Story No. 1
The husband owed a private person 100 thousand rubles; for a long delay, 300 thousand rubles of interest were added to it. The creditor went to court and asked to seize the apartment, the owners of which are both spouses. That is, the wife is owed half of the property, but the bailiffs seized the entire apartment.
Alina. Chelyabinsk
Such situations occur quite often. A husband and wife buy an apartment together, and it is their jointly acquired property. And then one of them turns out to be a debtor, and the entire property is seized. Many are afraid that in this way they are trying to take away their entire home. However, it is not. In accordance with Part 3 of Article 223 of the Civil Code of the Republic of Kazakhstan, for the obligations of one of the spouses, recovery can only be made on the property owned by him, as well as on his share in the common property of the spouses, which would be due to him in the event of a divorce.
In most cases, the reason for the seizure of the apartment is explained by the fact that the shares of the spouses have not been allocated, so it is impossible to seize only the part that belongs to the debtor. Accordingly, shared ownership must first be established, and only then the recovery will be directed to the share of one of the spouses.
What if the court decided to lift the arrest?
In most cases, if the owner has presented all the documents and receipts, the judge will accommodate the debtor.
Immediately after the decision to lift the arrest is made, a writ of execution is drawn up and sent to the bailiff. After the court decision enters into legal force, the seizure of the property is lifted.
As soon as the arrest is lifted, the owner regains the right to dispose of his property.
But it may turn out that the debtor was unable to fulfill all the judge’s requirements. Then the decision will be negative and appealing to other authorities will be useless.
Story No. 2
Is a decree to seize real estate made by a bailiff legal? The apartment was purchased by me and my ex-husband during our marriage, 1/2 share. That is, everyone had in their hands a certificate of state registration of rights. The husband gave his share to a friend. After some time, the husband had an accident, the trial lasted a very long time, which ultimately decided to pay a large sum of money to the injured party for causing harm to health. After all these trials we got divorced. Since my husband did not have his share of the apartment left, the bailiff seized my share of the property, explaining that the ex-husband has the right to half of the property due to me.
Elena. Nizhny Novgorod
Despite the absurdity of the situation, it occurs quite often. The fact is that one of the spouses transferred his part of the share to another person while he was married. Therefore, the bailiffs considered that the remaining 1/2 share was jointly acquired property, which should be divided equally.
If the owner of the share that has been seized is of the opinion that in such cases there is a regime of shared ownership and not jointly acquired property, and there are all the necessary documents to confirm this fact, you can apply to the court to release the apartment from seizure.
There is another important point that was not mentioned. In accordance with Article 35 of the Family Code, in order for one of the spouses to complete a transaction to dispose of real estate that requires notarization and (or) registration in the manner prescribed by law, it is necessary to obtain the certified consent of the other spouse. If it has not been received, one of the shareholders has the right to demand that the transaction be declared invalid in court within a year from the day on which he became aware of the completion of this transaction with the apartment. In this case, the gift agreement may be declared invalid.
The apartment came under arrest. The Supreme Court clarified what can be done with the debtor’s only home
The Judicial Collegium for Civil Cases of the Supreme Court examined the debtor's complaint against the actions of the bailiff. He seized the debtor’s only living space, and she considered that this violated her rights.
The situation with debt collection is relevant for many today. Debts must be repaid. Especially according to a court decision. This is why the bailiff service exists. But are their actions always legal? Almost all debtors know that it is forbidden to touch the only housing. Is this really so, and what actions does the bailiff have the right to perform with the debtor’s apartment without breaking the law?
The district court of St. Petersburg made a decision on a lawsuit against a local resident. According to a court decision, she was obliged to repay a considerable debt. The bailiff initiated enforcement proceedings and seized the land plot and part of the citizen's dacha. They were sold and the money was used to pay off the debt.
But these funds were not enough for the entire repayment, and the bailiff seized the apartment where the debtor and the child lived.
But the defendant did not agree with the seizure of the apartment. She went to another district court with a statement in which she challenged the order issued by the bailiff to seize the property. In support of her claim, the citizen wrote that the apartment is the only place of residence for her and her young son, so she cannot be arrested.
The district court agreed with this statement. In its decision, the court of first instance said that, according to Article 79 of the Law on Enforcement Proceedings, foreclosure cannot be applied to property owned by the debtor, the list of which is established in the Civil Procedure Code. The only premises suitable for permanent residence are included in this list (Article 446 of the Civil Procedure Code.)
“Since the disputed apartment, as the debtor’s only place of residence, cannot be foreclosed on, the seizure of property that cannot be foreclosed on cannot be used as an independent enforcement measure and cannot lead to the execution of a court decision,” - recorded in the district court's decision.
The creditor and the bailiff were offended by this verdict and wrote a complaint to the St. Petersburg City Court. The appeal states that the arrest of the apartment was made “not for the purpose of foreclosure, but as an independent measure of compulsory execution provided for by the law on enforcement proceedings.” But the city court did not support the bailiff and the creditor. The appeal said their argument was “based on a misinterpretation of existing law.” The court said that the measure taken by the bailiff is not included in the list of grounds for seizure.
Therefore, “the argument about the legality of seizure for the purpose of forcing the debtor to actually fulfill the requirements of the writ of execution does not comply with the current legislation” is written in the appeal decision. The city court also said that the seizure to ensure the safety of property in our case is devoid of legal significance, since “such an arrest in the present case cannot lead to the execution of a court decision.”
The creditor also did not agree with this formulation and went further and higher - to the Supreme Court of the Russian Federation. And there, after reading this case, they stated the following: the acts of the St. Petersburg courts are incorrect and subject to cancellation, since their conclusions are based “on an incorrect interpretation of the norms of substantive law.”
In its ruling, the Judicial Collegium for Civil Cases indicated that arrest as an executive action can be imposed by a bailiff “in order to ensure the execution of a court decision containing demands for property penalties” (Articles 64 and 80 of the Law on Enforcement Proceedings). According to the Supreme Court, despite the fact that Article 446 of the Code of Civil Procedure prohibits foreclosure on the debtor’s only home under writs of execution, it is possible to seize such housing, because seizure is not a foreclosure. These are different actions.
According to the panel, the court of first instance and the appeal erroneously equated the ban on performing registration actions with an apartment and enforcement measures. The decision of the Supreme Court states that “it is clear from the order of the bailiff that it was made in order to ensure the execution of the court decision.”
And the court clarified that this arrest does not provide for restrictions on the right to use the apartment and foreclosure on it, namely, the seizure of the apartment and its sale or transfer to the claimant. The debtor can live as she lived in her apartment in peace, but after the seizure the woman will not be able to dispose of the housing. That is, sell it, donate it or exchange it.
In this case, the Supreme Court used the resolution of the Plenum “On the application of legislation by courts when considering certain issues arising during enforcement proceedings” (November 2015).
That resolution states that the seizure of residential premises, which are the only permanent residence of the debtor-owner and his family, as well as the establishment of a ban on the disposal of this property (including the move-in and registration of other persons), cannot be considered illegal if these measures were taken by the bailiff so that the debtor could not dispose of the property to the detriment of the interests of the claimant. (Case No. 78-KG15-42)
a comment
Ivan Solovyov, professor at the Academy of the Ministry of Internal Affairs of Russia:
— The creditor’s task is to create such conditions for the debtor so that he, preferably, does not forget for a minute what he owes. The only housing for a long time remained an impregnable outpost for debt collectors and at least some kind of guarantee for those who did not calculate their financial capabilities or overestimated their prospects. The decision to impose encumbrances on it is quite predictable, since the growth of debt is growing month after month, and expensive loans remain the only effective way to revive the banking sector. In any case, we should not forget about the possibilities of the new rules on bankruptcy of individuals. 500 thousand rubles and three months of delay - it is quite possible to think about this legal procedure, but it is better to start and conduct it yourself, since the creditor will definitely conduct it in a way that is beneficial to him.
Source - "Rossiyskaya Gazeta"
Story No. 3
Our story is truly enchanting. My father left us, two brothers, his apartment, we filled out the documents and divided everything. One of the owners allowed a distant relative to stay with his wife and child, who were not even registered. After some time, the husband abandoned the family, divorced and left. And the wife remained in someone else’s home. A few years later they hinted to her that it was time to have the honor. Moreover, the warning conversation took place through the door, since the woman did not want to talk about this topic, barricaded herself in the apartment and called the local police officer. The representative of the law sided with the holders of real estate documents and drew up a document obliging the woman to leave the apartment after 10 days. However, after this period, she had to be evicted by force. The lady made a scandal, shouted that her husband had the right to this housing and she too, accused the owners of the apartment of stealing money and promised to seize the property.
Sergey. Saint Petersburg
An arrest is impossible in this case; the woman simply has no reason to do so. It must be preceded by enforcement proceedings, for the initiation of which there is no reason. If the ex-husband of a citizen is applying for an apartment, then first let him show some title documents. Otherwise, he cannot participate in the struggle for property.
What to do if the apartment is seized?
The resolution also states that the seizure of the debtor's apartment is carried out in order to ensure the rights of the creditor. In other words, so that the debtor cannot complete a purchase and sale transaction, fictitiously or real, donate housing, or find another method of alienation that would allow him to exclude the apartment from the list of property subject to possible recovery in favor of the creditor. Now the court has the right to decide to seize the only residential premises. The debtor will be prohibited from selling housing, including partial sale, or renting it out. He will also not be able to move in, register a new tenant or evict someone. Carrying out any legally significant action in relation to real estate is strictly prohibited. However, all residents of the apartment who are registered in it and lived before the court decision on the arrest will still be able to live here.
If the owner of the property, in addition to the debtor, is his wife, the entire apartment as a whole is still seized. The wife's share can be released from arrest after this share has been determined and allocated by legal means.
Story No. 4
I took out a loan to develop my business, but it didn’t work out and the debt to the bank remained unpaid. I don’t have my own property: I’m registered in my parents’ apartment. Bailiffs send letters to this address, which increasingly contain threats to seize property. I wouldn’t really want to shift my failures onto the shoulders of my father and mother; besides, housing is the only worthwhile property of the family. Losing him was not part of our plans. How to resist the actions of bailiffs?
Olga. Moscow
Not so long ago, registration guaranteed the right to square meters, so they could be arrested to pay off the debt. But the legislation has changed, now this record simply records the location of a person and makes it possible to use the apartment for living. But if a person is not named on the title documents, he does not own a share of the property.
However, there is no point in preventing bailiffs from visiting the apartment; they have the right to see what property belonging to the debtor can be seized. We are talking about any property that is not a means of primary necessity and an instrument of labor. Thus, if a person has two computers, one of them can be seized. As for the apartment, it is necessary to declare the absence of rights to it, make a note in the property inventory report, or apply to the court to exclude the property from the list of property subject to seizure to pay off the debt.
How can you avoid having your apartment seized for debt?
- After you receive a copy of the order by mail from the bailiffs to initiate enforcement proceedings against you to collect debts, do not waste time and pay your debt. You will be given a period of several days for this.
- If the apartment has not yet been seized, but its owner knows that he has debts and the possibility of applying such a sanction exists for him, then for insurance purposes it is possible to quickly register the apartment in the name of one of his relatives.
- If you have a mortgage debt, you can also try to save the apartment. By the way, banks themselves are often not interested in terminating the mortgage. If you have a positive credit history, behave conscientiously and do not refuse to pay despite trouble, then this can be useful. No need to run from bank employees. Just tell them about the troubles you are having and ask them to make you installment payments or loan restructuring. This fact may serve as evidence of the borrower’s liability for the court. In this case, the court may decide in favor of the debtor.
Author of the article
Story No. 5
Before the crisis, my husband and I took out a mortgage for a large three-room apartment. We all registered there together with our two children, and then financial problems began. I lost my job, my husband never received much money, calls from the bank started, and now we are waiting for a court decision. Could we be evicted from our apartment?
Natalia. Korolev
There were a lot of such situations during the crisis. People actually lost their apartments, which were seized and sold to pay off debt to the bank. Moreover, real estate prices fell sharply, and when selling housing, it was possible to get much less money than what the square meters were purchased for. Both the credit institution and the borrowers were losers. Therefore, lenders resort to selling mortgaged apartments as a last resort.
In this story, everything depends on whether the property is the only place of residence of the owners. If the owners of the apartment are the owners of a wooden hut in the Ryazan region, in which it is impossible to live, then there is reason to be afraid. But judging by the story, the apartment is both the family’s only large property and its place of residence. Therefore, in this case, real estate cannot be taken away. But the debt to the bank will have to be repaid. Moreover, the longer your inaction, the more money you have to pay, since the credit institution “increases” interest and late fees.
Irina Golova, expert at Calculation magazine
