How to lift the ban on registration actions regarding real estate

1. Types of encumbrances
2. How to find out when buying that an apartment is not under restrictions
3. Encumbrance during trust management
4. Encumbrance upon arrest
5. Encumbrance in a rent agreement
6. Encumbrance on a mortgage How to remove the encumbrance after paying off the mortgage

An encumbrance is a restriction on the use of an apartment imposed by a third party. It is imposed on a mortgage, life annuity agreement, trust, lease or seizure of real estate. To become a full-fledged owner of the property, the new owner of the apartment must remove restrictions. You can find out how to do this below.

Which court should I go to to lift the ban on registration actions?

Which court to apply to - arbitration or general jurisdiction - is indicated in Parts 2, 3 of Art. 128 of the Law on Enforcement Proceedings. For example, if a writ of execution was issued by an arbitration court, contact them there.

Submit your application:

• to the arbitration court of a constituent entity of the Russian Federation at the location of the bailiff, that is, at the address of the unit of the Federal Bailiff Service of Russia in which the bailiff serves (Part 6 of Article 38 of the Arbitration Procedure Code of the Russian Federation);

• to the district court of general jurisdiction of the area where the bailiff performs his duties. Please note that this area may differ from where the department in which the bailiff serves is located.

If the bailiff serves in the interdistrict department, the application is submitted to the court of the district where the disputed resolution is executed (part 1, 2 of article 22, part 5 of article 218 of the CAS RF, clause 8 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of September 27, 2016 N 36).

Mortgage encumbrance

This is the most common case in which an encumbrance is placed on real estate. According to the mortgage agreement, the borrower is obliged to coordinate with the bank the sale, exchange and other transactions with the apartment. Depending on the lender, this condition may be supplemented by others:

• coordinate repair work;
• obtain permission for registration of unauthorized persons;
• provide notice of departure from the country for 2 months or more.

To get rid of restrictions, the borrower must pay off the debt.

How to draw up and send an application to the court to lift the ban on registration actions

Complete a statement and send it to the court in paper or electronic form. You must present your application to two defendants. The application must be drawn up according to the special rules established by Art. 199 of the Arbitration Procedure Code of the Russian Federation (for filing a claim in the arbitration court) and Art. 220 CAS RF (for filing with a court of general jurisdiction). In particular, indicate the position and full name. the bailiff whose decision you are challenging, the number and date of the decision, as well as information about the writ of execution.

The main thing is to give the reasons why you consider the ban decision to be unlawful. For example, indicate that the value of your foreclosed property is significantly greater than the amount owed.

Attach to the application the documents specified in Part 2 of Art. 199, part 1 art. 126 Arbitration Procedure Code of the Russian Federation or Part 3 of Art. 220, part 1 art. 126 CAS RF.

If you file a claim in a court of general jurisdiction, be sure to indicate whether you filed a complaint about lifting the ban with a higher-ranking bailiff. If yes, then attach his answer (Part 3 of Article 220 of the CAS RF). We recommend doing the same when applying to an arbitration court.

Sample

applications to the arbitration court to lift the bailiff's ban on registration actions with real estate.

Sample

applications to a court of general jurisdiction to lift the bailiff’s ban on registration actions with real estate.

Encumbrance in a rent agreement

This document is concluded by elderly people who bequeath their apartments to strangers involved in their support and care. Most often this is done in the absence of heirs.

In accordance with the rent agreement, the owner of the property (rent recipient) receives the right to live in it for life and receive financial support or guardianship from an outsider (rent payer). The latter receives ownership of the apartment after the death of the annuitant. To remove the encumbrance in this case, you will need to write an application to Rosreestr.

How long will it take for the court to consider an application to lift the bailiffs’ ban on registration actions?

Both the arbitration court and the court of general jurisdiction must consider the application within 10 days from the date of its receipt. This period is calculated in working days if you filed an application with the arbitration court, and in calendar days if the application was filed in a court of general jurisdiction (part 1 of article 200, part 3 of article 113 of the Arbitration Procedure Code of the Russian Federation, part 3 of article 226 , Article 92 CAS RF).

In this case, the decision of the arbitration court is subject to immediate execution, unless a different period is specified in the decision itself (Part 7, Article 201 of the Arbitration Procedure Code of the Russian Federation). But in a court of general jurisdiction, as a rule, you have to wait another month until the decision comes into force. Although you can try to convince the court that the decision must be executed immediately, otherwise significant damage will be caused to your interests (part 5 of article 227, part 1 of article 298, part 2 of article 188, article 228 of the CAS RF).

Encumbrance during trust management

When concluding a trust management agreement, the owner of the property transfers to another person the authority to manage the apartment without losing ownership. This scheme is used when renting out an apartment, when the owner does not want to waste time on organizational issues. The trustee fulfills his obligations, receiving money for it.

The trust management agreement is concluded for a period of up to five years. After this, one of the parties submits an application to terminate the contract, and the encumbrance is removed. The contract can be terminated ahead of schedule at the mutual desire of the parties.

If there is a dispute about the right to property

You can file a claim for exemption from the ban within the general three-year limitation period (clause 1 of Article 196 of the Civil Code of the Russian Federation).

File a claim at the location of the property (clause 2 of the Resolution 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 of April 29, 2010). In this case, you need to pay a state fee of 6,000 rubles. (Clause 6 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of November 17, 2015 N 50, paragraph 4 of paragraph 1 of Article 333.21 of the Tax Code of the Russian Federation, paragraph 3 of paragraph 1 of Article 333.19 of the Tax Code of the Russian Federation).

The defendants will be the debtor, with whom you are arguing about the ownership of the property, and the claimant, since the ban on disposal is imposed in his interests. We recommend that you indicate the bailiff as a third party who does not make independent claims regarding the subject of the dispute.

File a claim according to the general rules. The main thing is to clearly justify why the property belongs to you and not to the debtor, and attach relevant evidence. For example, if you bought property from a debtor, but due to a dispute with him you were unable to register the transfer of rights in the Unified State Register of Real Estate, attach the purchase and sale agreement.

Submit your application to the court in paper or electronic form. The arbitration court must consider the claim within three months, and the court of general jurisdiction - within two months (part 1 of article 152 of the Arbitration Procedure Code of the Russian Federation, part 1 of article 154 of the Code of Civil Procedure of the Russian Federation).

How to find out when buying that an apartment is not under restrictions

According to the law, owners of encumbered apartments have the right to sell if they receive the consent of the mortgagor. Therefore, buyers are advised to check the property. To do this:

1. Rate the ad. Furnished apartments are 20-50% cheaper than the market average.
2. Go to the official website of Rosreestr or contact the Unified State Register.
3. Pay the state fee.
4. Order a statement about the apartment.
5. In 1-5 days you will receive detailed information about the apartment, including whether it is under encumbrance.

Advice: if you find out about an encumbrance on the apartment after purchase, contact a lawyer for advice. Despite the fact that, by law, the new homeowner is not obliged to pay the debts of the old one, bailiffs and the bank can cause inconvenience.

Obligations of the debtor

When an individual is served with a resolution to initiate enforcement proceedings, or he receives a notice from State Services, he has only 5 working days to repay the debt on his own.

But not every person has the resources to pay off debts. Execution of a court decision is the job of a bailiff (Bailiff), this civil servant is endowed with broad powers to collect debts. For example, failure to pay according to the writ of execution will result in the SPI introducing restrictions for the debtor:

• for trips abroad;
• for transport management;
• for the use of money in bank accounts - deposits, deposits.

The enforcement action also involves the sale of the defaulter's property in order to cover the obligations.

Reasons for overlap

Seizure is a restriction of the right to freely dispose of property.
Simply put, the plot on which it was imposed cannot be sold, donated or otherwise disposed of. From this we can conclude that such a measure is applied because a person has some kind of debt, other unfulfilled obligations or a dispute - usually a judicial one. Also, the reason for the arrest may be claims made by the injured party in a civil suit within the framework of criminal proceedings. Arrest as a restrictive measure can be applied at the initiative of various authorities, as follows:

• The bailiff service imposes a restriction on alienation as an interim measure. If the debt is not repaid by other means, the plot is sold at auction or transferred to the debtor;
• the court seizes the plot if there is a dispute about the right, as well as if there is a debt corresponding to the value of the plot, as part of the case for debt collection, when it is impossible to ensure the fulfillment of obligations in other ways;
• The Federal Tax Service uses this measure if there is a significant tax debt.

These bodies facilitate the use of interim measures and justify their position in a resolution, which is transmitted to Rosreestr.

The reason for imposing an encumbrance is the presence of a dispute or debt. The plot can serve as a source of repayment of obligations, so the possibility of its implementation will be “frozen”.

What should be the procedure?

First, it is important to determine the reason for the seizure of the apartment. If the seizure was imposed for mortgage debts, then the release of the only home will occur when its owner pays all debts.

After the owner of the apartment submits an application to the judicial authorities to lift the arrest, the document will be immediately accepted for processing.

Important! Only the real owner of the apartment can submit an application to lift the arrest. Even trusted representatives do not have this right.

• You will need to pay a state fee. This will serve as proof that the owner of the property is the owner of the apartment. Then all necessary documents must be submitted to the court confirming that the real estate belongs to this particular citizen. In addition, the owner is required to submit other documents indicating payment of the debt, fine and tax.
• The court sets a date for a hearing to consider the case. Based on its results, a decision will be made whether to lift the arrest from the apartment or not.
• If, in your opinion, the court made an unreasonable decision, then you can appeal it to a higher authority. As a last resort, you can complain about the judge and challenge him.

What cannot be arrested

However, there is property that cannot be seized and included in the bankruptcy estate, regardless of the nature and size of the debt. The list of this property is determined by Art. 446 Code of Civil Procedure of the Russian Federation:

• the only housing
• the land on which it is located
• household items (furniture, refrigerator, washing machine and others)
• things intended for personal use
• products
• animals, if their maintenance is not related to profit-making or business activities
• items, including means of transportation, necessary for the debtor due to disability
• items used for professional activities (for example, musical instruments), provided that their cost does not exceed 10 thousand rubles.

Be careful!

Of course, exceptions to some points are possible. For example, housing and land can be seized if they are encumbered with a mortgage. Items intended for individual use are also confiscated in the case of luxury goods. These include jewelry with precious or semi-precious stones, items made from natural valuable fur, antique items and others.

Practical features

At first glance, removing the interim measure seems simple. It is necessary to eliminate the cause of the imposition and file a corresponding application. But is this how it works in practice? In general, yes, but you need to take into account some features :

1. withdrawal can only be carried out at the request of the interested person. Most often this is the owner of the site;
2. The application must describe in detail the reason why the restriction should be lifted. As a rule, this is the repayment of a debt or the end of a dispute;
3. if the initiator of the arrest was a party to the legal proceedings, then the procedural party must submit an application to remove it. And if it was initiated by another person, for example, a new buyer of the plot, then the case will be considered in a lawsuit. The defendants will be other interested parties, for example, other creditors, because of the debt to whom the debt was imposed.

The court will require evidence to show why the restriction should be lifted.

What happens if you break the ban?

If Rosreestr carries out registration actions while there is a ban on this, he will be held accountable. Such a transaction under clause 1 of Art. 174.1 of the Civil Code of the Russian Federation is void. This means that the parties to the transaction will have to return to each other everything that they received under it.

True, according to paragraph 2 of this article, real estate can be legally sold (and with such a prohibition) in order to pay off the debt to the creditor, in whose interests such an encumbrance was established. Exceptions will be cases where the acquirer lacks relevant information about the ban. Then the latter will be able to recognize the transaction as void under Art. 168 Civil Code of the Russian Federation.

When do bailiffs get the right to seize an apartment?

The seizure of real estate by bailiffs is carried out during enforcement proceedings on the basis of a writ of execution by a court decision.

According to the procedure for conducting enforcement activities, the bailiff in this case makes requests to financial institutions about the availability of accounts issued in the name of the debtor or bank cards. If it is discovered that the debtor does not have the required amount of funds, the bailiff turns his attention to his property and real estate. When the amount of debt is too large, it is quite possible that the apartment will be seized. If a citizen only owns a share in an apartment, then only part of it will be seized.

This debt collection measure is applied in the following cases:

• The owner of the apartment has a mortgage debt or back taxes.
• A property dispute arose between the owner of the apartment and his relatives.
• There is a claim for damages or division of property.
• The presence of debts on utility bills, bank loans, unpaid administrative fines, if they are commensurate with the cost of the apartment.

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How an arrest occurs: main stages

The seizure of property by bailiffs takes place at the place where the debtor lives. Please note that two witnesses are mandatory participants in the procedure. At the same time, the presence of the borrower is not strictly necessary, so the arrest can take place even in his absence. The main thing is that the debtor is properly notified.

The seizure includes an inventory of property, its seizure or transfer for storage, as well as an assessment before subsequent sale. Let's look at each of these stages in more detail:

Inventory of property

On average, this process takes from 2 to 6 hours. The inventory is drawn up in the form of a written act, all those present sign. Copies of the document are sent to all parties to the proceedings, including creditors.

The act containing the inventory of property indicates:

• Full name of the debtor and witnesses
• Full name of the bailiff performing the actions
• The name of each item of property and signs allowing it to be identified
• Approximate cost of items included in the inventory
• Full name and residential address of the citizen receiving seized items for safekeeping, or legal address of the organization performing storage
• Notes from persons present during the arrest (for example, the debtor or invited witnesses)
• Notes on the seizure of property and that the person storing the seized items is responsible for them

Lawyer's comment:

“We are often approached by citizens who have decided to file bankruptcy already during enforcement proceedings. The fact is that many bailiffs describe property subject to seizure according to the principle “what I see is what I list.” They brush aside all reasonable arguments of the debtor, and it is not surprising that people are simply afraid to be left without any property - movable and immovable. They understand that the only chance to protect themselves and their family is bankruptcy.”

Kopyrina Anzhelika Vladimirovna

Head of Bankruptcy Litigation Division

Withdrawal and transfer for storage

Real estate (private houses, plots of any size, non-residential properties, etc.), which are seized, comes into the custody of the debtor or members of his family. In rare cases, security is provided by a person with whom the FSSP unit has entered into an agreement.

Movable property (vehicles, expensive equipment, etc.), which is seized, is placed in the custody of the debtor, one of his family members or the claimant. As in the previous case, things can be transferred to a special person for storage. In some cases, documents confirming the debtor’s property rights are stored in the FSSP.

Valuation of property before sale

The assessment of seized property is the responsibility of the bailiff. In doing so, he is guided by his own experience and market prices in effect at the time of seizure of the property. There are often situations when bailiffs deliberately lower the price of things in order to quickly sell them, pay off debts and close the proceedings.

Important!

If the debtor notices this and does not agree with the way the property was assessed, he has the right to appeal its results in court. The period for appeal is limited to 10 days from the date of assessment.

However, there are cases when the assessment is carried out not by the bailiff, but by the appraiser. This applies to the following property:

• any real estate
• a number of securities
• property rights
• jewelry
• items that have historical value
• things whose value exceeds 30,000 rubles according to the approximate estimate of the bailiff