Recognition of the contract of sale as invalid - how to do it right? On the invalidation of the contract for the sale of an apartment: conditions and procedure.

1.) Prepare an answer to the question: “How exactly does the contract for the sale of housing violate your rights?” and find the article in the law in which this right is enshrined. Make sure you understand what right you are talking about, as well as how it is violated.

2.) Determine whether you were a party to the agreement that you want to invalidate, or whether it was concluded without your participation.

3.) Check Deadlines limitation period. For a voidable transaction - a year, for an insignificant transaction - three. If necessary, apply for an extension of time.

4.) Prepare statement of claim and sue the court at the location of the property. Keep the first point in mind.

And for those for whom the information in the cheat sheet was not enough, there is a detailed article. Read on.

The Meaning of the Recognition Controversy invalid contract purchase and sale of real estate is to return money to one of the parties to this agreement, and return the other real estate. For a number of reasons, canceling the sale of housing is difficult not only from a legal, but also a psychological point of view. Since often this housing is the only one and to invalidate the contract, it means to “throw out” someone on the street.

Recognition as invalid of a contract for the sale of housing, as a rule, occurs as a result of a violation of the form of the contract, its content or the establishment of a "defect of will" on the part of the participant in the transaction. What it is, and in what cases it is applied, we will consider further.

The most common reasons for canceling a home sale:

1) If the execution of the contract of sale does not meet the requirements established by law.

3) If one of the participants in the sale of housing did not act of his own free will, but under the use of violence, threats, blackmail, deceit.

Requirements for the form of the contract

The contract for the sale of housing must be concluded in writing. In relation to the property that is the subject of the transaction, an act of acceptance and transfer must be drawn up. Oral agreements in a housing sale transaction are not legally binding and it is pointless to refer to them in court.

There are a number of other points that must be reflected in the contract of sale of residential premises. They can equally well be attributed to both the form and the content of the contract, but in general they are formalities. Very important formalities.

So, in the contract of sale of housing should be specified:

date of commission
place of commission
contract price (how much was paid)
full passport details of the seller and the buyer
if the seller or the buyer acts on the basis of a power of attorney, then information about the details of the power of attorney and the powers provided for in it
information that allows you to confidently and unambiguously identify the dwelling, including the address, floor, number of rooms, area, cadastral number.

In addition, the contract for the sale of residential premises must contain a number of other information, the absence of which will allow you to cancel the sale of housing.

Requirements for the content of the contract

The seller of residential premises - a real estate object must have the rights to it, including the right to dispose of it at its own discretion. The object of the contract of sale cannot be encumbered with the rights of third parties, including being the subject of a pledge, security, or otherwise be limited in civil circulation.

When selling a property, you should find out if it has registered rights of persons specially protected by law, such as minors or persons with limited legal capacity. The current legislation provides for a certain procedure for conducting a transaction with these categories of citizens.

It is necessary to ascertain the authority of the person who acts on behalf of the seller or buyer of the residential premises. As a rule, such a representative acts on the basis of a notarized power of attorney or a document that is recognized as such a power of attorney in cases established by law ( we are talking on powers of attorney issued by commanders of military units, chief physicians of hospitals, administrations of correctional facilities, etc., as well as by parents who represent the interests of minors by virtue of law, etc.)

Information about the property itself, specified in the contract, must correspond to its actual condition. Often there are cases when a dwelling has undergone reconstruction or redevelopment, as a result of which its technical characteristics have changed. All of these changes must be recorded in technical documentation and legitimized by the relevant resolution of local authorities or a court decision. Otherwise, the deceived buyer has no choice but to cancel the sale of housing.

What is a vice of will

The current legislation provides that each person is free to choose the time and conditions for the transaction. It is not allowed to buy and sell housing under duress.

threats against the participant in the transaction, his family and friends
violence that was applied both to the participant in the transaction and to the above-mentioned persons
blackmail, that is, the threat of dissemination of information about the participant in the transaction that discredits him or is certainly capable of damaging his reputation
difficult life circumstances
deception of the participant in the transaction, when he does not understand the essence of the contract that he signs, or does not realize the consequences that may occur as a result of signing

You can deceive the seller in many ways, for example, by paying with counterfeit banknotes.

Thus, it is possible to define the defect of the will of the participant in the transaction in just two words: the defect of the will is coercion or deceit.

Where to apply for the invalidation of the contract of sale

If we are talking about civil proceedings, that is, directly about how to cancel the sale of housing, then the statement of claim must be sent to the district court, at the location of the property.

If, in parallel, an application for fraudulent actions is considered, then it is submitted to the internal affairs bodies, also at the location of the real estate.

How long does it take to file an application for invalidation of a transaction?

Based on the requirements of Article 181 of the Civil Code of the Russian Federation, it is possible to make demands on the application of the consequences of the invalidity of a void transaction and on the recognition of such a transaction as invalid within three years, from the day when the execution of the transaction began.

This period for appeal is provided for the participant of the transaction.

If the claims are made by a person who himself was not a party to the contract, but believes that his rights have been violated, then the countdown of the above three-year period begins from the moment he learned about the violation of his rights. And in any case, it cannot exceed ten years.

If the requirements are declared to recognize the transaction as invalid, then the limitation period is one year. And the course of the term begins from the moment when the threats or violence against the participant in the transaction ceased.

What is a voidable and void transaction, what is the difference between them?

In short, then:

The list of voidable transactions is established by law, and it is necessary to prove in court that this transaction violates the rights and interests of the applicant, and also creates adverse consequences for him.

Examples of voidable transactions:

the contract was concluded under the influence of violence or threat (part 1 of article 179 of the Civil Code of the Russian Federation)
the contract was concluded under the influence of fraud (part 2 of article 179 of the Civil Code of the Russian Federation)
the contract was concluded on onerous (extremely unfavorable) conditions (part 3 of article 179 of the Civil Code of the Russian Federation)
the contract does not comply with the requirements of the law (part 1 of article 168 of the Civil Code of the Russian Federation)
the contract was concluded without the consent of the authorized bodies (Article 173.1 of the Civil Code of the Russian Federation)
the contract was concluded by a minor from 14 to 18 years old without parental permission (Article 175 of the Civil Code of the Russian Federation)
the contract was concluded by a person with limited legal capacity (Article 176 of the Civil Code of the Russian Federation)
the contract was concluded by a person who did not understand the significance of his actions (Article 177 of the Civil Code of the Russian Federation)
the contract was concluded under the influence of a material error (Article 178 of the Civil Code of the Russian Federation)

A void transaction is invalid from the moment of its conclusion, it is not necessary to prove in court a violation of the applicant's rights, this follows from the law.

Examples of void transactions:

the contract violates the requirements of the law and creates a threat to public interests (part 2 of article 168 of the Civil Code of the Russian Federation)
the contract has a goal that is deliberately contrary to the foundations of law and order or morality (Article 169 of the Civil Code of the Russian Federation)
the contract is imaginary or feigned (Article 170 of the Civil Code of the Russian Federation)
the contract was concluded by an incompetent citizen (Article 171 of the Civil Code of the Russian Federation)
the contract was concluded by a minor i.e. up to 14 years (Article 172 of the Civil Code of the Russian Federation)

Who can file an application to invalidate a contract for the sale of a home?

Such an application can be submitted by one of the participants in the transaction or a person who believes that his rights have been violated by the terms of the transaction.

In fact, violation of the contract of sale of housing rights of third parties is not uncommon. Often, relatives sell an apartment where there is a share of the person concerned, forging his signature. Or they are tricked into agreeing to a deal. And they can also take advantage of the temporary absence of the owner, who is in the service, in medical institutions, places of deprivation of liberty, finally. Lots of options. And when the former owner finds out that he was left without a home, there is only one way out, contact a lawyer and go to court.

The beginning of autumn 2013 brought many changes to Russian legislation. The changes also touched upon the issue of recognizing the purchase and sale transaction as invalid. In the Civil Code, this is reflected in article 166.

As a result of amendments to the legislation, some conditions for recognizing transactions as invalid and a number of restrictions on contesting transactions have changed.

What transactions are considered invalid

Voidable transactions

These transactions can be challenged in higher courts.

What transactions are most often invalidated.

A transaction made by a citizen who, being capable, at the time of its conclusion, could not direct his actions or realize their significance. This must be proven in fact: there must be material evidence, expert examination results, and so on.

Deal as a result of delusion. The delusion must be significant. You must also prove that it took place at the time of the transaction. The materiality of a transaction concerns its subject matter and nature, not its motives. That is, for example, if the buyer did not pay attention to the quality of construction of the house he bought, but it turned out to be lower than he expected. But this also needs to be proven.

A deal made as a result of deceit, threats or violence, a bonded deal. The latter also involves compensation for damage to the injured party.

Undisputed or void transactions

Transactions of this type are invalid in fact, that is, the court can only state that such a transaction is invalid, and not assign it the status of invalidity.

Antimoral, illegal and antimoral transactions. The party acting by intent must return the property or funds that it received under the transaction from the injured party. Everything that belonged to the conspirator before the deal goes into state revenue.

If the intent was bilateral, all property and funds received as a result of such a transaction are subject to confiscation.

Fake deal. The participants, having a different will, hide behind a sham transaction, while they are not interested in the legal consequences associated with the transaction (for example, replacing the purchase and sale with a donation).

An imaginary deal. The participants in the transaction do not show interest in the corresponding legal consequences. Regardless of whether the parties fulfilled their obligations, in what form it was concluded, if the disinterest of the parties is proved, the transaction will be considered indisputable.

Deal with an incompetent citizen. If such a transaction was executed, then bilateral restitution should be carried out. If the second party was aware of the incapacity of the first, then it is also necessary to compensate for the damage suffered by the incapacitated person.

Deal with a minor who is not yet 14 years old. The consequences of the transaction are the same as in the previous version of the void transaction.

But not everything is so clear. A void transaction may be recognized as valid in some cases. The most frequent of them in court practice is the recognition of a transaction with a minor or incapacitated person as valid if it is carried out in favor of a minor or incapacitated person.

Recognition of a purchase and sale transaction as invalid in the new version of the Civil Code

Several points regarding real estate transactions have changed in new edition GK.

1. Bad faith. Since the practice of contesting invalid transactions for formal reasons was quite common, that is, unscrupulous counterparties thus tried to avoid responsibility for the fact that they performed their duties improperly or did not perform at all, some amendments were made to the law.

Article 166, in particular paragraph 5 of the Civil Code, indicates that the declaration of invalidity loses legal meaning. But the applicant's bad faith must be proven. This applies to both counterclaims and direct claims.

2. Lack of consent. If the law requires the consent of a third party or government agency, then without it the transaction will be considered invalid. This invalid transaction will have a voidable status.

However, consent is not contested if the transaction is void. If a situation in which the consent of a third party is required falls under the status of void in accordance with the law, then the third party does not need to challenge the transaction in court, since it is void.

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Last update: 08/02/2018

Buying an apartment, registering your right to it, renovating it, buying a sofa, stretching out on it, and relaxing - this is the dream of an ordinary Apartment Buyer. But in life, unfortunately, things don't always go so smoothly. In any barrel of honey there will definitely be some kind of fly in the ointment.

According to various estimates, from 5% to 15% of concluded real estate transactions contested then in court. And some of them are recognized by the court invalid(Opens in a new tab."> §2 Chapter 9 of the Civil Code of the Russian Federation - Invalidity of transactions).

What does it mean?

Recognition of the contract for the sale of an apartment as invalid means that the concluded contract does not carry any of the legal consequences, moreover, from the very moment of its conclusion (Opens in a new tab. "> Clause 1, Article 167 of the Civil Code of the Russian Federation). That is, such an agreement, as it were, "does not count" - the Seller, as it were, did not sell, and the Buyer somehow would not buy.

Contract for the sale of an apartment (DKP) may be invalid or as a result challenging transactions, or as a result insignificance (legal term) the transaction itself (Opens in a new tab."> Clause 1, Article 166 of the Civil Code of the Russian Federation). Let us briefly explain what is the difference between contestable And insignificant transactions.

A voidable deal call such a transaction that requires recognition of its invalidity in court, if there are serious legal grounds for doing so.

Challenging the transaction and the contract for the sale of an apartment implies the appeal of interested persons to the court with a claim that at the conclusion PrEP their rights to an apartment were not taken into account or were violated. For example, an heir whose rights were not taken into account when disposing of the inheritance ( apartment), may sue for recognition invalid transactions for the disposal of this property.

IN voidable transactions the law leaves the individual to decide whether to resort to a judicial form of protection of his right or not ( for example, negotiate with the other party amicably).

result challenging the deal with real estate may be a court decision on its invalidity(or reality) according to the circumstances of the case.

What transactions are considered null and void?

void deal that transaction is called, which was concluded with an obvious violation of the law from the very beginning. In other words, this is a deal that had no right to be concluded in principle. She is undeniably and unequivocally invalid.

For example, this is the case when the Seller of the apartment did not have the right to sell it ( for example, forged documents), or a transaction with a minor was registered ( by some miracle), which is expressly prohibited by law. Those. there is a violation of the law, there is nothing to argue about - and therefore the transaction is recognized insignificant .

void transaction invalid due to its nature the nature of the violation of the law), and not as a result of a court decision. Those. she becomes invalid upon establishing the very fact of such a violation. However, the requirement to acknowledge the fact insignificance may be brought to court.

Types of void transactions

The sale and purchase of an apartment is considered null and void. if it is concluded with certain violations of the law. The list of such violations is specified in the Civil Code.

According to the Civil Code The following transactions are void:

Transactions that violate the law and at the same time infringe on the rights of third parties (Opens in a new tab."> p. 2, art. 168 of the Civil Code of the Russian Federation); "third parties" is a key factor here, as transactions “simply breaking the law” are voidable (more on that below).
Transactions made with a purpose contrary to the basics of law and order and morality (Opens in a new tab."> Article 169 of the Civil Code of the Russian Federation); it assumes a deliberate illegal act, for example, selling an apartment using fake or invalid documents.
Transactions concluded with persons (Opens in a new tab."> Article 171 of the Civil Code of the Russian Federation).
Transactions concluded with minors, i.e. with persons under 14 years of age (Opens in a new tab."> Article 172 of the Civil Code of the Russian Federation); for example, when a 13-year-old child signed a contract (although parents or guardians should do this for him).
Imaginary ( fictitious) transactions, i.e. transactions made for the sake of appearance, without the intention to create real legal consequences (Opens in a new tab."> Article 170 of the Civil Code of the Russian Federation); for example, an imaginary (“pretend”) donation of property by a debtor in order to avoid an inventory or seizure of this property.
Fake deals, i.e. transactions covering other transactions (Opens in a new tab."> Article 170 of the Civil Code of the Russian Federation); for example, when a formal donation transaction covers an actual sale and purchase transaction with a real transfer of money.
Transactions with property, the disposal of which is prohibited or restricted by law, incl. sale of property by a debtor or bankrupt legal entity (Opens in a new tab."> Article 174.1 of the Civil Code of the Russian Federation).

Difference between contestable deal and insignificant also lies in the fact that a different one is applied to them. TO voidable transactions - one year to void transactions - three years, with the possibility of extending this period to 10 years (Opens in a new tab."> Article 181 of the Civil Code of the Russian Federation).

Thus, when preparing the transaction, the Buyer of the apartment should, at a minimum, exclude signs of a void transaction (see above), and then try to avoid serious grounds for challenging the transaction (see below). The seller does not need to worry about this very much - in the worst case, the apartment will simply be returned to him through the court.

Grounds for recognizing the transaction of purchase and sale of an apartment as invalid

Grounds for the invalidity of transactions there may be many.

In addition to the above grounds insignificance , the deal can also be challenged , and recognized invalid for a variety of reasons.

In general, invalid the court may recognize any transaction that does not comply with the requirements of the law or other legal act(Opens in a new tab."> Clause 1, Article 168 of the Civil Code of the Russian Federation). For this to happen, a lawsuit must be filed action to invalidate a deal , and on the application of the consequences of this invalidity. Such a claim can be filed by both the party to the transaction and other interested parties, as well as local authorities ( e.g. guardianship authorities), or the prosecutor's office.

As a result, the transaction becomes contestable , and its further fate depends on the decision of the court.

The legislation specifies that a transaction for the purchase and sale of an apartment may be contested and declared invalid if:

The transaction was made without the legally required consent of a third party or government agency(Opens in a new tab."> Article 173.1 of the Civil Code of the Russian Federation); for example, an apartment received is sold without the consent of the renter.
The transaction was made by a minor between the ages of 14 and 18 (Opens in a new tab."> Article 175 of the Civil Code of the Russian Federation); for example, the sale of an apartment by a 17-year-old owner without the consent of his parents.
The transaction was made by a person (Opens in a new tab."> Article 176 of the Civil Code of the Russian Federation); for example, the apartment was sold to him without the consent of his trustee and / or without the permission of the guardianship and guardianship authorities.
The transaction was made by a person who is not able to understand the meaning of his actions or manage them (Opens in a new tab."> Article 177 of the Civil Code of the Russian Federation); for example, the Seller of the apartment was drunk at the time of the transaction, or was under the influence of drugs, or was in a state of passion (if he can then prove this, which is extremely difficult).
The transaction was made under the influence of a material error (Opens in a new tab."> Article 178 of the Civil Code of the Russian Federation), i.e. a transaction that incorrectly or distortedly expresses the will of the party; for example, if the party to the transaction made an obvious typo or typographical error in the Apartment Purchase Agreement (DCT); or if the Seller proves that he did not know real situation cases, and would never have signed the contract if he knew about its real consequences for himself.
The transaction was made under the influence of deceit, threat, violence or a combination of difficult circumstances (Opens in a new tab."> Article 179 of the Civil Code of the Russian Federation); for example, the Seller, having got into a criminal history, was forced to sell an apartment at half price, and the Buyer deliberately took advantage of this ("bondage deal").

In particular, a transaction with an apartment can also be declared invalid by a court when:

- other heirs of its former owner are entitled to the apartment ( "unrecorded" heirs sue);
— the consent of the spouse (s) for the sale of the apartment, which is ( dissenting spouse can sue);
- as a result of the transaction were violated ( for example, the condition specified in the Permission of the Guardianship and Guardianship Authorities is not met), or the condition is not met;

What else can be grounds for challenging the transaction purchase and sale of an apartment, it is better for the Buyer to clarify on, in relation to the conditions of a particular transaction, after the necessary information and documents for the purchase of an apartment have been collected ( how to do it - see. Opens in a pop-up window."> STEP-BY-STEP INSTRUCTIONS).

However, it should be understood that the very existence grounds for a possible disputing a deal with an apartment , does not mean that it is necessarily recognized invalid. The court considers all the circumstances of the case, taking into account the actions ( Buyer), and themselves grounds must be very substantial, legitimately motivated, and conclusively proven.

Therefore, the Buyer of the apartment is recommended to know at least the basic reasons for contesting deals, signs of insignificance transactions, as well as to ensure that transaction consequences for the Seller were reasonable and favorable. Including not to violate ( including Seller's relatives ) related to the apartment being sold.

Simply put, all the actions of the Buyer of the apartment come down to ensuring that when preparing the transaction eliminate the reasons for its nullity, and leave no serious grounds for challenging it.

In general, from most of the above grounds to recognize the transaction invalid can protect preparation and certification PrEP at .

Notary penetrates in detail into the essence of the contract certified by him, requires additional documents and references to expand information about the transaction, and also talks with each party to the transaction, finding out the nuances, and explaining to the parties the essence and consequences of the execution of the contract.

Application of the consequences of recognizing a transaction with an apartment as invalid

The law states that invalid transaction does not entail legal consequences, with the exception of those related to its invalidity(Opens in a new tab."> Article 167 of the Civil Code of the Russian Federation).

Translated into normal language, this means that in the case recognition of the transaction with the apartment as invalid, all obligations of the parties under the contract are also considered invalid ( do not require execution), and if they are already executed, then the results of this execution are canceled.

In this case, each of the parties to the transaction must return to the other party everything received under the transaction, and if this is physically impossible, then compensate in money. Such a return to the original state ( how it was before the deal) is called " bilateral restitution ».

In the case of an apartment, the court decision will be the basis for the ownership of the apartment back to the Seller, and the Buyer must receive his money back, in the amount that was indicated in Sales contract.

At the same time, if the Seller is not able to return the entire amount at once, the court obliges him to pay this amount to the Buyer gradually, and such payments can stretch for years. This is what the main danger for the Buyer- if the transaction is declared invalid, he loses the apartment immediately, and the money may be returned to him for a very long time, or may not be returned at all.

Termination of the contract for the sale of an apartment

Lawyers are punctual and scrupulous people. If an ordinary person can express a thought in different words, then from the point of view of jurisprudence, words with a similar meaning can have completely different legal consequences . This applies, for example, to the concepts invalid transaction " And " termination of the transaction ».

invalid the transaction may be subject to a court decision, as a result of its challenging , or as a result of insignificance (see above). The legal consequence of this is the return of the parties to their original state ( bilateral restitution).

Terminate same deal ( treaty) can, as its participants themselves ( by agreement of the parties), and the court ( at the request of one of the parties). And the legal consequence of this will only be the termination of further fulfillment of obligations under the contract, unless other consequences are established by the court or the contract itself. Legislative regulation termination of the contract described in Opens in a new tab.">Chapter 29 of the Civil Code of the Russian Federation.

According to the law, it must take place in the same form in which it was concluded, i.e. separate written agreement. Or a court order. Moreover, after termination of the contract, the parties are not entitled to demand back what has already been performed under the agreement (Opens in a new tab. "> p. 4, art. 453 of the Civil Code of the Russian Federation). Although different kinds compensation for damage may be provided as a voluntary termination agreement, as well as in court decision to terminate.

Grounds for termination of the contract

Grounds for terminating the contract for the sale of an apartment listed in Opens in a new tab."> Article 450 of the Civil Code of the Russian Federation.

In general, they all boil down to the fact that the contract can be terminated by the court at the request of one party in the event material breach of contract the other side. Sounds logical. For example, the Seller has the right terminate the contract if the Buyer has not paid the full amount for the apartment; and in the case of new buildings - the Buyer has the right terminate, which he concluded with if he did not put the house into operation on time.

The main thing that the Seller and the Buyer need to understand here is the fact that terminate the contract for the sale of an apartment they can only if not completed yet one of the parties, or both parties. For example, until the transfer of rights under the agreement is registered, or until all the money has been paid under the terms of the agreement, or until the Seller has transferred the apartment to the Buyer by.

If the transaction is registered and fully completed, then terminate it won't work anymore. It can only be recognized by the court invalid (if there are serious grounds and evidence for that - see above).

Protection against termination and invalidity of transactions

Competent preparation of a real estate transaction ( read), knowledge of the basics of legislation related to such transactions ( read), as well as the support of a specialized lawyer, and / or certification of the contract by a notary - here main protection against the adverse consequences of the transaction.

In particular, protection will be provided by special conditions in Sales contract apartments. For example, a condition on liability for possible claims third parties, the Seller's responsibility for the hidden shortcomings of the apartment, the obligation to discharge all family members, etc. Therefore, it is extremely important to approach the drafting of the contract carefully and thoughtfully, with the help of.

Every word in the contract, and every phrase - matter (those. legal consequences). The drafted wording in the terms of the contract must be clear, have an unambiguous interpretation and not contradict the law and other terms of the contract.

template samples Sales contracts can only give a general idea of how such a contract should look like, and what sections it should contain. The nuances of a particular transaction, and "protective" language in the contract ( what is especially important for the buyer) can take into account and correctly compose only lawyer or .

"REALTOR'S SECRETS":

The rules and sequence of preparing an apartment purchase and sale transaction - on the interactive map "Opens in a pop-up window."> STEP-BY-STEP INSTRUCTIONS » (will open in a pop-up window).

The transaction of purchase and sale of property may be legally false, invalid. The persons involved in the transaction may themselves protest it.

We will tell you when the contract is not valid, what to do to challenge the transaction, what documents to collect and where to apply.

Grounds for declaring a real estate transaction invalid

A sale and purchase transaction may not be legally binding under certain circumstances.

Let's list under which ones:

Contractual obligations violate Russian law.
Failure to fulfill obligations under the contract. For example, the party did not list cash for the acquired property.
The person involved in the transaction is limited in capacity - or is completely incapacitated.
The citizen concluding the contract is a minor. Remember that children cannot own ownership of property once they turn 18. Their rights must be represented by parents or guardians, legal representatives. In the event that a minor is involved in the transaction, then the signature of his parent in the contract and the inscription "Agree" will be required.
The transaction was executed under threat, with the use of violence, misleading, etc. For example, if the party was forced to sign documents, or the participant in the transaction was not aware of the condition of the apartment.
Conclusion of an agreement with a scammer. This is possible when the parties agree on the purchase of housing through intermediaries, agencies that do not have a license to operate.
The contract was not executed in accordance with the requirements and norms of the law.
The deal was made to cover up something, fraudulently, ostensibly.
The property was encumbered and it was not really possible to sell such property. For example, arrest.
Non-consent of a third party to the transaction. For example, refusal banking organization in the sale of part of the property taken on mortgage, or ex-wife did not agree to the sale of common property.

There are many nuances that can cancel a deal. We have listed the most common of them.

Limitation period for the purchase and sale of an apartment - the time frame within which real estate transactions can be challenged

The claim must be filed within a specified time frame.

If you do not have time to meet them, then the solution of the issue may be left without attention.

So, the terms when you can challenge a transaction with real estate are as follows:

1 year. This period applies to transactions that can be challenged. It is necessary to count the period from the moment when the citizen learned about the circumstances, grounds for possible challenge and declaring the transaction invalid.
3 years. These deadlines apply to transactions that are considered void - those that were concluded only on paper. In such transactions, funds are not transferred or transferred. Time is counted from the moment when such an agreement was signed.
10 years. A void transaction during this period may be contested by a person who did not participate in the transaction, but received information that there are grounds for challenging this transaction.

No other deadlines are provided by law.

If you have not had time to apply to the court to challenge, we recommend that you contact a qualified lawyer. Only a specialist, having looked at all the papers and documents, will be able to decide what to do and whether it is possible to challenge the real estate transaction.

Remember, each case is individual.

List of evidence and documents for recognizing the sale of an apartment as invalid

It's easy to dispute a sale and purchase agreement. It is enough to prepare a documentation base that will confirm the invalidity of the contract or the lack of intention of the parties to fulfill contractual obligations.

For example, confirmation could be:

The contract itself, which is not drawn up according to the norms of the law. It is worth pointing out the points where mistakes were made.
Personal documents , whose data could be confused in the contract.
Bank account or card statement , confirming that the transfer of funds was not made, in the case of a cashless transfer.
Lack of receipts confirming the transfer of cash , may also be evidence. You must find witnesses, it is better, of course, if it is a notary who will confirm this fact.
Judgment/ruling of the court on the incapacity of a person involved in the transaction.
Documents proving that the transaction was concluded by a minor . Note that the signatures of the parents in such an agreement will not be.
Presence of encumbrances . You can find out about them from the USRR statement. It can be received not only by the owner of the property, but also by a citizen interested in this transaction. It can also be requested by the court during the trial.
Lack of written consents of third parties who are required to participate in the transaction. If the contract was concluded without them, then it can be considered invalid. The absence of written consent can be confirmed by a lawyer.
Video or audio materials proving the fact of threats, violence . Do not be afraid to fix the illegal actions of citizens. You can then apply not only to the court, but also to the police - to protect yourself, your life and health.
Other supporting documents fraud . It would be better if you contact the police or law enforcement agencies and achieve a criminal case. So challenging the sale of an apartment / property through the court will be faster.

If you have other papers, feel free to submit them to the court for consideration. The main thing is that they show violations of the current legislation, and then you will definitely win the case.

How and where to apply to challenge the sale and purchase of an apartment before and after the registration of the contract - instructions

To dispute a real estate transaction, follow these steps:

Collect documents confirming the contract or transaction as imaginary, false, incorrect.
Write a statement of claim to the court located in the area where the property is located. It is this authority that will be able to make the appropriate decision. You can draw up a document yourself or entrust this matter to a notary.
If third parties or scammers were involved in the transaction, then it is worth writing a statement to the police. In the event that the fact of fraud is confirmed, a criminal case is opened and in court it will be considered as criminal, and not administrative or civil.
Submit documents and apply to the court. Take a signed and dated copy from a specialist.
Wait until the agenda for the first meeting is sent.
Take the court decision and send it or bring it personally to the bailiffs.

Note that if the contract is considered invalid by the court, then the parties return their property. One side - money, if they were transferred, the other - the right to property, which is confirmed in Rosreestr.

Any party, both the buyer and the seller, can apply to the court.

The procedure for considering a claim to challenge a real estate transaction in court - options for a court decision

A contract of sale may be invalidated only by a court decision if it:

Does not comply with the law and other legal acts (168 of the Civil Code of the Russian Federation);

concluded for the purpose contrary to the foundations of law and order and morality (169 of the Civil Code of the Russian Federation);

is an imaginary or feigned transaction (170 of the Civil Code of the Russian Federation);

concluded by a citizen recognized by the court as incompetent (171 of the Civil Code of the Russian Federation);

concluded by a citizen under the age of 18 (175 of the Civil Code of the Russian Federation);

concluded by a citizen limited by the court in capacity (176 of the Civil Code of the Russian Federation);

concluded by a citizen who is not able to understand the meaning of his actions and manage them (177 of the Civil Code of the Russian Federation);

concluded under the influence of delusion, deceit or threat, malicious consent of the representatives of the parties or a combination of difficult circumstances (178-179 of the Civil Code of the Russian Federation);

concluded by a person outside the limits of his authority (174 of the Civil Code of the Russian Federation);

transaction completed legal entity goes beyond the limits of his legal capacity (173 of the Civil Code of the Russian Federation).

By general rule the consequence of the invalidity of the transaction is bilateral restitution - the return by the parties of everything received in kind (clause 2, article 167 of the Civil Code of the Russian Federation). In the event of the invalidity of a transaction made with a purpose contrary to the foundations of law and order and morality, the gain received by the guilty party is recovered as income. Russian Federation(Article 169 of the Civil Code of the Russian Federation).

The return of the property will not be an automatic result of the invalidity of the transaction. Restitution is not possible if the acquirer does not have the property received under an invalid transaction, for example, in the event of its further alienation to another person, a significant change in the object as a result of reconstruction. In this case, the cost of the item will be reimbursed. Refusal to satisfy the claims for the return of the sold real estate also takes place if the buyer is recognized as a bona fide purchaser. If, upon a claim for invalidation of the contract of sale from a person who did not have the right to alienate property, it is established that the buyer meets the requirements for a bona fide purchaser (Article 302 of the Civil Code of the Russian Federation), the owner's claims for the return of real estate will be denied .

A bona fide purchaser is considered when he did not know and could not know that he was acquiring property from a person who did not have the right to alienate it. In the absence of these signs, the owner is recognized as dishonest. When resolving the issue of the acquirer's good faith, the court must take into account family and other ties between the persons who participated in the conclusion of transactions aimed at transferring ownership. In addition, the court takes into account the combination of positions by one person in organizations that made such transactions, as well as the participation of the same persons in the authorized capital of these organizations, family and other ties between them See: Information letter of the Presidium of the Supreme Arbitration Court RF dated November 13, 2008 No. 126 "Review of judicial practice on certain issues related to the recovery of property from someone else's illegal possession" // Bulletin of the Supreme Arbitration Court of the Russian Federation - 2009.- No. 1- 163-165 p..

The procedure for actions of institutions of justice in case of recognition of the invalidity of a transaction is one of the urgent problems of state registration that requires resolution in regulations. A well-founded point of view is widespread that in the absence of restitution, the court decision on the invalidity of the transaction does not in itself entail the termination of the right.

In practice, decisions are often made only on the invalidity of the transaction, without resolving the issue of the fate of the property. Sometimes the parties consciously do not declare restitution, especially when the transactions made not by the owner of the real estate, but by an authorized person - a specialized organization at the auction, the bankruptcy trustee, are invalid, since this entails the return of the proceeds from the sale of someone else's real estate funds.

However, we note that restitution is the actual return of the property received under the transaction and available to the parties. This is the return of real estate from someone else's illegal possession. Return of property and return of title (property rights) must not be confused. Regardless of the application of the consequences in the form of restitution and the actual execution of such a decision by the parties, the recognition by the court of an invalid voidable transaction (or a statement of nullity) entails the loss of the title not real estate, despite the actual ownership. An invalid transaction does not entail legal consequences, with the exception of those related to its invalidity, and is invalid from the moment it is made (clause 1, article 167 of the Civil Code of the Russian Federation). It is no coincidence that in the aforementioned Decree No. 8, the Plenum of the Supreme Arbitration Court of the Russian Federation indicated that the claims for the return of property are the claims of the owner.

An invalid transaction due to its contradiction to the law is an illegal action that does not give rise to rights. If the transaction is invalid, the property cannot be considered legally acquired. In particular, even in studies of the Soviet civil law It was noted that the acquisition of property under a transaction means not just getting it into one's actual possession, but acquiring rights to it. Everything received under an invalid transaction loses its legal basis and must be returned as acquired unjustifiably. Recognition of the transaction as invalid does not entail automatic restoration of rights.

It seems that in case of invalidity of the transaction, the right registered on its basis cannot continue to exist only by virtue of the existence of the registration record. State registration itself cannot be considered in isolation from real legal relations. In the event that an already registered transaction is declared invalid by the court at the claim of the injured party, the question arises of the validity of the registration of the transaction itself. However, the problem is that the court decision to invalidate the grounds for the emergence of the defendant's right to the disputed property is not perceived by the registration authorities as a legal motive for terminating the state registration of the defendant's rights See: Morgunov S.V. Actual issues of contesting the registered right to real estate // Bulletin of the Supreme Arbitration Court of the Russian Federation.-2008-№5-9-15 p.. These authorities refer to the incompleteness and ambiguity of the court decision. Various authors propose to indicate in the operative part of the court decision that the court decision is the basis for terminating the registration of the defendant's right. Another problem arises when the court satisfies the claim of a person who owns property on the right economic management or operational management, the operative part of the decision does not indicate the owner of the property See: Bulgakov D. Whom to put as the owner? It may also serve as grounds for rejection. authorized body registration of ownership.

Despite the problems that arise, the record of the right to an invalid transaction, regardless of the application by the court of the consequences of invalidity, must be canceled as not corresponding to the true state of affairs, since the property was acquired illegally. If the thing remains with the acquirer, then the right to it must be acquired and registered under other legal grounds(according to a court decision on recognition of the good faith of the acquirer, according to new deal etc.). In other words, the right recognized by the court is subject to registration on a general basis - in the manner established for the registration of any property rights to real estate: if there is an application from the right holder, a payment document, a court decision, a plan of the property and other documents necessary for registration.

Based judgments on the recognition of the invalidity of a voidable transaction or on the application of the consequences of the invalidity of a void transaction, the institution of justice must take the following actions:

cancellation of the registration record of an invalid transaction (if the transaction was registered by a justice institution);

· Cancellation of the record of the acquirer's right registered on the basis of an invalid transaction.

If the court recognized the buyer as a bona fide purchaser and refused to return the property to the seller, then the buyer's right is subject to registration on the basis of this decision (in general order). If the court refused to return the real estate to the seller due to a significant change in the object, the right to a new real estate object (in the general order) is subject to registration on the basis of documents confirming the legality of its creation, for example, an act of commissioning after reconstruction. If the court has recovered in favor of the state real estate received under a transaction made for a purpose contrary to the foundations of law and order and morality, such a decision is the basis for registering the property right of the Russian Federation (in the general manner);

· Restoration of the record of the alienator's right, registered before the transaction (with the preservation of the previous registration number and date of registration).

The procedure for restoring registration records must be established by the Rules for Maintaining the USRR. Currently, in the absence of official provisions on the restoration of entries in the USRR, institutions of justice require the registration of a “restored” right on a general basis. However, these claims are invalid.

A distinctive feature of voidable transactions, based on the meaning of paragraph 2 of Art. 166 of the Civil Code of the Russian Federation is that the norms of the Civil Code of the Russian Federation, which establish the grounds for the invalidity of such transactions, always contain an indication of a specific entity, at the request of which the transaction may be declared invalid by the court. The demand for the application of the consequences of the invalidity of a void transaction may be presented by any interested person. Such consequences may be applied by the court on its own initiative in the absence of a corresponding requirement.

When applying to the court with a claim for the protection of a violated right or legally protected interest, the plaintiff is obliged to indicate in the statement of claim the circumstances that substantiate his claims, and evidence confirming these circumstances.

When accepting a statement of claim, the judge must check whether the person concerned has the right to apply to the court for judicial protection and whether it is carried out in a certain procedural order.

In accordance with the law, the conditions for exercising the right to bring a claim, i.e. the right to initiate proceedings are: 1) compliance by the plaintiff statutory for this category of disputes or the procedure for pre-trial dispute resolution provided for by the agreement of the parties, or the submission by the plaintiff of documents confirming compliance with the pre-trial procedure for resolving a dispute with the defendant, when provided federal law for this category of disputes or contract; 2) jurisdiction of the case to this court; 3) legal capacity of the plaintiff; 4) availability of authority to conduct the case; 5) compliance with the written form of the statement of claim; 6) payment state duty. See: Treushnikov M.K. Civil process: textbook. / M.-Gorodets-published, 2003. -S. 305.

The limitation period is applied by the court only at the request of a party to the dispute (Clause 2, Article 199 of the Civil Code of the Russian Federation), therefore, at the stage of preparing the case for trial, the judge, in the absence of such a statement, is not entitled, on his own initiative, to offer the parties to give explanations related to the omission of the limitation period , provide evidence relevant to this circumstance. He has the right to perform such actions if the interested party declares the application of the limitation period, for example, by the defendant in a response to the statement of claim. In this case, the judge has the right to invite him to provide evidence in support of his application, and the plaintiff - evidence of the validity of the missed deadline, if any, and submit the issue for consideration in the preliminary court session.

Cases on recognizing a contract for the sale of real estate as an invalid transaction must be considered and resolved by the court before the expiration of two months from the date of receipt of the application to the court.

The actual circumstances are examined at the court session within the scope of the subject of the claim indicated by the plaintiff. During the trial, the plaintiff has the right to change the subject of the claim. On its own initiative, the court has the right to go beyond the scope of the subject of the claim declared by the plaintiff only in cases where statutory. For example, if the court, when considering a case on the division of real estate, comes to the conclusion that real estate was acquired under a transaction that was contrary to the interests of the state, society, such a transaction is declared invalid with the consequences specified in Article 166 of the Civil Code of the Russian Federation.

Consider an example from judicial practice, the case was considered by Zheleznodorozhny district court Ulyanovsk. The decision was made on April 1, 2009 See: Archive of the Zheleznodorozhny Court of Ulyanovsk for 2009 - Access mode: http//zjeleznodorogniy.uln.sudrf.ru/modules.php?nam.

G. applied to the court with a claim for state registration of the contract of sale three-room apartment concluded between her, O. and A.

The settlement between the parties was made in full. The plaintiff submitted to the Federal Registration Service for the Ulyanovsk region a contract for the sale of an apartment for state registration, but the Federal Registration Service notified her that registration was suspended based on O.'s application. The sellers explained that they had changed their minds about selling the apartment.

O. went to court with a counterclaim to declare the contract for the sale of the apartment invalid. She indicated that, due to her age and state of health, she signed the documents, thinking that she was signing a pledge agreement for her apartment to secure a loan that her daughter took. Thus, the respondent was misled.

The court found that O. was in good faith mistaken in believing that she was signing a pledge agreement. O. had no intention of selling the apartment.

The Court, referring to the provisions Civil Code Russian Federation on invalid transactions, issued a decision to dismiss the claim for state registration of the contract for the sale of an apartment, and satisfied the counterclaim to declare the transaction invalid.

Contained in paragraphs 1 and 2 of Art. 167 of the Civil Code of the Russian Federation general provisions on the consequences of the invalidity of the transaction in terms of the obligation of each party to return to the other everything received under the transaction, according to their constitutional and legal meaning in normative unity with Art. 166 and 302 of the Civil Code of the Russian Federation cannot be applied to a bona fide purchaser. “Property can be claimed from a bona fide purchaser by the owner only in exceptional cases when the property is lost by the owner or the person to whom it was transferred by the owner into possession, or stolen from them or left their possession in another way against their will.” See: Serokurova U. IN. Ways to protect the ownership of real estate // Arbitration practice.-2002.- p. 10-12

However, they apply to the acquirer under an invalid transaction, the other party to which is the owner of the property, who has expressed his will to alienate this property. The foregoing allows us to conclude that the scope of evidence in such cases considered by the courts includes the following circumstances: whether the title owner is disputed property participant in the disputed transaction; whether the first transaction on the alienation of property by its owner is the subject of a dispute in court or the second (third and subsequent) transactions are disputed; whether there are grounds established in paragraph 1 of Art. 302 of the Civil Code of the Russian Federation (compensation of the transaction, the acquirer's awareness of the lack of rights to alienate property from the seller, bona fide acquisition), as well as the circumstances of the disposal of the disputed property from the owner's possession against his will or the will of the persons to whom it was transferred into possession).

The need to go to court arises in cases where the illegality of the content of the transaction cannot be identified without establishing the rights and obligations of its participants. So, if the ownership of the alienated property is registered in the Unified State Register of Rights for one person, and the transferor in the transaction is another person, then from this very fact it is clear that the content of the transaction is contrary to the provisions of Art. 209 of the Civil Code of the Russian Federation, by virtue of which the right to own, use and dispose of property belongs to its owner. However, in cases where the ownership of the property is not registered or state registration disputed by another person who considers himself the owner of this property or part of it (co-developer, spouse, heir who actually took possession of the inheritance property, a person who believes that it was not illegally included in the apartment privatization agreement, etc.), then the transaction is invalid not obvious. In these cases, a complex legal relationship arises, which, along with the legal relationship associated with the transaction, includes a legal relationship associated with the acquisition of property rights. Therefore, before coming to the conclusion that the transaction is null and void on the grounds provided for in Art. 168 of the Civil Code of the Russian Federation, it is necessary in judicial order establish the circumstances indicating that the plaintiff has the right of ownership to the object of the disputed transaction. At the same time, the issue of the presence or absence of the fact of ownership of the property on the basis of the right of ownership is resolved based on whether this object is in the appropriate register state property Russian Federation, subject of the Russian Federation, municipality, involving the relevant property management committees, as well as bodies for registering rights to real estate, to participate in the case.

The court is not entitled to make an alternative decision. Thus, having recognized as justified the plaintiff's claim to recognize the contract for the sale of real estate as an invalid transaction and the application of the consequences of the invalidity of the transaction, for example, in the form of the return of property, the court is not entitled to indicate in the operative part of the decision that he has the right to compensation for the value of real estate.