Respectable purchaser of real estate jurisprudence. Conscientious purchaser - judicial practice. It includes various points

1. If the property was acquired for compensation from a person who did not have the right to alienate it, about which the acquirer did not know and could not know (a bona fide purchaser), then the owner has the right to claim this property from the acquirer in the event that the property is lost by the owner or the person to whom the property was transferred by the owner into possession, or stolen from one or the other, or left their possession in another way against their will.

2. If the property was acquired free of charge from a person who did not have the right to alienate it, the owner has the right to claim the property in all cases.

3. Money, as well as bearer securities, cannot be claimed from a bona fide purchaser.

Commentary on Art. 302 of the Civil Code of the Russian Federation

1. In contrast to the conscientiousness of possession, which is a long-term mental process, the conscientiousness of the acquisition means, as a rule, a one-time assessment by the acquirer of his behavior as not violating someone's rights. However, if the transaction for the acquisition of disputed property is extended in time (for example, when the direct conclusion of the contract is preceded by lengthy or consultations), the qualification of the acquisition is affected by the presence of any information about the transaction that the acquirer has become available to him during the entire specified period. So, the buyer cannot be recognized as a bona fide purchaser if, by the time the onerous transaction was made, there were claims of third parties in respect of the disputed property, which the buyer was aware of, and if these claims were subsequently recognized as legitimate in the prescribed manner (clause 24 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation N eight).

An acquisition is considered to be conscientious if the acquirer does not have both reliable information about the illegitimacy of the transaction for the alienation of property (did not know), and reasons to doubt its legitimacy, obvious to any normal participant in civil transactions based on general ideas about the diligence and prudence required of him and taking into account the circumstances in which the transaction is made (could not know). Acquisition of property at an unreasonably low price or under a transaction, the completion of which is hidden from others, or the acquisition of property that obviously cannot belong to the alienator, etc., can be qualified as unfair. The circumstances of a careless, unfair acquisition for such a qualification must be analyzed in each specific case in the most detailed way by the court, taking into account the characteristics of the acquirer's personality, his special skills and knowledge, the environment in which the transaction was made, etc. If the acquirer is a legal entity, then in order to refute suspicions of the careless bad faith of its acquisition, it is practically unacceptable to refer to the absence of special legal knowledge, information about the state of the market, etc. (exceptions can be made only in individual cases for public and religious organizations whose activities are not related to permanent participation in civil circulation).

2. The Plenum of the Supreme Arbitration Court of the Russian Federation in paragraph 24 of Resolution No. 8 recommends that the courts place the burden of proving the bona fides of the acquisition on the acquirer himself. Such a position, in principle, contradicts the presumption of good faith formulated in the presumption of good faith in the exercise by participants of civil legal relations of their subjective rights, but its use is dictated by practical considerations. The acquirer who opposes the owner in the vindication process may be completely unfamiliar to the owner, and the latter does not have information about the circumstances of his transaction to acquire the disputed thing; therefore, imposing on the owner the obligation to provide evidence of the bad faith of the acquisition would paralyze the consideration of most vindication disputes. In any case, the owner should not be relieved of the obligation to provide the court with information known to him about the circumstances of the acquisition of the claimed property, and if he does not have such, evidence available to him of the illegitimacy of the transaction for the alienation of the disputed thing, which, regardless of the circumstances of its commission, follow from the characteristics of the thing itself. , information about the identity of the defendant, etc.

3. When formulating the conditions for satisfying a vindication claim, the legislator proceeds from a comparison of the interests of the owner of the disputed thing and its acquirer. The interests of an unscrupulous purchaser shall not be subject to protection as having been achieved by unlawful actions. When comparing the interests of a conscientious gratuitous acquirer and the owner, preference is given to the latter, since the gratuitous acquirer, in the event of the seizure of the disputed thing from him, does not receive a deterioration in his property sphere in comparison with its original state. In the case of a bona fide remunerative acquisition of a previously stolen or lost thing, the conduct of both parties is legally impeccable, and the interests of the owner are given priority due to the fact that his absolute right was affected before the subsequent acquisition took place. And only if the owner voluntarily delegates the right to own the thing to another person who unlawfully alienates the thing, adverse consequences in the form of the impossibility of vindication of the thing from a bona fide paid purchaser are imposed on the owner as a kind of sanction for imprudence in choosing a counterparty. According to the meaning of the law, a bona fide purchaser in this case acquires the right of ownership to the acquired thing.

4. At a certain stage, the question of the relationship between the vindication requirement and the requirement to apply the consequences of an invalid transaction acquired a debatable character. In the practice of arbitration courts and, in particular, courts of general jurisdiction, there were widespread decisions on the application of the consequences of the invalidity of a number of transactions made with property initially alienated under an invalid transaction, and on the return of the disputed property to the alienator in this way, even when for this it was necessary to seize property from a bona fide compensated the acquirer. This issue was of the greatest relevance for practice in cases of contesting the results of privatization in the field of arbitration proceedings and in disputes over residential premises in the general jurisdiction. The Supreme Arbitration Court of the Russian Federation outlined its position on the inadmissibility of satisfying a claim for the application of the consequences of the invalidity of a transaction in cases where the disputed property is not subject to vindication, in paragraph 25 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation N 8. The Supreme Court of the Russian Federation did not comment on this position quite unambiguously, in connection with than the situation came to the attention of the Constitutional Court of the Russian Federation.

In Resolution No. 6-P of April 21, 2003, the Constitutional Court of the Russian Federation stated that there was no contradiction to the Constitution of the Russian Federation established by Art. 167 of the Civil Code of the Russian Federation of the general procedure for applying the consequences of the invalidity of transactions, while considering the possibility of vindication of a thing that passed to a third party after its alienation under an invalid transaction, as a special consequence of the invalidity of the transaction. If there are no conditions for satisfying the vindication requirement, the general mechanism for bringing the parties to their original position through restitution, which involves depriving a third party of property acquired for compensation and in good faith, cannot be claimed.

It should be considered that, under certain circumstances, property that was originally alienated by the owner under a transaction can be vindicated from a compensable bona fide purchaser, if it was made under the influence of delusion, deceit, threat, a combination of difficult circumstances, i.e. when the will to make a transaction has been influenced by factors that deform it, or if the transaction was made under the influence of violence, a malicious agreement between a representative of one party and the other party; in excess of authority legal entity; incapacitated and partially capable subjects, since in all these cases we can talk about the disposal of the disputed property from the owner's possession against his will.

5. Money and bearer securities are not subject to vindication from a bona fide purchaser, even if the acquisition was free of charge. They can be claimed from an unscrupulous purchaser if there are any signs that individualize them.

The disputed property cannot be reclaimed from a person who became its owner as a result of an auction held by a bailiff that was not invalidated at the claim of an interested party (paragraph 22 of the letter of the Presidium of the Supreme Arbitration Court of the Russian Federation N 13).

Civil Code Russian Federation:

Article 302 of the Civil Code of the Russian Federation. Claiming property from a bona fide purchaser

2. If the property was acquired free of charge from a person who did not have the right to alienate it, the owner has the right to claim the property in all cases.

3. Money, as well as bearer securities, cannot be claimed from a bona fide purchaser.

4. The court refuses to satisfy the claim of the subject civil law referred to in paragraph 1 of Article 124 of this Code, on the recovery of a dwelling from a bona fide purchaser who is not such a subject of civil law, in all cases, if after the departure of the dwelling from the possession of the plaintiff, three years have elapsed from the date of making an entry on the right of ownership in the state register the first bona fide purchaser of a dwelling. In this case, the burden of proving the circumstances that testify to the bad faith of the acquirer, or the circumstances of the retirement of the residential premises from the possession of the plaintiff, shall be borne by the subject of civil law specified in paragraph 1 of Article 124 of this Code.

Return to document table of contents: Civil Code of the Russian Federation Part 1 in the current edition

Comments on Article 302 of the Civil Code of the Russian Federation, judicial practice of application

Explanations of the Plenum of the Supreme Court of the Russian Federation

Recovery of property in case of its alienation by an unauthorized person

If the property was acquired from a person who did not have the right to alienate it, the owner has the right to file a claim for the recovery of property from the acquirer's illegal possession (Articles 301, 302 of the Civil Code of the Russian Federation). When in such a situation a claim is brought to invalidate transactions for the alienation of property, the court, when considering the case, should bear in mind the rules established by Article 302 of the Civil Code of the Russian Federation.

The objections of the defendant against the recovery of property from his possession: compensation and ignorance of the incompetence of alienation

In accordance with Article 302 of the Civil Code of the Russian Federation, the defendant has the right to object to the recovery of property from his possession by presenting evidence of his paid acquisition of property from a person who did not have the right to alienate it, which he did not know and should not have known (a bona fide purchaser).

For the purposes of applying clauses 1 and 2 of Article 302 of the Civil Code of the Russian Federation, the acquirer is not considered to have received property for compensation if the alienator did not receive in full the payment or other consideration for the transfer of the disputed property by the time the acquirer knew or should have known about the unlawfulness of the alienation.

When considering the claim of the owner for the recovery of property made as a contribution to the authorized (reserve) capital of a business company (partnership), the courts should take into account that the receipt of property as a contribution to the authorized (reserve) capital is a paid acquisition, since as a result of making a contribution a person acquires the rights of a participant in an economic company (partnership).

At the same time, the fact that an acquisition is for compensation does not in itself testify to the good faith of the acquirer.

The lack of good faith of the acquirer when making notes in the Unified State Register on disputes and rights to property

The acquirer cannot be recognized as bona fide if, at the time of the transaction for the acquisition of property, the right of ownership in the USRR was not registered with the alienator or there was a note in the USRR about a litigation in relation to this property. At the same time, an entry in the Unified State Register on the right of ownership of the alienator is not indisputable evidence of the good faith of the acquirer.

The defendant may be recognized as a bona fide purchaser of property, provided that the transaction by which he acquired possession of the disputed property meets the signs of a valid transaction in everything, except that it was made by an unauthorized alienator.

The owner has the right to refute the objection of the acquirer about his good faith, proving that in the course of the transaction the acquirer should have doubted the right of the seller to alienate the property.

Claiming property upon its disposal from the owner's possession against his will

Within the meaning of paragraph 1 of Article 302 of the Civil Code of the Russian Federation, the owner has the right to reclaim his property from someone else's illegal possession, regardless of the defendant's objection that he is a bona fide purchaser, if he proves the fact that the property has left his possession or the possession of the person to whom it was transferred by the owner, in addition to their will.

The invalidity of the transaction, in pursuance of which the property was transferred, does not in itself testify to its withdrawal from the possession of the person who transferred this property against his will. The courts need to establish whether the will of the owner was to transfer possession to another person.

Recovery of property from several defendants

Overview of the judicial practice of the Supreme Court of the Russian Federation

Reclaiming residential premises at the claims of authorities

"Review of judicial practice in cases related to the recovery of residential premises from bona fide purchasers, at the claims of state bodies and local governments" (approved by the Presidium of the Supreme Court of the Russian Federation on 01.10.2014)

Position of the Constitutional Court of the Russian Federation

Recovery of escheated property from a bona fide purchaser

Paragraph 14 of the Decision of the Constitutional Court of the Russian Federation dated 09.11.2017 "On approval of the Review of the practice of the Constitutional Court of the Russian Federation for the second and third quarters of 2017" states the following:

By Resolution No. 16-P of June 22, 2017, the Constitutional Court assessed the constitutionality of the provision of paragraph 1 of Article 302 of the Civil Code of the Russian Federation.

The subject of consideration was the disputed provision providing for the right of the owner to reclaim his property from a bona fide purchaser in the event that this property was removed from the owner's possession against his will, in relation to cases of reclaiming a dwelling that was escheated property.

In this aspect, the disputed provision was recognized as corresponding to the Constitution of the Russian Federation.

The Constitutional Court, in addition, recognized the disputed provision as inconsistent with the Constitution of the Russian Federation to the extent that it allows the recovery of a residential premises, which was escheat property, from someone else’s illegal possession of a residential premises, which was an escheat property, from its bona fide purchaser, who, when purchasing this residential premises for a fee, relied on data of the Unified State Register of Real Estate and, in accordance with the procedure established by law, registered the ownership of it, at the suit of the relevant public legal entity in the event that this public legal entity did not take timely measures to establish it and properly formalize its ownership of this property.

Publications on the site

See some publications under the heading "Reclaiming property from someone else's illegal possession", in particular:

Vindication or restitution? Reclaiming property from someone else's illegal possession or applying the consequences of the invalidity of the transaction?
. Recovery from illegal possession and the statute of limitations. Arbitrage practice
Technical cellars in an apartment building as common property of the owners. Arbitrage practice

A bona fide purchaser of real estate - arbitrage practice on this issue is often of interest not only to specialists, but also to participants in the turnover, who, as it turned out later, acquired someone else's property. In this article, we will not only reveal the conditions for protecting buyers, but also identify the nuances of recovering real estate from a bona fide purchaser.

Good faith purchaser: criteria for admissible protection

To begin with, let's define the terminology, namely, we will establish who can receive protection as a bona fide purchaser. We will find the answer to this question in paragraph 1 of Art. 302 of the Civil Code of the Russian Federation. An acquirer can be unambiguously considered to be in good faith and entitled to be protected from being claimed from him for his acquisition if he meets the following criteria:

He did not know and did not have the opportunity to find out that he was acquiring property not from the owner or his proper representative, but from a person who was not at all endowed with the right to alienate.
Acquired property on a reimbursable basis (in other words, did not receive it as a gift, but provided an equivalent compensation - money or other tangible or intangible values).

Challenging the good faith of the acquirer, when considering whether he has knowledge of the seller's powers, as evidence, you can submit documents confirming the existence between the parties:

family ties;
official relations;
participation in the authorized capital of organizations;
other forms of affiliation.

IMPORTANT! The conscientiousness of the acquisition according to the criterion of the compensation of the transaction is assessed not only at the time of its conclusion, but also at the time of the transfer of property, as well as at the time of fulfillment of the obligation to pay for it.

So, if the thing was not paid for by the buyer under a reimbursable contract within the prescribed period, then he does not have the right to demand protection as a bona fide purchaser (clause 4 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation “Review of judicial practice on certain issues related to the recovery of property from someone else’s illegal possession "of November 13, 2008 No. 126).

Let us give one more example, when the lack of compensation upon receipt of property is the basis for refusing to protect, it would seem, an absolutely bona fide acquisition. The disputed property was transferred to economic management unitary enterprise. The court, when considering the claim of the owner for the recovery of such property, indicated that the transfer of property to the unitary enterprise was made free of charge, and, therefore, the protection of bona fide acquisition does not apply to this situation.

A bona fide purchaser of real estate and its features

A conscientious purchaser of real estate differs from any other, first of all, in that the acquisition of ownership of such property by him is connected with the state registration procedure. Firstly, the commission of the act of registration by the state authorities determines the moment of the onset of ownership, and secondly, it provides the right holder with special protection.

Let's remember general rule, fixed in par. 2 p. 2 art. 223 of the Civil Code of the Russian Federation. According to this rule, the right of ownership to a real estate object arises from a bona fide purchaser from the moment of state registration of the alienation of this property. Contestation of the registered ownership right of a bona fide purchaser is allowed only by claiming such property and only in cases established by law. We will discuss these cases in more detail in the next section.

IMPORTANT! The judiciary imposes special requirements on a bona fide purchaser of real estate. They are associated primarily with the manifestation of the buyer's special care when making a transaction.

Thus, the Arbitration Court of the Volga District, in its decision dated 01.11.2016 No. Ф06-12185/2016, explicitly names due diligence as a title criterion in assessing the good faith of the buyer when concluding a sales contract. In this case, the court denied the buyer's protection, as he should have known that the property was not previously paid for by the seller, but was resold at a price below market value.

The buyer of real estate must exercise due diligence, that is, to find out for certain all the circumstances relating to:

seller's identity legal status and whether he has the right to dispose of real estate;
compliance of the object being sold with the data set forth in the contract and contained in the relevant state register;
absence of possible claims to the object by third parties;
the presence of consent or approval from third parties or government agencies / organizations, if required in accordance with the law.

Claiming property from a bona fide purchaser

Art. 302 of the Civil Code of the Russian Federation provides for a number of cases when, even despite the state registration of the transfer of rights to real estate, the owner may demand that the bona fide purchaser return the property:

In case of paid acquisition by the buyer - if there is evidence that the property:
- lost by the owner or his representative authorized to possess;
- was stolen from them;
- dropped out of possession in another way against their will.
With a free purchase - without any additional conditions.

The Supreme Court of the Russian Federation in the Review of judicial practice in cases related to the recovery of residential premises from bona fide purchasers at the claims of state bodies and local governments, approved by the presidium on 01.10.2014, indicated that in the event that the residential premises were received by the owner not from the owner, the owner has the right to claim it through a vindication claim (Article 301 of the Civil Code of the Russian Federation).

IMPORTANT! The opportunity to claim real estate from a bona fide purchaser is also available when, despite the compensation of the acquisition, the transfer of real estate into the possession of a bona fide purchaser actually did not take place due to the fact that the owner himself continued to use this property (clause 6 of the information letter № 126).

A significant understatement of the contract price of real estate in relation to its market value can be regarded by the court as a circumstance indicating a collusion of the parties, and, therefore, the possibility of claiming such property from the buyer (paragraph 9 of the information letter No. 126).

Features related to the bona fide acquisition of a land plot

The fact that land plots are real estate does not require special explanation, and, therefore, they have all the same features that we talked about above. Nevertheless, in this section we will touch upon a few more issues, one way or another related to the conscientious acquisition of land plots or their reclamation:

The buyer cannot be recognized as a bona fide purchaser unauthorized construction located on a land plot that was claimed from someone else's illegal possession. This conclusion was reached by the Presidium of the Supreme Arbitration Court of the Russian Federation in the information letter “Review of judicial practice on certain issues of application by arbitration courts of Article 222 of the Civil Code of the Russian Federation” dated 09.12.2010 No. 143 (p. 11).
There are features associated with the reclaiming of land plots that are part of the forest fund. We recall that, in accordance with Art. 8 of the Forest Code of the Russian Federation, the ownership of such plots may belong only to the Russian Federation. It follows from this that forest fund plots can be claimed in any case, even if their buyer could be recognized as a bona fide purchaser. Thus, the Presidium of the Pskov Regional Court sided with the prosecutor and recognized the ownership of the forest fund plot, previously registered for the citizen, as absent, despite the fact that the plot was acquired by the latter under a reimbursable transaction (Decree of October 24, 2014 No. 4-g-281 / 2014).
The due diligence of a conscientious purchaser will be called into question if he ignored the disproportionate area of the land plot in relation to the construction area, as well as the discrepancy between the purpose of the land plot contained in the cadastral documents and the purpose specified in the contract (decree of the Arbitration Court of the West Siberian District dated 01.10. 2015 No. Ф04-23620/2015).
Also, bona fide purchasers of land plots cannot be protected if the sellers of such plots acquired the right of ownership to them on the basis of court decisions that were subsequently canceled. This conclusion was reached by the Supreme Court of the Russian Federation in its ruling dated May 24, 2016 No. 18-KG16-32.

Judicial practice on claims for recognition as a bona fide purchaser of an apartment

In this section, the time has come to study the latest jurisprudence, one way or another affecting questions about the bona fide buyer of residential premises.

Let's analyze some of them:

Let's start with the decision of the Constitutional Court of June 22, 2017 No. 16-P, which recognized the provisions of paragraph 1 of Art. 302 of the Civil Code of the Russian Federation for the following case: when the local authorities demand escheated (i.e., left over from the deceased, who had no heirs) housing from a bona fide purchaser, if the housing was purchased for a fee and registered in Rosreestr. At the same time, local authorities did not take timely action to formalize the rights to the disputed housing. The position of the Constitutional Court is being successfully implemented in practice: the moment the local administration took measures to formalize the disputed housing confidently entered the subject of proof in disputes over escheated property (Determination of the Judicial Collegium on civil affairs of the Supreme Court of the Russian Federation of June 18, 2019 No. 5-KG19-88).
We consider the appellate ruling of the Moscow City Court dated November 2, 2016 in case No. 33-43089/2016 to be very indicative. In this act, the court indicated that only the owner of the apartment has the right to claim an apartment from someone else's illegal possession (that is, the right to file a vindication claim).
When the Moscow City Court adopted the appeal ruling of August 16, 2016 in case No. 33-31612/2016, the court, on the contrary, did not come to the defense of the buyer. The court refused to recognize him as a bona fide purchaser, since the rights of the owner who lost the apartment against his will were violated (during the donation, his notarial consent to the transaction was not obtained).
A wide range of cases on recognition as a bona fide purchaser is associated with apartments received by inheritance. Let's take for example the appeal ruling of the Voronezh Regional Court dated July 19, 2016 in case No. 33-4779/2016. The court in this case refused to recognize the buyer as a bona fide purchaser, because he did not show due diligence when buying an apartment and did not establish that the person who sold the apartment to him acquired it after the death of the previous owner.
In the appeal ruling dated April 18, 2016 in case No. 33-9610/2016, the Moscow City Court came to the defense of the bona fide purchaser, stating that the dwelling did not leave the owner's possession against his will. In the presence of obligations, the recovery of property from someone else's illegal possession is impossible.

Complaint for good faith acquisition

Claims filed in court and involving the study of issues regarding bona fide acquisition can be divided into 2 large groups:

Claims for the recovery of property from the illegal possession of the acquirer (Articles 301, 302 of the Civil Code of the Russian Federation).
The rules on vindication claims should also be applied when considering claims when reclamation is carried out as a consequence of an invalid transaction (clause 35 of the resolution of 04/29/2010 of the Plenum of the Supreme Court of the Russian Federation No. 10, Plenum of the Supreme Arbitration Court of the Russian Federation No. 22 “On Some Issues Arising in Judicial Practice in Cases of resolution of disputes related to the protection of property rights and other rights in rem”, hereinafter referred to as Resolution No. 10/22).
IMPORTANT! When compiling statement of claim on the recovery of property, it is necessary to provide evidence that the plaintiff has the right to property. Such evidence in relation to real estate objects is an extract from the Unified State Register of Real Estate.

If the owner cannot prove his right with the help of this document, he has the right to provide other evidence by virtue of which his rights to the disputed property can be established. However, data from the register of state property or information about the balance sheet of property in this case cannot be regarded as proper evidence (paragraph 36 of Resolution No. 10/22).
Requirements for recognition as a bona fide purchaser.
Such claims may be filed as an initial claim, but are most often in retaliation (i.e., a counterclaim) to a claim for reclamation. Recall that the basis of the evidence base in this case should be:

documents and other evidence confirming the compensation of the transaction;
documents and other evidence showing that the buyer did not have information that the seller did not have the right to alienate the property.

IMPORTANT! Making disputed real estate as a contribution to authorized capital is recognized by the courts as a transaction for compensation, since in response the participant acquires the right to participate in the corporation (clause 37 of Resolution No. 10/22).

Compensation for loss of right

Taking into account that both a conscientious purchaser and an owner who has lost housing can actually suffer innocently as a result of the fact that the court takes the opposite position, the legislator provided for compensation from the state budget.

IMPORTANT! Currently, compensation can be counted on in accordance with the law “On state registration of rights to real estate and transactions with it” dated July 21, 1997 No. 122-FZ (Article 31.1). It will be valid until the entry into force of the law "On State Registration of Real Estate" dated July 13, 2015 No. 218-FZ, that is, until January 1, 2020. New law also provides for similar compensation, but the conditions for its payment will be different (Article 68).

Compensation both now and later can count on:

the owner who could not reclaim housing from a bona fide purchaser;
a bona fide purchaser who nevertheless lost his acquisition.

Conditions for receiving compensation under the old law:

a court decision that has entered into legal force awarded compensation for the damage that was caused in the form of loss of housing;
the execution of this decision did not take place within 1 year for reasons for which the creditor is not responsible.

Conditions for receiving compensation under the new law:

the lost housing should be the only one available to the victim;
a court decision that has entered into legal force awarded compensation for damage caused in connection with the loss of housing;
Enforcement proceedings under the aforementioned court decision were terminated due to the death of the debtor (in the absence of legal successors) or the liquidation of the debtor organization.

IMPORTANT! In both cases, compensation is of a one-time nature, and its amount cannot exceed 1,000,000 rubles.

In conclusion, we emphasize once again that only a buyer who paid for real estate and did not know and was not able to find out about the illegality of the transaction can be recognized as a bona fide purchaser. If the real estate came to the acquirer free of charge, he will not be able to count on protection on the basis of the principle of good faith acquisition.

Cases when property can be claimed from the last acquirer and cases when recovery is impossible

Issues of recovering property from someone else's illegal possession are regulated by Articles 301 and 302 of the Civil Code of the Russian Federation, in accordance with which the recovery of property in court from the last buyer of property acquired under a onerous transaction can be carried out in the following cases:

If the person is dishonest the acquirer, then the recovery of property is possible in all cases.

If the person is conscientious the acquirer, then the recovery of property from someone else's illegal possession is possible only in cases where such property has left the owner's possession against his will.

In other words, in order for the last acquirer not to lose property in court in accordance with the application of Articles 301 and 302 of the Civil Code of the Russian Federation, two conditions must be simultaneously observed:

First, the last acquirer of the property must be conscientious the acquirer.

Secondly, the disposal of property from the original owner must occur at will the last one.

Thus, the validity and legality of the seizure of residential premises from citizens in the manner of applying Articles 301 and 302 of the Civil Code of the Russian Federation is directly related to such concepts as “good faith of the acquirer”, “bad faith of the acquirer”, “will” and “disposal against will”.

At the same time, the signs (criteria for determining) of the above concepts are not disclosed in the legislation.

conscientious article 302 of the Civil Code of the Russian Federation defines the acquirer as a person who, when acquiring property did not know and could not know that property is acquired from a person who does not have the right to alienate it. At the same time, such a wording does not allow establishing signs (criteria) by which it would be possible to accurately establish that a person knew or could know (or did not know and could not learn) that the property is acquired from a person who does not have the right to alienate it.

The concept of "unscrupulous purchaser" in the legislation is not disclosed at all. It is implied that dishonest the acquirer of property is the one who, for some reason, cannot be recognized conscientious the acquirer.

It should be noted that Article 302 of the Civil Code of the Russian Federation is not the only norm of legislation that reflects the attempt of the legislator to disclose the concept of " conscientious acquirer."

In accordance with Article 2 of Federal Law No. 39-FZ of April 22, 1996 “On the Securities Market”, a bona fide purchaser of a security is a person who purchased securities, paid for them, and at the time of purchase did not and could not know about the rights third parties for these securities, unless proven otherwise.

It is noteworthy that Article 302 of the Civil Code of the Russian Federation, in contrast to Article 2 of the Federal Law of April 22, 1996 No. 39-FZ “On the Securities Market”, does not contain the words “ unless proven otherwise”, which inevitably gives rise to a discussion about who should prove the good faith (bad faith) of the acquisition of property that is not a security. Judicial practice not only of lower courts, but also of the Supreme Court of the Russian Federation in this matter, as will be shown below, has not been uniform until recently.

2.1.3. The will to alienate state (municipal) property and ways of its expression by the state, the concept of "disposal against the will" in relation to the owner - the state

As already mentioned, in accordance with the law, the basis for the seizure of property from a bona fide purchaser is the establishment of the fact of loss, theft or disposal of property from the owner's possession in any other way than his will.

If the expression of the will of a citizen can be established on the basis of an analysis of the actions committed by him, then in relation to the state as the owner of property, the application of such an approach causes certain difficulties.

The state acts in the person of numerous bodies of state power and local self-government, which creates difficulties in understanding the legal content of the concepts "will of the state", "departure against the will of the state", and also gives rise to a discussion about proper ways expression by the state of the will to dispose of property, since a number of questions immediately arise:

· What are the signs of disposal of property from state (municipal) property against the will of the state?

· To what extent the concept of "retirement against the will of the state", which is the owner of property, is identical to the concept of "retirement due to unfair (unprofessional, negligent, etc.) actions of officials of government bodies", which are entrusted with the functions of exercising the powers of the owner of the state (municipal) ) property?

· How, in relation to the concepts of “will of the state” and “disposal against the will of the state”, should we consider the situation when property is disposed of from state ownership as a result of illegal privatization, in the registration of which representatives of the state took part?

· How, in relation to the same concepts, to consider the situation when property is illegally withdrawn from state ownership on the basis of a court decision - a state authority (subsequently canceled)? Including when it comes to cases in which the authority was involved, exercising the powers of the owner in relation to state (municipal) property, which did not object to the satisfaction of the relevant claims.

· How to consider a long-term failure to take legally significant mandatory actions in relation to an empty residential premises - for example, escheated property (legal inaction) on the part of authorized representatives of the authority exercising the powers of the owner in relation to state (municipal) property?

How, for example, to consider such a special case when the Department of Housing Policy and Housing Fund of Moscow, which at one time exercised the powers of the owner in relation to the city housing stock, for a long time (more than three years) did not take legally significant actions to ensure proper accounting and safety of the relevant residential premises, which made it possible during the specified period to illegally assign the above-mentioned residential premises to pseudo-military personnel on the basis of contracts social recruitment with their subsequent privatization on the basis of court decisions, and then sell them to third parties (citizens - bona fide purchasers)? Is the described inaction of employees of the Department of Housing Policy and Housing Fund of Moscow an expression of the consent (will) of the city to alienate the disputed apartments?

And this is only part of the questions, the answers to which are not available in the legislation.

In October of this year, the Presidium of the RF Armed Forces approved "" (hereinafter referred to as the Review). Contrary to the logic of the name, the document not only considers examples of relevant cases, but contains direct instructions to lower courts on how they should act in certain situations. Whether the document lived up to the expectations of experts, and how it compares with the positions of the ECtHR and the Constitutional Court of the Russian Federation, we will examine further.

It should be noted that the problem of seizure by state bodies of apartments purchased by citizens in the secondary housing market has existed for many years. One of the main reasons for its occurrence is the illegal privatization or other alienation of apartments on the basis of forged documents and their subsequent resale. When government agencies find out about the fact of fraud, they go to court with claims to recover premises from someone else's illegal possession (). In this case, the defendant, as a rule, is the second or third owner of the apartment and does not even suspect that it was illegally privatized a long time ago (the so-called "bona fide purchaser").

The situation is complicated by the fact that the courts of general jurisdiction have not developed a uniform practice in such cases. The subject of disagreement is, which allows you to seize property from a bona fide purchaser only if it was alienated against the will of the owner. This is where the main contradiction arises. On the one hand, privatization occurs by providing fake documents by an attacker - that is, by committing fraudulent actions. However, on the other hand, the state body signs the privatization agreement, that is, it expresses its will to alienate property. In the future, such transactions and the transfer of ownership of them are also successfully registered with Rosreestr. In this regard, lawyers have long noted the urgent need for clarifications by the Supreme Court of the Russian Federation on this issue.

Good faith of the acquirer

OUR REFERENCE

A bona fide purchaser is understood as a person who acquired property for compensation from another person who did not have the right to alienate it, about which the acquirer did not know and should not have known.

First of all, the Presidium of the Supreme Court of the Russian Federation listed the circumstances that the courts must establish in order to understand whether the acquirer is in good faith:

the fact of disposal of property from the possession of the owner or from the possession of the person to whom it was transferred by the owner into possession, by will or against their will;
compensation (gratuitousness) of the acquisition of property;
whether the acquirer knew or did not know and should not have known that the property was acquired from a person who did not have the right to alienate it.

Also, the Presidium of the Supreme Court of the Russian Federation raised the issue of what the plaintiff (state or municipal body) and the defendant (purchaser of the apartment) must prove when considering the relevant disputes. Thus, the plaintiff must prove his ownership of the disputed property and the fact that the illegal owner has this property. At the same time, the presence of immovable property in the register of state or municipal property, as well as the fact that property is on the balance sheet of the plaintiff, in themselves are not evidence of ownership of this property or legal possession of it. The defendant must prove that the dwelling was acquired by him under a reimbursable transaction, and at the same time he did not know and should not have known that the person from whom he acquired the property did not have the right to alienate it.

OPINION

Elena Nakhimova, attorney at Law Firm No. 16 "Nakhimova and Partners" of the Moscow City Bar Association:

“It follows from the aforementioned provisions of the Review that the plaintiff is relieved of the need to prove in court the disposal of his living quarters against his will. This circumstance, as it were, is presumed. , which the plaintiff must prove, are of an objective nature, and "departure against the will" is a subjective circumstance based on a judicial assessment.

As is known, in Russian legislation the meaning of the term "departure against the will" is not disclosed. In practice, with rare exceptions, an equal sign is put between the concept of "withdrawal against the will of the owner" and "withdrawal due to unfair (unprofessional, negligent, etc.) actions of the owner's officials." Judicial practice is in dire need of official clarifications on the distinction between these concepts (specifically in relation to the category of disputes under consideration).

As for the legally significant circumstances that must be proved by the defendant, here it should be recognized that the Supreme Court of the Russian Federation, unfortunately, adheres to the point of view that in this category of disputes there is no presumption of good faith of the defendant - the burden is placed on him to prove his good faith. In my opinion, the question of the presumption of good faith of the defendant is extremely important, since in disputes with state bodies and local governments, citizens are certainly a weak side and require additional state protection and additional guarantees of their rights and legally protected interests.

In its Review, the Presidium of the Supreme Court of the Russian Federation emphasizes that in determining the good faith of the acquirer, the courts need to take into account not only the presence of an entry in the USRR on the seller's ownership. It is worth finding out whether the citizen showed reasonable diligence when concluding the transaction, what measures he took to clarify the rights of the person alienating the apartment, and other facts due to the specific circumstances of the case. For example, it is established whether there were encumbrances at the time of alienation, including the seizure, and also whether the acquirer examined the residential premises before its acquisition

The good faith of the purchaser may also be evidenced by his familiarization with all the documents of title to real estate, as well as finding out the grounds for the seller of real estate to have the right of ownership. At the same time, if the acquirer knew that by the time the onerous transaction was made, there were claims of third parties in relation to the disputed property, and if such claims were subsequently recognized as legitimate, then the court will not be able to recognize him in good faith.

OPINION

Zinnur Zinnyatullin, lawyer of the Moscow Bar Association "Knyazev and Partners":

“The Review does not contain a position really lacking in the courts on the protection of bona fide purchasers. The system forcing the buyer to thoroughly study all documents when buying an apartment - not only the direct seller, but also the documents of the seller of his seller, and so on, continues to operate. It is surprising why, being a citizen rule of law, when buying real estate, you cannot focus only on Rosreestr data. It would seem logical to get an extract from the USRR, inspect the apartment and be considered a bona fide purchaser on this basis. Alas, the RF Armed Forces take a different position."

If the acquirer is ultimately recognized as bona fide, then, as mentioned above, the property can be reclaimed from him only if it has left the owner against his will. What the courts should take into account when clarifying this circumstance was also explained by the Presidium of the Supreme Court of the Russian Federation in its Review.

The will of the owner to alienate the apartment

The Presidium of the RF Armed Forces considers two main situations.

The property is removed from the owner as a result of the actions of a person who did not have the right to alienate it. At the same time, the authorized body did not conclude an agreement on the alienation of the apartment and did not directly perform any actions. For example, the right of ownership is registered as a result of fictitious registration documents being submitted directly to the Rosreestr or a subsequently canceled court decision. In this case, the apartment is recognized as retired against the will of the owner, and can be reclaimed from someone else's illegal possession, including from a bona fide purchaser.

True, in this situation, the question arises of how the fate of a bona fide purchaser should be affected by errors or illegal actions of officials not of the owner himself, but of other state bodies (Rosreestr, courts, registry office), as well as notary offices. Firstly, some of them should ensure the purity of the transaction and the correct execution required documents- but they do not always fulfill this obligation. Secondly, the basis for illegal privatization or other alienation of apartments are often fake powers of attorney, wills, certificates of inheritance, marriage certificates, court decisions that cannot be made without the participation of relevant officials.

"The issue of the disposal of residential premises from state bodies and local governments through the fault of officials of other state bodies and local governments was not reflected in the Review. It seems that explanations should also be given for such situations, moreover, in favor of citizens, since, only such a conclusion suggests itself from an analysis of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms and the practice of the ECtHR on human rights,” comments Elena Nakhimova.

FROM THE DECISION

“With so many regulatory authorities to ensure the purity of title, neither the applicant nor any other third party - the buyer of the apartment - should have assessed the risk of termination of ownership due to shortcomings that had to be eliminated under the procedures specifically introduced for this purpose. The authorities' omission could not justify subsequent sanctions against a bona fide purchaser of the property.<….>The Court reiterates that errors or miscalculations by public authorities must serve the benefit of the persons concerned [in the context of the case before the ECtHR – the buyers of the apartment. - Red.], especially in the absence of other conflicting interests. In other words, the risk of any error committed by a public authority should be borne by the state, and errors should not be corrected at the expense of the person concerned.

It is worth noting that in the Review under consideration, the Presidium of the Supreme Court of the Russian Federation also once again emphasized that courts of general jurisdiction should take into account the legal positions formulated in the Judgments of the ECtHR issued in relation to Russia (based on the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 27, 2013 No. 21 " ").

The property is disposed of by the owner as a result of his own actions. For example, a state or municipal body signed an agreement on the transfer of an apartment into the ownership of a citizen, that is, he took actions to alienate it. However, the transaction was made on the basis of forged documents and is invalid by law. Nevertheless, as noted by the Presidium of the Armed Forces of the Russian Federation, in such a situation, the invalidity of the transaction for the alienation of residential premises does not in itself indicate the disposal of real estate against the will of the owner.

Thus, property cannot be reclaimed from a bona fide purchaser if it is established that the authorized body could verify the compliance of the submitted documents with reality, but did not show due diligence. In this case, the will of the homeowner is expressed by him when issuing the relevant documents of title, as well as when registering the contract and ownership of the disputed apartment.

The practice of the Armed Forces of the Russian Federation itself and a number of lower courts confirms this, in particular, they note that the verification of documents is the responsibility of the state body concluding the privatization agreement. In addition, based on the positions of the courts, it can be concluded that the agreement on the alienation of property signed and registered with Rosreestr in itself already indicates the will of the owner. The presence of vices of the will (deception, delusion) in this situation does not matter.

The Constitutional Court of the Russian Federation also spoke in a similar spirit: according to its position, the legislator should provide for such methods and mechanisms for implementing property rights, which would provide protection not only to owners, but also to bona fide purchasers as participants in civil circulation. Otherwise, for a wide range of bona fide purchasers, there will be a risk of unlawful loss of property that can be claimed from them in the order of restitution [each party is obliged to return to the other everything received under the transaction. - Ed.] ().

However, as noted in a special report published in 2013 by the Commissioner for Human Rights in the city of Moscow Alexander Muzykantsky(now Deputy Secretary of the RF OP) on the problem of protecting the rights of bona fide purchasers, despite the positions of the ECtHR, the Supreme Court of the Russian Federation and the Constitutional Court of the Russian Federation, city courts still make decisions not in favor of bona fide purchasers in similar cases. At the same time, the percentage of decisions made in the Moscow region in favor of bona fide purchasers is insignificant. Particular attention to this problem and its acuteness in Moscow is not accidental due to the large market of real estate that is more expensive than in the regions. At the same time, according to Alexander Muzykantsky, there is practically no such problem in other regions of the Russian Federation.

OPINION

Alexander Muzykantsky, Deputy Secretary of the Civic Chamber of the Russian Federation:

"In many regions, there is no judicial practice on the problem of bona fide homebuyers, and where there is, it is decided in the vast majority of cases in favor of residents. Courts refuse to vindicate local executive authorities [reclaiming property from someone else's illegal possession - Ed.]. Moreover, they very often refuse with reference to the very decision of the ECtHR and the decision of the Supreme Court of the Russian Federation and with reference to simple logic: if you yourself signed the document on privatization, why are you now saying that it is illegal?

Conditions for the application of vindication and recognition of the transaction as invalid

The Presidium of the Armed Forces of the Russian Federation also delimited the grounds for using and. The first norms regulate the recovery of property from someone else's illegal possession (vindication claim), require clarification of the good faith of the acquirer, the will of the owner to alienate property, the compensation of the transaction and do not provide for its invalidation. The second norms presuppose the recognition of the transaction as invalid, not entailing legal consequences, as well as the return of the transferred property, regardless of the good faith or bad faith of the parties.

If the defendant (purchaser) did not directly conclude an agreement on the transfer of housing with the plaintiff (state or municipal authority), but acquired this property from another person as part of subsequent transactions, then the rules apply. At the same time, it doesn’t matter which way the plaintiff chose to protect his right: a claim for the recovery of residential premises from someone else’s illegal possession () or for the invalidation of transactions for the alienation of an apartment (), or the statement of such requirements at the same time. If it is established that the acquirer is bona fide, then the satisfaction of the claims in the order must be denied.

However, the very first transaction, which is concluded directly between the state or municipal authority and the person to whom the apartment was transferred, may be invalidated on the basis of, for example, for the purpose of subsequent recovery of losses from the fraudster. Earlier, a similar position on this issue was also expressed by the Constitutional Court of the Russian Federation (). This position seems to be extremely important, since in practice, when satisfying claims for reclaiming housing from bona fide purchasers, courts sometimes simultaneously apply and, which, as follows from the positions of the Supreme Court of the Russian Federation and the Constitutional Court of the Russian Federation, have a different subject of regulation.

Calculation of statute of limitations

The Presidium of the Armed Forces of the Russian Federation noted that claims for the recovery of real estate from someone else's illegal possession are subject to a general limitation period of three years from the moment the owner found out or should have found out about the existence of a corresponding entry in the USRR ( ; ).

However, an entry in the USRR on the right to real estate or its encumbrance does not in itself mean that from the day it was entered into the USRR, the person knew or should have known about the violation of the right. Therefore, the moment of commencement of the limitation period for the stated requirements can be determined based on the circumstances of a particular case. For example, from the day when the owner learned about the initiation of a criminal case, the commission investigative actions ().

This position of the Supreme Court of the Russian Federation is of significant importance, since sometimes the courts, considering vindication claims against bona fide purchasers, incorrectly determine not only the moment the limitation period began to run, but also the period itself. In particular, they are guided by the provisions on the statute of limitations to protect the rights of the owner from violations not related to deprivation of possession - the so-called negatory claims (). The fact is that the statute of limitations does not apply to negatory claims at all ().

As a result, apartments from bona fide purchasers are sometimes reclaimed 10 or more years after the state agency learned about fraudulent actions during its alienation (decision of the Tagansky District Court of Moscow dated September 17, 2013 in case No. 2-1626 / 2013, decision of Tagansky District Court of Moscow dated December 24, 2013 in case No. 2-2678/2013, decision of the Golovinsky District Court of Moscow dated November 29, 2013 in case No. 2-3931/2013). and . It cannot be said that vindication claims limitation periods do not apply when they apply.

Thus, on the one hand, the review contains useful information, which should play a positive role in solving the problem of confiscating housing from bona fide purchasers. However, some topical issues of protecting their rights remain unresolved. Plus, certain provisions of the Review itself are also perceived ambiguously.

It should also not be forgotten that the problem of bona fide purchasers lies not only in the field of law enforcement, but is also quite obviously related to the corruption component in government bodies and notary offices. Such a conclusion, in particular, was reached by the participants of the OP RF held in the summer on this topic.

Not the last role in solving this problem is played by the political will of the leaders of senior officials, in particular, the city of Moscow, who are not prevented by anything from adjusting the policy of the constituent entity of the Russian Federation in this regard, taking into account the unambiguous positions of the RF Armed Forces, the RF Constitutional Court, the ECHR on the inadmissibility of confiscating housing from citizens from - for the imperfect work of state bodies.