclusion of a new social tenancy agreement. However, the tenant and members of his family, who for some reason wished to live in the former house, have the right to move into the living quarters that have decreased in total area (clause 4 of article 88 of the LCD), which will also entail a certain change in the legal relationship of the social employment (in terms of the subject, the amount of payment, etc.).

Other cases of a change in the legal relationship of renting a dwelling include a change in the subject composition of this legal relationship, as well as individual rights and obligations as a result of the introduction of new family members into the dwelling and, conversely, as a result of the departure of family members for permanent residence in another place.

The legislation no longer provides for the possibility of dividing residential premises at the request of an adult member of the tenant's family, replacing it with the right of a member of the tenant's family to demand from him the forced exchange (exchange) of residential premises for others (clause 3 of article 72 of the LC), in which initially the residential premises provided under a social tenancy agreement remain a single object.

A change in the legal relationship of social hiring may be associated with the transfer of an apartment building from the state housing stock to the municipal one, for example, when departmental houses are transferred to the municipal fund, i.e. from state to municipal property. According to Art. 64 LCD and art. 675 of the Civil Code, this does not entail the termination or amendment of the contract of social employment. But although in this case the terms of the concluded agreement remain unchanged, one of its subjects, the landlord, changes, and the tenant may feel a change in the situation when the new landlord performs his duties and when he presents the appropriate requirements to the tenant.

Termination of obligations from a social tenancy agreement

The concept of "termination of a tenancy agreement" is inextricably linked with the concept of "termination of the legal relationship of tenancy". Termination of this obligation relationship means the end of the legal relationship that existed between its participants, due to:

  • forced break;
  • as a result of an event that does not depend on the will of the participants;
  • by agreement between them;
  • at the behest of one of them.

The Housing Code provides for specific grounds for termination of all housing tenancy obligations. The general grounds for termination of obligations provided for by the Civil Code do not apply to the rental of residential premises (See paragraphs 34, 35 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of July 9, 2009 No. 14).

To the number grounds for termination of the legal relationship of hiring a dwelling First of all, the termination of the contract, which can be defined as a break in the legal relationship of renting a dwelling, refers to:

  • by the unilateral will of the employer;
  • in cases stipulated by law, at the request of the landlord;
  • by agreement of the parties (clause 1 of article 83 of the LCD, clause 1 of article 450 of the Civil Code).

The consequence of terminating the contract for renting a dwelling is the obligation to vacate the dwelling. It can originate in voluntary, without the use of coercive measures, or by force. In the latter case, eviction takes place - the forced liberation of the dwelling from the persons occupying it and from their property, i.e. expelling them from the premises.

Eviction is primarily applied to persons who refused to vacate the premises after the entry into force of a court decision on the claim of the landlord to terminate the lease agreement. Such lawsuits always require both termination of the contract and eviction. But eviction is sometimes not connected with the termination of the legal relationship of hiring, for example, in the case of applying this measure to a person who arbitrarily occupied a residential premises, since there was no legal relationship of housing hiring.

Termination of the legal relationship of social housing rental may occur on grounds not related to the will of its participants or a court decision. Thus, the loss (destruction) of a residential premises - the subject of rent can occur as a result of an event (fire, flood, etc.), due to illegal actions of unauthorized persons or for other reasons, for example, if it is necessary to demolish a dilapidated residential building. In this case, in fact, the obligation is terminated due to the impossibility of performance (Article 416 of the Civil Code).

Termination of the obligation to rent a dwelling occurs in connection with the death of the tenant. On this basis, the obligation is terminated if the tenant lived alone, without a family (clause 5, article 83 of the LCD). This follows from the very essence of this obligation, since the performance in it is intended personally for the creditor (paragraph 2 of article 418 of the Civil Code).

As an exception to the rule on the inadmissibility of unilateral termination of a civil law contract, a tenant under a social contract of employment, with the written consent of family members living with him, has the right to terminate the contract of employment at any time (clause 2, article 83 of the LC). Such an action by the employer is, by its legal nature, a unilateral transaction. In this case, the will of the tenant can also be expressed in the form of actual actions, without applying to the landlord with a corresponding application, since his consent to this is not required. Unilateral termination of the contract by the tenant involves the voluntary release of the dwelling by him, as well as the full fulfillment of his contractual obligations, including payment for the use of the dwelling, its current repairs, etc.

Termination of a social tenancy agreement at the request of the landlord, based on the law, can occur through the voluntary fulfillment by the tenant of the requirements of the landlord. For example, in the event of the demolition of an old house, many tenants agree to terminate the contract and move into the provided comfortable living quarters, since it suits them perfectly. In a number of cases, we are talking about the termination of this contract as a consequence of a violation by the tenant and (or) members of his family of its conditions (clause 4, article 83 of the LC), as a result of which these citizens are threatened with eviction. If the tenant refuses to comply with the landlord's statutory requirement to vacate the premises, coercive measures are used in the form of termination of the contract and eviction in court.

At the same time, a number of legal guarantees have been established for observing the housing rights and interests of the tenant and his family members, which can be considered the principles underlying the regulation of the termination of a social tenancy agreement. The law gives preference to the tenant as the weak side of the housing obligation. This is manifested in granting him additional rights and in establishing clear boundaries for the exercise of his rights, as well as measures of control over the legality of their exercise (in particular, by establishing judicial order evictions).

Principles legal regulation termination of a social tenancy agreement at the request of the landlord:

  1. The principle of sustainability of the right to use residential premises. He received consolidation in part 1 of Art. 40 of the Constitution of the Russian Federation, according to which no one can be arbitrarily deprived of their home. In accordance with paragraph 4 of Art. 3 of the LCD, no one can be evicted from a dwelling except on the grounds and in the manner prescribed by federal law. At the same time, the legislation contains an exhaustive list of grounds under which eviction from a dwelling is allowed, which cannot be expanded by any by-laws.
  2. Termination of this contract in the absence of the consent of the employer and forced eviction of citizens is carried out only by the court(Article 84 of the LCD). Therefore, the landlord, even in obvious and indisputable cases that seem to him, is not entitled by his decision to terminate the contract and evict the tenant with members of his family from the premises occupied by them. In these situations, he must file a lawsuit with the court, which finds out the actual existence of legal grounds for eviction and compliance with all the conditions provided for by law for terminating the contract of social employment.
  3. The eviction of the tenant and members of his family in this case is allowed, as a rule, on condition provision of other residential premises to the evicted under a social tenancy agreement. At the same time, the law determines what requirements this room must meet. Therefore, the eviction of the tenant and members of his family from the premises of the social use fund in most cases means their relocation to another premises.

Cases of eviction of the tenant and members of his family

Eviction from residential premises occupied under a social tenancy agreement with the provision of another comfortable residential premises under a social tenancy agreement is allowed in the following cases (Article 85 of the LC):

  1. the house in which the dwelling is located is subject to demolition;
  2. residential premises are subject to transfer to non-residential premises;
  3. the dwelling is declared unfit for habitation;
  4. as a result of a major overhaul or reconstruction of the house, the residential premises cannot be preserved or its total area will decrease (increase), as a result of which the total area of ​​the occupied residential premises per one family member will significantly differ from the provision norm;

    5. residential premises are subject to transfer to a religious organization in accordance with the Federal Law "On the transfer religious organizations property of religious purpose, which is in state or municipal ownership.

The law also provides for the possibility of eviction of the tenant and members of his family from the dwelling they occupy with the provision of another dwelling within the boundaries of this settlement under a social tenancy agreement. We are talking about those cases when the named citizens for more than six months without good reasons do not pay for housing and utilities (Article 90 of the LCD). The “other living quarters” provided by him in this case must also be located within the boundaries of this settlement, but it does not have to be comfortable in relation to its conditions. Moreover, in terms of size, this room should correspond only to the size of the living quarters established for moving citizens into a hostel (at least six square meters of residential, and not the total area per person - clause 1, article 105 of the LCD). Therefore, here a citizen does not have the right to demand that he be provided with a dwelling no less than the one occupied.

Finally, it is also possible to evict citizens without providing another dwelling. For a social contract of employment, it is allowed in exceptional cases, provided for in Art. 91 of the LCD, and in essence is a sanction (measure of responsibility) for certain offenses committed by the employer or members of his family. After such an eviction, the citizen himself looks for another place to live - he settles with relatives or friends, if he has the necessary funds, he acquires housing in ownership or under a commercial lease agreement, including in another locality, etc.

An eviction in the form of a sanction for an offense is applied if the tenant and (or) members of his family living with him:

  • use the premises for other purposes, i.e. not for living (for example, under a warehouse, a brothel, etc.);
  • systematically violate the rights and legitimate interests of neighbors (not only in a communal apartment, but also in the house, for example: they constantly make scandals and brawls, interfere with the normal rest of other citizens by noisy and defiant behavior, inflict insults and even beatings on them, etc. ), making it impossible to live together in the same living quarters;
  • mismanagement of the residential premises, allowing its destruction or damage (including not making its current repairs in a timely manner, carrying out unauthorized reorganization or redevelopment, etc.);
  • in case of deprivation of citizens parental rights if their cohabitation with children, in respect of whom they are deprived of parental rights, is recognized by the court as impossible.

The application by the court of such a harsh sanction for most of the listed actions is possible if it is proved that they were systematic, i.e. were repeated repeatedly, as well as guilty, i.e. committed intentionally or through gross negligence. At the same time, the landlord is obliged to first warn the tenant and members of his family about the need to eliminate the violations committed by them, and in the event of destruction or damage to the residential premises, he has the right to appoint them a reasonable time to carry out the necessary repairs. If, after such a warning, these violations are not eliminated, the landlord has the right to demand in court the eviction of the guilty persons without providing them with other living quarters.

Under a residential lease agreement, one party - the owner of the residential premises or a person authorized by him (landlord) - undertakes to provide the other party (tenant) with residential premises for a fee for possession and use for living in it (Article 671 Civil Code RF).

The tenancy agreement is:

  • consensual;
  • compensated;
  • bilateral.

Residential lease contracts are divided into types:

  • commercial lease agreement;
  • hire agreement;
  • residential premises.

With the consent of the landlord, tenant and citizens permanently residing with him, other citizens may be moved into the dwelling as permanent residents of the tenant. When moving in minor children, such consent is not required.

Move-in is allowed subject to compliance with the requirements of the legislation on the norm of the total area of ​​\u200b\u200bresidential premises per person, except for the case of moving in minor children.

The tenant and citizens permanently residing with him, by common agreement and with prior notice to the landlord, have the right to allow temporary residents (users) to live in the residential premises free of charge. The landlord may prohibit the residence of temporary residents, subject to non-compliance with the requirements of the law on the norm of the total area of ​​\u200b\u200bthe residential premises per person. The period of residence of temporary residents cannot exceed six months.

The current repair of a leased dwelling is the responsibility of the tenant, unless otherwise provided by the lease agreement of the dwelling.

The capital repair of a leased dwelling is the responsibility of the landlord, unless otherwise provided by the lease agreement of the dwelling.

Re-equipment of a residential building in which a leased residential premises is located, if such re-equipment significantly changes the conditions for using the residential premises, without the consent of the tenant is not allowed.

The tenant of a dwelling has the right, with the consent of other citizens permanently residing with him, at any time to terminate the lease agreement with a three-month written warning to the landlord.

Social contract. Residential lease agreement: Video