How can you find out if the apartment you are buying is under arrest in 2020?

Seizure on real estate: how to sell or exchange such an apartment

Sometimes circumstances develop in such a way that you need to urgently sell or exchange real estate. But this problem may not be so easily resolved. For example, in some cases, the seller and buyer are faced with the following question: if an apartment is seized, is it possible to exchange such an apartment? In order not to mess things up even more, this situation should be sorted out very carefully.

You can bypass the law! But is it necessary?

Manipulating property that is under arrest is a violation of the legislation of the Russian Federation. Of course, there are all kinds of scams through which the parties will find some way.

However, such a transaction may be declared invalid at any time. And, in addition to the fact that time and money will be lost to obtain various kinds of documents and certificates, extracts, the seller will face a trial. This action is a financial crime.

Therefore, before you buy, sell or exchange housing under arrest, you should think deeply: do you need it?

But this advice is only useful if the buyer is notified that the property is under arrest. Often a dishonest seller is silent about this, and the buyer himself is embarrassed to ask or is simply unaware of this possibility. Therefore, it is quite possible that the transaction, by hook or by crook, will be completed, the seller will receive the money and successfully escape with it. But the court recognizes the purchase and sale as invalid. As a result, the buyer will be left without money and without a purchase.

In what cases is real estate seized?

When exchanging or wanting to make a purchase and sale transaction of such real estate, it is very important to know in what cases the apartment may be seized.

Almost always this misfortune falls on the poor heads of those who find themselves in debt. These may be non-payments:

banking (if real estate served as collateral);

large utility debts.

This procedure is carried out in court. Typically, the debtor is presented with demands for repayment of the debt, and during this period the property is seized. That is, the owner can still use it, but does not have the right to sell, exchange or donate it.

This should also include claims for damages and property disputes, for example, during division between family members. In cases where the potential seller faces the threat of confiscation of property until the court makes a final decision, the property will also be under arrest.

When can they repossess an apartment for mortgage or utility debts?

But even in this case, the bank is always ready to accommodate if a person tries to give away funds, but simply does not have the opportunity to do so. Of course, it is difficult to imagine a period during which such a huge amount of debt could accumulate. However, there are such cases and often only persistent violators are deprived of their housing, who simply ignore all the decisions and do not appear when summonsed, refusing to contact both the bailiffs themselves and the court proceedings.

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The sale and disposal of property that is in shared ownership is an extremely unpleasant procedure for the bank. The whole point is that you won’t be able to take much from the sale of a share, and in organizational terms you will have to work just as hard as when seizing all the property.

Transaction on seized real estate

The only legal way can only be an agreement with the buyer, who will pay all the seller’s debts from his own funds. Thanks to this, the seizure of the property will be lifted, and the purchase, sale or exchange will take effect. The seller must count this amount as payment for the property.

But in this situation there is a certain risk. The seller may refuse to complete the transaction after payment from the buyer’s funds arrives at the specified address. Therefore, here you should definitely play it safe: draw up the appropriate document with a notary. Although even here the buyer may lose. After all, if the seller refuses to sell, he will have to go to court to get his money back. And this is wasted time in which he will wait for their return. And the court, having ordered the fraudster to return the amount, does not guarantee that this will happen at once and in the shortest possible time.

But if the second party offers real estate that is valued lower than the first, then it makes sense to arrange such an exchange with an additional payment. The additional payment will be the amount of the debt.

In the case of an exchange of equal real estate, it is not profitable for the other party to make such a transaction, since no one wants to pointlessly pay someone else’s debts.

How to sell an apartment under arrest

It is prohibited to carry out any manipulations with the apartment under arrest.

In order to lift the arrest from her and make a buyout of the seized apartment largely depends on the reason for the arrest. In some cases, it may be enough to lift the arrest simply by covering the debt for existing debts with the buyer’s funds.

What are the different ways to sell such real estate and how to sell an apartment under arrest?

Possible reasons for arrest

There are quite a few reasons for arrest, and at first glance, this is usually not uncommon. But as often happens in such cases, such a procedure for encumbering property often frightens its owners, as well as buyers, and even more than other types of encumbrance. While the apartment is under arrest, all legal actions, such as selling it, mortgaging it, donating it, or renting it out, as well as exchanging it or bequeathing it to anyone, are prohibited by law.

Any transactions with such real estate, such as the sale of an apartment under arrest, will be invalid.

By law, only government agencies and with a mandatory court decision are allowed to seize real estate. These include the courts, the Ministry of Internal Affairs, as well as the prosecutor's office or customs. One of these bodies, on the basis of the law “On State Registration of Rights to Real Estate and Transactions with It,” is obliged, according to such law, to notify the registration authorities of the seizure of real estate within three days from the moment the court decision entered into force. It often happens because buyers are not attentive; many scammers take advantage of this and manage to sell them a house that is under arrest and escape with the money. Therefore, before making a purchase, be sure to inquire whether there are any encumbrances on this apartment, and whether it is under arrest. Such information can be obtained from the Unified State Register in the form of a certificate.

Can they take away a share in an apartment for debts?

Many debtors wonder whether they can take away a share in an apartment for debts? After all, unfortunately, many have debts to banks in the form of consumer loans, some have difficult circumstances and borrowers simply cannot repay the loan or repay other debts, people are simply afraid of losing their home due to debts and today I will tell you whether they can take away their share in the apartment because of debts!

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Based on the law, namely Article 255 of the Civil Code of the Russian Federation, the creditor, that is, the one to whom the borrower owes, has every right, if the debtor has no other property that can be recovered for debts, to foreclose on his share in real estate, if such a share exists. After all, shared ownership is a very common phenomenon and for many people the apartment is in shared ownership and each owner can own the apartment in a proportion of 50 to 50%.

Possible options for removing the lien encumbrance

You can lift a seizure of an apartment only by finding out the reason for its imposition. In order to find out whether it is possible to sell an apartment under arrest, a number of important factors should be taken into account. Let's say a lien is imposed due to non-payment, or because of a delay in a mortgage loan. Such arrest is lifted immediately after all payments and their resumption. If the arrest is imposed due to tax debts, then it is removed after all payments on the debt, this also includes fines and penalties. Property that is in the process of a controversial division between spouses, then such arrest is lifted after such division. In this case, it is best for the married couple to enter into a prenuptial agreement. You should also know that all arrests on real estate are canceled by the authority that imposed the arrest.

There are times when the buyer has already submitted documents for registration and accidentally discovers that the apartment is under arrest. In such cases, you can suspend such a transaction by submitting an application to the Rosreestr authorities, the period of which is up to 90 days, or simply terminate it. Having waited during this time for the arrest to be lifted, if it happened during this period, then you need to contact the same authority with your application that imposed the arrest, in this way you can achieve the removal of the encumbrance on the real estate.

There is only one case when real estate is not seized. This is when the debtor has no other suitable housing for living. It is also worth noting that this list does not include mortgaged housing that is pledged to the bank.

The procedure for appealing the arrest of a share in an apartment

If the decision made violates the rights of a citizen, then he has the right to appeal the decision. Moreover, the debtor has the opportunity to challenge both the court decision and the bailiff’s decision.

In practice, situations where an encumbrance on real estate is unlawfully imposed are rare. Before issuing the document, the specialist checks whether the property is the only residence.

Important! The bailiff must send the debtor a copy of the order imposing the encumbrance within 3 days.

Therefore, you can appeal against actions only in the following cases:

The debtor fulfilled his obligations (paid the debt).
The charge was imposed by mistake.

How to appeal the seizure of a share in an apartment to the FSSP

You can appeal the actions of the bailiff:

directly to the FSSP;
to court.

An appeal to the FSSP is carried out as follows:

A special form is filled out addressed to the head of the department.
Sent for consideration within 10 days from the date of receipt of the copy.

The following must be attached to the complaint:

a copy of the debtor's civil passport;
decision to lift the arrest.

The appeal procedure is free of charge. The citizen does not have to pay duty or other fees.

However, a complaint to the FSSP is appropriate in case of imposition of an encumbrance on the basis of enforcement proceedings. If the arrest is imposed by a court decision, then contacting the bailiff service will not bring results.

A complaint to the FSSP is considered within 30 days. The response is sent to the debtor in writing.

Sample complaint to the FSSP

How to appeal an arrest in court

The second option for seizing property is a court decision. It is also carried out by bailiffs.

If you go to court, you must:

Prepare a complaint.
Send her to the court that made the arrest decision.
Attach evidence of the illegality of the encumbrance.

In such a situation, it is necessary to prove that the seized property is the only private residential premises for the debtor and his family.

If the court of 1st instance refuses to satisfy the requirements, the citizen can appeal the decision to a higher authority. However, in order to avoid controversial issues, it is necessary to regularly check the information on the FSSP website.

Important! The applicant’s demands will be satisfied only if the actions of the bailiffs were legal, but the grounds came out (the citizen paid the debt, but the bailiff did not lift the arrest) or if the actions of the FSSP were initially illegal (the apartment is the only place of residence for the family).

Example. Citizen M. purchased an apartment. At the time of registration of property rights, it turned out that the share in the residential premises was seized. As it turned out, the bailiff forgot to send information about the cancellation of the encumbrance to Rosreestr. Although the property was transferred under a purchase and sale agreement to the new owner, registration of the transaction could not take place. The seller filed an application with the FSSP. He attached the court decision as evidence.

Is it even possible to conduct transactions with a seized apartment?

According to the terms of the transaction, the former owner must sell the property to a person who is willing to buy it back for a set price. The issue is regulated by the standards of Article 454 of the Civil Code of the Russian Federation. It notes that it is impossible to sell real estate with an encumbrance.

Important. Failure by the owner to comply with the requirement to eliminate the reason for the restriction entails the organization of auctions to sell the seized property. If you buy it, you should be prepared for various kinds of troubles. For example, to the recognition of trades as invalid.

If not the whole apartment is seized, but a share

Each owner of shared ownership has the right to sell his share if it is legally clear. But he must obtain the consent of other owners. They have a pre-emptive right of repurchase, even if their share is prohibited from carrying out registration actions. If the participants in shared ownership cannot reach a common opinion, then they must apply to a judicial authority with a request to resolve the dispute.

It is impossible to sell the entire apartment or its seized share if an encumbrance is imposed on it. Moreover, purchase from the FSSP, which does not sell. The procedure is organized and carried out by a specialized institution within the framework of enforcement proceedings. It opens on the basis of a decision made by a judicial authority.

How to seize a share in an apartment

Seizure of the debtor's property is necessary if the latter intends to sell it, donate it to third parties, or get rid of the share of the apartment in another way to prevent its alienation by the creditor.

To stop the actions of the violator it is necessary:

draw up a motion to secure the claim;
prepare supporting documents and submit them along with the petition to the court.

It is assumed that the court already has a statement of claim, for example, for compensation for damage incurred, for payment of the amount of the issued loan, including interest, or otherwise. Arrest is proposed as an interim measure for the safety of property (Article 140 of the Civil Code of the Russian Federation).

Sample application

The application is considered on the day of submission. For a positive decision on the petition, it is necessary to justify the expediency of the arrest and attach documents confirming that the debtor is an offender.

The applicant may not know the entire list of property owned by the debtor. In the absence of reliable information about the defendant’s possession of funds, movable and immovable property, it is not necessary to specify what property is subject to arrest. The court will decide what and to what extent will be seized.

Based on the results of consideration of the petition, the judge makes a decision to seize the debtor’s property. A copy of the document is sent to:

to the registration authority - no later than 3 days ;
to the defendant - within 5 days.

The applicant receives a writ of execution to hand over to the bailiff at the location of the home.

To “launch” the process of enforcement proceedings, you must contact the FSSP and submit the appropriate application, drawn up according to the sample:

Have with you a writ of execution issued on the basis of a court decision.

The bailiff will receive the documents within 3 days (or the next day, if the IL orders are subject to immediate execution) after they are submitted to the service.

Over the next 3 days , he will issue a decision to initiate enforcement proceedings and take measures to secure the claim.

If the applicant requests the seizure of property, and the bailiff refuses this, the latter must justify the refusal in an officially issued resolution.

The bailiff's further actions are to conduct a conversation with the offender, during which he will offer to pay the debt within 5 days (Clause 12, Article 30 of Law No. 229-FZ of October 2, 2007).

If the owner of the share refuses to fulfill his obligations, he will be charged a fee of 7% of the debt amount , but not less than 1 thousand rubles. (for individuals).

When making a seizure, the bailiff evaluates the proportionality of the amount of debt and the value of the share (clause 3 of Article 140 of the Code of Civil Procedure of the Russian Federation). If the debt is small, it will not be the apartment that will be seized, but the funds in bank accounts, movable property, the value of which is as close as possible to the price of the claim to be secured.

Is it possible to seize an apartment with a share owned by a child?

Living in an apartment for children does not affect the actions of the bailiff in taking interim measures. It will be very difficult to sell such an apartment, because the rights of minors will be defended by the guardianship and trusteeship authorities, and it is possible to seize them.

The civil servant will not seize the entire apartment, but only the borrower’s share. The child's property will not be damaged.

Example. Simonova Yulia is a single mother. She took out a bank loan to buy a car, but her financial situation changed, and Yulia was unable to pay her debts. The financial organization filed a lawsuit to collect the debt in the amount of 126 thousand rubles. According to the decision, enforcement proceedings were initiated. The bailiff seized the apartment. Yulia considered that his actions were illegal and filed a complaint with the senior bailiff, but the latter assured that this was an interim measure and the property would not be sold, since it was the only home for Yulia and her child. The debtor decided to sell the car, and after repaying the debt, the seizure of the share was lifted by court decision.

Arrest of the only home

When filing a lawsuit to cancel the seizure of a share of an apartment, plaintiffs often appeal to paragraph 1 of Art. 446 of the Code of Civil Procedure of the Russian Federation, according to which the only property suitable for living cannot be foreclosed on. However, “collection” and “arrest” cannot be equated. This is stated in the Ruling of the RF Armed Forces No. 78-KG 15-42 dated January 11, 2016. The arrest allows for claims for debt collection and compensation for damage caused.

The seizure of the only home is possible, since it does not mean its obligatory subsequent transfer to the mortgagee for sale.

Sales procedure between individuals

Sequence of actions when selling a seized apartment:

Find a potential buyer.
Obtain permission to carry out the procedure from third parties who have imposed an encumbrance for the purposes of enforcement proceedings. The seller must contact the appropriate authority with a statement.
Lift the ban on carrying out legally significant actions by eliminating the reason that served to establish it.
Collect the required documents submitted to perform actions classified as legally significant.
Sell the property according to the terms of the purchase and sale agreement. Failure to fulfill at least one of them will lead to the recognition of the transaction as invalid, unless other conditions are provided by the legislator.
Register the transfer of ownership with FKP Rosreestr.

The parties can independently reach an agreement on who will lift the ban, which is permitted by law. As a rule, the buyer gives the seller a deposit of up to 40% of the established fee so that he can pay off the debt.

Sale of an apartment by bailiffs at auction

In accordance with the rules of open bidding, it is impossible to buy a seized apartment from bailiffs. They are carried out when there are 2 or more potential buyers who are ready to offer an amount higher than the stated amount. The initial price is indicated in the decision of the judicial authority or writ of execution, and is announced by the territorial branch of the Federal Bailiff Service.

Actions of the interested party:

choosing an apartment that meets your needs;
submitting an application to participate in open tenders;
concluding an agreement on making a deposit of a certain amount;
making a payment;
obtaining permission to participate in tenders.

The deposit is subject to return in full if the person who paid it was unable to fulfill his intention. If it was not possible to sell the apartment successfully the first time, then the auction will be rescheduled after a certain period of time. At the same time, the starting price of the seized apartment is reduced by 15%, so it becomes possible to purchase it not at market value.

Important. One of the disadvantages of such a procedure is the impossibility of a preliminary inspection of the purchase in order to determine its real condition and actual cost.

How to purchase?

The sale of seized property is carried out in full compliance with Federal Law No. 229, which deals with issues of enforcement proceedings.

All documents describing the encumbered property (including the bailiff's resolution) are sent to the FSSP department.

Before the auction date is finalized. All documents are studied by management specialists.

The design and content of the papers must fully comply with the requirements established by current legislation. It is important that both companies and organizations (legal entities) and citizens (individuals) can participate in the real estate sale event.

The bidding procedure itself includes the following steps:

The bidder signs an agreement with the seller (a bank or government official) on the transfer of the deposit amount.
An application for participation in the event is drawn up and the necessary set of documents is attached to it.
The applicant is allowed or excluded from participating in the auction, and is given a corresponding protocol. A citizen or company admitted to the event is its participant.

Decor

To participate, you will need to collect the following documents:

Application for participation - it is drawn up in accordance with a specific form in two versions.
A receipt with a bank note indicating that the participant made a deposit on the basis of the relevant agreement.
Individuals must provide a photocopy of their passport.
A list of submitted papers, signed by the participant or his representative. This document is drawn up in two copies, one of which indicates the exact date and time (down to the minute) of receipt of the application.
Consent of the spouse of the citizen submitting the application (must be notarized).
An envelope containing an offer for the value of the property (sealed).

Here you can download a sample application for participation in the auction for the purchase of a seized apartment.

Legal entities will additionally need to submit the following documents:

Photocopies of the constituent documentation, attach a certificate of registration to it.
Documents confirming the powers of officials and management bodies (must be certified by the management of the organization).
Permission in writing from the governing body to purchase certain property in situations where such a need is indicated in the constituent documentation.
A photocopy of the balance sheet for the last reporting period.
Power of attorney for a citizen who has the right to carry out actions on behalf of the participant.
Other documents provided for by the current legislation of the Russian Federation.

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How to prepare documents when buying an apartment? Detailed information in this article.

Purchasing a seized apartment from a bank

Late fulfillment of loan obligations or failure to fulfill them leads to loss of the right to dispose of housing. According to the loan agreement, it goes to the bank to which the owner owes the debt. He is deprived of the opportunity to sell his home or exchange it, donate it, or bequeath it. This type of situation often arises when real estate is purchased with mortgage funds.

Buying an apartment from a bank can be a profitable purchase because the price is low. He is interested in returning the funds he issued to the debtor, and not in making a profit from the sale.

The procedure is accompanied by the conclusion of an agreement, which specifies:

the total amount of debt that has accrued to the bank;
method of crediting funds to the lender's current account;
procedure for removing encumbrances from residential space purchased with mortgage loan funds.

Any citizen can buy a seized apartment without any complications if it was alienated in favor of the bank by decision of a judicial authority. In this situation, probable risks are minimized, which is beneficial not only for him, but also for the seller.

Judicial practice on controversial issues

If the question arises about how to buy a seized apartment, then you need to remember the likely risks of the procedure. As judicial practice shows, conflict situations often arise that are simply impossible to avoid. The former owner may file an appeal or cassation, which may be resolved in his favor.

The auction organizers can sell the seized apartment, but they are not responsible for the further actions of the former owner. The acquirer will be forced to solve the problems that have arisen personally.

These include:

refusal to evict from a sold apartment;
recognition of the transaction as invalid due to violations during the auction or the presentation by the buyer of false documents;
initiation of legal proceedings based on the claim of the former owner.

If you purchased real estate with an encumbrance, you should contact a professional lawyer for clarification on the correct execution of documents for it. The measure will allow you to avoid the unpleasant consequences of the transaction.

In conclusion, it should be noted that the sale of seized apartments involves not only risks for the buyer, but also for the seller. If you follow the rules of the transaction, you can sell them without problems. In any case, the buyer should check the legal purity of the apartment, and the seller should find a buyer whom he can trust.

If you need help with checking an apartment or lifting a lien, we are waiting for you for a free consultation. Make an appointment with a lawyer through an online consultant on our website.

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How to sell a foreclosed property

No manipulations can be made with the seized apartment.

The difficulty of lifting a seizure from an apartment depends on the reason for the seizure. Sometimes, in order to free an apartment from encumbrance, it is enough to simply pay off the debts using the buyer’s funds.

Reasons for arrest

Seizure of real estate is not as uncommon as it might seem at first glance. But such an encumbrance frightens both owners and buyers more than other types of encumbrances. Until the arrest is lifted, the apartment will “hang in the air” - it cannot be sold, mortgaged, rented out, donated, exchanged or bequeathed to anyone, that is, it is impossible to take any legal actions. Any transaction with such real estate will be considered invalid.

Only government agencies can seize real estate and only by court decision: court, Ministry of Internal Affairs, prosecutor or customs. A certain body, in accordance with the law “On state registration of rights to real estate and transactions with it,” is obliged to notify the registration authorities of the arrest of the apartment within three days from the date of the court decision. Many scammers take advantage of the inattention of buyers and sell seized real estate by forging documents, and then disappear with the money. Before you sell or buy real estate, you need to find out whether there are encumbrances on it, including arrest. This can be done by receiving a fresh certificate from the Unified State Register.

In most cases, real estate is seized “for debts.” Debts can be mortgage debts, when the apartment is pledged to the bank, or they can be tax debts. Usually, the borrower experiences forced interruptions in paying the mortgage, then he goes to his creditor bank and asks for a mortgage holiday or installment payment; the bank often agrees, but seizes the apartment. The seizure procedure is carried out only through the court; the borrower must have a significant payment arrears for the court to satisfy the seizure claim. Also, the reason for the arrest may be property disputes, division of property, claims for damages, or the prospect of confiscation of the seized property.

What can bailiffs take from a debtor?

At the same time, I would like to separately note the transfer of the debtor’s property to his relatives after the court decision on collection. In this situation, the gift agreement can be challenged, given that there is clearly evidence of evasion of debt repayment.

At the same time, the collector is not obliged to accept the debtor’s things in kind, and may refuse to accept them, which is why, in the absence of the opportunity to sell anything or transfer it to pay off the debt, everything is returned to the debtor and the issue of repaying the debt is resolved accordingly using other measures.

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How to sell an apartment under arrest

It is prohibited to carry out any manipulations with the apartment under arrest.

What are the different ways to sell such real estate and how to sell an apartment under arrest?

Possible reasons for arrest

Any transactions with such real estate, such as the sale of an apartment under arrest, will be invalid.

Most often, real estate is seized “for debts.” Debts are divided into mortgage debt, when the apartment is pledged to the bank, and tax debt. As a rule, bank debt occurs when a borrower turns to the bank to provide him with a mortgage holiday or defer payment, which results in interruptions in mortgage payments. The creditor bank usually agrees, but in this case seizes the property. The procedure for seizing real estate is carried out only through the court, which grants the request only in cases where the borrower has a large payment arrears. There are a number of other reasons for arrest, such as property disputes during the division of this property, as well as all kinds of claims for damage, but also the possible prospect of confiscation of the property under arrest.

Buying a foreclosed apartment

Every adult at some time plans to buy a home. According to statistics, most Russians buy an apartment once, or maximum twice, in their lives. This purchase becomes very significant and the most expensive in life. Therefore, it is necessary to approach this issue as consciously as possible and carefully check the apartment for “legal purity.” Even buying an apartment with a mortgage, when the bank undertakes to verify all documents for the apartment, will not protect you 100% from possible problems.

Sometimes, after purchasing real estate and transferring money to the seller, it turns out that, for example, it is in collateral or arrested. If the arrest is imposed before the purchase and sale transaction is completed, then the transaction will not be registered by Rosreestr. But there are often situations when the process of seizure goes parallel to the sale of the apartment. The seller, naturally, will never tell the buyer about this. And then two options are possible.

If the arrest is imposed before the transaction is registered, then Rosreestr simply suspends the transaction for up to three months, but the money has already been transferred to the seller, and he is unlikely to return it voluntarily. The buyer is left without money and without an apartment. The second scenario is when the process of seizure is completed after registration of the transaction, and then formally the apartment belongs to the new owner, but in fact he does not have the right to dispose of it, and the apartment can be sold for the debts of the previous owner, since the change of owner does not prevent foreclosure for seized property.

The least problematic situation seems to be when the property was seized earlier and the debt has already been repaid by the seller of the apartment. It happens that they simply forgot to remove the encumbrance. In this case, it is enough for the seller to contact the authority that imposed the arrest within three months during which the registration of the transaction is suspended and petition for its removal.

In cases where the arrest is imposed by the competent authorities and it cannot be quickly removed, it is necessary to clarify the reasons for the imposition. If, for example, the seller’s debt is small, and you are satisfied with the apartment both in appearance and price, then sometimes it’s worth just paying off the debt and freeing the property from seizure. But it often happens that the debt is disproportionate to the price of the property.

In cases where the seller voluntarily refuses to return the funds paid upon signing the purchase and sale agreement, refuses to repay the debt for which the seizure was imposed, and facilitate the completion of the transaction, it is necessary to go to court. There are several options for a claim:

claim for recovery of funds from the seller,
a claim for the release of property from seizure and a decision on state registration of ownership of the buyer of the disputed apartment.

For example, the Leninsky District Court of Yekaterinburg, Sverdlovsk Region, considered a civil case based on the claim of K.A.V. to K.V.A. and PJSC Promsvyazbank, in which he asked to be recognized as the legal owner of real estate - an apartment at the address: <address>, to release this property from seizure, to make a decision on state registration of the transfer of ownership of the specified apartment from K.V.A. to plaintiff K.A.V. on the basis of an apartment purchase and sale agreement.

According to paragraph 1 of Art. 223 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), the right of ownership of the acquirer of a thing under a purchase and sale agreement arises from the moment of its transfer, unless otherwise provided by law or contract. In accordance with Art. 511 of the Civil Code of the Russian Federation, the transfer of ownership of real estate under a sales agreement to the buyer is subject to state registration.

In a situation where the registration of a purchase and sale transaction is suspended by Rosreestr due to the presence of a seizure on real estate and the transfer of ownership of the disputed real estate has not been registered, the ownership of this property remains with the seller of the apartment.

Consequently, bailiffs have the right to seize (other restrictions) on this property until the transaction is registered.

By virtue of Art. 511 of the Civil Code of the Russian Federation, the execution of a contract for the sale of real estate by the parties before the state registration of the transfer of ownership is not the basis for changing their relations with third parties, in this case - with the creditor banks of the seller of the apartment. In this regard, in paragraph 58 of the Resolution of the joint Plenum of the Supreme Court and the Supreme Arbitration Court of the Russian Federation dated April 29, 2010 No. 10/22, it is explained that a person who considers himself the owner of real estate in his possession, the right to which is registered with another entity, has the right to apply to the court for recognition of ownership rights.

In the court hearing considered as an example, the court noticed that defendant K.V.A. completed a transaction to sell an apartment already in the presence of demands sent to him by the bank for early repayment of the loan (before the bank filed a lawsuit in court), which indicates his evasion of obligations to third parties.

The disputed apartment is not pledged, therefore, due to the significant debts of the defendant K.V.A. it became possible to arrest the apartment in favor of several creditor banks.

In such a situation, a court decision to release real estate from seizure without the court recognizing the right of ownership is only a formality that does not prevent a new seizure at the request of another creditor.

It should be borne in mind that in order to complete the registration of the purchase and sale transaction of an apartment, it is necessary to simultaneously file a claim for the release of property from seizure and recognition of the ownership rights of the buyer of the residential premises. But it should be remembered that the obligatory state duty for this claim will be calculated based on the cost of the apartment.

In this trial, the plaintiff ignored the court’s explanations about the need to pay a state fee in the amount of 60,000 rubles, calculated from the cost of the apartment of 8 million rubles. This allowed the court to question the sincerity of the plaintiff’s intentions and the reality of the sale and purchase transaction itself.

The court refused to satisfy the claims.

There are situations when the seller honestly says that the apartment is under arrest or the apartment is in collateral, but the good price of such an apartment and the seller’s apparent desire to help the buyer purchase an apartment lead to an agreement between the parties. The buyer pays part of the cost of the apartment to the seller, from this money the debts of the seller’s creditors are paid, and the seizure of the apartment is lifted. After this, the purchase and sale of the apartment is registered. To transfer part of the money and consolidate the parties’ desire to enter into a purchase and sale agreement, an agreement of intent is drawn up.

But this option can leave you without an apartment and without money.

The Industrial District Court of Barnaul considered civil case 2-529/2018 on April 3, 2020.

Z.A.V. filed a lawsuit against S.O.A. on the collection of funds in the amount of 1,200,000 rubles. Between ist and S.O.A. a preliminary purchase and sale agreement was concluded, in accordance with clause 1 of which the parties agreed to conclude a purchase and sale agreement in the future, under which the seller undertook to transfer and the buyer to accept property - an apartment.

The terms of the preliminary agreement establish that to confirm the seriousness of the intentions of both parties, the buyer pays an amount of 1,200,000 rubles at the time of conclusion of the agreement as a security deposit. The specified amount is paid by the buyer solely for the purpose of repaying the seller's debt to <***> and the subsequent removal of encumbrances placed on the apartment. After the buyer has made a security payment, the seller does not have the right to refuse to conclude the main purchase and sale agreement.

After receiving the funds, the defendant repaid the debt to the bank and filed an application with the court to lift the previously imposed arrest. Then the defendant said that she did not intend to enter into a purchase and sale agreement and refused to return the funds, citing their absence.

Plaintiff Z.A.V. filed a lawsuit to compel the defendant S.O.A to conclude an agreement for the sale and purchase of an apartment.

When filing the first claim, the court refused to satisfy the claims on the basis that no written proposals were received from the plaintiff and the plaintiff did not otherwise express his intention to conclude the main agreement, as prescribed by the provisions of paragraph 5 of Art. 429 and paragraph 4 of Art. 445 of the Civil Code of the Russian Federation. As the plaintiff explained, he verbally offered the seller of the apartment to conclude a purchase and sale agreement. The defendant explained that there were no proposals from the plaintiff Z.A.V. not received. The court regarded this as a refusal of the intention to conclude an agreement. Since, by virtue of clause 6 of Art. 429 of the Civil Code of the Russian Federation, the obligations provided for by the preliminary agreement are terminated if, before the end of the period within which the parties must conclude the main agreement, it is not concluded or one of the parties does not send the other party an offer to conclude this agreement.

The plaintiff then files a second lawsuit to recover money from the defendant. But here, too, the parties to the trial differ in their testimony. The plaintiff claims that he transferred money in the amount of 1,200,000 rubles to the seller of the apartment, allegedly to pay off the debt to the bank and remove the encumbrance from the apartment. The defendant claims that she received only 300,000 rubles and it was for this amount that there was a debt that led to the seizure of the apartment. The plaintiff failed to prove his case in court. Requests for the collection of funds were satisfied only in the amount of 300,000 rubles.

What to look for when buying an apartment?

When selecting an apartment, you should remember that a significantly reduced price and the seller’s insistence on reaching a deal as quickly as possible are most likely fraught with some problems with the apartment’s documents.

You should also pay attention to the payment method offered by the seller. When selling a distressed apartment, its owner generally insists on cash payment and always before submitting documents for registration. And when it turns out that the transaction cannot be registered due to the presence of an encumbrance, the money has already been transferred, and the seller may no longer be in the city. In this case, the money can only be recovered through the court, and only if the seller can be found and if he turns out to be solvent.

Before purchasing an apartment, you should definitely check whether there are any encumbrances on the apartment. The property may be mortgaged to the bank, under arrest, or minor children or persons serving sentences are registered in the apartment at the time of sale. It’s clearly not worth buying an apartment with such “surprises”.

The optimal settlement option when completing a purchase and sale transaction is to conclude an agreement with the condition of payment after state registration of the transaction. But such conditions most often do not suit the seller, who also doubts the buyer’s honesty and wants guarantees. Then a compromise for the parties may be the option of storing cash (payment) in a safe deposit box until the rights to the new owner are registered. The seller’s consent to this payment option is practically a guarantee of the purity of the transaction, at least the purity of the seller’s intentions, and the seller, in turn, has guarantees of receiving money after completion of the transaction.

To find out that the legal history of the apartment is clean and everything has been fine with it for the last 15 years, you need to contact the Unified State Register. Information about all residential properties since 1998 is stored here, including the award of ownership, the transfer of this right from one person to another, seizure of property, etc.

However, the availability of information from the Unified State Register about the absence of encumbrances in relation to the object at the time of the transaction does not guarantee that an encumbrance will not appear after the documents are submitted for state registration.

The only option in such a situation is to go to court with a claim to recognize the ownership of the disputed real estate and release it from seizure.

Based on clause 2 of Art. 174.1. Civil Code of the Russian Federation, a transaction made in violation of the ban on the disposal of the debtor’s property, imposed in court or in another manner established by law in favor of his creditor or other authorized person, does not interfere with the exercise of the rights of the said creditor or other authorized person, which were ensured by the ban, except in cases where the purchaser of the property did not know and should not have known about the prohibition.

It is this exception to the general rule that a lawyer should rely on and rely on in his speeches in court. This is practically the only chance to recognize the ownership of the apartment buyer.

The substantiation of the claim must include the statement that if the arrest was the only obstacle to registering the transfer of ownership and the buyer acted reasonably and in good faith, this party has the right to recognize through the court its ownership of this apartment.

According to paragraph 60 of the above-mentioned Resolution of the Plenums of the Supreme Court and the Supreme Arbitration Court of the Russian Federation dated April 29, 2010 “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other real rights” after the transfer of ownership of real estate to the buyer, but before state registration ownership rights, the buyer is the legal owner of this property and has the right to protect his possession on the basis of Art. 305 of the Civil Code of the Russian Federation.

According to paragraph 1 of Art. 165 of the Civil Code of the Russian Federation, a real estate transaction is declared invalid if the requirements for its registration or rights under it are not met only in cases established by law. In Art. 550 of the Civil Code of the Russian Federation on the form of a purchase and sale agreement does not contain any indication of the invalidity of the agreement due to the lack of registration or rights under it. Transactions with real estate - residential premises, in accordance with clause 2 of Art. 223 and art. 558 of the Civil Code of the Russian Federation are considered concluded after their registration, that is, failure to comply with the requirements for an element of the form of the transaction - its registration under such agreements does not jeopardize their invalidity. Therefore, by virtue of paragraph 3 of Art. 165 of the Civil Code of the Russian Federation, in the case where a transaction requiring state registration is completed in the proper form and one of the parties evades its registration, the court has the right, at the request of the other party, to make a decision on registration of the transaction.

But this is only if the court recognizes the buyer of the property as a bona fide purchaser. This means that the purchaser of the apartment did not know and should not have known about the restrictions imposed on the real estate. Not only was he flattered by the low price of the apartment, he decided to buy it without looking and submitted documents to register the purchase and sale agreement. A bona fide buyer is the person who has checked all the documents and circumstances as much as possible, carefully examined the property and had a conversation with the seller, legally entered into a real estate purchase and sale agreement, but did not know, and the seller did not inform him about, for example, a seizure on an apartment. . And only this circumstance was the reason for the refusal to register the transaction. In this case, there is a good chance of defending your rights in court, registering a new apartment in your name and calmly celebrating your housewarming.