A statement of claim for the seizure of property from someone else's illegal possession. Recovery of property from someone else's illegal possession: a sample claim, judicial practice. on the recovery of property from someone else's illegal possession

Within the framework of the law, the owner of the property receives all the powers to dispose of the property. An instrument for protecting their rights is positioning a statement of claim for the recovery of property from someone else's illegal possession, the principles for filing this document are strictly regulated.

What is the purpose of the claim

Already in the definition of the name of the claim, the goal is laid - the return to the owner of property from illegal use. The grounds for this are the rights of inherited possession, the transfer of an object for rent and other circumstances. These grounds are somewhat different from the relevant ones in the case of consideration of issues of recognition of property rights for one of the citizens, the subsequent elimination of the obstacles that have arisen in the disposal of the property.

What is indicated in the application example

Analyzing a sample statement of claim for the recovery of property from someone else's illegal possession, the following information is indicated:

The court to which the document is sent (this may be one of the district courts, a higher authority);
The full name of the plaintiff is registered, the place of his residence is necessarily established (according to the registration information indicated in the passport);
The person-respondent to whom this appeal is directed is indicated in the document. As part of the information, the address of residence of the tenant is also prescribed, according to the registration;
The final price of the claim is also obligatory established (according to the results of the preliminary assessment carried out by the plaintiff in advance);
The content of the statement of claim reflects the circumstances in which a conflict situation arose between the plaintiff and the defendant. The date of the conflict is prescribed (for example, inheritance by the parties), a description of the object (vehicle, real estate). It indicates the existing basis, which is guided by the plaintiff in determining his rights to own this property. The actions taken by the plaintiff to establish control over their possession (for example, changing locks, not being allowed into the premises) are prescribed;
Under the form of appeal, the date of preparation of the statement of claim for the recovery of property from someone else's illegal possession and the signature of the plaintiff with a decoding of the initials are indicated.

Set of documents

The following set of documents is attached to the consideration of the court by the plaintiff:

Notarized copy of the application;
A receipt showing the payment of the state fee by the plaintiff;
A copy of the certificate establishing the right to inherit a specific property, vehicles and other objects that are illegally owned;
A copy of the request is attached indicating the fact of the return to the owner of the property (drawn up in writing).

Specifics of compilation and consideration

To imagine what a sample statement of claim for the recovery of property from someone else's illegal possession is, it is worth considering the features of its preparation:

According to judicial practice, the owner of a particular property, its owner, can act as a plaintiff. When applying vindication action a prerequisite is the granting of the right to possess the thing. Within the framework of the requirement, a description of the thing (individual characteristics) is given, the circumstances that preceded the conflict situation and the moment of its exclusion from the plaintiff's property rights are established. Evidence of current illegal disposal of property is provided;
The defendant under the law may be an unscrupulous owner of the property in question, who knew in advance about the lack of a legal right to dispose of the property (as well as his lack of authority to subsequently sell the property);
When an unscrupulous owner was able to dispose of his property (for example, the transfer of property to other persons was implemented), the real owners of the thing will become defendants in court. But this is true if the thing was received by them free of charge, the plaintiff must prove the fact of bad faith of such a person (indicate that the defendant knew / should know that he does not have legal property rights);
When the demand for the return of the property in question arises as a result of the recognition of the fact of the invalidity of the transaction, the vindication claim under consideration is not drawn up (within the framework of the legislation, Article 167 of the Civil Code is provided for considering such situations);
The claim is filed in cases where the property in question is safe and its current location is known. Otherwise, the plaintiff applies to the authority with a demand for the recovery of funds, in a clearly specified equivalent (this amount is indicated in the header of the document);
In parallel with filing a claim for the return of property, the plaintiff receives an application for the return of the amount of income received during the operation of the property (if the very fact of its receipt is proved by the plaintiff). The regulation and frequency of return of income received are set out in Article 303 of the Civil Code.

Determination of the cost of a claim, state duty

According to the instructions of the current Civil Code, the issue of the amount indicated in the claim is determined by the specific price of such property. The claim provides for a property nature, the subsequent amount of the state fee is established based on data on the inventory value of the property.

As a reference point for establishing the price of the claim, the market value of a particular property is also given. Within the framework of the law, the subject of the requirement is established and the fact of the jurisdiction of the case under consideration. When a claim concerns the return of real estate, it is filed with the authority at the current location of the object, in other cases - at the place of residence of the defendant. They turn to the district court when the value of the claim exceeds the amount of 50,000 rubles, in other cases, the claim is sent to the justice of the peace.

How can the owner return his property if it was taken illegally?

Such property disputes are not uncommon.

To successfully restore the rights of the owner, when applying to the court, it is important to choose the right way to protect your violated right.

There are two types of illegal possession of property:

Bad faith possession– when the actual owner of the property knows or should know that he owns the property illegally
bona fide possession- when the actual owner does not know, and should not have known, that he has no rights to the property

Restoration of the owner's rights in the event of unlawful seizure of his property is subject to protection by filing a vindication claim in accordance with Articles 301 of the Civil Code of the Russian Federation.

In order to claim property from a bona fide purchaser, it is necessary to file a claim based on Article 302 of the Civil Code of the Russian Federation.

Let's take a closer look at the procedure for filing a vindication claim, the features of recovering property from someone else's illegal possession, the subject of proof in such cases, the criteria for the good faith of the acquirer of property.

A vindication claim is a claim by a non-owning owner against a non-owning owner.

When can property be reclaimed from someone else's illegal possession

One of the conditions for filing a vindication claim is that the owner acquired it illegally. This means that such a person knew, or should have known, that the acquired property has a legal owner. This is a dishonest buyer.

Accordingly, he acquired this property from a person who did not have the right to alienate it, or took possession of the property without any grounds, i.e. not on the basis of a deal, but arbitrarily. We can talk about immovable and movable property (seizure of a land plot or part of it, use of a dwelling rented from a person who is not its owner, or after the expiration of the lease period, appropriation of a find, etc.).

Claim property from someone else's illegal possession maybe how owner, and title holder(note: the title owner is a person who owns by right of inheritable possession, economic management, operational management or on the basis of an agreement, for example, hiring, renting, storage, etc.).

Property may be claimed from the person in whose possession it is actually located at the time of the consideration of the case.

The change of the owner of a thing entails a change in the composition of the persons participating in the case. So, the defendant in the statement of claim for the recovery of property indicates the person who owns the property at that moment, however, if during the consideration of the case it turns out that the property has left the possession of the defendant and transferred to another person by alienation (exchange, donation, sale), then the defendant needs to be replaced.

The fact that the defendant was replaced in the case due to the transfer of property from the former illegal owner to the new owner does not entail the exclusion of the former owner from among the participants in the process, he continues to participate in the case as a third person who does not make independent claims on the side of the defendant, and also gives his explanations on the merits of the dispute. This is due to the fact that in the case of claiming property from the defendant's illegal possession, the obligations of the person who transferred this property to him will be affected. For example, in the case of seizure of property from the defendant and its transfer to the owner, the defendant has the right to demand from the person who transferred the property to him, back everything received under the transaction. This follows from the content of articles 460-462 of the Civil Code of the Russian Federation.

It is impossible to claim property from a person in whose possession the disputed property is absent at the time of the consideration of the case, even if it was with him earlier.

In case the property is temporarily transferred by the defendant to another person, for example, for rent, trust management, etc., then the temporary owner of the property is also subject to involvement in the case as a co-defendant, since if the claim is satisfied, the disputed property is subject to withdrawal from the possession of such a person.

Return of property to original owner

The property must be returned to the owner(premises at a specific address, a land plot with a specific cadastral number, a car with specific identification numbers, etc.), to which he has the right of ownership.

In other words, the subject of vindication must be individualized, have features that distinguish it from similar things (inventory or serial number, marking, etc.). If the property cannot be identified, this will result in the refusal to satisfy the vindication claim.

When it comes to, for example, real estate, vehicles, or other equipment that can be identified by identification features, etc., then there are no problems with vindication. Of particular difficulty are disputes, the subject of which are generic things, it is difficult to determine the belonging of which to someone, or it is not possible due to the lack of individual features that distinguish these things from similar ones. Satisfaction of a claim, the subject of which is such property, is possible only in the absence of a dispute regarding the possibility of identifying the claimed thing.

Thus, the law clearly defines the conditions under which property can be reclaimed from someone else's illegal possession:

The plaintiff in a case on the recovery of property from someone else's illegal possession may be owner or title owner only relevant property
The plaintiff has evidence that the plaintiff is the owner or title owner of the claimed property(extract from the USRN on real estate, other documents confirming the emergence of ownership or title rights in relation to property, including movable)
There is evidence that the property is in the actual possession of a specific person without a legal basis
The subject of recovery from illegal possession may be only an individually-defined thing, i.e. the subject of vindication is indispensable.
There are no contractual obligations between the parties regarding the disputed (claimed) property. Otherwise, the dispute between the parties cannot be resolved by filing a vindication claim, but must be based on the contractual relationship of the parties.
Only that is required property, which by the time of the consideration of the case was preserved in kind, i.e. safe and sound. In the event that the thing subject to reclaim no longer exists (was out of circulation, disposed of, destroyed, etc.), then the vindication claim is not subject to satisfaction, regardless of whether the thing perished before or after the filing of a claim in court. Protection of the rights of the owner in this case can be carried out by filing a claim for compensation for material damage, or for providing the plaintiff with an equivalent thing, in exchange for the lost one, in accordance with Art. 1064 of the Civil Code of the Russian Federation, or through a claim for the recovery of unjust enrichment, in accordance with Art. 1102 of the Civil Code of the Russian Federation.
You can claim property from illegal possession only the person who actually has it, with the obligatory replacement of the defendant in the event of transfer of ownership to another person in the process of considering the case by the court.

In the absence of at least one of the above conditions, the claim may be denied.

Who is considered a bona fide purchaser

A person is considered to be a bona fide purchaser if, at the time of making a reimbursable transaction for the acquisition of property, he did not know and should not have known that the property was illegally alienated to him. It is assumed that at the time of the transaction, he had to take all measures in order to find out all the powers of the seller to alienate this property. For example, an extract from the USRN shows who is the owner of the property, and such a document may also contain information about encumbrances, the presence of a litigation in relation to property. Therefore, with the proper degree of due diligence, the acquirer can ascertain the seller's authority. The burden of proving these circumstances lies with the acquirer of the property.

In turn, the owner has the right to prove the fact that when making a transaction, the acquirer of the property should have doubted that the seller was rightfully alienating the property to him, i.e. take steps to clarify this fact.

Claiming property from a bona fide purchaser

The owner may claim his property from a bona fide purchaser, provided that this property has retired from his possession, or from the possession of the person to whom the owner transferred the property for temporary possession, beyond the will of one or the other – as a result of loss, theft or otherwise against their will.

Wherein, important point is that the property acquired by a bona fide purchaser under a onerous deal, since the latter circumstance also indicates his conscientiousness.

However, the good faith of the acquirer is excluded if the other party proves that at the time of the onerous transaction the acquirer was aware of the claims of third parties to the disputed property.

If the property is received by the acquirer as a result of a gratuitous transaction, then it may be claimed by the owner in all cases, that is, even if dropped out of his possession at his request.

If the gratuitous acquirer, in turn, alienated this property under a compensatory transaction to a third party, then the latter will also be considered a bona fide acquirer, the recovery of property from which is possible only if it is proved that the property has left the possession of the owner or title owner against their will.

The law prohibits claiming money and securities from a bona fide purchaser - paragraph 3 of Art. 302 of the Civil Code of the Russian Federation.

Let's summarize:

A person is recognized as a bona fide purchaser if: 1. The property was acquired through a transaction for compensation; 2. The acquirer did not know and should not have known about the unlawfulness of the alienation of property by the seller to him; 3. Buyer has taken reasonable steps to ascertain the seller's authority
It is impossible to claim property from a bona fide purchaser if it has left the possession of the owner or title owner at their will
Claiming property from a bona fide purchaser is possible in cases of loss of property by the owner or the person to whom it was transferred by the owner, or disposal of property from the possession of one or the other as a result of theft or other unlawful means
When receiving property under a gratuitous transaction from a person not authorized to alienate this property, the owner may claim his property in all cases.

Claim for the recovery of property from illegal possession of others

The territorial jurisdiction of disputes on the recovery of property from someone else's illegal possession is determined in accordance with Articles 28-30 of the Code of Civil Procedure of the Russian Federation, based on the subject of the claim.

A vindication claim, being a claim of a property nature, is paid by a state duty calculated on the basis of the value of the claimed property, in accordance with Art. 333.19 of the Tax Code of the Russian Federation, except for cases of exemption from payment of state duty. Also, it is possible to defer or installment payment of the state duty, subject to confirmation of the relevant circumstances.

Claims for the recovery of property from someone else's illegal possession are subject to a general 3-year limitation period (Article 196 of the Civil Code of the Russian Federation).

At the same time, the limitation period for these disputes begins to run from the day the claimed property is discovered.

Careful preparation for the process involves the collection required documents and development of the evidence base. In form and content, the claim must comply with the provisions of Articles 131-132 of the Code of Civil Procedure, it must indicate the proper defendant, and clearly reflect its legal position.

One of the conditions for the successful consideration of a case on the recovery of property in court is a thorough study by a lawyer of judicial practice in this category of cases.

As you can see, the provisions of civil law governing these legal relations have a number of subtleties that are understandable only to lawyers.

It is obvious that cases of recovery of property cannot be classified as simple, therefore it is advisable to contact a lawyer to obtain qualified legal assistance.

Services of the PetroJurist Legal Centerin St. Petersburg:

Drawing up a statement of claim and other procedural documents (petitions, statements, reviews, objections, complaints, etc.)
Preparation for the trial, assistance in collecting the evidence base
Making a claim in court
Conducting a case in courts of all instances (first instance, appealing a judicial act in higher courts)

If you have additional questions on this topic or need qualified assistance from a civil litigation lawyer, call the number indicated on the website and sign up for a consultation.

Resolution of the Plenum of the Supreme Court of the Russian Federation N 10, Plenum of the Supreme Arbitration Court of the Russian Federation N 22 of 04/29/2010

"On some issues arising in judicial practice in resolving disputes related to the protection of property rights and other property rights"

Disputes about the recovery of property from someone else's

illegal possession

32. When applying Article 301 of the Civil Code of the Russian Federation, the courts should keep in mind that the owner has the right to claim his property from the person who actually has it in illegal possession. A claim for the recovery of property brought against a person in whose illegal possession this property was, but who does not have it by the time the case is heard in court, cannot be satisfied.

If during the trial on a claim for the recovery of property from someone else's illegal possession, the disputed property was transferred by the defendant to another person for temporary possession, the court, according to the rules of paragraph two of part 3 of article 40 of the Code of Civil Procedure of the Russian Federation or part 2 of article 46 of the Arbitration Procedure Code of the Russian Federation, attracts such a person as a co-respondent.

In the event that during the trial on a claim for the recovery of property from someone else's illegal possession, the disputed property was alienated by the defendant to another person, and also transferred to the possession of this person, the court in accordance with Part 1 of Article 41 of the Code of Civil Procedure of the Russian Federation or Parts 1, 2 of Article 47 The Arbitration Procedure Code of the Russian Federation allows the replacement of an improper defendant with a proper one. In this case, the alienator is involved in the case as a third party who does not declare independent claims regarding the subject of the dispute, on the side of the defendant (Article 43 of the Code of Civil Procedure of the Russian Federation, Article 51 of the Arbitration Procedure Code of the Russian Federation).

33. In order to ensure that the property is in the possession of the defendant during the period of a litigation over the right to this property, the court, at the request of the plaintiff, may take interim measures, in particular, prohibit the defendant from disposing and / or using the disputed property (arrest), prohibit the state registrar from changing the entry in the USRR on the right to this property, to transfer the disputed property for storage to another person in accordance with paragraph 2 of Article 926 of the Civil Code of the Russian Federation (judicial sequestration).

When satisfying a claim for the right to property, the court, on the basis of Article 213 of the Code of Civil Procedure of the Russian Federation or Part 7 of Article 182 of the Arbitration Procedure Code of the Russian Federation, at the request of a person participating in the case, may also take similar measures to ensure the execution of the decision.

34. A dispute on the return of property arising from contractual relations or relations related to the application of the consequences of the invalidity of the transaction shall be resolved in accordance with the legislation governing these relations.

In cases where there are no contractual relations between persons or relations related to the consequences of the invalidity of the transaction, the dispute on the return of property to the owner is subject to resolution in accordance with the rules of Articles 301, 302 of the Civil Code of the Russian Federation.

If the owner demands the return of his property from the possession of the person who illegally took possession of it, such a claim is subject to consideration according to the rules of Articles 301, 302 of the Civil Code of the Russian Federation, and not according to the rules of Chapter 59 of the Civil Code of the Russian Federation.

35. If 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 keep in mind the rules established by Articles 301, 302 of the Civil Code of the Russian Federation.

36. In accordance with Article 301 of the Civil Code of the Russian Federation, a person who has filed a lawsuit to recover his property from someone else's illegal possession must prove his ownership of the property in the possession of the defendant.

The right of ownership of movable property is proved with the help of any evidence provided for by the procedural legislation, confirming the emergence of this right with the plaintiff.

Evidence of ownership of real estate is an extract from the USRR. In the absence of state registration, the right of ownership is proved with the help of any evidence provided for by the procedural legislation confirming the emergence of this right with the plaintiff.

The fact that real property is included in the register of state or municipal property, as well as the fact that property is on the balance sheet of a person, does not in itself constitute evidence of ownership or legal possession.

37. In accordance with Article 302 of the Civil Code of the Russian Federation, the defendant has the right to object to the reclaiming 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 paragraphs 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 has not received in full the payment or other consideration for the transfer disputed property by the time when the acquirer knew or should have known about the unlawfulness of the alienation.

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

At the same time, the compensation of the acquisition does not in itself testify to the good faith of the acquirer.

38. The acquirer shall be recognized in good faith if he proves that during the transaction he did not know and should not have known about the unlawfulness of the alienation of property by the seller, in particular, he took all reasonable measures to clarify the seller's authority to alienate 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.

39. 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, against 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 determine whether the owner had the will to transfer possession to another person.

40. If, when considering a claim for the recovery of movable property from someone else's illegal possession, the court establishes that the basis for the emergence of the claimant's property right is void deal and there are no other grounds for the emergence of property rights, the court refuses to satisfy the stated claims, regardless of whether a counterclaim was presented to challenge the transaction, since by virtue of paragraph 1 of Article 166 of the Civil Code of the Russian Federation, a void transaction is invalid regardless of whether it is recognized as such by the court. A similar assessment can be given by the court to an illegal act government agency or a local self-government body (hereinafter referred to as the authority), which is the basis for the emergence of a person's right of ownership to movable property.

41. Within the meaning of Article 133 of the Civil Code of the Russian Federation, if indivisible property is sold by an unauthorized alienator to several persons on the basis of one transaction and is in their possession, a plurality of persons is formed on the side of the acquirer. For this reason, these persons are co-defendants in a claim for the recovery of property from someone else's illegal possession.

The purchasers of an indivisible thing have the right to object to this claim on the grounds provided for in Article 302 of the Civil Code of the Russian Federation. At the same time, the claim for recovery of property is subject to satisfaction if at least one of the acquirers is not in good faith.

42. Courts, when considering disputes on the restoration of the right to a share in common shared ownership, must take into account the following.

If a share in the right of common shared ownership was acquired for compensation from a person who did not have the right to alienate it, which the acquirer did not know and should not have known about, the person who lost the share has the right to demand the restoration of the right to it, provided that this share was lost by him apart from his will. When considering such a requirement, by analogy with the law, articles 301, 302 of the Civil Code of the Russian Federation are subject to application. This requirement is subject to the general limitation period provided for by Article 196 of the Civil Code of the Russian Federation.

43. If the owner’s claim for the recovery of property from someone else’s illegal possession is satisfied, the buyer of someone else’s property has the right, in accordance with Article 461 of the Civil Code of the Russian Federation, to apply to the court with a claim to the seller for compensation for losses caused by the seizure of goods on grounds that arose before the execution of the purchase agreement -sales.

The person who transferred the disputed property to the defendant, in particular the seller of this property, is involved in the case on the claim for the recovery of property from someone else's illegal possession. At the same time, by virtue of paragraph two of Article 462 of the Civil Code of the Russian Federation, the buyer’s failure to involve the seller in the case releases the seller from liability to the buyer if the seller proves that, by taking part in the case, he could have prevented the seizure of the sold goods from the buyer.

44. By virtue of paragraph 1 of Article 449 of the Civil Code of the Russian Federation, public auctions held in the manner established for the execution of judicial acts may be declared invalid by the court at the claim of an interested person in case of violation of the rules established by law. Disputes about the recognition of such auctions as invalid are considered according to the rules established for invalidating voidable transactions. If a person believes that the transaction concluded at the auction is invalid, he has the right to challenge the said transaction.

Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 13, 2008 N 126

"Review of judicial practice on some issues related to the recovery of property from someone else's illegal possession"

1. If a person who transferred property in pursuance of an invalid transaction applies for its return from someone else's illegal possession of the other party to the transaction on the basis of Article 301 of the Civil Code Russian Federation, the court dismisses the claim ( ) .

2. When considering the requirement to apply the consequences of the invalidity of a transaction, declared by a party to this transaction, the rules of paragraph 1 of Article 302 of the Civil Code of the Russian Federation do not apply ( ) .

3. When considering the claim of the person who transferred the property under an invalid lease agreement for its return on the basis of paragraph 2 of Article 167 of the Civil Code of the Russian Federation, the court reasonably did not investigate the right of this person to the disputed property ( ) .

4. Considering a dispute on the recovery of property from the illegal possession of a state unitary enterprise, in whose economic jurisdiction this property was transferred by a public legal entity that was not its owner and therefore did not have the right to alienate it, the court proceeded from the fact that, for the purposes of applying paragraph 1 of Article 302 of the Civil Code of the Russian Federation state enterprise does not apply to cases of paid acquisition ( ) .

6. The limitation period for a claim for the recovery of movable property from someone else's illegal possession begins from the day this property is discovered ( ) .

7. The court refused to satisfy the vindication claim against the defendant who received the disputed property from the person to whom the plaintiff had already filed a vindication claim, which remained unsatisfied due to the expiration of the limitation period. At the same time, the court pointed out that the limitation period for a claim for the recovery of property from someone else's illegal possession does not begin to flow again when the owner of this property changes ( ) .

"Review of the judicial practice of the Supreme Court of the Russian Federation N 1 (2019)" paragraph 3
A claim for the recognition of a registered right or encumbrance as absent is an exclusive method of protection, which is subject to application only when the violated right of the plaintiff cannot be protected by filing special claims provided for by the current civil legislation.

Reclaiming property from someone else's illegal possession is considered one of the ways for the owner of a thing to protect the rights arising from him in accordance with the norms of civil law. In the article below you will find information on the procedure for returning such property and how to go to court in case of a similar problem.

Vindication in civil law

Quite often, situations arise in practice in which the actual owner of a thing may lose the opportunity to use it. The reasons may be different: things are lost, stolen or fall into third hands in other ways that do not require the consent of the owner.

Subsequently, such property can be sold or donated to a new owner. A series of such transactions may give the impression of their legitimacy, since subsequent buyers may not be aware that the thing was seized from its real owner in violation of legal requirements. Nevertheless, the law protects the interests of the original holder of material value, which allows him to restore his rights in various (even the most difficult) situations.

In particular, art. 301 of the Civil Code of the Russian Federation grants the owner the right to reclaim property from someone else's illegal possession. The claim filed with the court in this case is called vindication (for details on what kind of claim this is, you can read). Legal basis such proceedings are enshrined in the provisions of Art. 301-303 of the Civil Code of the Russian Federation.

However, a vindication claim is accepted for consideration only if:

The property is used by third parties without legal grounds.
The owner of material value cannot use it.
The subject of the claim (illegally alienated tangible asset) remained in its original form at the time of going to court.

The fact of illegal possession of property as a prerequisite for its recovery

The owner of a thing or its title owner may exercise his right to claim property from someone else's illegal possession only if it was lost against his will.

The basis for recognizing this fact may be:

Possession by a third party of property without any legal grounds (for example, if the thing was stolen or, when the owner lost it, was appropriated by the finder).
Termination of existing legal grounds for using the thing (for example, if the lease agreement for the premises has expired, but the tenant continues to use it).
The invalidity of the circumstances on the basis of which the material value passed from one person to another (for example, if the concluded transaction turned out to be invalid - void or voidable).

From the fact that a thing is in the possession of a person to whom it does not belong, it follows that its lawful owner cannot use it and exercise all the rights he has in relation to it.

The fact of the voluntary transfer of the thing by the owner to a third party is the basis for refusing to satisfy his vindication requirements.

Signs of property subject to reclaim

The right to claim property from someone else's illegal possession arises only if it has some features that allow it to be identified.

These signs may be:

factory numbers;
inventory numbers applied to the thing in the course of putting it on the balance sheet of the enterprise / division;
other tags, markings or identification marks on the item.

If the property is destroyed, appearance or the internal components have been adjusted or the characteristics have been changed so much that it cannot be identified as the subject of a dispute, it will not be possible to present a claim for vindication.

In the presence of such conditions, the owner of the thing can protect his interests by filing a claim for compensation for the harm caused to him (Article 1064 of the Civil Code of the Russian Federation) or compensation for unjust enrichment (Article 1102 of the Civil Code of the Russian Federation).

Parties to the claim in the recovery of property from someone else's use

Based on the requirements of Art. 301 of the Civil Code of the Russian Federation, the legal owner of the rights to this material value may become a plaintiff initiating proceedings to recover property from someone else's illegal possession. In addition, according to Art. 305 of the Civil Code of the Russian Federation, a similar right may arise for the title owner, i.e. a person who does not have the status of a legal owner, but who owns property by the right of lifetime inheritable possession, economic management, operational management or on other grounds provided for by law or a valid contract.

The title owner may act to protect his interests in relation to the rightful owner of the value. So, upon presentation of such a requirement both by him and the official owner, the thing is returned to the title owner. For example, if there is an agreement to lease the premises, the leased property illegally held by a third party is transferred to the tenant and not to the landlord.

The person who actually possesses it becomes the defendant in a claim for the recovery of property from someone else's illegal possession. This can be both a subject who illegally took possession of someone else's property, and a person who received a thing from a citizen / enterprise who did not have the right to make such transactions.

The nuances of the owner's recovery of property from someone else's illegal possession

If the material value is kept by a person who could not use it due to the lack of necessary rights, the plaintiff may demand its return without observing any conditions.

If the thing was transferred by such a person to a third-party acquirer, the following nuances of recovering property from someone else's illegal possession arise:

If the illegal owner was an unfair purchaser (i.e., at the time of purchase, he had information that the seller had no rights to the realizable value), such a thing is sent to the owner, regardless of other circumstances of the proceedings.
If the new owner was a bona fide purchaser (i.e., did not know who was the legal owner of the property), the owner may demand return only if the thing was lost by him or the person who used it due to theft or other circumstances , not subject to his will (clause 1, article 302 of the Civil Code of the Russian Federation).
If the new bona fide owner received the thing free of charge, it must be returned to its rightful owner, regardless of the presence / absence of those listed in paragraph 1 of Art. 302 of the Civil Code of the Russian Federation factors (clause 2 of article 302 of the Civil Code of the Russian Federation).
If the object of ownership held by a bona fide purchaser is money and / or bearer securities, the claim in question cannot be filed (Clause 3, Article 302 of the Civil Code of the Russian Federation).

It is also important to remember that paragraph 5 of Art. 10 of the Civil Code of the Russian Federation establishes the presumption of good faith of participants in civil legal relations both in the general case and in the case of a person possessing someone else's thing in particular. Thus, the burden of proving the fact of bad faith of the acquirer of the thing falls on the initiator of the trial.

Rights of parties to litigation

Plaintiff, in accordance with the provisions of par. 1 st. 303 of the Civil Code of the Russian Federation, has the right to demand:

from an owner in bad faith - the return of all income received by him as a result of using the thing, or compensation for all income that its owner could have received if he had possessed it during the time during which it was with the owner in bad faith;
from a bona fide owner - the return of all income received by him from the moment he learned about the illegality of the fact of his possession of the disputed thing, or the reimbursement of all income that its owner could have received during the same time.

The defendant (bona fide or dishonest owner), according to the provisions of par. 2 tbsp. of the same article, has the right to demand from the plaintiff compensation for the expenses incurred by him for the maintenance of the thing in the period for which the amount of income received by him was calculated. The costs must be reasonable and actually improve the item's features and/or functionality.

In addition, par. 3 of the same article indicates that a bona fide owner may keep all the improvements he has made to the property, provided that they can be separated from the property without damaging it. If such a separation is impossible, he has the right to demand from the owner of the thing compensation for the costs incurred for the improvement, provided that their amount does not exceed the amount by which the value of the property was increased.

How to go to court?

According to the general rule established by Art. 28 of the Code of Civil Procedure of the Russian Federation, a claim for the recovery of property from someone else's illegal possession is filed with the court at the location of the defendant, that is, the person who has the thing at the time of the start of the trial.

The claim must indicate:

the name of the court in which the claim is filed and the address of its location;
Full name or name of the plaintiff and his contact details (address, telephone, e-mail);
Full name or name of the defendant and his contact details;
the basis according to which the right to the disputed thing belongs to the plaintiff (testament, extract from the USRN, etc.);
information about the loss of property from the plaintiff against his will;
information about the presence of the disputed item in the possession of the defendant;
unlawfulness of the use of the thing by the defendant;
information about the violation by the defendant of the legal rights and interests of the plaintiff;
the date of the application;
list of documents attached to the application.

The limitation period (i.e., the time during which the plaintiff can claim his violated rights in court) is 3 years from the moment:

the plaintiff learned that his rights were violated;
there was information about the whereabouts of things that were previously considered lost.

Missing the deadline is grounds for refusal by the court to satisfy the claims stated in the claim.

Documents attached to the application

The claim must be accompanied by:

a copy of the claim (the number of copies depends on the number of defendants);
receipt of payment of state duty;
a document confirming that the plaintiff has the right of ownership to the thing that is the subject of the claim;
grounds confirming the existence of the subject matter of the dispute in its natural form;
calculation of the amount of income received by the purchaser of a thing or income that could have been received by its legal owner (if such income exists);
a power of attorney addressed to a third party to represent the interests of the plaintiff in court, if a lawyer or other third party acts on behalf of the plaintiff;
other documents relevant to a particular litigation.

Claim of movable property

The subject of a vindication claim can be any property, both immovable and movable. The legislator does not establish fundamental differences in the procedure for claiming such things from a person who uses them without legal grounds. However, when applying to the court with a statement of claim for the recovery of such property, it is worth remembering that the application must be accompanied by title documents confirming the fact that the plaintiff has ownership of the disputed thing.

For real estate, such a document is an extract from the USRN, which replaced the USRR (the Plenums of the Armed Forces of the Russian Federation and the Supreme Arbitration Court of the Russian Federation refer to it in paragraph 36 of their resolution “On Certain Issues ...” dated April 29, 2010 No. 10/22). The list of civil law grounds for confirming the right of ownership of a movable thing in order to recover movable property from someone else's illegal possession is established by the provisions of Art. 218 of the Civil Code of the Russian Federation:

contract for the sale of movable property (for example, a vehicle);
donation agreement;
exchange agreement;
testament, etc.

It is worth noting that it is much easier to seize movable property from its rightful owner than real estate. After all, it is impossible to lose or steal an apartment (in the truest sense of the word), but a thoroughbred dog, for example, or mobile phone it is much easier to lose - which is why vindication claims in relation to such things are filed much more often.

State duty

When claiming property from someone else's illegal possession, the state duty is paid by the plaintiff. A vindication claim is a claim of a property nature, therefore the amount of the state duty paid when it is filed with the court is calculated based on the value of the thing that is the subject of the claim (Article 91 of the Code of Civil Procedure of the Russian Federation and 103 of the APC of the Russian Federation).

The principle of determining the size of this indicator depends on the subject of the claim:

the state duty for real estate is calculated based on its cadastral value;
for movables - based on the amount indicated in checks, invoices or other documents received upon its acquisition, if the material value was not used. To calculate the value of a thing, taking into account natural depreciation, it is worth contacting independent appraisers.

The procedure for calculating the amount of the mandatory payment is established:

sub. 1 p. 1 art. 333.21 of the Tax Code of the Russian Federation - for claims filed with an arbitration court (the minimum state duty in this case is 2 thousand rubles, the maximum is 200 thousand rubles);
sub. 1 p. 1 art. 333.19 of the Tax Code of the Russian Federation - for claims filed with a court of general jurisdiction or a justice of the peace (the minimum state duty in this case will be 400 rubles, the maximum - 60 thousand rubles).

If the plaintiff wins the case, all legal expenses, including the state fee in the amount paid, are reimbursed to him. If the claim is partially satisfied, the state duty is returned in proportion to the claims satisfied. If the claim is denied, the state duty is not returned and remains in the local budget, where it was paid.

So, the recovery of property from someone else's illegal use (vindication in civil law) is carried out in court within 3 years from the date of the actual loss by the owner of the thing belonging to him or the appearance of information about where it is located. Mandatory conditions for filing a vindication claim are:

the fact of loss by the owner of the thing belonging to him;
the fact of illegal possession of such a thing by a third party;
the fact that this thing has been preserved in its original form, which makes it possible to distinguish it from other similar things.

The procedure and rules for recovering the subject of the dispute from the new owner of the thing depend on whether the acquirer was in good faith or in bad faith.