Alienation methods. Seizure of property - the seizure of property from its owner in the event of foreclosure on this property by a court decision

January 8, 2018

Greetings! In my opinion, laws are specifically written in such a way that no one could understand them except for lawyers and notaries. How do you like this turnover "compensated alienation of movable and immovable property located in the Russian Federation"?

When I come across any legal text, I first translate it into "human" language. Sometimes this can only be done with the help of familiar lawyers. And even after such a “translation”, the meaning of the document often remains vague.

Therefore, today I decided to look into such an issue as the alienation of property. What does this term mean and who does it apply to? And most importantly, what kind of property and when can be alienated without the consent of the owner?

The term "alienation" is deciphered simply. When property or the right to it passes from one owner to another, lawyers call it "alienation." If once you were the owner of an apartment or house, and then this property was presented to someone or sold - there was a "property alienation". And if, God forbid, the bank sued the same property for non-payment of the mortgage, there was also an “alienation”.

Once again: alienation is when property or (the rights to it) passes from one owner to another (voluntarily or forcibly). The "alienator" can be individuals and legal entities, as well as government agencies (municipal or territorial).

What is not considered alienation under the law?

Transfer of property for temporary use (for example, if you rent out your apartment).
Renunciation of ownership (for example, relinquishment of an inheritance).
Destruction or loss of property or rights to it.
Termination of ownership by court decision.

What property can be alienated?

Only objects or things (including money) and rights to something (to own securities, for example) can be alienated. Intellectual property objects, as well as services/works are not alienated.

Three categories of objects of alienation

Real estate

As soon as the owner of an apartment, house or land plot changes, the property is considered "alienated". Methods of alienation: purchase, sale, donation, exchange or rent. In the case of expropriation, real estate can be seized from the owner by a court or government decision.

Securities

Technically alienation valuable papers happens in one of the following ways:

Placement of registered securities (receipt entries are made on the accounts of the first owners in the depository or registrar).
Placement of documentary bonds (receipt entries are made on depo accounts or certificates are issued to the first owners).

In fact, securities are alienated in the same way as real estate: they can be sold, donated, exchanged or lost (as a result of confiscation, for example).

intellectual copyright

Intellectual property is works of science, art and literature, databases, inventions, computer programs, know-how, industrial designs and much more. The one who owns the result of intellectual activity has the exclusive right to it. He can allow or forbid other persons to use the "something" invented by him.

To obtain an "exclusive right to the result of intellectual activity", it must be officially registered with a state body. Only after that, the exclusive right receives the status of a “commodity” that can be sold, donated and exchanged.

An agreement on the alienation of an exclusive right is concluded in writing. It necessarily prescribes the amount and procedure for paying remuneration (this, by the way, can also be percentage deductions from income, and not just a one-time payment). In addition to exclusive rights, there are also intellectual and personal non-property rights. Such rights do not participate in alienation transactions!

Voluntary and forced expropriation

Voluntary alienation of property

Sale. There are two parties involved in a transaction: the seller and the buyer. The transfer of property from one owner to another is formalized by a contract of sale. Alienation is possible only after state registration of property owners!

Donation. In this case, the property changes the “owner” free of charge under a donation agreement. If you alienate something in favor of a relative, the transaction is exempt from taxation. "Alien" will have to pay 13% of the value of the "gift" to the budget.

In legal practice, it happens that a donation is an expropriation. The owner is forced to issue documents against his will. And after he signs the contract, it is almost impossible to prove the fact of coercion in court.

Exchange. The exchange is made out by two contracts of sale. Each of the participants in the transaction acts simultaneously as a seller and a buyer. By law, only property of equal value can be exchanged. If the exchange provides for an additional payment, then this amount is subject to personal income tax.

Rent. Oddly enough, rent also refers to alienation. You can sign a lifetime annuity agreement with the real estate seller. Until the end of his life, you undertake to provide for the maintenance of the current owner of the apartment. And only after his death, the property will become your property.

In this case, the seller can only individuals or non-profit organizations!

Forcible alienation of property

Such alienation is usually applied by a court decision on confiscation or requisition of property. For example, when the owner cannot pay child support or a debt. Or when the transfer of law is dictated by state necessity (extraordinary circumstances: large-scale catastrophes, public danger). This also, theoretically, includes the confiscation of the property of corrupt officials, if the owner fails to confirm that he acquired it legally.

The law provides for situations where a Russian can be forcibly deprived of the right to own real estate:

Collection of real estate for the obligations of the owner (by law, by court or by agreement).
In connection with the termination of the contract of employment or lease.
If withdrawn land plot on which the property is located.
Alienation for the needs of the municipality or the state.
Alienation due to requisition or confiscation.
Termination of rights if the property is not used for its intended purpose.

Type of forced alienation: state. For example, when a land plot falls into a state development zone. This is possible only on condition of an equivalent and preliminary compensation of the value of the property.

Alienation of real estate in favor of the state is possible:

By decision of executive bodies (municipal, regional or federal significance).
With a full refund of the cost of the object.
With the consent of the owners of the property.
When the “good news” is announced to the owner at least a year before the actual alienation.
By court decision, where the state structure will prove its case (in the case when the owner of the property does not agree to voluntarily part with it).

Alienation of leased property

SMEs have a pre-emptive right to buy out leased property, which is in state ownership of the Russian Federation.

This is possible under two conditions:

Tenants have no outstanding rent payments.
The property is leased for two or more years under a contract.

In Moscow, the ransom service can be ordered free of charge on the official website of the Mayor of Moscow (https://www.mos.ru).

Alienation of a share in an apartment

The procedure for the alienation of real estate is easy and fast when it has a single owner. If you alone own a garage, a land plot or an apartment in a new building, you can sell or donate all this without consulting anyone.

But such an “ideal” situation is rare. Much more often, after settling in an apartment or house, several owners appear at the property. This form of ownership is called shared ownership. The parties may be next of kin to each other. And each of them will own their own share of the property (say, one third).

So, how to sell a share of an apartment, taking into account the features of such transactions:

Determine the market price of your share.
Invite the other owners of the apartment to buy it. Owners of shared real estate have a priority right to redemption!
You draw up a notice (the form of the document can be any) about the sale of your share. Notary certification is not required. The document can be given to other participants personally, sent by mail (registered mail) or transferred through a notary. The latter option is used when the owners of other shares evade receiving notice.
Participants have one month to make a decision. If, after the expiration of the period, they refused to purchase (or simply did not give any answer), the share can be sold to third parties.

It is advisable to certify in writing the refusal of all owners to purchase an apartment from a notary. The best insurance against future troubles is their refusal to buy.
The fact is that within three months after the sale and purchase transaction, the co-owners can challenge it. And if you do not comply with all the rules of civil law, the court may well recognize the sale of the share as invalid. And if the refusal is received, then you can sell your share earlier than in a month.

Since 2017, all transactions with real estate shares must go through a notary (not only sale, but also donation, exchange, inheritance)!

What documents are needed for the alienation of property?

Most of the transactions for the alienation of property is the sale or transfer of real estate. Other options for alienation (donation or confiscation) are much less common in practice.

The list of seller's documents for drawing up an alienation agreement (sale of an apartment):

A document of title (which confirms his right to own real estate). Purchase options:
- bought (contract of sale);
- received as a gift or exchanged (gift or exchange agreement);
- privatized (privatization document);
- received as an inheritance (certificate of the right to inheritance).

Legal documents (proving that the property belongs to this particular seller). From January 1, 2017, the state registration of real estate is confirmed by an extract from the USRN. Another important point is also included there: that there are no encumbrances and arrests in the apartment.
Seller's identity card (passport).
A copy of the financial personal account and a certificate of no debt on utility bills.
A signed contract of sale (it is he who, from a legal point of view, fixes the process of alienation of property).
The fact of the transfer of rights is confirmed only by the official state registration of rights in the register. Where do they get permission? After the purchase and sale of real estate, you need to order a new extract from the USRN. You will have to pay the state duty and tax on the sale of real estate (if the apartment was owned for less than three or five years, it depends on the moment of purchase).
The spouse's consent to the sale of the apartment or a share in it (if the apartment was purchased during marriage). All property owners must agree to the sale! And you will also need the consent of the guardianship authorities if minors are registered in the apartment.

Alienation of property of a minor

If the child is less than 14 years old, then legal representatives act on his behalf (parents, guardians, adoptive parents guardian representatives). The minor owner does not participate in the transaction itself (his presence and personal signature are not required).

If the child is between 14 and 18 years old, he participates in the transaction and puts his signature on the documents. But only in the presence and with the consent of legal representatives. It is not possible to alienate the property of a minor in all cases (even with his consent). For example, if an apartment is for sale, then in return you can buy either the best or equivalent housing in terms of parameters.

Conclusion

Alienation of property - the same purchase and sale, a gift or, God forbid, confiscation. The interpretation of the term is simple and logical: alienation is when property or the right to it passes from the old owner to the new owner (voluntarily or involuntarily, for money or free of charge).

1) foreclosure on property for obligations (Article 237);

2) alienation of property, which by virtue of law cannot belong to this person (Article 238);

3) alienation of immovable property in connection with the seizure of a land plot due to its improper use (Article 239);

3.1) alienation of an object of construction in progress in connection with the termination of the lease agreement for a land plot in state or municipal ownership (Article 239.1);

3.2) alienation of immovable property in connection with the forced acquisition of a land plot for state or municipal needs (seizure of a land plot for state or municipal needs (Article 239.2);

5) requisition (Article 242);

6) confiscation (Article 243);

7) alienation of property in the cases provided for in Article 239.2, paragraph 4 of Article 252, paragraph 2 of Article 272, Articles 282, 285, 293, paragraphs 4 and 5 of Article 1252 of this Code;

By decision of the owner, in order, prescribed by law on privatization, property in state or municipal ownership shall be alienated into the ownership of citizens and legal entities.

Commentary on Art. 235 of the Civil Code of the Russian Federation

1. The norms of this article are general in relation to other articles of Ch. 15 of the Civil Code of the Russian Federation. The commented article discusses the grounds for termination of property rights, which can be classified into voluntary and forced, paid and unpaid. In addition, this article provides for the grounds for termination of the right of ownership, which may not depend on the will of the subjects of civil legal relations, in particular, the loss or destruction of property, for example, by virtue of Art. 211 of the Civil Code of the Russian Federation (risk of accidental loss of property).

Among the voluntary grounds for termination of property rights are:

- alienation by the owner of his property to other persons, in particular, under contracts of sale, donation, exchange, rent, as well as making a contribution to the authorized capital of a legal entity, etc. The term "alienation" means the termination of the right of ownership at the will of the owner with the transfer rights to another person. As a result of alienation, the right of ownership of one person is terminated, and the right of another person arises. As K.P. Pobedonostsev, “in a strict sense, the word “alienation” means the voluntary transfer of property rights from one person to another; consequently, the means of such voluntary alienation are the same by which the right of property is acquired. Alienation in this sense is either complete, embracing the right of ownership of property in all its composition and space, or incomplete, when its constituent parts are separated from the right of ownership as the subject of alienation; for example, when the owner restricts his right to the recognition of outside participation or allows a third-party real right on his property (for example, a pledge) ”;

———————————
Pobedonostsev K.P. Course of Civil Law: In 3 vols. M. Zertsalo, 2003. T. 1. S. 381.

- refusal of the owner from the right of ownership (see commentary to article 236 of the Civil Code);

- destruction of property at the will of the owner, for example, as a result of processing.

2. Other methods of termination of property rights, in particular the loss of property rights, include the termination of property rights as a result of unlawful acts, the impossibility of recovering from someone else's illegal possession on a vindication claim, for example, money, as well as bearer securities from a bona fide purchaser .

3. The provision of paragraph 2 of the commented article is aimed at ensuring the implementation of Part 3 of Art. 35 of the Constitution of the Russian Federation, according to which no one can be deprived of his property except by a court decision. The expropriation of property for state needs may be carried out only on the condition of prior and equivalent compensation.

The list of grounds for the forced termination of property rights, both due to violations of the law committed by the owner (subclauses 1, 2, 4 clause 2), and in order to protect state, public interests (subclauses 3, 5, 6 clause 2) is exhaustive . Such grounds, along with those directly listed in paragraph 2 of the commented article, include:

- payment to a participant in shared ownership without his consent by the other owners of compensation instead of allocating his share in cases where the owner's share is insignificant, cannot really be allocated and he does not have a significant interest in the use of common property (clause 4 of article 252 of the Civil Code);

- forced release of the land plot from real estate belonging to the owner, in connection with the termination of his right to use the land plot (clause 2 of article 272 of the Civil Code);

- redemption of a land plot for state or municipal needs (Article 282 of the Civil Code);

- withdrawal of a land plot used in violation of the law (Article 285 of the Civil Code);

- termination of ownership of the mismanaged contents of a residential building (Article 293 of the Civil Code);

— withdrawal from circulation of counterfeit material carriers the results of intellectual activity and equivalent means of individualization and destruction without any compensation (clause 4 of article 1252 of the Civil Code);

Read also: Civil Code of the Russian Federation ownership of real estate

- withdrawal from circulation and destruction at the expense of the violator of equipment, other devices and materials, mainly used or intended to infringe exclusive rights to the results of intellectual activity and to means of individualization (clause 5 of article 1252 of the Civil Code).

4. In para. Clause 9, Clause 2 of this article names privatization as a ground for termination of the right to state or municipal property (see Article 217 of the Civil Code and commentary thereto).

5. In para. Clause 10, paragraph 2 of this article refers to the nationalization of property, the basis of which may be a federal law (see the commentary to Article 306 of the Civil Code for more details). It is necessary to distinguish from nationalization requisition (see the commentary to Articles 242, 306 of the Civil Code), the voluntary transfer of property belonging to citizens or legal entities to the state, including by virtue of a direct indication of the law. For example, in accordance with Art. 20 of the Federal Law "On the Enactment of the Housing Code Russian Federation» Citizens who have privatized living quarters, which are their only place of permanent residence, before March 1, 2010, have the right to transfer the living quarters owned by them and free from obligations to state or municipal ownership, and the relevant executive authorities, local governments or persons authorized by them are obliged to take ownership of them and conclude social rental agreements for these residential premises with citizens and members of their families living in these residential premises, in the manner established by the legislation of the Russian Federation.

§ 16. Expropriation of property (para. 1400-1405)

1400. The compulsory alienation differs from the forced withdrawal by the fact that in all cases it is paid. The equivalent of forcibly alienated property may be issued to the owner both by the person forcing the owner to alienate the property, and by a third party. Compulsory alienation always entails the termination of the property right of the person whose property is subjected to alienation, and the emergence of the property right to this property from the person who provided the equivalent to the former owner. The forced alienation may accompany the forced withdrawal (clauses 1394, 1397 of the Textbook), but it may also have independent significance (Articles 238-241, 272, 279, 282, 293 of the Civil Code). It is the last six cases that we will consider in this section.

1401. Alienation of property which, by virtue of law, cannot belong to a given person (Article 238 of the Civil Code), is applied in cases where, on grounds permitted by law, a private person will own property that, by virtue of law, cannot belong to him at all, or may belong, but only with special permission, the issuance of which to the owner was denied. The owner is given one year to voluntarily alienate this property. If the owner does not take advantage of this opportunity, then the property that cannot belong to him is subject to forced sale with the transfer of the proceeds to the former owner, minus the costs of alienating the property. Forced sale is carried out by a court decision issued at the request of a state body or local self-government body. Also, by a court decision, a forced sale can be replaced by the transfer of property to state or municipal ownership with compensation to the former owner of the value of the property determined by the court.

1402. Alienation of immovable property in connection with the seizure of the land plot on which it is located (Article 239 of the Civil Code *) - is carried out in cases where the seizure of the land plot is impossible without termination of the ownership of the immovable property located on the seized plot. The burden of proving this circumstance lies with the state body (local self-government body) that applied to the court with a demand to seize a land plot and, accordingly, to compel the owner of real estate to alienate it through redemption by the state or acquisition by third parties at public auction.

* Its rules are also applied in case of termination of ownership of real estate in connection with the withdrawal of mining allotments, water areas and other areas where the property is located.

1403. Redemption of mismanaged cultural property, domestic animals (Article 240, 241 of the Civil Code), or mismanaged contents of a dwelling (Article 293). Despite the difference in their objects, these procedures essentially have much in common: they are all applied in court and are based on mismanagement by the owner of such property that has a specific social purpose (cultural property and residential premises), or property, the mismanagement of which is contrary to the principles of public morality (pets). The differences between these procedures are minor. Cultural property can either be purchased by the state or sold at public auction.

Domestic animals are redeemed by the person who has made such a request. The property is being sold at public auction. The redemption price in the first and second cases is determined by the court, and in the event of the sale of property at public auction - during their conduct. The amount received as a result of the alienation is transferred to the former owner, minus the costs of bidding (enforcement of a court decision).

1404. Loss by the owner of real estate of the right to use the land plot on which this real estate is located (clause 2 of article 272 of the Civil Code). The rights to immovable property left by its owner on a land plot are determined in accordance with the agreement of the latter with the owner of the land plot. In the absence or failure to reach such an agreement, the consequences of termination of the right to use the land plot are determined by the court at the request of the owner of the land plot or the owner of real estate. The owner of a land plot has the right to demand: (1) that the owner of the real estate, after the termination of the right to use the land plot, vacate it from the real estate and restore the land plot to its original state; or, (2) in particular, if the demolition of a building or structure located on a land plot is prohibited in accordance with the law and other legal acts (residential buildings, historical and cultural monuments, etc.), or is not subject to implementation due to a clear excess the value of a building or structure compared to the value of the land allotted for it - that is, recognition of its right by the court to acquire the remaining real estate on it, or (3) establishing conditions for the use of a land plot on new term. The owner of real estate has the right to demand either (1) the recognition by the court of the right to acquire ownership of the land plot on which his real estate is located, or (2) the establishment of conditions for using the land plot for a new period.

What is it - alienation of property?

Alienation of property is transfer of the right of possession, use and disposal of such property or transfer of property from one owner to another. In this article, we will consider how this method of termination of a right differs from others provided for by law.

What does the concept of "alienation of property" mean?

Alienation of property is transfer of property or ownership of it from the current owner to another entity.

By default it is assumed that alienation of property is a set of actions carried out by its owner of good will (for example, on the basis of various transactions).

A systematic analysis of the norms of the law allows us to conclude that alienation of property is not (see paragraph 1 of article 235 of the Civil Code of the Russian Federation):

waiver;
provision of property for temporary use;
loss or destruction of property or loss of the right to it for objective reasons;
termination of the right by a court decision;
providing future opportunities for alienation.

Compulsory alienation of property on the right of ownership

At the same time, the Civil Code of the Russian Federation contains rules according to which alienation of property is not always a decision taken by the subject of law independently and voluntarily.

Thus, the owner of property that, by virtue of the provisions of the law, cannot belong to him (for example, if alienable property is a thing related to objects whose circulation is limited, paragraph 2 of Art. 129 of the Civil Code of the Russian Federation), must alienate it within the time limits established by law (Article 238 of the Civil Code of the Russian Federation).

Another situation is when real estate objects located on a land plot seized due to improper use are sold at auction (Article 239 of the Civil Code of the Russian Federation).

One more example - it's a forfeiture of property. associated with the imposition of penalties. For example, foreclosure on housing that is the subject of a mortgage (clause 1, article 50, articles 51, 55 of the Law “On Mortgage (Pledge of Real Estate)” dated July 16, 1998 No. 102-FZ).

Thus, these actions are performed by the right holder himself, although by virtue of the imperative prescriptions contained in the law.

Real estate alienation agreement (donation, sale and purchase, transfer to the authorized capital of the organization, etc.)

In this case alienation of property is not just signing a contract and transferring things to the possession, use and disposal of another person. Alienation of real estate is a transaction requiring mandatory state registration of the right transferred within its framework (clause 6, article 1 of the law “On state registration of real estate” dated July 13, 2015 No. 218-FZ).

For ordinary person, which has nothing to do with the field of jurisprudence, such a phrase as "alienation of an apartment" sounds menacing and incomprehensible. In reality, everything is not so complicated and scary - in legal terminology, any real estate transaction is called as a result of which the ownership transfers from one person to another. Alienation of real estate is of two types:

Voluntary;
Forced.

Voluntary alienation of the apartment

The legislation of the Russian Federation provides for such voluntary forms of transfer of rights to real estate:

Mena;
donation;
Sale;
Donation;
Lifetime contract.

Regardless of the form of transfer of property between citizens, the operation is certainly drawn up in accordance with all the rules in a notarial order and must comply with the norms of the law of the Russian Federation. In fact, it is the process of transferring ownership of an apartment from one owner to another that is called alienation. All subtleties of such processes are regulated.

When alienating real estate, you need to pay attention to whether this object is in shared ownership, in this case, you must obtain the consent of the co-owners. The period of purchase of an apartment also plays an important role. Namely: if the dwelling was bought during the period when the owner was in marital relations, for the legal completion of the transaction, it is necessary to obtain the consent of the spouse (spouse).

Rules for drawing up a contract for voluntary alienation

When, exchange or sale, it is imperative to adhere to the following framework:

Contracts are drawn up in writing;
The owner alienating the property must provide all title documentation for the apartment and its installation data;
A person receiving or acquiring real estate must present a passport and other necessary documents;
An indication of the exact amount of the alienated property (if the apartment is donated or donated free of charge, this information is not needed);
The date the contract was drawn up;
Description of the object of alienation (area, registration data, the presence of encumbrances, etc.);
Other information relevant in a particular situation to ensure the legality of the transaction.

Forced expropriation

Sometimes there are situations when it is no longer a matter of voluntary transfer of ownership of an apartment by sale, donation or exchange, but of the forced alienation of residential real estate. In what cases is such a scenario possible?

Court sentence. Confiscation of property.
The court's decision. If in court it is brought that the apartment was acquired in violation of the law;
Judicial decision. Forced sale of housing to pay off debts of the owner.

Quite often, the practice of imposing a ban on the alienation of a particular apartment is used. Until the termination of the ban, housing can not be sold or donated. For example, if the property was purchased with a mortgage, the bank thus guarantees itself that the apartment will not be transferred to the use of third parties until the loan obligations are repaid.

Alienation of real estate by citizens of a democratic society in a developed market must always take place within the legal framework. Thus, the transfer of property rights is regulated by the Civil and Family Codes of the Russian Federation.

What is property alienation?

Civil law defines this concept as the transfer of property that belongs to one citizen into the ownership of another. There are two ways to dispose of property - a paid transfer of the right to property (for example,

sale) and gratuitous (donation). The alienation of property is formalized at the will of the owner, most often with the help of an agreement, which is concluded on the one hand by the owner, on the other - by the acquirer of the property. Sometimes the law provides for cases of alienation against the will of the owner, by force, by confiscation (without payment of the cost) or requisition (with compensation for the value of the property). In addition, it is possible to force the sale of the debtor's property to collect the debt by a court decision. The result of the work performed (for example, for a thing created under a work contract or a structure erected) is carried out under a work contract. This refers to things, buildings created by contractors. Alienation of property does not occur under loan and lease agreements, because in this case the ownership right does not pass, but remains with the owner. The property is transferred exclusively to temporary possession. When providing services, there is also no alienation.

Types of transactions for the transfer of ownership

Transactions involving the alienation of property can be either unilateral or bilateral or multilateral. It all depends on the number of parties involved. So there are three types of transactions.

Multilateral - transactions in which the interests of three or more parties are represented. They can be committed only when the actions of all parties do not contradict each other, and only when they are aimed only at achieving the same goals. Classical example: the parties agree on joint activities, the purpose of which is the return of an economic object. If the object has more than one building and a land plot, then a list of real estate is attached to the contract. In some transactions, each party may have different types participation.