Transactions with defects in form and in violation of state registration requirements. Form of transactions and their state registration
Transactions can be made in 2 forms:
(1) oral - general rule. All transactions for which the law does not require written form, can be done orally. It is accomplished through the verbal expression of one’s will, as well as in the case when his will to complete a transaction is clear from the behavior of a person, if:
a) the law does not provide for a written form or notarization,
b) the transaction itself,
c) transactions in pursuance of an agreement concluded in writing (simple or notarial), unless this contradicts the law, otherwise legal acts and the agreement.
(2) written - is an exception to the general rule and must be expressly provided for by law or agreement of the parties. Kinds:
A) Simple - is accomplished by drawing up a document expressing the contents of the transaction and signed by the persons entering into the transaction or duly authorized by them. Must be concluded in simple written form, with the exception of transactions requiring notarization:
1. transactions legal entities among themselves and with citizens;
2. transactions between citizens in an amount exceeding 1000 rubles,
3. in cases provided by law transactions between citizens, regardless of the amount of the transaction.
b) Notary - is expressed in the execution by a notary or a person replacing him of a certification inscription on the document itself. Notarization of the transaction is required:
1. in cases expressly provided by law
(a) an agreement on the pledge of real estate;
(b) an agreement on the pledge of movable property or rights to property to secure obligations under the agreement, which must be notarized;
(c) assignment of a claim based on a transaction completed in notarial form;
(d) annuity contract;
(e) will;
(f) powers of attorney issued to carry out transactions requiring a notarial form, or by way of subrogation.
2. in cases provided for by agreement of the parties to the transaction.
Consequences of failure to comply with the simple written form of the transaction
Failure to comply with the simple written form of the transaction deprives the parties in the event of a dispute to refer to witness testimony to confirm the transaction and its terms, but does not deprive them of the right to provide written and other evidence.
In cases expressly stated in the law or in the agreement of the parties, failure to comply with the simple written form of the transaction entails its invalidity.
Consequences of failure to comply with the notarial form of the transaction
Failure to comply with the notarial form entails its invalidity. Such a transaction is considered void.
If one of the parties has fully or partially executed a transaction requiring notarization, and the other party evades such certification of the transaction, the court has the right, at the request of the party that executed the transaction, to recognize the transaction as valid. In this case, subsequent notarization of the transaction is not required.
A party that unreasonably evades notarization of a transaction must compensate the other party for losses caused by the delay in completing the transaction.
State registration of transactions is not a form of transaction. This is another legal basis (legal fact) that ensures the legal significance (legitimacy) of a transaction completed in the established written form (simple or notarial).
Transactions with land and other real estate are subject to state registration. The law may establish state registration of transactions with movable property certain types(for example, in relation to museum objects and museum collections included in the Museum Fund RF).
Consequences of failure to comply with the requirement to register a transaction
Failure to comply with the requirement for state registration of a transaction entails its invalidity. Such a transaction is considered void.
If a transaction requiring state registration is completed in the proper form, but one of the parties avoids registering it, the court has the right, at the request of the other party, to make a decision to register the transaction. In this case, the transaction is registered in accordance with the court decision.
In this case, the party that unreasonably evades state registration of the transaction must compensate the other party for losses caused by the delay in registering the transaction.
2. Rental agreement (concept, characteristics, parties, form, content, rights and obligations of the parties)
Concept.
Rental agreement- this is an agreement by virtue of which the lessor, who leases the property as a permanent entrepreneurial activity, undertakes to provide the tenant with movable property for a fee for temporary possession and use.
Characteristic.
· paid
· mutual
· consensual
· a public lessor, therefore, if he has free rental items, does not have the right to refuse to enter into an agreement with anyone, or to give preference to anyone, i.e. conditions for all tenants must be equal (except for those who are granted benefits by laws and other regulations.)
Essential condition- item- only movable property. Transmitted for possession and use to the tenant.
Contract term - the rental period is limited to 1 year; it is not possible to apply the general rules regarding the renewal of a rental agreement for an indefinite period and priority right tenant to enter into a new contract.
Rent under a rental agreement can only be established in the form of fixed payments. Collection of rent arrears from the tenant is carried out in an indisputable manner on the basis of a notary's writ of execution.
Parties.
1) Landlord - entrepreneur(commercial organization, individual entrepreneur), for which leasing property is a permanent activity.
2) Tenant - any person. If the property provided under this agreement is used for consumer purposes, and otherwise is not provided for by the contract or does not follow from the essence of the obligation, then the tenants are mainly citizens who use the property for personal, family, household use, and consumer protection legislation applies to such relations.
Form- only written, through both the preparation of one document signed by both parties, and the exchange of documents reliably emanating from each of the parties. Failure to comply with the written form of the rental agreement does not entail its invalidity.
Rights and obligations.
1) Landlord's responsibilities
a) transfer the property to the lessee in a condition consistent with the terms of the agreement and the purpose of the property,
b) check the serviceability of the rental item in the presence of the tenant and familiarize him with the rules for operating the rental property or issue him written instructions on how to use it. If the tenant discovers shortcomings in the rental property, if these shortcomings completely or partially prevent the use of it, the tenant is obliged to notify the lessor about this, and he is obliged to notify the lessor about this, and he - within 10 days (if more short term not established by the contract) to eliminate defects on site free of charge or replace faulty property with other similar property that is in good condition. The right to choose how to eliminate deficiencies belongs to the lessor. When the defects of the leased property were the result of the tenant's violation of the rules for the operation and maintenance of the property, the tenant does not lose the right to appeal to the lessor with a demand for repair or replacement of the property, but he is obliged to pay the cost of repair and transportation.
2) Tenant's responsibilities
a) to maintain the property in good condition and bear the costs of maintaining the property
b) pay rent.
c) does not have the right to sublease the rented property, transfer his rights and obligations to another person, or provide this property in free use, transmit rental rights as collateral and make them as a property contribution to business partnerships and societies or a share contribution to production cooperatives.
State registration of transactions (Article 164) is a legal act performed by authorized state bodies in cases provided for by law.
Cases when registration is required:
1 Rule – regarding real estate transactions. Link to Art. 131 Civil Code + Law on state registration of rights to real estate and transactions with it.
Cases of state registration are determined by different Federal Laws. Only transactions specified in the law are subject to registration. Current legislation provides for state registration of:
1) Real estate transactions.
2) Transactions with certain types movable property.
3) Transactions with exclusive rights on the results of intellectual activity.
Art. 164 clause 2 – Other transactions in cases provided for by law.
Failure to comply with state registration requirements entails its invalidity in cases established by law.
Meaning of state registration:
1. The meaning of the conditions for the validity of the transaction.
2. Values of the moment of occurrence of the transaction.
The act of state registration determines the moment of conclusion of the transaction, and if expressly established by law, the condition of validity.
Registration is carried out by government agencies depending on the subject of the transaction.
In real estate - the Federal Reserve.
It does not register transactions with ships; they are registered by the authorities that register the ships themselves.
There is no single register.
Registration of transactions is of a declarative nature.
The registration authority checks the legality of the transaction and the absence of contradictions with existing transactions. As a result, no document is issued. A registration inscription is affixed to a copy of the transaction.
- Conditions for the validity of transactions.
Conditions for the validity of transactions are requirements that must be met for the validity of the transaction.
Conditions: Art. 168 of the Civil Code of the Russian Federation – compliance with all imperative requirements of the law and other legal regulations.
The conditions for the validity of a transaction are divided into 4 groups:
1) the presence of proper subject matter of the transaction.
2) Compliance of the expression of will with the actual will of the parties.
3) Compliance with the form of the transaction.
4) Legality of the content of the transaction.
1. Requirements for subjects, for the proper person.
A) Individuals must have legal capacity and capacity.
B) Legal entities with general legal capacity can participate in any transactions, with special legal capacity – in those corresponding to the purposes of their activities.
Legal entities with general legal capacity can limit themselves in the types of activities in their constituent documents. In this case, the condition for the validity of transactions will be compliance with this closed list specified in the constituent documents. Violation of this rule entails invalidity if the counterparty knew about the violation.
On behalf of the legal entity, the body of the legal entity carries out transactions. The authority must act within the limits of its authority. The powers of the body are determined in regulations and local non-normative acts. They must match constituent documents. For legal entities, a condition for the validity of the transaction is also compliance with the license. This is a condition if the transaction results in the provision of licensed services in combination with the fault of the counterparty.
2. Requirements for the form and state registration:
Compliance with the notarial form of the transaction is always a condition.
Compliance with a simple written form of the transaction - in cases established by law.
Compliance with state registration requirements - in cases established by law.
3. Requirements for the content of the transaction:
The beginnings of permission and discretion. The parties must not violate the mandatory content requirements. The transaction must comply with mandatory rules.
4. Requirement of will and expression of will.
By the time the transaction is completed, the person must actually be capable of volitional behavior.
A capable person is legally capable of transaction.
Physical and mental coercion entails the invalidity of the transaction. There must be normal conditions for the formation of will.
- The concept and types of invalid transactions. Consequences of invalidity of the transaction.
The invalidity of a transaction means that the action performed in the form of a transaction does not have the qualities legal fact, capable of giving rise to those civil consequences that the subjects desired.
The invalidity of a transaction may be due to:
A) Illegality of content.
B) The inability of individuals and legal entities committing it to participate in the transaction.
C) Inconsistency between will and expression of will.
D) Failure to comply with the form of transactions.
Invalid transactions are divided into:
1. Void (invalid regardless of such recognition).
2. Voidable (invalid due to their recognition as such by the court).
1. The nullity of a transaction means that an action committed in the form of a transaction does not and cannot generate the consequences desired for its participants due to its non-compliance with the law.
A void transaction is unlawful action, which gives rise only to those consequences that are provided for by law in this case as a reaction to the offense. A demand for application of the consequences of invalidity of a void transaction may be made by any interested party.
Invalidity is an objective property of a void transaction, therefore it is invalid from the moment of its completion. A void transaction has no legal force even before a court decision; the court only eliminates uncertainty in legal relations.
General rule: A transaction that does not comply with the requirements of the law or other legal acts is void unless the law establishes that such a transaction is contestable or does not provide for other consequences of violations (Article 168 of the Civil Code of the Russian Federation).
2. The contestability of a transaction means that actions performed in the form of a transaction are recognized by the court as invalid if there are grounds provided for by law only upon the claim of authorized persons specified in the law.
1. By the method of determining their invalidity:
A) A void transaction is not valid by virtue of the very fact of its completion. Such transactions are invalid, regardless of whether they are recognized by the courts from the very beginning and do not give rise to any legal consequences.
B) The voidable transaction is declared invalid court decision. If there is no such decision, the transaction is valid.
3. IN determining the circle of subjects and persons who have the right to go to court in connection with such transactions:
A) Contestable: those persons who are specified in the law (for example, only a guardian, trustee, etc.)
B) Insignificant; (In the law, this is any interested person, including non-participant)
4. On time limitation period: (181 GC)
A) Voidable: within one year from the moment the person learned, or should have learned, about the circumstances that make this transaction voidable.
B) Void: 3 years and starting from the date of commencement of execution under this transaction.
Types of void transactions:
A) Transactions made for the purpose of against the basics law and order and morality - Art. 169 of the Civil Code of the Russian Federation.
B) Imaginary and sham deals- Art. 170 Civil Code of the Russian Federation.
C) Transactions made by a citizen declared incompetent – 171
D) Transactions made by minors under 14 years of age – 172
E) Transactions made in violation of the form, if the law specifically provides for such a consequence - clauses 2, 3 of Art. 162 and paragraph 1 of Art. 165
E) Transactions made in violation of the requirements for their state registration - clause 1 of Art. 165
Special types(grounds) contained in other Laws.
Types of voidable transactions:
A) Transactions that go beyond the legal capacity of a legal entity - 173
B) Transactions that go beyond the limits of the authority to carry out a transaction – 174
C) Transactions made by minors aged 14 to 18 years - 175
D) Transactions made by a citizen whose legal capacity is limited by the court – 176
E) Transactions made by a citizen who is not able to understand the meaning of his actions or manage them - 177
E) Transactions made under the influence of delusion – 178
G) Transactions made under the influence of deception, violence, threat, malicious agreement of a representative of one party on the other, or coincidence difficult circumstances – 179
An invalid transaction does not entail legal consequences, with the exception of those related to its invalidity. The main consequence of the invalidity of a transaction is the inadmissibility of its execution.
Unless otherwise provided by law, each party to an invalid transaction is obliged to return to the other everything received under the transaction (clause 2 of Article 167). This is a two-way restitution.
In some cases, it is possible to prevent restitution, that is, to confiscate everything received and due under the transaction to the income of the Russian Federation, or unilateral restitution.
In some transactions, the right of the warmer to compensation by the other party for what was caused to him is provided for real damage.
The invalidity of a part of a transaction does not entail the invalidity of the other parts if it can be assumed that the transaction would have been completed without the inclusion of its invalid part (Article 180).
Consequences of invalid transactions:
Those that are provided for them by law. These consequences are applied by the court.
1) Legal.
2) Property.
1) legal means the consequences that determine the fate of the legal relationship that should arise from the transaction. Defined by Art. 167 and 180 Civil Code. If the transaction is invalid, then the transaction does not give rise to this legal relationship. With regard to the contestability of a transaction, the law applies exceptions:
The court may terminate the consequences for the future
Article 180 of the Civil Code: it is possible to recognize that not all consequences have not arisen, but only some (possible invalidity of part of the transaction)
2) the fate of the property that was the subject of this transaction, i.e. which was transmitted, etc.
Property consequences;
B) special
B) additional
A) clause 2 of Art. 162 Civil Code: Common are two-way restitution, i.e. The parties return to each other what they received and passed on.
B) Special consequences apply when they are expressly provided by law for this type of invalidity of transactions:
· Art. 162 of the Civil Code: seizure of everything that was transferred to the state.
· unilateral restitution: Art. 179 for – transactions made under deception, etc. Initially, the property status of the injured party is restored, and what was to be transferred to the second party is collected into the state’s income (collected). They are used instead of the general ones.
B) Additional consequences: the consequences apply in addition, together with the general or special cases specified in the law:
· Compensation for actual damage, i.e. (Article 15) expenses that the party has incurred or must bear to restore the violated right, Articles 171-173, 176-179 of the Civil Code.
· Article 1103 of the Civil Code On the return of unjust enrichment, which was received by one of the parties under the transaction.
Compensation moral damage not provided for (Article 151 of the Civil Code).
- Invalidity of transactions made by minors, minors, incompetent citizens, or citizens with limited legal capacity.
Transactions made by incapacitated and minor citizens.
1State registration of rights to real estate and transactions with it is a legal act of recognition and confirmation by the state of the emergence, restriction (encumbrance), transfer or termination of rights to real estate in accordance with the Civil Code of the Russian Federation. It is the only evidence of the existence of a registered right (Article 2 of the Federal Law of July 21, 1997 No. 122-FZ “On state registration of rights to real estate and transactions with it”).
The current civil legislation contains a requirement for state registration of transactions with land and other real estate (Articles 131, 164 of the Civil Code of the Russian Federation).
Non-compliance this requirement in cases established by law, by virtue of paragraph 1 of Art. 165 of the Civil Code of the Russian Federation entails the invalidity of the transaction. In addition, according to paragraph 3 of Art. 433 of the Civil Code of the Russian Federation, an agreement subject to state registration is considered concluded from the moment of its registration, unless otherwise provided by law. It is necessary to take into account that, in accordance with clause 1 of Article 425 of the Civil Code of the Russian Federation, the contract comes into force and becomes binding on the parties from the moment of its conclusion.
So, on the one hand, the fact of state registration is a necessary condition validity of the contract, and on the other hand, recognition of it as concluded.
IN legal literature there is no common point of view regarding legal nature state registration of transactions and the consequences of non-compliance.
Thus, Semenov M. claims that state registration is independent condition the validity of the transaction, the absence of which entails, by virtue of Article 168 of the Civil Code of the Russian Federation (non-compliance of the transaction with the requirements of the law or other legal acts), the nullity of the transaction and, by virtue of Article 433 of the Civil Code of the Russian Federation, its non-conclusion at the same time. In order for a transaction to be void, it is sufficient that it does not comply with the requirements of the law or other legal acts (in in this case- failure to comply with its state registration), unless other consequences of violation of the law (other legal acts) are specifically established. An unconcluded transaction is a type of void transaction. At the same time, the scientist draws attention to the fact that the execution of a transaction always precedes its state registration. Therefore, the distinction between the concepts of “unconcluded” and “invalid” transactions will lead to competition between the rules on non-compliance with the form of the transaction and non-compliance with the state registration of the transaction (how can a transaction that has not yet been completed or concluded be invalidated?). Taking into account the above, Semenov M.I. proposes to interpret clause 1 of Art. 165 of the Civil Code of the Russian Federation as follows: “... any transaction in the form of which the law imposes a requirement for state registration, but in respect of which this requirement is not met, is void...”. 1
Tuzov D.O. considers state registration to be an element external to the contract, since it gives the contract legal force, but does not affect his conclusion. Therefore, in the case of non-compliance with the requirement for state registration, the contract, according to the scientist, cannot be recognized as not concluded. He is insignificant. Moreover, the scientist does not recognize the autonomous meaning of the category “non-conclusion of a transaction,” since in the legal plane it coincides with the concept of “invalidity of a transaction.” 2
Having analyzed the above points of view, we can conclude that their authors allow the terms “conclusion” and “completion” of a transaction to be confused.
However, these categories have different legal meaning. Completing a transaction means drawing up a document expressing the contents of the transaction in the proper form and signing it by the person(s) performing the transaction or duly authorized persons. The conclusion of an agreement should be considered as a legal act, from the moment of which the agreement comes into force and becomes binding on the parties and third parties. An agreement may be concluded, but not concluded, or concluded, but concluded in an improper form.
Due to the identification of the above terms, Semenov M.I. recognizes an unconcluded transaction as a void transaction, and Tuzov D.O. excludes altogether this category from the system of legal concepts.
At the same time, it is necessary to distinguish between the concepts of “unconcluded” and “invalid” transactions, which is justified by the upcoming legal consequences. In one case, the rules on the consequences of invalidity of transactions are applied, and in the other, either the rules on the recovery of property from someone else’s illegal possession, or the rules on obligations due to unjust enrichment. Thus, an unfinished deal is an independent species transactions and entails legal consequences, different from the consequences of invalid transactions.
However, in a number of cases, the legislator allows for the simultaneous recognition of an agreement as unconcluded and invalid. So, paragraph 1 of Art. 10 of the Federal Law of July 16, 1998 N 102-FZ “On mortgage (real estate pledge)” states that failure to comply with the rules on state registration of a mortgage agreement entails its invalidity. At the same time, paragraph 2 of Art. 10 of this law states that the mortgage agreement is considered concluded and comes into force from the moment of its state registration.
Taking into account the above, the most correct and justified, in our opinion, is the point of view according to which, in the absence of state registration, an agreement is recognized as not concluded unless the law establishes that such an agreement is invalid 3 .
So, state registration of a transaction can be both a condition for the validity of the transaction and a condition for recognizing the contract as concluded. Depending on this circumstance, as a result of non-compliance with the requirement for state registration, various legal consequences occur: either the transaction is declared invalid and the property transferred under it is returned according to the rules of §2 of Chapter 9 of the Civil Code of the Russian Federation, or the transaction is recognized as not concluded and the property executed under it is returned in accordance with Art. 301 of the Civil Code of the Russian Federation (vindication) or Chapter 60 of the Civil Code of the Russian Federation (condition). Moreover, if a transaction is declared invalid, the rules on obligations due to unjust enrichment, by virtue of Article 1103 of the Civil Code of the Russian Federation, are subject to subsidiary application.
Taking into account the above, in order to form a uniform practice of applying the rules on the consequences of non-compliance with the requirement of the law on state registration of transactions, it seems advisable to amend paragraph 1 of Article 165 of the Civil Code of the Russian Federation in this part and state it in the following wording: “in case of non-compliance with the requirement for state registration of a transaction , it is considered unconcluded unless the law establishes that such a transaction is void.”
In addition, it is necessary to exclude the provisions of the current civil legislation that allow for the simultaneous recognition of a transaction as unconcluded and invalid due to the lack of state registration of the transaction, clearly defining the consequences of non-compliance with this legal requirement.
The work was presented at the international correspondence conference Actual problems science and education, IV scientific international conference, VARADERO (Cuba), March 20-30, 2009. Received by the editor 03.13.09
1 Semenov, M. State registration of transactions and the consequences of its non-compliance // Law and Economics. -2002. No. 6. - pp. 18-19.
2 Tuzov, D.O. On the concept of a “non-existent” transaction in Russian civil law // Bulletin of the Supreme Arbitration Court Russian Federation. - 2006. -№10. - P. 9, 18.
3 Kiyashko, V.A. State registration of transactions in civil legislation // Journal of Russian Law. 2004. -N 11 // Reference and legal system “ConsultantPlus: Prof Version”: [Electronic resource]/ Company “Consultant Plus”. - Last update 03/11/2009. Erdelevsky, A.M. Disputes about registration of real estate transactions // Business lawyer. -2003. -No. 22 // Reference and legal system “ConsultantPlus: Prof Version”: [Electronic resource]/ Company “Consultant Plus”. - Last update 03/11/2009.
Bibliographic link
Anchishina E.A. LEGAL CONSEQUENCES OF FAILURE TO COMPLY WITH THE REQUIREMENTS OF THE LAW ON STATE REGISTRATION OF A TRANSACTION: INVALIDITY AND NON-CONCLUSION OF THE TRANSACTION // Contemporary issues science and education. – 2009. – No. 5.;URL: http://science-education.ru/ru/article/view?id=1872 (access date: 02/01/2020). We bring to your attention magazines published by the publishing house "Academy of Natural Sciences"
27.04.2007
2007
REVIEW
practice of resolving disputes related to the application of Federal Law
“On state registration of rights to real estate and transactions with it”
APPROVED
Presidium of the Federal
Arbitration Court of the Ural District
Protocol No. 7 of 04/27/2007
1. When considering cases related to challenging registered rights to real estate, including when the applicant demands invalidation of a record of state registration of a right, the court assesses the legality of the grounds for the emergence of a registered right. The person whose right is being disputed is brought to participate in the case as a defendant according to the rules provided for by the Arbitration Procedural Code of the Russian Federation.
The limited liability company appealed to arbitration court To federal body executive power, authorized in the field of state registration of rights to real estate and transactions with it, with an application to invalidate the entry in the Unified state register rights to real estate and transactions with it. At the same time, the company referred to the nullity of the agreement that served as the basis for introducing registration record.
The decision of the court of first instance rejected the claim, since judicial procedure It is the registered right that may be challenged, not the registration record itself.
The cassation court overturned the decision on the following grounds.
According to paragraph 1 of Art. 2 of the Federal Law “On State Registration of Rights to Real Estate and Transactions with It”, state registration is legal act recognition and confirmation by the state of the emergence, restriction (encumbrance), transfer or termination of rights to real estate in accordance with the Civil Code of the Russian Federation.
The registered right to real estate can only be challenged in court.
When challenging the state registration of rights to real estate, the court should proceed from the substance of the stated claims. If they are unclear, the court has the right to invite the plaintiff to clarify the subject or basis of the claim. Since the company refers to the nullity of the agreement that served as the basis for making a registration entry, this dispute has civil nature
and is subject to consideration in the procedure of claim proceedings. The company's claim cannot be resolved without involving as a defendant the person whose registered right is being disputed. Therefore, the court of first instance should, in accordance with Parts 1, 2 of Art. 47 Arbitration procedural code
The Russian Federation invites the plaintiff to replace the defendant with a proper defendant or to involve this person as a second defendant. If the plaintiff does not agree to replace or involve a second defendant, the claim brought against the improper defendant must be rejected.
Without resolving the issue of the parties to the dispute, taking into account the essence of the stated requirements, the refusal to satisfy the claim cannot be considered legitimate. On another matter municipality
The court of first instance replaced the defendant - the registering authority - with Joint-Stock Company.
By the decision of the court of first instance, the claim was satisfied due to the lack of grounds for the defendant to have ownership rights to the disputed property.
The cassation court left the judicial act unchanged.
2. Refusal of state registration, suspension of state registration and other actions (inaction) of the registering authority that impede the implementation civil rights, can be challenged in the manner prescribed by Chapter 24 of the Arbitration Procedure Code of the Russian Federation.
The limited liability company applied to the arbitration court to declare the refusal to state registration of the lease agreement invalid.
The company and the municipality signed a lease agreement, according to which the company received the building for use and possession for a period of one year from the date of signing the agreement.
Subsequently, the company applied for state registration of the agreement. The registration authority made a decision to refuse registration with reference to the fact that the agreement submitted for state registration will be considered concluded from the date of its registration. Since at the time of contacting the registration authority there is less than a year left before the end of the period established by the agreement, the agreement is not subject to state registration.
The claim being considered by the arbitration court was presented to the registration authority. The municipality is involved in the case as a third party.
The decision of the court of first instance, upheld by the court appellate court, the stated requirement is satisfied based on the following.
According to paragraph 2 of Art. 651 of the Civil Code of the Russian Federation, a lease agreement for a building or structure concluded for a period of at least a year is subject to state registration and is considered concluded from the moment of such registration.
Since the parties in the lease agreement determined that its validity period is one year, then within the meaning of clause 2 of Art. 651 of the Civil Code of the Russian Federation, such an agreement is subject to state registration. When applying this rule, the registration authority should have proceeded from the lease period determined by agreement of the parties.
In accordance with Part 1 of Art. 198 of the Arbitration Procedure Code of the Russian Federation, organizations have the right to apply to the arbitration court with an application to invalidate non-normative legal acts, illegal decisions and actions (inactions) government agencies, if they believe that the contested non-normative legal act, decision and action (inaction) do not comply with the law or other regulatory legal act and violate their rights and legitimate interests in the field of business and other economic activities.
The decision to refuse state registration of the agreement was made in violation of the law and creates obstacles for the company to have the rights of a tenant.
The court has not established any other grounds for refusal of state registration of an agreement other than those indicated by the registration authority. Consequently, the decision of the registering authority to refuse state registration is unlawful.
3. The presence in the register of an entry on the defendant’s ownership of the disputed real estate is not an independent basis for refusing to satisfy the vindication or negative claim, as well as claims for recognition of ownership rights.
The limited liability company filed a claim with the arbitration court against the production cooperative for recognition of ownership of the gas station.
The decision of the first instance court, upheld by the appellate court, rejected the claim. The courts came to the conclusion that the society's demand for recognition of ownership rights cannot be satisfied, since the ownership right of the disputed property registered with the cooperative has not been challenged.
The cassation court overturned the judicial acts on the following grounds.
According to Art. 2 of the Law on Registration, state registration is a legal act of recognition and confirmation by the state of the emergence, limitation (encumbrance), transfer or termination of rights to real estate. State registration is the only evidence of the existence of a registered right. A registered right can only be challenged in court.
By making a demand for recognition of ownership of the gas station, the company is essentially challenging the ownership of this facility, registered with the defendant.
Thus, the claim for recognition of the right should be considered as filed in accordance with Art. 2 of the Registration Act. When considering a dispute, the court should consider the claim on its merits, assess the material and legal grounds for the emergence, change or termination of rights to the disputed property. The burden of proving that the defendant has no grounds for registering his property rights lies with the plaintiff.
Refusal to satisfy a claim solely due to the existence of a right registered with the defendant is unlawful.
4. State registration of the right to real estate or a transaction with it is recognized as invalid if it was made after the establishment of a court prohibition on the disposal of the property.
The limited liability company filed a claim with the arbitration court against the registration authority to invalidate the registered building lease agreement, as well as the state registration of this agreement . In support of its demands, the company referred to the fact that state registration was carried out after the building was seized by an arbitration court ruling in another case.
The lessor of the disputed property and the tenant are also involved as defendants in the case.
By the decision of the trial court, upheld by the appellate court, the stated claims were satisfied on the basis of the following.
In accordance with Part 1 of Art. 16 agrarian and industrial complexes of the Russian Federation entered into legal force judicial acts of the arbitration court are binding on government bodies, bodies local government, other bodies, organizations, officials and citizens and are subject to execution throughout the Russian Federation.
Since at the time of state registration of the lease agreement, the arbitration court ruling issued in the manner provided for in Art. 90 of the Arbitration Procedure Code of the Russian Federation, in another case, a ban was established on the disposal of real estate and the court did not cancel interim measures, the landlord did not have the right to dispose of the building, and the registering authority did not have the right to carry out state registration of the lease agreement.
5. The requirement to apply the consequences of the invalidity of a void transaction, presented to the registration authority, and not to the other party to the transaction, cannot be satisfied.
The open joint-stock company filed a claim with the arbitration court against the registration authority to apply the consequences of the invalidity of a void transaction by invalidating the records of state registration of the transfer of ownership.
The company refused to replace the defendant and involve as a second defendant the person whose property rights were registered.
The decision of the court of first instance rejected the claim. By a ruling of the appellate court, the decision was overturned and the claim was satisfied due to the nullity of the transaction for the acquisition of the disputed property.
The cassation court overturned the decision of the appellate court on the following grounds.
Clause 2 of Art. 167 of the Civil Code of the Russian Federation provides that if a transaction is invalid, each party is obliged to return to the other everything received under the transaction, and if it is impossible to return what was received in kind, reimburse its value in money, unless other consequences of the invalidity of the transaction are provided for by law.
In refusing to satisfy the claims against the registering authority, the court of first instance proceeded from the fact that the registering authority is not a party to the transactions made in relation to real estate, and therefore the requirement to apply the consequences of the invalidity of the transaction, based on paragraph 1, cannot be satisfied against it. 2 tbsp. 167 Civil Code of the Russian Federation.
In addition, since the stated claim means a challenge to the registered right to real estate, it cannot be considered and satisfied without involving the person for whom this right is registered as a defendant in the case.
6. The decision of the arbitration court to declare the transaction invalid is the basis for canceling the entry on the transfer of ownership in the register if the court applied the consequences of the invalidity of the transaction in the form of the return of the property.
The joint stock company filed a claim with the arbitration court for recognition invalid contract purchase and sale of real estate concluded between a joint-stock company and a limited liability company, application of the consequences of invalidity of the transaction and invalidation of the state registration of ownership of a limited liability company for the disputed building.
The decision of the court of first instance claim partially satisfied. The purchase and sale agreement was declared invalid due to a violation of the procedure for making interested party transactions; the court applied the consequences of the invalidity of the transaction in the form of the return of the building.
The request to invalidate the state registration of property rights was denied.
The court indicated that declaring a transaction invalid is an independent basis for making changes to the register.
By a ruling of the appellate court, the court's decision regarding the refusal to satisfy the claim was overturned. The state registration of ownership of a limited liability company was declared invalid.
The cassation court left the decision of the appellate court unchanged on the basis of the following.
According to para. 2 p. 1 art. 2 of the Registration Law, the registered right to real estate can only be challenged in court.
A claim to invalidate a transaction refers to methods of challenging a registered right. Recognition of a transaction as invalid and the court's application of the consequences of the invalidity of the transaction in the form of the return of real estate is the basis for the registration authority to cancel the entry in the register on the transfer of rights made on the basis of an invalid transaction. In this case, submitting an independent request to invalidate the state registration of the right to cancel the entry is not necessary.
However, the requirement stated in the present case to invalidate the state registration of property rights is essentially aimed at applying the consequences of the invalidity of the transaction. Therefore, the appellate court considered and satisfied this requirement.
7. Rights to real estate arising from voidable transaction, are subject to state registration if there is no court decision declaring the transaction invalid.
A peasant farm filed a claim with the arbitration court against the production cooperative for state registration of the transfer of ownership under a sales contract. As an objection, the cooperative indicated that the refusal of state registration of the transfer of ownership is due to the fact that the concluded agreement is voidable.
By the decision of the court of first instance, upheld by the decision of the appellate instance, the claims were satisfied on the basis of the following.
According to paragraph 3 of Art. 551 of the Civil Code of the Russian Federation, in the case where one of the parties evades state registration of the transfer of ownership of real estate, the court has the right, at the request of the other party, to make a decision on state registration of the transfer of ownership.
A voidable transaction is invalid due to its recognition as such by the court (clause 1 of Article 166 of the Civil Code of the Russian Federation). The defendant did not file a claim to invalidate the voidable transaction. Thus, the purchase and sale agreement concluded by the parties is subject to execution.
Consequently, the cooperative’s evasion of state registration of the transfer of ownership is unlawful.
The cassation court upheld the judicial acts.
8. The presence in the register at the time of a transaction with real estate of an entry about the alienator’s right to this property does not indicate the legality of the transaction, if the basis for state registration of the corresponding right is subsequently declared invalid by the court.
The non-profit partnership filed a claim with the arbitration court against the joint-stock company and the limited liability company to invalidate the purchase and sale agreement for the building concluded between the joint-stock company (seller) and the limited liability company (buyer).
In support of the stated requirements, the partnership indicated the following. The disputed structure is in the actual possession of the partnership and was erected on a plot of land provided to the partnership for perpetual use. The agreement that served as the basis for the state registration of the joint-stock company's ownership of the disputed building, and the record of registration of this right, were declared invalid by a court decision in another case.
Objecting to the claim, the limited liability company indicated that according to the register data, at the time of its acquisition of the building, the owner of the property was a joint-stock company.
The decision of the court of first instance satisfied the claim on the basis of the following.
In accordance with paragraph 1 of Art. 209 of the Civil Code of the Russian Federation, the owner has the rights to own, use and dispose of his property. According to paragraph 1 of Art. 167 Civil Code of the Russian Federation invalid transaction does not entail legal consequences, except for those related to its invalidity.
Since the registered ownership of the joint stock company was disputed, the joint stock company had no right to dispose of property that did not belong to it. Consequently, the purchase and sale agreement concluded between the joint stock company and the limited liability company is invalid.
The objections of the limited liability company that the disputed agreement is legal, since at the time of its conclusion there was an entry in the register about the ownership of the joint-stock company, are rejected.
By a court decision, which has prejudicial significance for the present dispute, it was established that the joint-stock company did not acquire ownership of the building, and the record of registration of the joint-stock company's ownership of the disputed building was declared invalid. Therefore, the presence of an entry in the register on the state registration of the ownership rights of the joint-stock company at the time of concluding the disputed purchase and sale agreement, taking into account the specified circumstances, does not indicate the validity of this agreement.
Grounds for application of the provisions of Art. 301, 302, para. 2 p. 2 art. 223 of the Civil Code of the Russian Federation, which exclude the possibility of reclaiming property from a bona fide purchaser, is absent, since the disputed building was not taken over by the joint stock company or limited liability company.
9. If the owner’s decision to transfer real estate to economic management or operational management was adopted after the entry into force of the Law on Registration and the start of the activities of the territorial registration authority, then specified rights arise from the moment of state registration.
The state enterprise filed a claim with the arbitration court against the limited liability company to recover real estate from the illegal possession of the company. In support of the claim, the company referred to the fact that a lease agreement was signed between the parties, according to which the company leased real estate to the company. A court decision in another case that has prejudicial significance, said contract declared not concluded.
By the decision of the court of first instance, upheld by the appellate instance, the claim was satisfied, since the right of economic management of the enterprise arose from the moment it took possession of the property.
The cassation court overturned the judicial acts adopted in the case and referred the case for a new trial, based on the following.
By virtue of Art. 301, 305 of the Civil Code of the Russian Federation, the owner (title owner) has the right to reclaim his property from someone else’s illegal possession.
In accordance with paragraph 1 of Art. 299 of the Civil Code of the Russian Federation, the right to economic management of property in respect of which the owner has made a decision to assign it to unitary enterprise, arises for this enterprise from the moment of transfer of property, unless otherwise provided by law.
Rights to property subject to state registration arise from the moment of registration of the corresponding rights to it (Clause 2, Article 8 of the Civil Code of the Russian Federation).
Article 131 of the Civil Code of the Russian Federation provides for state registration of the right of economic management.
During a new consideration, the court must examine the issue of the existence of state registration of the right of economic management of the enterprise to the claimed property. This issue is significant, since the decision to transfer the claimed property to the economic management of a state enterprise was made after the entry into force of the Registration Law and the beginning of the activities of the territorial registration authority.
10. Rights to property that does not correspond to the characteristics of real estate provided for by law are not subject to state registration in the manner prescribed by the Registration Law.
The registration authority denied the joint stock company state registration of ownership of the cable communication line, since the specified line is not a piece of real estate. The joint stock company applied to the arbitration court to invalidate the refusal to state registration of property rights.
The claim was satisfied by the decision of the court of first instance. The court considered that the cable communication line has the characteristics of an immovable property, since it was laid at an underground installation depth of 0.9 meters and is intended for organizing control systems technological process gas transportation.
The cassation court overturned the decision of the first instance court and refused to satisfy the company's application, based on the following.
According to Art. 130 of the Civil Code of the Russian Federation, immovable things (real estate, real estate) include land plots, subsoil plots and everything that is firmly connected to the land, that is, objects whose movement without disproportionate damage to their purpose is impossible, including buildings, structures, unfinished construction objects .
Items not related to real estate, including money and securities, are recognized as movable property. Registration of rights to movable things is not required, except in cases specified in the law.
By virtue of Art. 8 of the Federal Law “On Communications”, communication structures that are firmly connected to the ground and the movement of which is impossible without disproportionate damage to their purpose, including line-cable communication structures, are classified as real estate. Features of state registration of property rights and others real rights for linear cable structures are established by Decree of the Government of the Russian Federation dated February 11, 2005 No. 68.
From the documents submitted to the registration authority, it follows that the cable communication line, the state registration of ownership of which was denied, is not a line-cable structure. There is also no evidence of its inextricable connection with the earth. The mere fact that the cable line is located at an underground installation depth of 0.9 meters does not indicate that moving the object is impossible without disproportionate damage to its purpose.
Consequently, the refusal to state registration of ownership of a cable communication line is legal.
11. Removable deficiencies in the documents submitted to the registration authority are not grounds for refusal of state registration of rights, but may serve as grounds for suspension of state registration.
The joint stock company applied to the arbitration court to invalidate the refusal to state registration of ownership of the oil depot.
The registration authority refused to register the joint stock company's ownership of the oil depot - a property complex - due to the fact that the composition of the property was not determined in the documents submitted for registration, discrepancies were identified in the size of the areas of the facilities, information was provided that did not correspond to the privatization plan and technical data sheets, there are no originals of the privatization plan and an updated act of assessing the value of real estate.
By the decision of the court of first instance, upheld by the decision of the court of appeal, the registration authority’s refusal to register ownership of the oil depot was declared invalid on the basis of the following.
According to clauses 1, 2 of Art. 19 of the Law on Registration, state registration of rights is suspended by the state registrar if he has doubts about the existence of grounds for state registration of rights, as well as about the authenticity of the documents submitted or the reliability of the information specified in them. The state registrar is obliged to take the necessary measures to obtain additional information and (or) confirm the authenticity of documents or the reliability of the information specified in them. Applicants have the right to submit additional evidence whether they have grounds for state registration of rights, as well as the authenticity of the documents and the reliability of the information specified in them. State registration must be refused if, within deadline the reasons preventing state registration of rights will not be eliminated.
Thus, shortcomings in the documents submitted by the applicant to the registration authority could be grounds for suspension of state registration in the manner provided for in Art. 19 of the Registration Law. Refusal of state registration in this case is possible only after the expiration of the period established for eliminating the deficiencies, if the deficiencies have not been eliminated.
The cassation court left the judicial acts unchanged.
12. When transferring ownership of a building, the right of the acquirer of the building in relation to the land plot on which the alienated building is located is subject to state registration, regardless of the will of the previous owner of the land plot to terminate his right.
The limited liability company applied to the arbitration court to declare the refusal to state registration of the land lease agreement illegal.
In refusing state registration of the agreement, the registering authority referred to the fact that the right of permanent (perpetual) use of the previous owner of the building was registered for the specified land plot.
Recognizing the refusal to state registration of the lease agreement as illegal, the court of first instance proceeded from the following.
The land plot was provided to the company on the basis of a lease agreement in connection with its acquisition of ownership of a real estate property located on this plot.
By virtue of para. 10, 11 p. 1 art. 20 of the Law on Registration, state registration may be refused, in particular, in cases where the documents required in accordance with the above are not submitted Federal law for state registration of rights, as well as if there are contradictions between declared and already registered rights.
The absence of an application for termination of the right of permanent (perpetual) use of the former owner of the land plot cannot be the basis for such a refusal.
According to paragraph 1 of Art. 35 Land Code Russian Federation, clause 3 art. 552 of the Civil Code of the Russian Federation, by force of law, the right to the land plot, which is occupied by the acquired real estate and is necessary for its use, was transferred to the company. The right to the specified land plot of the previous land user terminates from the same moment. There is no conflict with registered rights in this case.
The cassation court left the decision unchanged.
13. The requirement of the registration authority to provide documents for state registration that are not provided for by the Registration Law is unlawful.
The joint stock company appealed to the arbitration court with an application to the registration authority for recognition illegal decision on refusal of state registration of the right of permanent (unlimited) use land plot. The basis for the refusal was the failure to provide an extract from the Unified State Register of Legal Entities.
By the decision of the court of first instance, upheld by the decision of the appellate court, the stated claims were satisfied on the basis of the following.
Based on paragraph 1 of Art. 20 of the Law on Registration, state registration of rights may be refused, including in cases where the documents submitted for state registration of rights do not comply in form or content with the requirements of the current legislation, as well as when the documents required in accordance with this law are not submitted for state registration of rights.
According to paragraph 2 of Art. 16 of the Registration Law, the application for state registration of rights must be accompanied by documents necessary for its implementation.
By virtue of clause 2 of Art. 17 of the Registration Law, it is not allowed to request additional documents from the applicant, except for those specified in this article, if the documents submitted by him meet the requirements established by Art. 18 of the said Law, and unless otherwise established by the legislation of the Russian Federation.
In accordance with clause 18 of the Rules for maintaining the Unified State Register of Rights to Real Estate and Transactions, the register entries in relation to the copyright holder (Russian legal entity) indicate the full name, an identification number taxpayer, main government registration number, date of state registration, name of the body that carried out such registration, reason code for registration, address (location) of the permanent executive body (in the absence of a permanent executive body - another body or person authorized to act on behalf of the legal entity without a power of attorney ).
The current legislation on state registration of rights to real estate and transactions with it does not provide for the mandatory provision of an extract from the Unified State Register of Legal Entities. Therefore, the requirement of the registration authority for the company to provide this document, if it is possible to make a record of the copyright holder on the basis of other documents submitted, is unlawful.
The cassation court left the judicial acts unchanged.
14. Cancellation of a power of attorney granting the right to apply to the registration authority after acceptance of an application for registration of a right (transaction) is not an independent basis for suspension of state registration.
The joint stock company applied to the arbitration court to invalidate the decision of the registration authority to suspend state registration of rights to real estate.
A purchase and sale agreement was concluded between a joint stock company (buyer) and a limited liability company (seller) non-residential premises. The parties filed an application for state registration of the transfer of ownership under the agreement. On behalf of the seller, the application was submitted by a representative acting on the basis of a power of attorney. Before registering the transfer of ownership, the limited liability company was declared bankrupt. The bankruptcy trustee sent a letter to the registration authority canceling all previously issued powers of attorney, which served as the basis for the registration authority to make the contested decision.
In refusing to satisfy the demands, the court of first instance proceeded from the fact that the registration authority had grounds to suspend registration on its own initiative for a period of up to one month (clause 1 of Article 19 of the Registration Law). In addition, the arbitration court indicated that the suspension decision had a limited validity period and, upon expiration of the period for which the registration was suspended, lost legal force, and therefore cannot be the subject of consideration in court.
The decision was changed by the decision of the appellate court. Society's demands have been satisfied. The decision of the registration authority to suspend state registration of rights to real estate was declared invalid. In this case, the court relied on the following.
A power of attorney granting the right to apply to the registration authority has for the latter legal meaning only at the stage of accepting an application for state registration of rights to real estate or transactions with it. After the registration authority accepts the documents, the order provided for by such power of attorney is considered executed. This document does not have a legal nature in relation to the property, the right to which is registered.
Therefore, an application to revoke such a power of attorney cannot serve as a basis for suspending state registration.
State registration in accordance with paragraph. 2 clause 3 art. 19 of the Law on Registration may be suspended by the state registrar for a period of no more than a month on the basis of an application submitted by one of the parties to the agreement for the return of documents without conducting state registration of rights if the other party to the agreement did not make such an application.
The cassation court left the decision of the appellate court unchanged.
15. The absence of state registration of ownership of non-residential premises located in a building owned by a person is not a basis for invalidating the purchase and sale agreement for the premises.
The joint stock company filed a claim with the arbitration court against individual entrepreneur on declaring the transaction invalid. According to the disputed agreement, the joint-stock company sold part of the non-residential premises in the building. The company was the owner of the building in which the alienated premises are located. Since, in the opinion of the company, at the time of concluding the agreement, the specified non-residential premises were not allocated as independent objects and the rights to them were not registered, the purchase and sale agreement is invalid (void) as it does not comply with clause 2 of Art. 8, paragraph 1, art. 131, art. 209 of the Civil Code of the Russian Federation.
The decision of the court of first instance, left unchanged court of appeal, the claim was denied on the basis of the following.
According to paragraph 2 of Art. 209 of the Civil Code of the Russian Federation, the owner has the right, at his own discretion, to take any actions in relation to his property that do not contradict the law and other legal acts and do not violate the rights and legally protected interests of other persons, including alienating his property into the ownership of other persons, transferring it to them, while remaining owner, the right to own, use and dispose of property, pledge property and encumber it in other ways, dispose of it in any other way.
The company disposed of part of its property by concluding a purchase and sale agreement with an individual entrepreneur.
To conclude a contract for the sale and purchase of non-residential premises, which is part of belonging to a person buildings, preliminary state registration of ownership of the premises is not required.
Thus, the purchase and sale agreement concluded by the parties does not contradict the law.
At the time of execution of the contract, the company’s ownership of the alienated premises was registered.
The cassation court left the judicial acts unchanged.
16. If a legal entity - the alienator, which transferred the property to the acquirer, is liquidated before the state registration of the transfer of ownership, then clause 3 of Art. 551 of the Civil Code of the Russian Federation (analogy of the law).
The municipality filed a claim with the arbitration court against the registration authority for state registration of ownership of the building.
Under a purchase and sale agreement, the municipality acquired the disputed building from commercial organization. The building was transferred to the municipality under a transfer and acceptance certificate, payment has been made.
Considering that the seller of the property was subsequently liquidated, and therefore it was impossible to submit an application to the registration authority, the municipality filed the said claim with the arbitration court.
By the decision of the court of first instance, upheld by the decision of the appellate instance, the claims were satisfied based on the following.
Based on paragraph 1 of Art. 16 of the Registration Law, state registration of the transfer of rights is carried out on the basis of an application from the parties to the agreement. However, the current legislation does not regulate the procedure for registering the transfer of ownership in the event of liquidation of the second party before filing an application for state registration of the transfer of ownership.
In accordance with paragraph 1 of Art. 6 of the Civil Code of the Russian Federation, the relations of the parties are subject to application of the rules of law governing similar relations.
According to paragraph 3 of Art. 551 of the Civil Code of the Russian Federation, if one of the parties evades state registration of the transfer of ownership of real estate, the court has the right, at the request of the other party, to make a decision on state registration of the transfer of ownership.
Thus, if, before filing an application with the registration authority, the alienator of real estate is liquidated, the acquirer has the right to file a claim with the registration authority for state registration of the transfer of ownership. When considering the claim, the court established that the alienator was the owner of the building, and the transaction completed complies with the requirements of the law.
The cassation court left the judicial acts unchanged.
In another case, a limited liability company acquired access railway tracks from a joint stock company. The real estate was transferred to the company under the transfer and acceptance certificate, payment was made. Before filing an application for state registration of the transfer of ownership, the joint-stock company was liquidated.
The company applied to the registration authority with an application for state registration of the transfer of ownership. The registration authority refused state registration of property rights, pointing out the absence of a statement from the other party to the transaction.
The company appealed to the arbitration court the decision to refuse state registration of the transfer of ownership of the property.
By the decision of the court of first instance, upheld by the decision of the appellate court, the requirements were satisfied on the basis of the following.
The current legislation does not regulate the procedure for registering the transfer of ownership based on an application from one party to the transaction in the event of liquidation of the second party at the time of filing the application for registration.
In accordance with Part 6 of Art. 13 of the Arbitration Procedure Code of the Russian Federation in cases where disputed relations are not directly regulated by federal law and other regulatory legal acts or agreement of the parties and there is no business practice applicable to them, to such relations, if this does not contradict their essence, arbitration courts apply the rules of law governing similar relations (analogy of law), and in the absence of such norms, they consider cases based on the general principles and meaning of federal laws and other normative legal acts (analogy of law).
Clause 3 of Art. 551 of the Civil Code of the Russian Federation establishes that if one of the parties to the contract evades state registration of the transfer of ownership of real estate, the court has the right, at the request of the other party, to make a decision on state registration of the transfer of ownership.
When considering the application, the court found that the company submitted all Required documents, confirming the transfer of ownership. The absence of an application from a liquidated legal entity in this case is not grounds for refusal of state registration.
The cassation court left the judicial acts unchanged.
17. Rights to real estate established by a court decision are subject to state registration. Along with by judicial act The documents necessary for making an entry in the register are submitted to the registering authority.
An individual entrepreneur applied to the arbitration court to declare the refusal of state registration illegal. The refusal of the registering authority is motivated by the fact that the applicant did not submit for registration the technical inventory documents necessary to describe the property.
In support of the stated requirements, the entrepreneur indicated that a court decision recognizing ownership of the building had been submitted to the registration authority, state registrar does not have the right to refuse registration of a right established by a court decision that has entered into force.
The decision of the court of first instance, upheld by the decision of the appellate court, rejected the application on the following grounds.
In accordance with paragraph 1 of Art. 28 of the Law on Registration of rights to real estate established by a court decision are subject to state registration on a general basis.
According to paragraph 1 of Art. 18 of this Law, documents establishing the existence, origin, termination, transfer, limitation (encumbrance) of rights to real estate and submitted for state registration of rights must comply with the requirements established by the legislation of the Russian Federation and reflect the information necessary for state registration of rights to real estate in the Unified State Register of Rights. Specified documents must contain a description of the real estate and, unless otherwise established by the Registration Law, the type of registered right and, in cases established by law, must be notarized, sealed, and must have the proper signatures of the parties or officials specified by law.
According to para. 10 p. 1 art. 17 of the Law on Registration, a mandatory attachment to the documents required for state registration of rights is a plan of the property indicating its cadastral number.
All transactions are carried out in some specific form, which is established by law. On this basis they are divided into oral and written. The latter are carried out in simple written and notarial form.
In addition, the law establishes mandatory state registration for some transactions.
A transaction for which a written form is not established by law or agreement of the parties may be concluded orally. Transactions can be made orally, based on the requirements of Art. 161 of the Civil Code of the Russian Federation, only between citizens for an amount less than ten established amounts of the minimum monthly wage, as well as in cases specifically provided for by law.
An exception to the general rule is the possibility of making all transactions orally, regardless of the amount and subject composition, executed during their very execution (for example, the purchase of goods in a store), unless a notarial form is established for them or the law specifies that failure to comply with a simple written forms entails their invalidity. In this situation, the moment of the transaction and the moment of fulfillment and termination of the obligation arising on its basis coincide. Transactions may also be made orally, by agreement of the parties, in pursuance of an agreement concluded in writing, if this does not contradict the law (Article 159 of the Civil Code of the Russian Federation).
For example, purchasing goods in a store: transfer of goods and payment are made simultaneously. In accordance with a written supply agreement, goods will be released during the year by verbal request as the buyer’s need arises. On the contrary, issuing loans on the basis of an open credit line is possible only through a written transaction, since in accordance with Art. 820 of the Civil Code of the Russian Federation “failure to comply with the written form entails the invalidity of the loan agreement.”
Oral transactions are equivalent to transactions concluded through implicit actions, and if there are clear instructions in this regard in the law or agreement - through silence.
Transactions involving legal entities, transactions between citizens in an amount exceeding at least ten times the minimum wage established by law, as well as in cases provided for by law, regardless of the amount, must general rule be done in writing. This is, for example, a commercial representation agreement (clause 3 of Article 184 of the Civil Code of the Russian Federation), a pledge agreement (clause 2 of Article 339 of the Civil Code of the Russian Federation), preliminary agreement(Article 429 of the Civil Code of the Russian Federation).
A written transaction is made by drawing up a document defining the contents of the transaction and signed directly by the person on whose behalf it was made, or by someone acting under his authority (in particular, by power of attorney). Legislation or agreement of the parties may establish Additional requirements to the form of the transaction (special forms, sealing). For example, special forms are provided for non-cash payments: payment orders, collection orders (Article 862 of the Civil Code of the Russian Federation); for a storage agreement: double or simple warehouse certificate, warehouse receipt (Article 912 of the Civil Code of the Russian Federation); for powers of attorney issued on behalf of legal entities, a seal is required (clause 5 of Article 185 of the Civil Code of the Russian Federation); for a contract for the carriage of goods: waybill, bill of lading, cargo receipt (Art.
785 of the Civil Code of the Russian Federation). There are established forms for contracts concluded by insurers and exchanges. Special requirements may also be provided for some unilateral transactions (issuance of a bill or check, announcement of tenders). The specified details (stamp, special form) are fixed in law, other legal act, agreement. The consequences of violating these requirements must also be indicated. If there is no such indication, then general consequences failure to comply with the simple written form of the transaction.
Written transactions can be concluded by drawing up a single document signed by the parties. To conclude an agreement, a method such as exchanging documents using postal, telegraph, teletype, telephone, electronic or other communications can be used. Regardless of what type of communication is used, the main thing is that it can be reliably established that the document comes from a party to the contract (clause 2 of Article 434 of the Civil Code of the Russian Federation). The written form of the contract is considered to be complied with if the person who received the offer to conclude the contract, within the period established for acceptance, completes the actions specified in the offer to fulfill the terms of the contract (ships goods, transfers money, provides services, performs work, etc.), unless otherwise established by law or not specified in the offer (clause 3 of article 438 of the Civil Code of the Russian Federation).
Documents are signed by the person making the transaction or his authorized persons. Civil Code The Russian Federation allows, in cases specified by law, the use of facsimile reproduction of a signature using mechanical or other copying means, digital signature or another equivalent of a handwritten signature. If a citizen cannot sign with his own hand (due to physical handicap or illiteracy), then at his request the transaction is signed by another citizen, a “hand-applyer”, whose signature is certified by a notary or other executive, having the right to perform such a notarial act.
The main consequence of violating the requirement of mandatory written form will be that if a dispute arises as to whether a transaction, contrary to the requirements of the law, was completed orally, the party claiming that this fact took place has the right to use a limited range of evidence to confirm it. This may be any evidence provided for by civil procedural legislation (explanations of the parties, written and material evidence, expert opinions), except for testimony. Witness testimony cannot confirm either the fact of the transaction itself or its terms (Article 162 of the Civil Code of the Russian Federation).
In cases directly established by law or provided for by agreement of the parties, along with an indication of the mandatory written form of the transaction, there is an indication that failure to comply with the simple written form entails the invalidity of the transaction. This applies, for example, to foreign economic transactions (clause 3 of Article 162 of the Civil Code of the Russian Federation), a guarantee agreement (Article 362 of the Civil Code of the Russian Federation), a contract for the sale of real estate (Article 550 of the Civil Code of the Russian Federation), loan agreement(Article 820 of the Civil Code of the Russian Federation), bank deposit agreement (clause 2 of Article 836 of the Civil Code of the Russian Federation). Recognition of a transaction as invalid entails bilateral restitution. Each party is obliged to return to the other party everything received under the transaction or reimburse its value in money.
The Civil Code of the Russian Federation in some cases (Article 820, Article 836) indicates that failure to comply with the written form of an agreement entails its invalidity and such an agreement is void, but in other cases (Articles 162, 362, 550) it does not indicate the nullity of such an agreement . It can be assumed that in all such cases the transaction should be recognized as void, since the law does not establish the contestability of such a transaction and the general rule of Art. 168 Civil Code of the Russian Federation.
Notarization of transactions is mandatory in cases specified in the law or provided for by agreement of the parties (clause 2 of Article 163 of the Civil Code of the Russian Federation). The notarial form is established for a mortgage agreement (Clause 2 of Article 339 of the Civil Code of the Russian Federation), an annuity agreement (Article 584 of the Civil Code of the Russian Federation), a will (Article 1125 of the Civil Code of the Russian Federation), a power of attorney for the right to carry out a transaction requiring notarization(clause 2 of article 185 of the Civil Code of the Russian Federation), etc.
Notarized powers of attorney are equivalent to specially executed powers of attorney of persons who are in special conditions: in military medical institutions; at deployment points military units, where there are no notary offices and other bodies performing notarial acts; in places of deprivation of liberty; in institutions social protection population. Such powers of attorney are certified by the heads of the relevant institutions or the commander of a military unit (clause 3 of Article 185 of the Civil Code of the Russian Federation).
Transactions with land and other real estate, as well as transactions with certain types of movable property, are subject to state registration (Article 164 of the Civil Code of the Russian Federation). Mandatory state registration is provided for in paragraph 2 of Art. 558 (agreement for the sale of residential premises), paragraph 3 of Art. 560 (agreement for the sale of an enterprise), paragraph 2 of Art. 567 (agreement for the exchange of relevant property), paragraph 3 of Art. 574 (contract of donation of real estate), Art. 584 (rent agreement providing for the alienation of real estate for payment of rent) of the Civil Code of the Russian Federation, etc.
State registration of rights to real estate and transactions with it is carried out in accordance with the Federal Law of July 21, 1997 N 122-FZ “On state registration of rights to real estate and transactions with it” by judicial authorities. State registration of rights and transactions with movable property is carried out by other bodies, for example the traffic police.
If the requirement of the law or the agreement on the mandatory notarial form of the transaction performed by the parties, in contrast to a simple written form, is violated, the transaction is always recognized as void. A transaction that violates the rule on mandatory state registration (clause 1 of Article 165 of the Civil Code of the Russian Federation) will also be recognized as such.
The consequence of recognizing the invalidity of a transaction not made in established by law form or in case of non-compliance with the requirement for mandatory state registration, is bilateral restitution. Each party is obliged to return to the other party everything received under the transaction or reimburse its value in money.
For some cases, it is possible to avoid the invalidity of these transactions (clauses 2, 3 of Article 165 of the Civil Code of the Russian Federation).
If one of the parties has fully or partially executed a transaction requiring notarization, and the other party, who has received execution, evades such certification of the transaction, the court has the right, at the request of the injured party, to recognize the transaction as valid. The court decision to recognize the transaction as valid replaces the notarization.
For transactions requiring state registration, different rules are established. If the transaction is completed in the proper form established by law (simple written, for example, for a contract for the sale of residential premises in accordance with Article 550 of the Civil Code of the Russian Federation, or notarial form, for example, for a mortgage agreement in accordance with paragraph 2 of Article 339 of the Civil Code of the Russian Federation), but one of the parties evades its registration, the court has the right, at the request of the other party, to make a decision to register the transaction, i.e. in this case, execution of the transaction is not required; it is only necessary to complete the transaction in the form established by law. By court decision, the transaction is registered by the relevant authority.
Thus, depending on the subject composition, amount, order of execution, subject or content of the transaction civil law Various forms have been established for transactions. The law may provide for mandatory state registration of a transaction. Violation of the requirement for state registration, failure to comply with the notarial form, as well as a simple written form in the cases specified in the law, are grounds for declaring a transaction invalid. Such transactions are considered void and bilateral restitution is applied. If execution of a transaction requiring notarization has begun, or a transaction requiring state registration has not been registered, but was completed in the proper form, then the court has the right to recognize the transaction as valid with compensation for the damages caused by the guilty party. Failure to comply with a simple written form, as a general rule, only entails the possibility of using in court a limited range of evidence regarding the fact of the transaction and the terms of the transaction.