How do I remove someone from the tenancy?

Have you divorced your husband (wife), yet he is still registered at your address and refuses to deregister? Have you purchased a flat, but the previous owner’s family members are still registered there and refuse to deregister? Have you purchased a flat through a public auction at the enforcement service or through foreclosure on a mortgage, yet the previous owners are still living there? Has a relative of yours moved abroad a long time ago and is still registered at your address, and are they unable to come and submit an application to deregister?

This is a situation faced by quite a few people and almost every lawyer, and which, judging by case law, remains rather confusing for claimants. In this article, we will look at how to proceed and what to do in this situation. First and foremost, it is worth noting the main legislative acts governing these matters: the Constitution of Ukraine, the Housing Code of the Ukrainian Soviet Socialist Republic, the Civil Code of Ukraine, the Family Code of Ukraine, the Law of Ukraine ‘On Freedom of Movement and Free Choice of Residence in Ukraine’, the Law of Ukraine ‘On Mortgages’, the Convention for the Protection of Human Rights and Fundamental Freedoms, and the Resolution of the Cabinet of Ministers of Ukraine “On the Approval of the Rules for the Registration of Residence and the Procedure for the Transfer of Information by Registration Authorities to the Unified State Demographic Register” dated 2 March 2016 No. 207.

The Law of Ukraine “On Freedom of Movement and Free Choice of Residence in Ukraine” is a specific legislative act that regulates legal relations concerning the deregistration of citizens.

In particular, Article 7 of this Law stipulates that the deregistration of a person’s place of residence is carried out on the basis of:

1. an application by the person or their representative, submitted to the registration authority;
2. a court decision that has entered into force, concerning the deprivation of ownership of residential premises or the right to use residential premises, eviction, the declaration of a person as missing or presumed dead;
3. a death certificate;
4. a passport or passport-type document received from the civil registry authority, or a death certificate issued by a competent authority of a foreign state, legalised in accordance with the established procedure;
5. other documents evidencing the termination of:

• the grounds for the stay of foreign nationals and stateless persons on the territory of Ukraine;
• the grounds for a person’s residence or stay in a specialised social institution, social service establishment or social protection facility;
• the grounds for the right to use residential premises.

As we can see, Article 7 of the Law sets out a list of grounds on which a person may be removed from the register; these can be broadly divided into judicial and extrajudicial methods. In the extrajudicial procedure, a person submits an application to the executive body of the village, town or city council for the location of the residential premises where the registered person resides, or to the relevant administrative services centre, pays an administrative fee and, provided all documents are correctly drawn up, receives a decision. Such an application may also be submitted by a representative acting under a power of attorney. Furthermore, in certain cases, such an application may be submitted not only by the person to be deregistered, but also by the owner or new owner of the property; as provided for in paragraph five of Article 7 of the Law of Ukraine “On Freedom of Movement and Free Choice of Residence in Ukraine”, which states that the basis for deregistering a person is a document certifying the termination of:

• the grounds for the stay of foreigners and stateless persons on the territory of Ukraine (information from the territorial body of the State Migration Service or the territorial division of the State Migration Service, within whose area of jurisdiction the person’s place of residence is registered, regarding the expiry of the temporary residence permit, or a copy of the decision to revoke the temporary residence permit or to revoke the immigration permit and the permanent residence permit in Ukraine);
• grounds for a homeless person to reside in a specialised social institution, social service or social protection facility (written notification from the social institution, social service or social protection facility);
• grounds for the right to use residential premises (expiry of the term of a lease, tenancy or sublease agreement for residential premises; expiry of the period of study at an educational institution (in the case of registration of residence in an educational institution’s hall of residence for the duration of studies); alienation of housing; and other documents specified by law).

The first two sub-clauses are clear, but there are questions regarding the third. In particular, is it sufficient to submit to the relevant authority responsible for deregistration a lease, tenancy, sublease or other agreement stating that the term has expired, or is it necessary to submit a contract of sale for the residential property in which the new owner is already specified? The answer is both yes and no. In particular, from a practical point of view, the authorities responsible for deregistration on the basis of these agreements may deregister the person who entered into the agreements in question, or the person who disposed of the property and is the previous owner, but not their relatives or co-residents who were registered with them, nor a person who was the previous owner of the property even though the latter was disposed of without their involvement (through foreclosure on the mortgaged property, sale at public auction, and the like).

In particular, the Supreme Court, in its Ruling of 21 March 2018 in Case No. 820/ 6316/15, the Supreme Court ruled that the decision of the State Migration Service of Ukraine to deregister a place of residence on the basis of a statement by the new owner of the flat and a contract of sale was unlawful, noting that the new owner must seek redress for the infringement of their rights through the courts. Thus, in most cases, if a person has not voluntarily deregistered, it will most likely be necessary to go to court. At the same time, before going to court, we would advise contacting the registration authorities and obtaining a reasoned refusal from them, which will subsequently serve as evidence in court. The judicial procedure is provided for in paragraph 2 of Article 7 of the Law of Ukraine ‘On Freedom of Movement and Free Choice of Residence in Ukraine’. As follows from the aforementioned provision, the deregistration of a person may be carried out on the basis of a court decision exclusively regarding:

1. deprivation of ownership rights to residential premises;
2. deprivation of the right to use residential premises;
3. eviction;
4. a person being declared missing;
5. a natural person being declared deceased.

To have a person deregistered on the basis of a court decision, you must determine the grounds for applying to the court, ensure you gather evidence to support your position, and correctly define the subject matter of the claim. When applying to the court, a distinction must be made between a claim for deregistration of the place of residence of family members of the owner of the residential premises and that of other persons.

In its ruling of 20 March 2019 in case No. 161/2498/18, the Supreme Court determined that, following a comparative analysis of Articles 383, 391, 405 of the Civil Code of Ukraine and Articles 150 and 156 in conjunction with Article 64 of the Housing Code of the Ukrainian SSR, it must be concluded that the provisions of Articles 383 and 391 of the Civil Code of Ukraine provide for the owner’s right to claim protection of their infringed right of ownership over residential premises, a house, a flat and the like, against any persons, including persons who are not and have not been members of his family, whilst the provisions of Articles 405 of the Civil Code of Ukraine and Articles 150 and 156 of the Housing Code of the Ukrainian SSR regulate the relations between the owner of residential premises and members of his family.

According to the second part of Article 405 of the Civil Code of Ukraine, a family member of the owner of a dwelling loses the right to use that dwelling if they are absent without valid reason for more than one year, unless otherwise agreed between them and the owner of the dwelling or provided for by law. In other words, a family member of the owner of the dwelling may be deemed to have lost the right to use the dwelling only if they have been absent without valid reasons for more than one year. At the same time, the validity of such reasons is determined by the court in each individual case. As for deregistration based on a court order for eviction, this is also a fairly broad topic and deserves a separate examination, which we will cover in another article that you can find on our website: https://svaroglaw.com/.

Thus, there are several ways to deregister individuals, and each is suitable for a specific situation. To achieve a positive outcome, you need to properly assess your situation and choose the most suitable option, or consult specialists who will do this for you.

We hope you found this article useful; thank you for reading.