Loss of the right to use housing: what adults need to know and what are the risks for children

Housing is one of the fundamental human rights guaranteed by law, but not everyone understands that this right can be lost. In certain situations, even children can be left without the right to use the home, which often causes disputes and legal difficulties. This issue is especially relevant in cases where a person ceases to live in an apartment or house, does not participate in its maintenance, or if the owner of the property changes. In addition, there are legal nuances that can lead to the loss of housing even in family conflicts or inheritance cases.

The Editorial Board of IA “FACT” asked the lawyers of the “Repeshko and Partners” Bar Association for comments on the legal aspects of the loss of the right to use housing. They talked about the main reasons for losing housing, legal regulations and real cases when people were deprived of the opportunity to live in housing, as well as ways of legal protection against such situations.

According to Art. 47 of the Constitution of Ukraine, everyone has the right to housing. But sometimes the specified right affects the rights of other persons. There are still many cases in the country when three people live in a residential building that belongs to the local community fund (a non-privatized residential building), and five people are registered. After the divorce, the ex-wife continues to be registered in the apartment that belongs to the husband personally, together with the common minor child, but in fact no one has seen them for five years. The fact is that the presence of such ghost persons significantly affects the rights and obligations of those persons who actually live in such a residential premises, whether it is an apartment or a residential building. In the apartment, utility payments are charged to the registered persons, and no one will want to buy a residential building, since strangers are registered there.

Until 2021, it was possible to solve such problems exclusively in court.  From 01.12.2021, after the Law of Ukraine dated 05.11.2021 “On the Provision of Public (Electronic Public) Services Regarding Declaration and Registration of Residence in Ukraine” entered into force, the legislation introduced the possibility to deregister the residence of adults upon application of the home owner to the registration authorities. At the same time, there is no need to additionally apply to the court, which is a great relief in such cases. It has also become possible for the home owner to deregister adults (parents or other legal representatives of the child or one of them) together with their child.

According to Article 18 of the said law, removal of a person from the declared or registered place of residence in the case of an application to the registration authority or through the center for providing administrative services at the place of declared or registered place of residence is carried out upon the application of the owner of a private form of ownership, submitted in paper form, in relation to an adult whose place of residence is registered or declared in the property that belongs to the owner on the basis of ownership rights. If the home owner submits an application for removal from the declared or registered place of residence of the parents or other legal representatives of the child or one of them, such child shall be removed from the declared or registered place of residence together with his parents or other legal representatives or one of them.

As you can see, the specified norm applies exclusively to a house that is a private property (including shared or partial). Removal from the declared or registered place of residence of a person at the request of the co-owner of the home is carried out with the consent of the other co-owner of the home, which is given in person or through a representative.

The second exception to the specified rule is that removal from the declared or registered place of residence of the child is not carried out at the request of the home owner, if the owner of such home is one of the child’s parents or other legal representatives. So, in the event that an ex-wife continues to be registered in an apartment that belongs personally to a man, together with a joint minor child, the administrative way of resolving the issue is closed and only the judicial one remains.

Another question that we are often asked is if the co-owner of the apartment is registered in it, but in fact has never even lived in it, is it possible to deregister him? Removal from the declared or registered place of residence (residence) of a co-owner of an apartment at the request of another co-owner of this apartment is not carried out. And not administratively, and not judicially. The fact is that the owner (co-owner) of housing has the unconditional right to register in the residential premises belonging to him without any consent only on the basis of the right of ownership. Therefore, there is no point in removing such a person from registration, because today, for example, you removed him from registration, and tomorrow he came and registered again without asking anyone.

A question that will arise in the future for those who live in housing that is on the balance sheet of a territorial community or some enterprise, ministry, etc. Here, unfortunately, there is only a judicial way of deregistration. This is where Art. 71 of the Housing Code, according to which, in the temporary absence of the tenant or members of his family, residential premises are kept for them for six months.

Note that the residential premises are kept by the temporarily absent tenant or members of his family for more than six months in the following cases:

1) conscription for fixed-term military service or assignment to alternative (non-military) service, as well as conscription of officers from the reserve for military service for a period of up to three years – during the entire period of said military service; conscription for military service during mobilization, for a special period, for military service upon conscription of reservists during a special period – during the entire period of military service, and if during it they were injured, other health damage and are being treated in health care institutions or were captured or recognized as missing – for a period of time until the day after the day of their military registration in the relevant territorial centers staffing and social support, return from captivity, cancellation of a court decision to declare a person missing or a court decision to declare a person dead;

2) temporary departure from the permanent place of residence due to the conditions and nature of work or in connection with studies (apprentices, students, interns, graduate students, etc.), including abroad, – during the entire time of this work or study;

3) placement of a child (children) for upbringing with relatives, a guardian or custodian, in a foster family, a family-type orphanage, an institution for orphans and children deprived of parental care – during the entire time of their stay with relatives, a guardian or custodian, a foster family, a family-type orphanage, an institution for orphans and children deprived of parental care;

4) departure in connection with the fulfillment of the duties of a guardian or custodian, provision of a residential building or multi-room apartment to the parents-educators for the creation of a family-type children’s home – during the entire period of performance of such duties;

5) placement of disabled persons, including children with disabilities, in a boarding house and other social assistance institution – during the entire time of their stay;

6) departure for treatment in a medical and preventive institution – during the entire time of stay in it;

7) detention or sentencing to arrest, restriction of liberty, deprivation of liberty for a certain period or life imprisonment – during the entire time of detention or serving a sentence, if other family members remained living in this house, apartment (part thereof).

In the cases provided for in clauses 1-7 of this article, the right to use the residential premises is preserved for the absentee within six months from the date of expiry of the term specified in the corresponding clause.

If in your case the specified circumstances are absent, or the period of non-residence of the person is much longer than the specified periods, then there are all grounds for applying to the court. In such a case, the plaintiff will be the person for whom a personal account for housing has been opened, and the third parties will be the territorial community or enterprise on whose balance sheet the housing is recorded and other persons who are registered in the residential premises.

The following documents can be evidence of a person not living in the premises at the moment:

• Certificate on the composition of the family or those registered in the residential premises/house;
• Act of the deputy, which certifies the fact that the person has not lived for a certain period of time, or the Act of non-residence, certified by the ZHEK, condominium. Such acts are required at least with a time interval of one month from their drafting;
• Copies of utility bills;
• Testimony of witnesses who will be questioned at the court hearing;
• A letter notifying that the specified person lives in another place;
• Forwarding of postal correspondence;
• Certificate from the hospital that the person is not served at the address of residence in this city and does not have a declaration with a doctor;
• Certificate from the police that the person is not prevented from living in the given premises and that he did not apply to the district office with similar statements;
• A certificate of ownership of housing in another place and other evidence that will confirm the absence of a person in the residential premises for more than 6 months.

It is worth emphasizing that the protection of children’s rights in such cases is a separate issue, because the law provides for special mechanisms for monitoring their housing situation. At the same time, in reality, situations may arise when even a child loses the opportunity to use housing, which may endanger his well-being. Consider the case when it is not allowed to remove a child from the registered place of residence, if such an application is made by the owner of the home, who is one of the parents or other legal representatives of such a child.

First, a different rule of law and a different term apply here. Article 405 of the Civil Code of Ukraine regulates the right of family members of the home owner to use this home. A family member of the home owner loses the right to use this home in the absence of a family member without valid reasons more than one year unless otherwise established by agreement between him and the home owner or by law. Secondly, the evidence of the child not living together with the second parent in this residential premises will be the same as those listed above, but it will still be necessary to add:

• Documents confirming ownership of housing;
• Child’s birth certificate;
• Court decision on divorce.

But the main thing to consider is that in the vast majority of similar cases, the courts refused to deprive minor children of the right to housing. The Supreme Court noted the following motivations in these cases:

• since a minor child cannot independently choose his place of residence, the fact that he does not live in the disputed apartment is not an unconditional reason for depriving the child of the right to use this apartment;
• in addition, the child’s right to use housing arises on the basis of the fact of his birth;
• considering the issue of termination of the right to use housing of a former family member of the home owner, the courts should take into account the formal grounds provided for in Art. 405 of the Civil Code of Ukraine, and take into account the fact that the mere fact of termination of family relations with the owner of the house (apartment) does not deprive them of the right to use the occupied premises, and resolve the dispute taking into account the balance of interests of both parties;
• it cannot be considered a disrespectful reason for the child’s non-residence in the disputed dwelling, his or her residence in another place with one of the parents;
• because a minor child, due to his age, does not have sufficient civil capacity to independently determine his place of residence;
• having the right to live at the registered place of residence at the place of residence of any of the parents, the child can exercise it only upon reaching a certain age;
• in itself, the presence of a person’s ownership right to the disputed housing and the requirements for the unconditional exercise of the owner’s powers cannot be a legitimate basis for the deprivation of another right of a person, namely the right to housing, which is also guaranteed and protected by the Constitution of Ukraine (Article 47) and the Convention (Article 8).

However, this does not mean at all that there is no need to try to solve this problem, because each situation is individual, as is the judge’s view of a specific case.

We would also like to remind you that the submission of an application for removal from the declared or registered place of residence (stay) of a child under the age of 14 or a person recognized by the court as having limited legal capacity or incapacity is carried out by one of the parents or other legal representatives of such a person with the consent of the other parent or legal representative, and the removal from the declared or registered place of residence (stay) of a child aged 14 to 18 is carried out with the consent of his parents or other legal representatives or one of them, except for the case when the child is a student of education and lives in a dormitory.

We would like to provide more advice on protecting the right to use housing:

Regularly check the legal status of the home. If you or your child is registered in an apartment, this does not guarantee an unconditional right to stay. Check whether there are risks of losing registration, especially when the owner changes.

Beware of reckless deals. Before signing any documents related to real estate (donation, sale, exchange), consult with a lawyer, especially if a child is registered in the apartment.

Protect the rights of the child. When selling or changing the owner of a home where a minor is registered, the permission of guardianship authorities is required. This is an important mechanism for protecting children’s rights.

Do not allow debts for utility services. Significant arrears can be grounds for an eviction lawsuit, even if a child lives in the apartment.

In case of conflicting situations, consult a lawyer. If you or your child is at risk of losing the right to use housing, you should immediately contact a specialist to protect your rights in court.

Understanding your rights and getting legal help in a timely manner are key factors that will help you avoid losing your home and keep you and your children safe.