RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

of July 2, 2009 No. 14

About some questions which arose in court practice in case of application of the Housing code of the Russian Federation

Article 25 of the Universal Declaration of Human Rights the living standards of the person necessary for maintenance of health and welfare him and his family, join such obligatory component as the dwelling. The inalienable right of each person to the dwelling is affirmed also in the International Covenant on Economic, Social and Cultural Rights (Article 11). At the same time, as appears from Item 1 of article 12 of the International Covenant on Civil and Political Rights, the right to housing shall be exercised on condition of liberty of choice by the person of the residence. Need of respect of the dwelling of the person is stated also in article 8 of the European convention on human rights protection and fundamental freedoms.

Taking into account provisions of international legal acts in article 40 of the Constitution of the Russian Federation the right of everyone to the dwelling is affirmed.

The constitutional right of citizens on the dwelling belongs to fundamental human rights and consists in ensuring stable, permanent use with the state with premises with persons occupying it on legal causes, in provision of the dwelling from state, municipal and other housing stocks to the needy and specified in the law other citizens needing the dwelling in rendering assistance to citizens in improvement of the housing conditions, and also in security of inviolability of home, exception of cases of any deprivation of citizens of the dwelling (Article 25, 40 Constitutions of the Russian Federation).

The basic principles, forms and procedure for realization of the right of citizens to the dwelling are determined in the Housing code of the Russian Federation enacted since March 1, 2005.

Considering that in connection with application of the Housing code of the Russian Federation for courts there were questions requiring permission, the Plenum of the Supreme Court of the Russian Federation for the purpose of ensuring unity of court practice and legality decides to make to courts the following explanations:

General provisions

1. According to article 46 of the Constitution of the Russian Federation judicial protection of its rights and freedoms is guaranteed to everyone. Proceeding from this constitutional regulation part 1 of article 11 of the Housing code of the Russian Federation (further - ZhK Russian Federation) establishes priority of judicial protection of the violated housing laws, that is the rights following from the relations regulated by the housing legislation.

Protection of housing laws administratively by the address with the statement or the claim to state body, local government body or to the official who is higher in relation to person which violated the right is performed only in the cases provided by the Housing code of the Russian Federation or other Federal Law (part 2 of article 11 ZhK Russian Federation). At the same time courts need to consider that the right to appeal to the court behind protection of housing laws remains behind person and in that case when the law provides administrative procedure for protection of housing laws. In case of disagreement with the decision made administratively the interested person has the right to appeal it judicially.

2. Protection of the violated housing laws is performed by court of law according to the jurisdiction of cases established by the Civil Procedure Code of the Russian Federation (further - the CCP of the Russian Federation).

According to Item 1 of part 1 of article 22 CCP of the Russian Federation courts of law consider and resolve cases with participation of citizens, the organizations, public authorities, local government bodies on protection of the violated or disputed rights, freedoms and legitimate interests, on the disputes arising from housing legal relationship.

Cases on housing disputes are considered in courts based on actions for declaration (statements) of interested persons, according to the application of the prosecutor submitted on the basis and according to the procedure, the stipulated in Article 45 CCP of the Russian Federation or according to the statement of persons specified in article 46 CCP of the Russian Federation.

3. Housing disputes (about recognition of the right to premises, about eviction from premises, about the termination of right to use by premises of the former member of the family of the owner of these premises, about preserving right to use by premises for the former member of the family of the owner of these premises, about withdrawal of premises at the owner by the redemption in connection with withdrawal of the parcel of land for the state or municipal needs, about provision of premises under the agreement of social hiring, about recognition invalid decisions on provision of premises under the agreement of social hiring and the agreement of social hiring signed on its basis, about forced exchange of the occupied premises, about recognition of exchange of premises invalid and others) proceeding from provisions of articles 23 and 24 CCP of the Russian Federation are considered on the first instance by district court.

In view of that the premises are carried by the law to real estate (part 2 of article 15 ZhK Russian Federation, Item 1 of Article 130 of the Civil code of the Russian Federation, further - the Civil Code of the Russian Federation), to magistrate judges owing to Item 7 of part 1 of article 23 CCP of the Russian Federation cases on determination of procedure for use of the premises which are in common property of several persons if between them there is no dispute on the right to these premises are jurisdictional or if the requirement, cognizable is at the same time not told district court. If the dispute on determination of procedure for use of such premises (the apartment house, the apartment) is connected with dispute on the property right to it (in particular, about recognition of the right to share in common property and its apportionment for ownership and use), then its cognizance as receivership proceeding to the magistrate judge or district court depends on the claim price (Item 5 of part 1 of article 23 CCP of the Russian Federation).

To magistrate judges cases on such receivership proceeding as collection from citizens and the organizations of debt on payment of premises and utilities are also jurisdictional, in case of the price of the claim which is not exceeding the amounts, stipulated in Item 5 parts 1 of article 23 CCP of the Russian Federation.

4. Resolving the disputes which arose from the housing relations, courts need to consider that the housing legislation is under joint authority of the Russian Federation and subjects of the Russian Federation (the Item "to" part 1 of article 72 of the Constitution of the Russian Federation) and includes the Housing code of the Russian Federation, other Federal Laws, and also presidential decrees of the Russian Federation, the order of the Government of the Russian Federation, regulatory legal acts of federal executive bodies, the laws and other regulatory legal acts of subjects of the Russian Federation, regulatory legal acts of local government bodies (part 2 of article 5 ZhK Russian Federation) issued according to them accepted according to it. At the same time among acts of the housing legislation in regulation of the housing relations the Housing code of the Russian Federation has the greatest legal force. In case of detection of discrepancy of regulations of other acts of the housing legislation by court to provisions of the Housing code of the Russian Federation regulations of this Code (part 8 of article 5 ZhK Russian Federation) shall be applied.

In view of that the premises can act as object of both civil, and housing legal relationship, courts should mean that the civil legislation unlike the housing legislation governs the relations connected with ownership, use and the order of premises as object of economic circulation (for example, transactions with premises, including transfer to commercial employment of premises).

5. Part 1 of article 6 ZhK Russian Federation establishes all-legal principle of operation of the legislation in time: the act of the housing legislation has no retroactive force and is applied to the housing relations which arose after its introduction in action.

At the same time it must be kept in mind that part 2 of article 6 ZhK Russian Federation allows application of the act of the housing legislation to the housing relations which arose before its introduction in action but only in the cases which are directly provided by this act. So, by article 9 of the Federal Law of December 29, 2004 N 189-FZ "About enforcement of the Housing code of the Russian Federation" (further - the Introduction law) regulations of the Section VIII ZhK Russian Federation "Management of apartment houses" are given retroactive effect: they extend to the relations which arose from earlier signed agreements of management of apartment houses.

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