By general rule if a bona fide purchaser bought property from a person who did not have the right to alienate it, then the owner has the right to claim this property only in those cases when it is lost by the owner or the person to whom it was transferred by the owner into possession, or was stolen from them, or retired from possession otherwise than their will (). The legal meaning of the concept of "bona fide purchaser" is disclosed by the Constitutional Court Russian Federation in , in joint . At the same time, the provisions received a new assessment by the Constitutional Court of the Russian Federation in connection with the appeal of a citizen who became the owner of escheated property due to improper performance of his duties by the authorities (Resolution of the Constitutional Court of the Russian Federation dated June 22, 2017 No. 16-P "". Consider this judicial act in more detail .
Heart of the matter
The original owner of the disputed apartment was citizen S., who died in 1994 and at the time of death had no heirs either by law or by will. The apartment that belonged to him, as escheated property, was to become the property of the city of Moscow (). However, no legal or actual actions were taken with respect to the said apartment by the Department of City Property of Moscow.
Meanwhile, in 2007, a notary in Moscow, R., in the name of citizen S., on the basis of forged documents, issued a certificate of the right to inheritance, registered with the Rosreestr Office for Moscow, and the disputed apartment was thus registered as her property. A month later, citizen S. entered into a contract for the sale of an apartment with citizen S.A., and she, in turn, resold the apartment to citizen Z. In April 2008, Z. concludes a contract of sale with citizen D., under the terms of which the disputed apartment already owned by the latter.
Is the right to use a dwelling recognized as escheat property reserved for other citizens registered in it at the place of residence who are not heirs? Learn from the resource "Inheritance" in "Home Legal Encyclopedia" Internet version of the GARANT system. Get full access for 3 days for free!
However, the fact that the apartment was transferred to citizen S. by fraudulent means became clear only in 2013 during the investigation of a criminal case. As the court found, citizens T., F., A., acting jointly and in concert in a group with other persons, decided to acquire the ownership of this apartment by fraud. So, in order to illegally take possession of the disputed living space, they used fake passports in the name of other persons, submitted them and a number of documents for state registration, found a buyer for the apartment and persuaded a third party to assist in the deal with the apartment on a reimbursable basis. Thus, by the verdict of the Moscow City Court dated June 10, 2013 No. 1-5/13, they were found guilty of committing the crimes envisaged (fraud). The Department of City Property of Moscow (hereinafter referred to as the Department, plaintiff) was recognized as the victim in this criminal case.
The Department, having learned about the fact of the disposal of the disputed apartment from the possession of the city, filed against the last buyer in the chain of sales contracts D. (hereinafter referred to as the defendant) statement of claim with a demand to evict him and transfer the apartment to the ownership of the city of Moscow.
The Nikulinsky District Court of Moscow satisfied the claims of the plaintiff, recognizing that the disputed apartment, being escheated property, was removed from the possession of the city against the will of the authorities. In addition, being the owner of the apartment, the city did not renounce the right of ownership, did not alienate the disputed apartment, did not transfer it to the ownership of citizens. Thus, the court of first instance decided that the Department had the right to claim the property from the last buyer.
The Respondent disagreed with this decision. He believes that in the current situation he is a bona fide purchaser, since at the time of the transaction he did not know and should not have known about the unlawfulness of the alienation of property.
The court of appeal also did not support the position of the defendant (). In his opinion, D. did not provide sufficient evidence to support his arguments that he was a bona fide purchaser, since he did not prove that all reasonable steps had been taken to ascertain the seller's authority to alienate the property. Thus, the court noted that it is seen from the contract of sale that the apartment was purchased at a lower price, different from its market value. In addition, during the period from June 2007 to April 2008, that is, within 10 months, three transactions were made in relation to the disputed apartment. Thus, the court considered that citizen D. did not show the necessary care and discretion, which was required when concluding a sales contract.
In June 2016, the Prosecutor General’s Office of the Russian Federation unsuccessfully tried to challenge the decisions of the courts in the case of citizen D., which applied to the Supreme Court of the Russian Federation with a cassation petition for a review of the case.
At the same time, the defendant, disagreeing with the decision of the court, filed a complaint with the Constitutional Court of the Russian Federation on the verification of the constitutionality of the provision regarding the recovery of property from a bona fide purchaser. In his opinion, it does not correspond to , and , since it allows law enforcers to arbitrarily interpret the concept of "bona fide purchaser" and, accordingly, seize escheated real estate from citizens - the last purchasers on claims of public legal entities. And this is possible despite the fact that the right of ownership and the legality of all transactions preceding the acquisition of this right were recognized by the state within the framework of state registration rights to real estate and transactions with it.
Expert opinions
The Constitutional Court of the Russian Federation considered the case with the participation of citizen D., his lawyer and representatives of the interested state authorities. Consider the positions of the participants in the process.
Thus, the First Deputy Chairman of the Council of the Research Center for Private Law named after S. S. Alekseev under the President of the Russian Federation, Ph.D. n. Andrey Egorov in his opinion, at the request of the judge of the Constitutional Court of the Russian Federation, he noted that, as follows from the materials of the case, the city of Moscow, as the owner, for almost 20 years, was not interested in the fate of the escheated property that passed into his ownership, did not carry out registration actions in relation to his rights, did not bear the burden maintenance of belonging property (), and did not exercise other proprietary powers. Thus, since the city of Moscow did not behave like a master, according to the expert, for all the ensuing Negative consequences that occurred as a result of guilty actions (inaction) of the state bodies themselves, cannot and should not be held responsible by a third party who has shown due diligence relied in good faith on the reliability state register and, due to the fault of state bodies, not aware of the escheat status of the property.
The main argument of the representative D., a lawyer, Ph.D. n. Dmitry Stepanov also consisted in ascertaining the irresponsible behavior of the state. “A citizen has the right to believe that if the state has created a system of calling to inheritance, issuing an appropriate document, then the state is one way or another responsible for this system. the applicant), then, probably, a citizen has the right to believe that the state conducted some kind of verification of compliance with the law when registering previous transactions with real estate. Irresponsible behavior of the state is unacceptable in principle, "the representative of the plaintiff believes.
The plenipotentiary representative of the Prosecutor General of the Russian Federation in the Constitutional Court of the Russian Federation adheres to a similar position. Tatyana Vasilyeva. AT this issue she drew attention to the position of the ECtHR, according to which the state is responsible for registration, social rent and privatization of property, and is obliged to control compliance with all the conditions necessary for this. “In view of the presence of regulatory authorities, the buyer of an apartment should not assess the risk of termination of ownership due to shortcomings that should have been eliminated under procedures specifically introduced for this purpose. An omission of the authorities cannot justify subsequent sanctions against a bona fide purchaser of this property. Errors or miscalculations state bodies should serve the benefit of the persons concerned, especially in the absence of other conflicting interests.In other words, the risk of any error made by the state body should be borne by the state, and errors should not be eliminated at the expense of the persons concerned (judgment of the ECtHR on application No. 7097/10 " " )", - says Vasilyeva.
At the same time, she noted that the possibility of seizing property from a bona fide purchaser does not limit his right to compensation for losses by the person whose actions caused the violation of these rights.
authorized representative State Duma in the Constitutional Court of the Russian Federation Tatyana Kasaeva also believes that the controversial norms of civil law comply with and do not prohibit citizens from appealing against the actions of state bodies. "The obligatory state registration of rights to real estate and transactions with it cannot be considered as a circumstance excluding the possibility of transferring disputes over real estate and registered rights to it, to the permission of the courts," she said in court.
The adviser to the Minister of Justice of the Russian Federation reminded of the need for purchasers of real estate to be more careful and prudent Maria Melnikova. According to the Ministry of Justice of Russia, each citizen, in addition to an extract from the USRR and an extract from the house book, must check all previous documents on the acquisition of this property, ask neighbors about the residence of the owners recorded in the USRR, know all ever published information about this property.
However, according to the plenipotentiary representative of the Federation Council in the Constitutional Court of the Russian Federation Michael Klishas placed on the ultimate purchaser the risk of illegal disposal from state property property increases instability civil circulation. "Such an approach may indicate a violation of the rights of a citizen," the expert believes.
Plenipotentiary Representative of the President of the Russian Federation in the Constitutional Court of the Russian Federation Mikhail Krotov, in addition to everything already mentioned above, also noted the fact of violation of the deadlines limitation period The Department, when filing a claim for the eviction of citizen D. "From the moment the inheritance was opened to the commission of fraud and the issuance by a notary of a certificate of the right to inheritance on forged documents and the subsequent alienation of the apartment, about 14 years passed, during which the Moscow City Hall did not take any actions to identify and appeal property into the ownership of a constituent entity of the Russian Federation. Thus, are there any grounds for filing a vindication claim with the Department? Even the ten-year statute of limitations, which today is actually restrictive in accordance with the Civil Code of the Russian Federation, has expired. On what basis then does the judicial system consider it permissible to protect the interest of a public legal education to a right that is not fixed by them?" Krotov argued.
Decision of the Constitutional Court of the Russian Federation
The Constitutional Court of the Russian Federation, in turn, recognized that the state, represented by bodies authorized by law, when carrying out the procedure for state registration of rights to real estate, thereby confirms the legality of the transaction for the alienation of the property (Resolution of the Constitutional Court of the Russian Federation dated June 22, 2017 No. 16-P " In the case of checking the constitutionality of the provision of paragraph 1 of Article 302 of the Civil Code of the Russian Federation in connection with the complaint of citizen D. ").
He also stressed that verification of compliance with the law in previous transactions with real estate on the part of the acquirer of this property, unlike the state, is significantly difficult or impossible. Moreover, the public legal entity is in unequal conditions as the owner of a dwelling that is an escheated property and its bona fide purchaser, whose opportunities to identify illegal actions that led to the fact that the dwelling is removed from the owner’s possession against his will are far from the same, noted in the judgment.
In addition, the court, referring to the decision of the ECtHR, noted that in the presence of a wide list of control and permitting bodies and a large number completed registration actions with the property, no third-party buyer of the apartment should take the risk of deprivation of ownership due to shortcomings that should have been eliminated through specially developed procedures by the state itself (decision of December 6, 2011 in the case "").
Thus, the Constitutional Court of the Russian Federation recognized the provision as inappropriate to the extent that it allows the reclamation of a dwelling that was escheated property from its bona fide purchaser. However, the claim of a public law entity will not be satisfied only if the bona fide purchaser relied on the USRN data when buying a home and in statutory registered the right of ownership. At the same time, the public legal entity did not take timely measures to establish the escheated property and properly formalize its ownership of it.
The Constitutional Court of the Russian Federation decided that the law enforcement decisions in the case of citizen D., made on the basis of, are subject to review. We add that the court did not order legislators to amend the controversial norms.
At what stage should a buyer come to a notary and what documents should he bring with him?
It is necessary to visit a notary public before concluding a contract. The notary himself will request information about the property contained in the USRN, including the owner of the property, cadastral passport etc. It is advisable to present the title deed to the property to the notary in order to verify the purity of the previous transaction. If it is absent, but the seller's rights are registered, then the notary will make a request to the USRN to provide information about him.
The tariff for transactions subject to mandatory notarization is regulated tax code Russian Federation and is 0.5% of the transaction amount. Its upper limit is limited to 20 thousand rubles. This value is typical for transactions with apartments worth more than 4 million rubles. If we take the average real estate prices in Russia - from 1 to 3 million rubles, the cost of certifying such a transaction will be from 5 to 15 thousand rubles.
There is also a fee for legal and technical services, the amount of which depends on the region of Russia. For example, in Moscow, the cost of UPTH for certifying a transaction for the alienation of real estate, which, by virtue of law, requires a notarial form, is 5 thousand rubles.
The notary, checking the documents, can see the nuances that can lead to challenging the transaction. For example, to see that the buyer purchased an apartment from the seller, who did not provide the necessary consent of the spouse to the transaction. This may lead to the fact that the second spouse wishes to challenge this transaction. Or, for example, a notary can see that the transaction, on the basis of which the current owner acquired the apartment, was carried out in a simple written form, although it should have been carried out in a notary.
The material was prepared with the participation of the Federal Notary Chamber, a lawyer of the law office"Leontiev & Partners"Tamaz Mstoyan, lawyer Oleg Sukhov, CEO companies"Miel-New buildings"Natalia Shatalina, lawyer of the Moscow Bar Association"Arbat"Vadim Bashir-Zade, head of the office"In Krylatsky"networks of real estate offices"Miel"Irina Berbeneva.
How can a realtor and a notary public help keep the transaction clean?
Some real estate offices carry out due diligence documents for apartments. Clients are issued so-called certificates - a written opinion on the results of the check. They include information such as verification of the owner’s right to the object, the fact that there are no encumbrances and litigations, payment arrears utility bills and so on. If the apartment turns out to be "bad", realtors dissuade the buyer from the transaction. If problems arise after its implementation, the real estate office will not provide guarantees for damages, but will help its client at the stage of litigation by offering him legal assistance.
Therefore, in order to protect yourself as much as possible, it is still recommended to apply for notarial certificate. A notary is the only specialist in the real estate market who can ensure transparency and legal purity of the transaction, while acting in the interests of both parties. The notary has the opportunity not only to request and promptly receive the documents necessary for the transaction, but also can verify the authenticity of the papers presented to him. Moreover, the notary is responsible for the transaction certified by him. And if due to his "oversight" the party to the transaction suffers, he will fully compensate her for the damage caused. To do this, there is a multi-stage system of professional liability insurance of a notary.
Are there cases when a conscientious buyer cannot protect his rights?
Yes, and they are expressly stipulated in the law. This can happen when the property is stolen from the owner or left the possession of the owners in some other way against their will. There are many examples - the execution of a transaction on forged, stolen documents, a revoked power of attorney, the "purchase" of an apartment from an already deceased citizen. And as a result, a bona fide purchaser who bought such an apartment loses both real estate and money.
If a bona fide purchaser purchased an apartment on the basis of a donation agreement, then the legal (“real”) owner has the right to demand that the apartment be returned to him. And it will be returned to its rightful owner.
If the court finds that when purchasing this object, the buyer did not do everything in his power to check legal purity, then he will not be able to protect his rights. But the criteria for this "done everything" are not spelled out in the law. Therefore, there are very real judgments, according to which the purchasers were not recognized as bona fide if, for example, they did not talk with neighbors before buying an apartment, did not find out who the owner was, and so on.
How to prove the fact of good faith in court?
It must be remembered that the status of a bona fide purchaser cannot arise just like that, it must be proven. The acquirer receives protection in court only when he did not know or should not have known that he was making a deal with a person who was not entitled to sell the property.
First of all, the acquirer will have to prove in court that the property was acquired for a fee, that is, provide a receipt from the seller on receipt of funds for the apartment, if the payment was made in cash, as well as an extract from the acquirer's account on the transfer of money to the seller's account, if the payment was non-cash.
It is necessary to prove that the buyer really did not know and could not know that the property was purchased from someone who did not have the right to sell it. Proving this is often very difficult. The main weapon is still an extract from the USRN, from which it is clear that the seller is the owner of the property, and no restrictions are imposed on the property itself. But the entry in the USRN is not indisputable proof of the good faith of the acquirer.
Are the rights of a bona fide buyer somehow protected by law?
Protection of the rights of a bona fide purchaser takes place in judicial order. If it is recognized that a bona fide buyer suffered from circumstances that arose through the fault of the seller, then the parties enter into an agreement. According to it, the seller either acquires for the buyer an equivalent apartment in a house of a similar class in the same area, or provides cash to purchase an apartment.
From January 1, 2020, Article 68 of the "Law on State Registration of Real Estate" "On Compensation for the Loss of the Right Registered in the Unified State Register of Real Estate" comes into force. It will protect conscientious citizens, and involve the payment of compensation from the state. However, the amount of this compensation cannot exceed 1 million rubles, and therefore it is unable to cover the losses of the injured party. Thus, the methods and means of protection that operate in the country today and are planned for the future do not fully protect conscientious buyers.
How should one act when buying an apartment in order to protect oneself as much as possible and ensure one's "presumption of good faith"?
You have looked after yourself an apartment and are going to buy it. But before buying, you need to make sure that the seller really has the rights to this object.
You need to request an extract from the Unified State Register of Real Estate (EGRN) in relation to this apartment. See who is listed as the owner in it, and then check the information about the owner from the extract with the passport data of the person who sells you the apartment. It is useful to check if there are any restrictions, arrests or litigation related to this lot. It is also worth requesting an extract from the USRN on the transfer of rights to an apartment. It will show who owned this property for last years how often she was estranged. If the apartment was resold several times during the year, then this is a signal that there are significant risks.
In addition to the documentary aspect, it is extremely important to see the apartment and talk to the neighbors. Ask them about the owner. No matter how funny the words about talking with neighbors sound at first glance, in practice this will help you understand who you are dealing with - a scammer or a real owner.
In order not to get into an unpleasant situation, you should carefully check the seller's credentials, study all the documents and keep copies of them.
To obtain an extract from the USRN, it is enough to know the address and apartment number. You can get an extract in paper form through the MFC (Multifunctional centers for providing public services city of Moscow, - ed.), or in in electronic format through the Rosreestr website. A fee of 400 rubles is charged for obtaining an extract from the USRN, and another commission may be charged at terminals. An extract through the MFC can be received no earlier than 5 working days.
The Constitutional Court (CC) forbade the state to take away from a bona fide buyer the real estate sold to him by fraudsters, while recognizing the disputed Art. 302 of the Civil Code (CC), partially inconsistent with the Basic Law. As judge of the Constitutional Court Sergei Kazantsev explained, a bona fide buyer cannot know about a violation of the law if the state's ownership is not reflected in the USRN. The case of the applicant Alexander Dubovets, whom the Moscow authorities evicted from the apartment and succeeded in transferring it to the city, was ordered by the Constitutional Court to be reconsidered.
Honored Builder Alexander Dubovets challenged Art. 302 GK. He became the last buyer in a chain of contracts for the sale of an apartment of a Muscovite without heirs who died in 1994, which was seized on a fake certificate of inheritance and resold by scammers (their guilt was recognized by the court in 2013). In 2015, the Moscow authorities succeeded in evicting the applicant and transferring the apartment to Moscow, with which he agreed, despite the objections of the Prosecutor General’s Office, Supreme Court. The applicant insisted that the authorities should be responsible for the reliability of real estate transactions authorized by them and could not claim that the object was stolen from the state, since all transactions are checked and registered by state bodies. As Kommersant wrote on June 4, the Constitutional Court decided to consider the case after the complaint of Mr. Dubovets was communicated by the European Court of Human Rights, which had already taken the side of the victims in similar situations.
Art. 302 of the Civil Code, the court declared partially unconstitutional. As judge-rapporteur Sergei Kazantsev explained, in this situation “it is of fundamental importance how the owner, represented by the state, disposes of his property.” As noted in the CC, we are talking only about residential property and cases when one of the parties is the state, and the disputed property is escheated (passes to the state due to the absence of heirs.- "b"). Art. 302 of the Civil Code, the court concluded, does not take into account the “improper performance of their duties by the competent public authorities”, which did not take timely measures to register the escheated property, and its recovery from a bona fide purchaser “should not take place without taking into account the fact of state registration of ownership of the dwelling” .
According to Judge Kazantsev, if the property was somehow registered by another purchaser even before the final buyer, it does not matter whether he was in good faith or not. If, on the basis of the USRN data, the end buyer is convinced that the property has retired from the seller’s property, and has executed the acquisition for himself, then the seizure of property from him is unacceptable, because he could not know about the violation of the law. “The state is the owner. But the property obliges. The state body had to establish the presence of its property and register it. If this apartment was registered by the state, it is unlikely that the scammers would be able to use it and forge documents,” the judge explained. The case of Alexander Dubovets is subject to review, and the court, according to Mr. Kazantsev, will have to establish whether the state has shown due diligence in this case.
Recall that President Vladimir Putin instructed to resolve this problem back in 2015 (see Kommersant dated August 12, 2015) after a meeting with the Public Chamber (OP). The response of the OP on the case, signed by the deputy head of the Research Center for Private Law under the President, Lidia Mikheeva, states that the chamber has received about 400 applications over the past three years bona fide purchasers, whose housing was confiscated according to a similar scenario. “The decision of the Constitutional Court protects all owners: it is extremely important to be sure of the basis for acquiring the right. When buying, we rely on USRN data and proceed from the presumption of their reliability. The register should not be kept from the point of view of stamping, it should be kept from verified and reliable data, otherwise we simply undermine the credibility of the authorities,” Ms. Mikheeva told Kommersant yesterday. However, she noted that the problem is much broader: in some situations, we are talking about privatization with violations, real estate is resold several times, and seized from the last owner. Ms. Mikheeva also mentioned cases where, for example, land plot ended up in a specially guarded natural area or at the site of the passage of the pipeline. Moscow's "night of long buckets" is "a link in the same chain," the lawyer says.
Ekaterina Grobman
Photo by Pravo.Ru
The Supreme Court of the Russian Federation today presented on its website an overview of judicial practice in cases related to the recovery of residential premises from bona fide purchasers, on claims from state bodies and bodies local government, approved on October 1 by the Presidium of the Supreme Court.
The review deals with legal cases when the owner has the right to reclaim real estate from someone else's possession, including from a bona fide purchaser, the running of the limitation period for claims for reclaiming residential premises and other issues.
In particular, the Supreme Court notes that, when resolving the issue of good faith (bad faith) of the purchaser of residential premises, it is necessary to take into account not only his awareness of the presence of an entry in the Unified State Register of rights to real estate and transactions with it about the ownership right of the property alienator, but also whether reasonable prudence was shown at the conclusion of the transaction and what measures were taken by him to clarify the rights of the person alienating this property.
At the same time, the courts examine issues related to the remuneration of the acquisition of an apartment under a transaction that meets the signs of a valid transaction, the presence of encumbrances, including an arrest, find out whether a citizen who considers himself a bona fide purchaser inspected the residential premises before its acquisition, other facts due to specific circumstances affairs.
The good faith of the purchaser may also be evidenced by his familiarization with all title documents for real estate, ascertaining the grounds for the seller of real estate to acquire the right of ownership, and a direct inspection of the property being acquired.
Thus, the court recognized the defendant T. as a bona fide purchaser of the disputed apartment, given that the seller N. provided all title documents for the dwelling, that a mortgage loan was received for the purchase of the disputed apartment T., and funds were used maternity capital. The ownership of the apartment by the seller was checked not only by T., but also by employees of the real estate agency, to which T. applied in order to purchase an apartment, as well as by bank employees when issuing mortgage loan.
In another case, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation disagreed with the conclusion of the lower courts that there were no grounds for recognizing Sh. as a bona fide purchaser, stating that checking the disposal addresses of the previous owners of the apartment could not affect her awareness of the lack of the previous owner’s right to alienate property (determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation No. 5-VP R10 - 55).
If, however, the transaction was accompanied by circumstances that should have caused the acquirer of the residential premises to have doubts about the right of the seller to alienate it, then such an acquirer may be denied recognition of his bona fide.
For example, the courts of first and appeal instances, when considering the case on the claim of the local government against L. and K. for the recovery of property from someone else's illegal possession, rejected the arguments of the defendant K. about the good faith of the acquisition of the apartment. At the same time, the courts, taking into account the evidence presented by the local government, indicated that the disputed apartment was the subject of a contract of sale and donation three times within a month and a half and was sold at a price significantly lower than its market value, which should have caused K. reasonable doubts about the right of the seller to alienate the property.
As heirs of escheated property, public legal entities are endowed with Civil Code Russian Federation special status different from the position of other heirs under the law: since the acquisition of escheated property does not require the acceptance of an inheritance (paragraph two of paragraph 1 of Article 1152), they are not subject to the rules on the term for accepting an inheritance, as well as the rules providing for the acceptance of an inheritance upon expiration due date(paragraphs 1 and 3 of article 1155); when inheriting escheated property, renunciation of the inheritance is not allowed (paragraph two of paragraph 1 of Article 1157); at the same time, a certificate of the right to inheritance in relation to escheated property is issued in general order(paragraph three of paragraph 1 of Article 1162).
By virtue of the fact that the accepted inheritance is recognized as belonging to the heir from the day the inheritance was opened, regardless of the time of its actual acceptance, and also regardless of the moment of state registration of the heir's right to inherited property, when such a right is subject to state registration (paragraph 4 of Article 1152 of the Civil Code of the Russian Federation), escheated property is recognized as belonging to a public legal entity from the date of opening of the inheritance upon the occurrence of the circumstances specified in paragraph 1 of Article 1151 of the Civil Code of the Russian Federation, regardless of the knowledge of the public legal entity about this and the performance of actions aimed at accounting for such property and registration of its right.
4.1. Legal regulation, in accordance with which the protection of the rights of a person who considers himself the owner of property is possible by satisfying a vindication claim, if there are grounds for this, provided for in Article 302 of the Civil Code of the Russian Federation, giving the right to claim property from a bona fide purchaser (gratuitous acquisition of property by a bona fide purchaser, disposal property from the owner's possession against his will, etc.), meets the goals of ensuring the stability of civil circulation and is generally aimed at establishing a balance of rights and legitimate interests of all its participants.
The given legal position was formulated by the Constitutional Court of the Russian Federation in the Resolution of April 21, 2003 N 6-P in relation to relations with the participation of citizens and legal entities. As for the relations regarding the recovery of residential premises from the possession of citizens on the claims of public legal entities, in whose ownership it was previously received as escheat property, then in relation to these relations it is necessary to take into account their specifics, due to the fact that public legal entities, although they and enter into civil relations on an equal footing with other participants in civil circulation, the norms of civil law relating to legal entities, may be applicable only if otherwise does not follow from the law or the characteristics of these subjects (paragraph 2 of Article 124 of the Civil Code of the Russian Federation).
When a public law entity applies for the recovery of immovable property to a bona fide purchaser, who, in accordance with the procedure established by law, as the owner of the property in the Unified State Register of Real Estate, must take into account the specific interests of which it is the bearer. The peculiarities of cases in this category, based on the need to ensure a balance of constitutionally significant interests, may cause a different distribution of adverse consequences for the owner and bona fide purchaser than that established in Article 302 of the Civil Code of the Russian Federation and confirmed in the legal positions of the Constitutional Court of the Russian Federation, contained, inter alia, in the Resolution dated April 21, 2003 N 6-P.
The transfer of escheated property into the ownership of a public legal entity, regardless of the state registration of ownership and the commission by a public legal entity of any actions aimed at accepting an inheritance Year N 9 "Oh judicial practice on matters of inheritance"), does not cancel the requirement for state registration of property rights. The owner of property, as a general rule, bears the burden of maintaining the property belonging to him (Article 210 of the Civil Code of the Russian Federation), which also implies the registration of his right, the legislative consolidation of the need for which, as the Constitutional Court of the Russian Federation pointed out, it is a recognition by the state of a public interest in establishing the ownership of real estate by a specific person (decrees of May 26, 2011 N 10-P, of March 24, 2015 N 5-P, etc.). However, a public legal entity, as a participant in civil transactions that has not formalized the right of ownership within a reasonable time, to a certain extent creates prerequisites for its loss, including through the disposal of the relevant property from the possession of this public owner as a result of unlawful actions of third parties.
When regulating civil law relations between the owner of escheated property and its bona fide purchaser, it would be fair to shift the adverse consequences in the form of the loss of such property to a public law entity that could and should have taken measures to establish it and properly formalize its right. In a legal democratic state, which is the Russian Federation, disregard for the requirements of reasonableness and prudence when controlling escheated property by the owner - a public law entity represented by competent authorities should not affect the property and non-property rights of citizens, in particular bona fide purchasers of residential premises.
Meanwhile, paragraph 1 of Article 302 of the Civil Code of the Russian Federation - both in its literal meaning and in the meaning attached to it in the system of current legal regulation by law enforcement practice - does not actually take into account the possibility of improper performance by the competent bodies of public law education of their duties, making mistakes, as well as not meeting the criteria of reasonableness and prudence in the exercise of their powers to establish escheated property and formalize the right to it. With regard to residential premises, the protection of the property interests of a public legal entity by infringing on the interests of a bona fide purchaser - a citizen who purchased the relevant residential premises for a fee, in similar situation is unacceptable, especially considering that the public interest in providing housing under the contract social recruitment people in need of improvement living conditions, can be satisfied by other living quarters.
This approach is consistent with the position of the European Court of Human Rights, according to which, when it comes to the general interest, the public authorities should act in a timely, appropriate manner and as consistently as possible; mistakes or miscalculations by public authorities should serve the benefit of the parties concerned, especially in the absence of other conflicting interests; the risk of any error made by a public authority should be borne by the government, and errors should not be corrected at the expense of person concerned(judgments of 5 January 2000 in the case of Beyeler v. Italy and of 6 December 2011 in the case of Gladysheva v. Russia). This position was the basis for the resolution by the European Court of Human Rights of cases related to the recovery from citizens of residential premises that came into the ownership of public legal entities as escheated property (decisions of September 13, 2016 in the case "Kirillova v. Russia", of November 17 2016 in the case of Alentseva v. Russia and of May 2, 2017 in the case of Klimenko v. Russia).
4.2. Not only constitutionally significant property interests this citizen as a bona fide purchaser, but also the constitutional guarantees for the exercise of his right to housing, enshrined in Article 40 of the Constitution of the Russian Federation. The same guarantees are provided to citizens who claim residential premises that have left their possession in order to protect their and their family members' property and non-property interests.
The interest of a public legal entity that claims an escheated residential building in order to include it in the appropriate (state or municipal) housing stock social use(Clause 2 of Article 1151 of the Civil Code of the Russian Federation) for subsequent provision under prescribed by law grounds, for example, under a social tenancy agreement on a first-come, first-served basis, to a person who is not personified at the time of claiming a dwelling, is significantly different from the interest of a particular owner-citizen who claims a dwelling that has left his possession: in cases where there is no specific person, for the sale the need for housing of which the residential premises are claimed, it is this public interest that is opposed to the private property and non-property interests of a particular bona fide purchaser of the residential premises.
The European Court of Human Rights drew attention to this difference, believing that when claiming property by a public owner in accordance with paragraph 1 of Article 302 of the Civil Code of the Russian Federation, there is no private interest associated with a particular residential premises that would be at risk; the implied beneficiaries who are in the queue for receiving housing under a social tenancy agreement are not sufficiently individualized so that their interests are opposed to the interests of the acquirer; in any case, no citizen in the queue could have the same connection with a particular dwelling as the acquirer, and hardly had a special interest in this dwelling, in comparison with the similar interest of the acquirer (decree December 6, 2011 in the case of Gladysheva v. Russia).
4.3. Recognition and protection likewise of all forms of ownership (, the Constitution of the Russian Federation) does not exclude differences in legal regime private and public property, due, among other things, to the peculiarities of exercising and protecting rights to objects that are in private or public property: if the principle of autonomous discretion of the right holder itself applies to citizens and legal entities, so long as this does not violate the rights and legitimate interests of other persons, then the public owner may be subject to appropriate restrictions that arise from the specifics of his legal status, which manifests itself, among other things, when he participates in civil legal relations, and involve the exercise of the powers vested in him for constitutionally established purposes (Decree of the Constitutional Court of the Russian Federation of June 30, 2006 N 8-P).
Accordingly, only advanced system legislation with clear and precise rules that could be considered as an effective mechanism for the civil law protection of the interests of private owners and bona fide purchasers from possible arbitrariness and abuse of public power in relations related to the rights to real estate. Meanwhile, in the current legal regulation there are no special rules specifying the conditions for claiming residential premises from bona fide purchasers indicated in the Unified State Register of Real Estate as owners of these residential premises in the manner prescribed by law, on claims of public law entities, which predetermines the resolution of relevant disputes by the judicial authorities on the basis of the provisions of Article 302 Civil Code of the Russian Federation.
The courts, following the prescriptions of civil law, do not consider the act of state registration of the right to this property as a permissive will of a public legal entity aimed at the disposal of real estate from the possession of a public owner, although it is this act that confirms the legality of a transaction made by an initially unauthorized alienator of real estate with a third party, as the basis for registering him as the owner of this property and, accordingly, the legality of transactions of each subsequent alienator with the ultimate bona fide purchaser. The legal significance of state registration of rights to real estate objects and its significance as a guarantee of legal certainty in the circulation of real estate, allowing its participants to measure their own behavior and foresee the consequences of such in the conditions of the invariance of the officially recognized status of copyright holders, has repeatedly been emphasized by the Constitutional Court of the Russian Federation (decrees of May 14, 2012 No. 11-P, dated June 4, 2015 No. 13-P, etc.).
The state represented by legally authorized bodies and officials acting in the process of state registration of rights to real estate on the basis of the principles of verifying the legality of the grounds for registration, publicity and reliability of the state register (paragraph two of paragraph 1 of Article 8.1 of the Civil Code of the Russian Federation), thereby confirms the legality of the commission transactions for the alienation of real estate. Verification of compliance with the law when making previous transactions with real estate on the part of the acquirer of this property - in contrast to the state represented by the body that carries out state registration of rights to real estate and transactions with it - is often significantly difficult or impossible. Moreover, the public legal entity is in unequal conditions as the owner of a dwelling that is an escheated property, and its bona fide purchaser, whose opportunities to identify illegal actions that led to the fact that the dwelling is removed from the owner’s possession against his will are far from the same.
The European Court of Human Rights directly pointed out that the claim of a dwelling at the claim of a public legal entity, subject to repeated verification by the public authorities themselves during the administrative procedures for registering rights to real estate, title documents and transactions concluded in relation to the relevant object, entails a disproportionate interference in exercising the right of ownership of a dwelling, if the public authorities initially knew about the status of the dwelling as an escheated property, but did not take timely measures to obtain a legal title and protect their rights to it (decision of September 13, 2016 in the case "Kirillova v. Russia" ); in the presence of a wide list of control and permitting authorities and a large number of completed registration actions with a property, no third-party buyer of an apartment should take the risk of deprivation of ownership due to shortcomings that should have been eliminated through specially developed procedures by the state itself, and for these goals do not matter the differences between government bodies the authorities that took part in the commission of certain registration actions in relation to real estate, according to their hierarchy and competence (judgment of December 6, 2011 in the case of Gladysheva v. Russia).
The need to ensure the real and effective operation of the institution of state registration on the basis of the principles listed in paragraph two of paragraph 1 of Article 8.1 of the Civil Code of the Russian Federation cannot be ignored when interpreting the rules on the recovery of property from someone else's illegal possession, which should involve special conditions (restrictions) vindication of immovable property that has passed into the ownership of a public legal entity in the order of inheritance by law as escheat, at the claim of a public owner, referring to the fact that this property was removed from his possession against his will. Accordingly, the possibility of claiming a dwelling that was escheated property should not be provided to a public legal entity - the owner of this property on the same terms as citizens and legal entities. When resolving relevant disputes, significant importance should be attached both to the fact of state registration of ownership of this residential premises by a person who did not have the right to alienate it, and to the assessment of actions (inaction) of the public owner represented by authorized bodies that are entrusted with the competence to formalize escheated property and to their order. At the same time, the actions (inaction) of the public owner are subject to assessment when determining whether the disputed residential premises have actually left his possession against his will or at his will. Otherwise, it would mean an unlawful restriction and derogation of the right of bona fide purchasers and, thereby, a violation of the constitutional guarantees of the right to property and the right to housing.
In addition, in order to achieve a fair balance of interests of the parties to the relevant legal relations, it must be borne in mind that escheated property comes into the ownership of a public legal entity not as a result of any of its actions as a participant in civil circulation, which creates property or acquires it on the basis of a transaction, but upon the occurrence of the circumstances specified in the law, i.e. regardless of the actions or intentions of the public legal entity itself, and that the political and legal motive for establishing such regulation is the desire of the state to avoid the appearance of ownerless property. Therefore, the refusal to demand a dwelling from a citizen who has acquired this dwelling for compensation, at the suit of a public legal entity, cannot be recognized as incompatible with the constitutional principle of justice. and , 35 (Parts 1 and 55 (Part 3)), to the extent that it allows for the recovery, as from someone else's illegal possession, of a dwelling that was escheat property, from its bona fide purchaser, who, when purchasing this dwelling for compensation, relied on data of the Unified State Register of Real Estate and, in accordance with the procedure established by law, registered the right of ownership to it, at the suit of the relevant public legal entity in the case when this public legal entity did not take - in accordance with the requirements of reasonableness and prudence when controlling escheated property - timely measures to its establishment and proper registration of its ownership of this property. www.pravo.gov.ru). The decision must also be published in the "Bulletin of the Constitutional Court of the Russian Federation".
Constitutional Court
Russian Federation
