1. A person - a citizen or a legal entity - who is not the owner of property, but who conscientiously, openly and continuously owns real estate as his own, unless other terms and conditions of acquisition are provided for by this article, for fifteen years or other property for five years , acquires ownership of this property (acquisitive prescription).
The right of ownership to real estate and other property subject to state registration arises in the person who acquired this property by virtue of acquisitive prescription from the moment of such registration.
2. Before the acquisition of ownership rights to property by virtue of acquisitive prescription, a person who owns the property as his own has the right to protect his possession against third parties who are not the owners of the property, as well as those who do not have the right to own it by virtue of anything else provided by law or contract grounds.
3. A person referring to the prescription of possession may add to the time of his possession the entire time during which this property was owned by the one whose legal successor this person is.
4. The period of acquisitive limitation in relation to things held by a person from whose possession they could be claimed in accordance with Articles 301 and 305 of this Code begins from the day the thing came into open possession of a bona fide acquirer, and if the right was registered property of a bona fide acquirer of an immovable thing that he owns openly - no later than the moment of state registration of the ownership rights of such acquirer.
- Article 233. Treasure
- Article 235. Grounds for termination of ownership rights
The Constitutional Court clarified the acquisitive prescription
Case history
Viktor Volkov, a resident of Krasnoznamensk near Moscow, became a member of a garage cooperative in 1997. Then he received the plot and the garage box located on it from Pavel Petrov*, who owned them by right of lifelong inheritable ownership.
In reality, the agreement between Petrov and Volkov did not entail legal consequences - after all, Petrov could not dispose of this land. Therefore, in 2021, Volkov decided to achieve recognition of the ownership of the plot by prescription - he decided that clause 1 of Art. gives him such a right. 234 of the Civil Code. According to the terms of the norm, one must openly, conscientiously and continuously own real estate as one’s own for 15 years.
The court told when the car will remain with a bona fide buyer
But the Odintsovo city court refused him. The court of first instance noted that Krasnoznamensk is the administrative center of a closed administrative-territorial entity. Land plots located within the boundaries of such entities are limited in circulation, which means that, as a general rule, they cannot be privately owned.
The Moscow Regional Court confirmed this decision. The appeal refused to recognize Volkov as a bona fide owner according to the rules of paragraph 15 of the joint resolution of the Plenums of the Supreme Court and the Supreme Arbitration Court of 2010 - because he “could not have been unaware of the absence of grounds for his ownership of the disputed land plot.” And when Volkov filed a cassation appeal, the same Moscow Regional Court added: the plaintiff took possession of the property under a transaction - a purchase and sale agreement - and this, regardless of the term, does not allow the recognition of ownership rights by prescription.
Volkov decided to appeal to the Constitutional Court. He challenged the provisions of paragraph 1 of Art. 234 of the Civil Code as inconsistent with the Constitution. The applicant is confident that in practice a formal approach of the courts to determining the good faith of a long-standing owner has been formed, given the uncertainty of this criterion in the law.
Two different conscientiousness
The Constitutional Court understood the controversial norm and the practice of its application. The judges confirmed: indeed, in Art. 234 of the Civil Code does not disclose the criteria for the good faith of a long-standing acquirer - in contrast, for example, to Art. 302 of the Civil Code on reclaiming property from someone else’s possession. The Constitutional Court finds an explanation for this in that Article 302 is aimed at resolving the dispute between the owner and a bona fide purchaser. And when applying Article 234, the owner’s good faith acts only as one of the conditions necessary to return a thing to civil circulation and overcome uncertainty about who owns it. Therefore, the Constitutional Court decided that the criteria of good faith in relation to these two articles of the Civil Code should be different.
The Constitutional Court turned to the practice of the civil collegium of the Supreme Court, which does not exclude the acquisition of property rights due to acquisitive prescription even when the owner should have known about the absence of grounds for the emergence of property rights.
The practice of the Supreme Court shows that good faith can also be recognized in cases where the owner understands that he has no grounds for acquiring property rights, the Constitutional Court indicated.
The Constitutional Court also noted that the rights of the municipality were not violated in this case. The authorities of Krasnoznamensk initially did not register their ownership rights, and also avoided participating in the consideration of the case. In fact, the city transferred all its owner powers to the citizens, and the citizens - first Petrov, and then Volkov - accepted them and fully bore the costs of maintaining the property.
The Supreme Court assessed the integrity of the buyer with unusual behavior
As a result, the judges indicated that the purchase and sale agreement does not prevent Volkov from being recognized as a bona fide owner. “The fact of concluding such an agreement cannot in itself be a basis for recognizing long-term possession as unfair or become an obstacle to acquiring ownership of a land plot,” the Constitutional Court decided.
The judges indicated that the new interpretation of paragraph 1 of Art. 234 of the Civil Code is generally binding, and this norm cannot now be applied otherwise. The decisions already taken in the Volkov case will be reviewed.
Pravo.ru experts: certainty in practice
The ruling of the Constitutional Court will help resolve issues with actually “abandoned” property, and, probably, the courts will more often satisfy claims for recognition of prescription of possession, believes Olga Turenko, lawyer at AK Borodin and Partners Borodin and Partners Federal Rating. group Bankruptcy (including disputes) (mid market) group Tax consulting and disputes (Tax disputes) group Dispute resolution in courts of general jurisdiction. At the same time, the expert is sure: the mention in the document of a land plot and a garage is only a reminder of the context in which the matter was raised. “Accordingly, the clarifications of the Constitutional Court will also affect the issues of establishing the good faith of long-term possession and other property,” Turenko believes.
The Supreme Court taught how to register an inheritance for a plot
The significant conclusion of the resolution is that to resolve the issue of the good faith of the owner of a land plot, the presumption of state ownership of land is not decisive, comments Elena Tersintseva, adviser to the Alliance Legal Consulting Group Alliance Legal Consulting Group Federal Rating. group Sanctions law group Criminal law group PPP/Infrastructure projects Company profile. Otherwise, private individuals, in violation of basic constitutional principles, would find themselves in a deliberately disadvantageous position, the expert notes.
The approach of the Constitutional Court will help return into civil circulation a significant part of the real estate, whose owners do not show interest in it, and long-standing owners cannot formalize rights, because they are considered “unscrupulous”. This opinion was expressed by Pavel Lobachev from Land Law Firm Land Law Firm Federal Rating. group Land law/Commercial real estate/Construction group Dispute resolution in courts of general jurisdiction group Private capital group Arbitration proceedings (major disputes - high market) Company profile. The expert believes that the Constitutional Court’s resolution is a certain compromise: “Perhaps it would be more correct to consider the owner’s prolonged inaction as an additional criterion for acquiring property under Article 234 of the Civil Code of the Russian Federation, which will allow, even without the good faith of the long-standing owner, to acquire property by prescription.”
Experts agree that the Constitutional Court’s resolution brings clarity and certainty to the issues of judicial assessment of the criteria for the good faith of long-standing acquirers.
Resolution of the Constitutional Court of November 26, 2021 No. 48-P.
* — Last name and first name have been changed.
- Maxim Varaksin
- constitutional Court
Commentary to Art. 234 Civil Code of the Russian Federation
1. The primary grounds for acquiring property rights should also include acquisitive prescription, i.e. the period of possession of a thing, after which the right of ownership is acquired (Article 234 of the Civil Code). A memorable characteristic of acquisitive prescription (usucapio) was given by pre-revolutionary civilists: “The silence and inactivity of an authorized subject who allows a clear violation of his authority is interpreted by the law as a refusal of it. A long-standing, obvious and bright fact triumphs over faded law” (Kasso L.A. Russian land law. M., 1906. P. 123).
During the Soviet period, the institution of acquisitive prescription was not enshrined in civil legislation, although the need for it was noted by many authors. Provisions on acquisitive prescription reappeared in Russian legislation only in the Law of the RSFSR of December 24, 1990 “On Property in the RSFSR”, which has now lost force due to the entry into force of part of the first Civil Code.
2. The right of ownership by virtue of acquisitive prescription can be acquired not only for ownerless property, but also for property owned by another person (clause 17 of the Supreme Arbitration Court Resolution No. 8). In particular, in this order the right of ownership can be acquired for objects that are in federal ownership, in the ownership of constituent entities of the Russian Federation and in municipal ownership. Moreover, the fact that a thing is in private ownership is not an obstacle to its acquisition due to the commented article.
3. The concept of “person” in the commented article has a different content than the category of the same name used in the title of subsection. Section 2 I GK. There it covers, among other things, the Russian Federation, constituent entities of the Russian Federation and municipalities. The commented article specifically clarifies that by person we mean only citizens and legal entities. Thus, the Russian Federation, the constituent entities of the Russian Federation and municipalities are deprived of the ability to become subjects of property rights through acquisitive prescription. On the basis of acquisitive prescription, only the right of private property can arise.
Yu.K. has a different opinion. Tolstoy: “Both an individual and a legal entity, as well as the Russian Federation, a subject of the Federation or a municipal entity can acquire ownership rights by prescription” (Civil Law: Textbook in 3 volumes. T. 1 / Edited by A.P. Sergeev, Yu.K. Tolstoy, 6th ed. M., 2006, p. 426). The argumentation for this thesis apparently consists of a reference to paragraph 2 of Art. 124 of the Civil Code, according to which the rules governing the participation of legal entities in relations regulated by civil law are applied to the Russian Federation, constituent entities of the Russian Federation, and municipalities, unless otherwise follows from the law or the characteristics of these entities. This point of view has grounds, however, in our opinion, it is still more correct to believe that the direct indication in the commented article of citizens and legal entities along with the term “person” is more likely to resemble a qualified silence of the legislator regarding other subjects of civil law.
4. Objects of acquisitive prescription are defined as real estate and other property. It should, however, be taken into account that the acquisition of ownership rights by prescription of possession in relation to objects withdrawn from circulation is impossible and is permitted only in compliance with the restrictions established by law - for objects whose turnover is limited (see commentary to Article 129 of the Civil Code).
5. The commented article recognizes acquisitive prescription in the presence of a number of conditions (details), each of which is necessary and non-compliance (absence) of at least one of them excludes the possibility of transfer of ownership by acquisitive prescription.
First, ownership must be in good faith. Good faith means that at the time of acquiring a thing, the owner believes, possibly mistaken in factual circumstances, that the basis on which the thing came to him gives him the right of ownership to it. The admissibility of error is determined by the fact that the owner did not know and should not have known about the illegality of his possession.
Examples of unacceptable misconceptions include:
1) if the owner obviously understands that the thing is being transferred to him, but without the right of ownership to it. Thus, neither the tenant, nor the custodian, nor the subjects of the right of economic management or operational management, nor the employees of the legal entity - the owner will ever acquire ownership rights under Art. 234 of the Civil Code, because at the moment the thing came into their possession they knew that they were not its owners (clause 18 of the Supreme Arbitration Court Resolution No. 8);
2) if the illegality of the error follows directly from the law (old principle: ignorance of the law does not exempt from adverse consequences); hence, misconception can only concern factual circumstances (for example, ignorance of the fact that a thing has been seized). For example, a question may arise about the good faith of the possession of a thing by a person who discovered ownerless movable property, but did not perform the necessary actions in accordance with Art. 227 of the Civil Code of Action (report to the police or local government). If a person keeps the thing and owns it as his own, he does not acquire the right of ownership after the expiration of the periods specified in the commented article, since when acquiring possession of the thing, the imperative norms of the Civil Code were violated, ignorance of which does not make the owner bona fide;
3) if information about facts preventing the alienation of real estate is registered in the Unified State Register of Rights to Real Estate and Transactions with It;
4) if the owner shows obvious imprudence or frivolity when transferring the thing to him (see: Sklovsky K.I. Application of civil legislation on property and possession: Practical issues. M., 2004; commentary on Article 234 of the Civil Code).
In addition, bona fide possession is excluded when the owner is either a thief or another person who intentionally took possession of someone else's property against the will of the owner. Thus, in judicial practice it is noted that the arbitrary occupation of residential premises does not give rise to the right to this residential premises, and the lack of good faith ownership as a result, established by the court, entails the impossibility of its acquisition by the owner on the basis of the commented article - in the order of acquisitive prescription (see the Constitutional Court Definition " On the refusal to accept for consideration the complaint of citizen Galina Vladimirovna Khokhlova regarding the violation of her constitutional rights by the provisions of Article 208 of the Civil Code of the Russian Federation).
6. From a practical point of view, it is important to understand that it is impossible to require good faith from the owner of the statute of limitations throughout the entire period of acquisitive limitation. Good faith is determined at the time of the transaction to establish ownership. If the owner subsequently discovers that the item was acquired illegally, this in itself does not make him unscrupulous in the sense of the commented article.
This is a manifestation of the postulate of Roman law: “Subsequent bad faith does not harm the original possession.” This conclusion today is based on paragraph 4 of the commented article, according to which the person from whose possession the thing can be claimed on the basis of Art. Art. 301 and 305 of the Civil Code (these articles are devoted to a person who illegally owns someone else’s thing), in principle, is able to acquire it by prescription. Such a person, therefore, is not excluded from the circle of potential acquirers. At the same time, the reverse rule: “Subsequent good faith (during ownership) eliminates previous bad faith (at the time of acquisition)” does not apply.
7. In the literature, the opposite opinion was expressed that the commented article requires good faith throughout the entire period of prescription. According to this opinion, not every receipt by a long-standing owner of information about someone’s claims to property will mean an immediate loss of good faith. If the court refuses to satisfy such demands, the good faith of the owner cannot be considered shaken. If the court confirms the validity of such requirements, possession by prescription will be terminated as such (see: Commentary on the Civil Code of the Russian Federation. Part one (article-by-article) / Edited by N.D. Egorov, A.P. Sergeev. 3rd ed. ., revised and supplemented M., 2005. P. 494 (commentary author - A.V. Konovalov)). However, refusal to satisfy these requirements may be justified, for example, by an inappropriate person filing a lawsuit. The court's decision in this case does not prevent the appropriate person from filing a lawsuit; at the same time, the owner, having familiarized himself with the arguments of the previous applicant on the merits, can independently realize the illegality of taking possession of the thing.
8. Secondly, ownership must be open. Openness is manifested in the fact that the person does not take any special measures aimed at hiding the fact of taking possession of the thing. Thus, in the Resolution of the Constitutional Court of July 20, 1999 N 12-P “On the case of verifying the constitutionality of the Federal Law of April 15, 1998 “On cultural values moved to the USSR as a result of the Second World War and located on the territory of the Russian Federation” ( SZ RF. 1999. N 30. Art. 3989) states that many displaced cultural assets were in closed funds of museums and other institutions, which does not meet the requirements of the law on bona fide, open possession for acquiring ownership of ownerless things. However, the qualification of storing cultural property in closed funds as a violation of the principle of open ownership is controversial. It is well known that, for example, in Russian museums most of the exhibits are hidden from the eyes of visitors due to a basic lack of space.
9. Thirdly, the person performs those actions that are usual for an attentive and caring owner, i.e. exercises ownership of the thing as his own, treats it no worse than the rest of his property (pays taxes and fees established by law, complies with the rules on compulsory insurance, carries out repairs, etc.). At the same time, it, of course, is not obliged to perform actions that constantly demonstrate ownership to others; his behavior should only be within the generally accepted framework.
10. Fourthly, possession must be continuous for the period prescribed by law. Possession that occurs sporadically, is unusually small from the point of view of ordinary practice, indicates an unwillingness to own, and in such a case interrupts the period of acquisitive limitation.
This basis for interrupting the period of acquisitive limitation should be recognized as the only one. The opinion found in the literature that acquisitive prescription is interrupted by the commission of actions on the part of the owner indicating his recognition of the obligation to return the thing to the owner, as well as by filing a claim against him for the return of property, is not shared by us. The performance by the owner of actions indicating his recognition of the obligation to return the thing to the owner, but not related to the transfer of ownership, violates not the principle of continuity of ownership, but the principle of owning the thing as his own.
Filing a claim against the owner for the return of property as a procedural action is not limited by the statute of limitations (clause 1 of Article 199 of the Civil Code), which can become a reason for abuse on the part of the non-possessing owner, who has lost protection in the event of missing the limitation period and by filing a claim who only wants to interrupt the period acquisitive prescription of the defendant (owner).
11. The period of acquisitive limitation for movable things is set at 5 years, and for immovable things - at 15 years. Since 2005, an exception to this rule has essentially been established in paragraph 2 of Art. 223 of the Civil Code: real estate is recognized as belonging to a bona fide purchaser (clause 1 of Article 302 of the Civil Code) on the right of ownership from the moment of state registration, with the exception of those provided for in Art. 302 of the Civil Code of cases when the owner has the right to reclaim such property from a bona fide purchaser (SZ RF. 2005. N 1 (part I). Art. 43). It follows from this rule that if the owner is denied a vindication claim, then the bona fide purchaser does not have to wait for the expiration of the 15-year acquisition limitation period; his ownership right will arise from the moment of state registration.
The rule enshrined in paragraph. 2 paragraph 1 of the commented article confirms the conclusion made earlier in the literature that a bona fide purchaser of property from whom it cannot be vindicated becomes its owner. In this somewhat paradoxical way, the owner, having filed a vindication claim and received a refusal, actually assists the owner in the early acquisition of the immovable property.
The countdown of the period begins from the moment of possession of the property (this can be confirmed by any evidence, including receipts for payment of property taxes, payment for repairs of the property, and witness testimony). However, two exceptions have been made to this rule: 1) by virtue of paragraph 3 of Art. 234 of the Civil Code, the time during which the legal predecessor of the current owner, for example the testator, owned the thing, can be added to the time of actual possession; 2) by virtue of clause 4 of Art. 234 of the Civil Code during the period of acquisitive limitation in relation to things held by a person from whose possession they could be claimed in accordance with Art. Art. 301 and 305 of the Civil Code, begins no earlier than the expiration of the limitation period for the relevant requirements (i.e. if the owner does not file a vindication claim within three years from the moment he learned or should have learned about the violation of his right, then the acquisitive limitation period will begin run only after the expiration of the specified three-year limitation period).
12. In accordance with Art. 11 of the Introductory Law, the commented article has retroactive force, since it also applies to cases where ownership of property began before January 1, 1995 (the date of entry into force of part one of the Civil Code) and continues at the time of entry into force of part one of the Civil Code. At the same time, judicial practice has tended towards a restrictive interpretation of this rule, categorically refusing to calculate the periods of acquisitive limitation in the period before January 1, 1991 (the date of entry into force of the RSFSR Law “On Property”), citing the fact that only from this date for the first time after 1917, the concept of acquisitive prescription appeared in Russia (see for more details: Commentary on the Civil Code of the Russian Federation. Part one (article-by-article) / Edited by N.D. Egorov, A.P. Sergeev. 3rd ed., revised . and additional M., 2005. P. 497 (commentary author - A.V. Konovalov)).
13. During the period of acquisitive limitation, the bona fide owner, along with the title owners of the property, enjoys proprietary protection of his possession against all other persons (clause 2 of the commented article) who, like himself, do not have title to the thing, for example, customs and other administrative organs (Bulletin of the Armed Forces. 2001. N 2. P. 13 - 14). However, against the claims of the title owners of the property themselves, including the owner (Article 301 of the Civil Code, taking into account Article 302 of the Civil Code), his defense is powerless.
14. The procedure for acquiring property rights by acquisitive prescription is also subject to the rules of the commented article. For movable property, the very fact of expiration of the five-year period of possession established by law by acquisitive prescription is sufficient. For real estate, in addition to the fact of expiration of the fifteen-year period of ownership established by law by acquisitive prescription, two more legal facts are required: a court decision establishing the relevant fact (issued in a special proceeding) and state registration of the right. This conclusion follows from paragraph. 2 clause 1 of the commented article, clause 3 art. 6, Art. Art. 17, 28 of the Law on State Registration.
Buy it, own it
Article 234 of the Civil Code of the Russian Federation “Acquisitive prescription” is recognized as corresponding to the Constitution of the Russian Federation, but it is given an unambiguous interpretation that is mandatory for application throughout the country. RG publishes the corresponding document in its issue today.
Viktor Volkov from the Moscow region filed a complaint with the Constitutional Court about the provisions of this article. In 1997, he purchased a garage from a garage cooperative; the fact of sale is confirmed by a receipt from the previous owner for receipt of money.
However, the plot belonged to him by right of lifelong inheritable ownership.
This order existed during the transition period of the 1990s and the establishment of private ownership of land, so a purchase and sale agreement was drawn up for the garage and land.
On the one hand, Article 234 of the Civil Code of the Russian Federation declares that “a person who is not the owner of property, but who conscientiously, openly and continuously owns either his own real estate for fifteen years or other property for five years, acquires the right of ownership of this property "
On the other hand, there is an explanation from the plenums of the Supreme and Supreme Arbitration Courts of the Russian Federation.
“Ownership of property as one’s own means ownership not by contract,” it states. At the same time, the list of contractual relations is not exhaustive - after indicating “rent, storage, free use” there is a continuation: “Etc.”
The concept of “property” in Article 35 of the Constitution of the Russian Federation covers not only the right of ownership, but also other real rights
On this basis, the courts of general jurisdiction refused to recognize Volkov as the owner of the land and garage box.
According to the applicant, such a formal approach, when the word “agreement” crossed out more than 20 years of his conscientious fulfillment of all obligations as a member of a garage cooperative and the right of ownership guaranteed by the Constitution of the Russian Federation, is unacceptable.
“The significance of resolving my claim goes far beyond the scope of a specific case, since many garage owners find themselves in a detailed situation.
And the massive legal uncertainty that has arisen in connection with this practice of applying Article 234 of the Civil Code of the Russian Federation in legal relations inextricably linked with garages contradicts the very essence of legal regulation, Volkov believes.
“So, only in our Orbita Group of Companies there are 26 members of the cooperative,” said the applicant.
Having studied the circumstances of the case, the Constitutional Court of the Russian Federation sided with the bona fide purchaser.
The decision is based on previously expressed legal positions of the court, and therefore was made without public hearings.
First of all, the court recalled that the concept of “property” in Article 35 of the Constitution of the Russian Federation “no one can be deprived of their property except by a court decision” covers not only the right of ownership, but also other property rights.
Consequently, this norm guarantees the protection of “such property rights as the right of permanent (perpetual) use or lifelong inheritable ownership of a land plot.”
The court also recalled its 2001 decision.
It stated that “during the land reform, the legislator provided citizens of their choice with the opportunity to continue to use the land plots previously provided to them on the right of permanent (perpetual) use, lifelong inheritable possession, or to re-register the existing legal title.”
In this case, in any case, both automatic changes in the titles of citizens' rights to land were excluded (re-registration was carried out on the initiative of the citizens themselves), as well as any restriction of the right to use the land plot in connection with the non-re-registration of the existing legal title.
“The difference between the criteria of good faith in relation to the legal situations of acquisition of property by a bona fide purchaser (Article 302 of the Civil Code of the Russian Federation) and prescription of possession (Article 234 of the Civil Code of the Russian Federation) is due to their different goals,” the Constitutional Court of the Russian Federation also indicated, “which requires the courts to study the factual circumstances of each specific case, and this, in turn, requires a differentiated approach when determining the criteria of integrity.
As for the clarifications of the plenums, the clarifications that became the basis for the decision of the courts of general jurisdiction in the Volkov case “indicate only contracts in which the owner’s counterparty received property for temporary possession, that is, it follows from the nature of the contract that the recipient of the property did not intend to own them as their own, the Constitutional Court of the Russian Federation indicated.
In the case of owning a garage box, the situation is fundamentally different, so it is subject to review.
1. Introduction
From January 1, 2021, new rules for calculating the period of acquisitive limitation (usucapia) are in effect. Revision of paragraphs 1 and 4 of Art. 234 of the Civil Code (Civil Code) of the Russian Federation has changed as part of the adoption of unified legislative innovations 1 1 See: Federal Law of December 16, 2019 No. 430-FZ “On Amendments to Part One of the Civil Code of the Russian Federation” (hereinafter referred to as Law No. 430-FZ) . , which are designed to limit the satisfaction of claims of public legal entities for the recovery of residential premises from private individuals - bona fide purchasers. For this purpose, clause 4 of Art. was introduced into the Civil Code. 302 and paragraph 3 of Art. 223, which will be discussed below.
As for acquisitive prescription, according to paragraph 4 of Art. 234 of the Civil Code of the Russian Federation in the new edition, the course of its term in relation to things located in the person from whose possession they could be claimed in accordance with Art. 301 and 305 of the Code, begins from the day the thing comes into the open possession of a bona fide acquirer, and if the right of ownership of a bona fide acquirer of an immovable thing that he owns openly has been registered, no later than the moment of such registration. At the same time, the duration of the acquisition limitation period remained the same: 15 years for real estate and 5 for movables.
Due to the fact that until 2021, the start of the term of usucapia depended on the expiration of the statute of limitations for vindication, it is necessary to identify the new role of the entry in the Unified State Register of Real Estate in relation to the calculation of the period of limitation of possession, as well as to compare registered and non-register usucapia.
In the new paragraph 4 of Art. 302 of the Civil Code of the Russian Federation states that the court refuses to satisfy the request of a public entity to reclaim residential premises from a bona fide purchaser - a private person in all cases, “if after the disposal of the residential premises from the possession of the plaintiff, three years have elapsed from the date of entry into the state register of the entry on the ownership rights of the first bona fide purchaser of residential premises."
Norms Art. 302 of the Civil Code of the Russian Federation has never before linked the conditions for limiting vindication with the expiration of any period for claiming property, which has always been characteristic of the legal institutions of limitation and acquisitive limitation. Provisions of Art. 302 of the Civil Code of the Russian Federation until 2021, regardless of the type of property, contained exclusively substantive and legal grounds for refusing to satisfy a vindication claim: the good conscience of the acquirer, compensation for the acquisition, disposal of property from the owner’s possession at his will.
Expiration of the provisions specified in clause 4 of Art. 302 of the Civil Code of the Russian Federation, a three-year period for claiming residential premises entails the bona fide acquisition of this type of real estate on the basis of the new clause 3 of Art. 223, and not by virtue of the provisions of Art. 234 Civil Code of the Russian Federation. Moreover, the new method of acquiring residential premises in good faith does not depend on the presence or absence of a paid nature of the acquisition and is not conditioned by the presence or absence of the owner’s will to dispose of the property.
Such innovations undoubtedly give rise to the problem of determining legal
The provisions on acquisitive prescription will be amended in the Civil Code
The Ministry of Economic Development of Russia has developed amendments to part one of the Civil Code of the Russian Federation concerning the procedure for applying acquisitive prescription as a basis for the emergence of ownership of real estate.
The Ministry of Economic Development explains the need to change legislation by the following circumstances. According to paragraph 1 of Article 234 of the Civil Code of the Russian Federation, a person - a citizen or a legal entity who is not the owner of property, but who in good faith, openly and continuously owns real estate as his own for 15 years, acquires the right of ownership of this property (acquisitive prescription).
This rule requires correlation with paragraph 2 of Article 8.1 and paragraph 1 of Article 131 of the Civil Code of the Russian Federation, which determine that all rights to real estate must be registered and arise from the date of state registration. Consequently, bona fide possession of someone else’s real estate without registering rights to it is impossible (without taking into account transitional legal relations about previously arisen rights that are considered valid regardless of state registration (Article 69 of the Federal Law of July 13, 2015 No. 218-FZ “On State Registration real estate"). In turn, without bona fide ownership, it is impossible for rights to arise through acquisitive prescription.
In the current version of the Civil Code of the Russian Federation there is no clarity regarding the beginning of the acquisitive limitation period, since the specified period depends on the expiration of the limitation period. The limitation period depends, in turn, on many other circumstances, including subjective ones: what method was chosen by the owner to protect his possession, whether the violation of possession was partial or the owner was deprived of possession completely, whether there are grounds for reinstating the limitation period.
It is also unclear what circumstance or document indicates the end of the expiration of the acquisitive statute of limitations. On the one hand, paragraph 2 of Article 234 of the Civil Code of the Russian Federation speaks of the need to register the rights of the new owner of real estate, but on the other hand, it is not clear what document should confirm the onset of the limitation period.
As for the acquisition of rights to land plots by acquisitive prescription, this possibility is significantly limited by the provisions of Article 214 of the Civil Code of the Russian Federation, which provides that land that is not owned by citizens, legal entities or municipalities is state property.
Thus, any actual possession of a land plot was recognized as unfair and did not entail the emergence of rights due to prescription (paragraph 16 of the resolution of the Plenum of the Supreme Court of the Russian Federation No. 10, the Plenum of the Supreme Arbitration Court of the Russian Federation No. 22 of April 29, 2010 “On some issues arising in judicial practice in resolving disputes related to the protection of property rights and other property rights").
Meanwhile, the country has a significant number of land plots that have been used by citizens for a long time. This use is explained by the fact that during the Great Patriotic War, documents relating to land plots previously provided in accordance with the established procedure were destroyed, and by the fact that at different times, for various reasons (including emergency ones), capital construction projects were built in a short time without compliance rules for the allocation of land plots, as well as violations of the procedure for providing plots in the 50–80s, especially on the terms of secondary land use, that is, plots provided by former collective farms (state farms) or state enterprises to their employees. The lack of formalization of land legal relations prevents the registration of rights to buildings, their reconstruction, and reduces the amount of land payments.
Established judicial practice provides for the need to register an immovable thing as ownerless as a condition for further recognition of the right of private ownership to it, since it is in this case that bona fide possession of such a thing is possible. Here the courts rely on the provisions of paragraph 3 of Article 225 of the Civil Code of the Russian Federation. This puts the actual owner in unpredictable dependence on the actions of local governments. At the same time, municipalities are not interested in spending their own funds on the description and registration of property that is not necessary to resolve issues of local importance, which does not provide the opportunity for further acquisition of property by private individuals.
As the Ministry of Economic Development notes, even more pressing than in relation to land plots is the issue of acquiring rights by acquisitive prescription to structures. For example, rights to approximately 720,000 km of linear objects cannot be issued due to the lack of title documents for them. There are a number of reasons for this. Firstly, due to the accelerated privatization of property included in the authorized capital, it was not properly described, which led to the impossibility of confirming rights to a large number of buildings and structures. Secondly, a significant part of the structures were built in the 1970–1990s using the so-called economic method, that is, without obtaining permits or registering the construction. Thirdly, in the absence of rules for technical connection, many linear facilities were built by developers and transferred for maintenance to linear companies without proper registration of the emergence and transfer of ownership rights.
The common features of foreign legislation regulating the issue of acquisitive prescription are the requirements of openness of ownership (legal claim), long and uninterrupted ownership, to which may be added the period of recognition of ownership by the predecessor of the actual owner. Other conditions - good faith of ownership, judicial recognition of ownership due to prescription - are not mandatory for this legal institution. These circumstances depend on the development of the system for registering rights, the number of decisions to be made on the legalization of real estate actually owned by citizens and organizations.
The bill, in particular, maintains the 15-year period of acquisitive limitation; however, in exceptional cases, a shortened period of acquisitive limitation (seven years) is introduced in relation to linear objects that are objects of increased danger or objects necessary to provide the population with public services, which are necessary in all cases , at any stage of the life cycle, be kept in proper condition.
It is established that the period of acquisitive limitation for immovable things, the rights to which are not registered with citizens or legal entities, begins from the day they begin to own them.
If actual ownership was carried out by several persons, then, due to acquisitive prescription, they may have common shared ownership of a land plot or other real estate.
Simultaneously with the amendments to the Civil Code of the Russian Federation, it is planned to adopt a bill introducing changes to land legislation and legislation on urban planning activities.
