The Constitutional Court of the Russian Federation forbade taking away housing from bona fide purchasers. The Supreme Court clarified which buyer of real estate should be considered unscrupulous

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 by the Tax Code of the Russian Federation and amounts to 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 of Oleg Sukhov, General Director of the company"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?

In some real estate offices, legal verification of documents for apartments is carried out. 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, arrears in paying 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 recommended that you still apply for a notarization. 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 recognizes that when buying this object, the buyer did not do everything in his power to verify the legal purity, then he will not be able to protect his rights in any way. But the criteria for this "done everything" are not spelled out in the law. Therefore, there are quite real court decisions, according to which the purchasers were not recognized as bona fide if, for example, they did not talk with their neighbors before buying an apartment, did not find out who the owner was, and so on.

What do you need to know about real estate donations?Gifting is a fairly common form of real estate transactions, and, unfortunately, many people make mistakes when making it. The RIA Real Estate website, together with experts, talks about the main stages and possible difficulties that arise when donating real estate.

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 court. 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 building of a similar class in the same area, or provides funds for the independent purchase of 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 has owned this property in recent years, how often it has been alienated. 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 the provision of public services in the city of Moscow, - ed.), or in electronic form 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.

Photo by Pravo.Ru

The Supreme Court of the Russian Federation today presented on its website a review of judicial practice in cases related to the recovery of residential premises from bona fide purchasers, on claims from state bodies and local governments, 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 prior to 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 direct inspection of the acquired property.

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 of T., and maternity capital funds were used. 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 a mortgage loan.

In another case, the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation disagreed with the conclusion of 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 the transaction was accompanied by circumstances that should have caused the acquirer of the dwelling 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 the 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.

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 the Supreme Court agreed, despite the objections of the Prosecutor General's Office. 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 Constitutional Court, we are talking only about residential property and cases where 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 “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 over the past three years, the chamber has received about 400 applications from bona fide purchasers, whose housing was confiscated in 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 when, for example, a land plot ended up in a specially protected natural area or at the site of a pipeline passage. Moscow's "night of long buckets" is "a link in the same chain," the lawyer says.

Ekaterina Grobman

As a 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 left the possession in another way besides their will (clause 1 of article 302 of the Civil Code). The legal meaning of the concept of "bona fide purchaser" is disclosed by the Constitutional Court of the Russian Federation in a resolution of April 21, 2003 No. 6-P, in a joint resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation of April 29, 2010 No. 10 / 22. However, the provisions of paragraph 1 of Art. 302 of the Civil Code of the Russian Federation received a new assessment of 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 ". Let's 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 (clause 2, article 1151 of the Civil Code of the Russian Federation). 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 in her ownership. A month later, citizen S. concluded 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 was transferred already owned by the latter.

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 crimes under Art. 159 of the Criminal Code of the Russian Federation (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 that the disputed apartment had left the city’s possession, filed a lawsuit against the last buyer in the chain of sales contracts, D. (hereinafter referred to as the defendant), demanding 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 defendant's position (appellate ruling of the Judicial Collegium for Civil Cases of the Moscow City Court dated December 18, 2015 No. 33-44622/15). 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. So, the court noted that from the contract of sale it is seen that the apartment was purchased at a low 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 request for a review of the case.

At the same time, the respondent, 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 of paragraph 1 of Art. 302 of the Civil Code of the Russian Federation regarding the recovery of property from a bona fide purchaser. In his opinion, paragraph 1 of Art. 302 of the Civil Code of the Russian Federation does not comply with Art. 1,, part 1, art. 17, art. 18, part 1, art. 19, art. 35, part 1, art. 40, part 1, art. 46 and Art. 55 of the Constitution of the Russian Federation, as 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 law 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 as part of the state registration of 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 its opinion, at the request of the judge of the Constitutional Court of the Russian Federation, noted that, as follows from the case file, the city of Moscow, as the owner, for almost 20 years, was not interested in the fate of the escheated property that passed into its ownership, did not carry out registration actions in relation to its rights, did not bear the burden maintenance of belonging property (Article 210 of the Civil Code of the Russian Federation), and did not exercise other proprietary powers. Thus, since the city of Moscow did not behave like a host, according to the expert, for all the negative consequences that occurred as a result of the guilty actions (inaction) of the state bodies themselves, a third party who showed due diligence, in good faith relied on the reliability of the state register and, through 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. In this issue, she drew attention to the position of the ECHR, according to which the state is responsible for registration, social rent and privatization of property, which is obliged to control compliance with all the necessary conditions for this. “Due to 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 (ECtHR judgment on application No. against the Russian Federation ")", - Vasilyeva believes.

At the same time, she noted that established in paragraph 1 of Art. 302 of the Civil Code of the Russian Federation, 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.

Plenipotentiary Representative of the State Duma in the Constitutional Court of the Russian Federation Tatyana Kasaeva also believes that the controversial norms of civil law comply with the Constitution of the Russian Federation 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 that excludes the possibility of transferring disputes over real estate and registered rights to it, to the resolution 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, in addition to an extract from the USRR and an extract from the house register, every citizen 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, the risk of illegal disposal of property from state property, assigned to the final purchaser, increases the instability of 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 that the Department violated the statute of limitations when filing a claim for the eviction of citizen D. “About 14 years have passed since the opening of the inheritance 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 , during which the Moscow Mayor's Office did not take any actions to identify and convert property into the property of a constituent entity of the Russian Federation.Thus, are there any grounds for filing a vindication claim with the Department?Even a ten-year statute of limitations, which today is actually restrictive in accordance with the Civil Code of the Russian Federation, expired. On what basis then does the judicial system consider it permissible to protect the interest of a public legal entity for 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 authorities and a large number of registration actions performed 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 be eliminated through specially developed procedures by the state itself (judgment of December 6, 2011 in the case of Gladysheva v. Russia).

Thus, the Constitutional Court of the Russian Federation recognized the provision of paragraph 1 of Art. 302 of the Civil Code of the Russian Federation inconsistent with the Constitution of the Russian Federation to the extent that it allows the recovery 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 a bona fide purchaser relied on the USRN data when buying a home and registered the right of ownership in the manner prescribed by law. 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 paragraph 1 of Art. 302 of the Civil Code of the Russian Federation are subject to revision. We add that the court did not order legislators to amend the controversial norms

GARANT.RU: http://www.garant.ru/article/1119799/

As a 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 dropped out of possession in a different way besides their will (). The legal meaning of the concept of "bona fide purchaser" is disclosed by the Constitutional Court of the 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.

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 that the disputed apartment had left the city’s possession, filed a lawsuit against the last buyer in the chain of sales contracts, D. (hereinafter referred to as the defendant), demanding to evict him and transfer the apartment to the ownership of the city of Moscow.

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. So, the court noted that from the contract of sale it is seen that the apartment was purchased at a low 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.

At the same time, the respondent, 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 law 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 as part of the state registration of rights to real estate and transactions with it.

Expert opinions

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 its opinion, at the request of the judge of the Constitutional Court of the Russian Federation, noted that, as follows from the case file, the city of Moscow, as the owner, for almost 20 years, was not interested in the fate of the escheated property that passed into its ownership, did not carry out registration actions in relation to its 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 host, according to the expert, for all the negative consequences that occurred as a result of the guilty actions (inaction) of the state bodies themselves, a third party who showed due diligence, in good faith relied on the reliability of the state register and, through the fault of state bodies, not aware of the escheat status of the property.

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. In this issue, she drew attention to the position of the ECHR, according to which the state is responsible for registration, social rent and privatization of property, which is obliged to control compliance with all the necessary conditions for this. “Due to 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.

Plenipotentiary Representative of the 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 that excludes the possibility of transferring disputes over real estate and registered rights to it, to the resolution of the courts," she said in court.

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 that the Department violated the statute of limitations when filing a claim for the eviction of citizen D. “About 14 years have passed since the opening of the inheritance 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 , during which the Moscow Mayor's Office did not take any actions to identify and convert property into the property of a constituent entity of the Russian Federation.Thus, are there any grounds for filing a vindication claim with the Department?Even a ten-year statute of limitations, which today is actually restrictive in accordance with the Civil Code of the Russian Federation, expired. On what basis then does the judiciary consider it acceptable to protect the interest of a public legal entity for a right that is not fixed by them?" Krotov reasoned.

Decision of the Constitutional Court of the Russian Federation

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 a bona fide purchaser relied on the USRN data when buying a home and registered the right of ownership in the manner prescribed by law. 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.