Court ban on registration actions with real estate. How and why is a "ban" on real estate transactions established? Prohibition to perform registration actions without the participation of the owner

Legal grounds for imposing a ban on real estate transactions

The procedure for making transactions with real estate is regulated by the Civil Code of the Russian Federation, as well as the norms of the law “On state registration of real estate” dated July 13, 2015 No. 218-FZ. Registration by state bodies of rights to real estate is carried out in accordance with paragraph 3 of Art. 1 of Law No. 218-FZ, through the execution of a legal act, which not only fixes the emergence or termination of the rights of owners, but also confirms the fact of restriction or encumbrance of their rights.

The ban on registration actions on real estate is carried out by virtue of:

• direct indication of the law (with easement, mortgage, etc.);
• submission of an appropriate application by the owner;
• court decision;
• issuance of a decision by the bailiff within the framework of enforcement proceedings.

Within the framework of this article, we will consider the procedure for imposing a ban on real estate objects, to which, in accordance with Art. 130 of the Civil Code of the Russian Federation, include:

• premises, including residential and non-residential, as well as other structures that are on the state cadastral register;
• land plots, including subsoil plots and other objects inextricably linked with land (buildings), even if their construction has not been completed;
• aircraft subject to registration;
• ships of sea and inland navigation, in respect of which the law introduced mandatory registration;
• other objects directly classified by law as immovable.

Note that the main feature of the transfer of ownership of such property is the need for state registration of transactions with it. The imposition of a ban prevents the free disposal of immovable objects, including the registration of the rights of new owners.

Decision on prohibition of registration actions with real estate, court ruling on securing a claim

A ban on transactions with real estate, including in terms of registration, may be imposed by a bailiff through the adoption of an appropriate resolution on the prohibition of registration actions with real estate. In this case, the bailiff acts in the interests of the claimant (creditor) and, in accordance with Art. 80 of the Law "On Enforcement Proceedings ..." dated 02.10.2007 No. 229-FZ, has the right to seize in order to ensure the fulfillment of the stated requirements.

A ban may be imposed by virtue of a court ruling on securing a claim under Chapter. 13 of the Civil Code of the Russian Federation. In this case, the ruling shall enter into force immediately from the moment of its issuance. The plaintiff is issued a copy of this document and a writ of execution. The encumbrance and restriction of the rights of the debtor in terms of the disposal of property is carried out, in accordance with Part 6 of Art. 36 of Law No. 229, on the day the enforcement documents are received by the bailiff.

Thus, only the following grounds for the seizure by a bailiff or court are legally fixed:

1. As a measure of enforcement.
2. As a security measure. This option does not imply enforcement, but only provides the possibility of enforcement of a court decision (for example, on debt collection).

In the case of compulsory execution, the bailiff may seize the property with the aim of selling it in the future or transferring it to the recoverer. The arrest and prohibition of registration actions in this case is a guarantee of the safety of the property and the absence of rights of third parties to it in the future.

Registration ban application

The owner by virtue of paragraph 5 of Art. 15 of the Law "On State Registration ..." dated July 13, 2015 No. 218-FZ has the right to independently issue a ban on registration actions . The reason for this may be the danger of registration actions by fraudsters and other third parties in case of misleading or deceiving the owner.

Don't know your rights?

To apply for a ban on registration actions with real estate, the owner has the right to contact the following organizations:

• multifunctional center (MFC);
• territorial office of Rosreestr.

To apply for an encumbrance, you must submit:

• documents confirming the ownership of real estate objects in respect of which a ban is planned;
• identity documents of the applicant;
• a free-form application containing information about the applicant, the real estate object, as well as a requirement to impose a ban on state bodies from performing registration actions aimed at transferring, restricting or terminating property rights for other reasons.

After making the specified entry in the unified register by virtue of paragraph 4 of Art. 25 of Law No. 218-FZ, all applications for state registration of the transfer of ownership by a person who is not the owner will be returned to the applicant. Note that if there is an encumbrance in the USRN, no one will be able to register a transaction with the specified object, even if there is a power of attorney. However, this prohibition does not apply to cases of registration of a transfer or termination of property rights in a different manner (for example, on the basis of a court decision).

A sample application can be found in the relevant article.

Legal consequences of violation of the prohibition of registration actions on real estate

In the case of registration actions in violation of the established prohibition, the registration authority may be held liable, and the damages incurred from it in the future are subject to recovery. A property transaction, in respect of which a ban on registration actions has been introduced by virtue of law, according to the rules of paragraph 1 of Art. 174.1 of the Civil Code of the Russian Federation is void and entails appropriate consequences for the parties.

However, the legislator in paragraph 2 of Art. 174.1 of the Civil Code establishes the legal right of non-fulfillment of the requirements to prohibit the commission of registration actions established by a court decision, by a bailiff. This exception is provided if the transactions are made in order to pay off the debt to the recoverer, including the sale of property or its transfer to the debtor. In this case, it is assumed that the acquirer knew or should have known about the existence of the corresponding encumbrance. If such information was unknown to the acquirer, he has the right to declare the transaction null and void in accordance with the rules of Art. 168 of the Civil Code of the Russian Federation.

Removal of the ban on registration actions with real estate

The procedure and conditions for lifting the ban depend on the grounds for its imposition. In particular, in the event of an encumbrance being imposed on the initiative of the owner of the property, it is he who has the right to remove it. For these purposes, an application should be prepared to lift the ban on registration actions with real estate.

As a result, after the restrictions are lifted, the registration of the transfer of ownership and other transactions for the disposal of real estate will be legal.

The application should be sent by contacting the MFC or the territorial division of Rosreestr. The procedure for lifting the ban in this case is generally similar to the procedure for imposing it.

The removal of the arrest, which provides for the imposition of an encumbrance in terms of state registration of the transaction and based on the decision of the bailiff, is carried out directly by the person who issued the decision. An arrest involving the imposition of an encumbrance may be lifted if the claims of the claimant are satisfied, if the value of the seized real estate does not correspond to the amount of the debt, or if the debtor sends an application to replace the property on which the arrest has been imposed with another piece of real estate.

In case of seizure on the basis of a court ruling on the application of interim measures, the removal of the ban is carried out by applying to the court that issued such a ruling. The basis for the cancellation of interim measures may be, among other things, the refusal to satisfy the claims of the plaintiff.

So, the establishment of a ban on registration actions with real estate prevents transactions aimed at alienating property in any form, including through sale, donation, exchange, etc. An encumbrance can be imposed both at the request of the owner of the property to prevent the actions of fraudsters, and on the basis of the relevant decision of the bailiff or state and municipal authorities, if such authority is expressly provided for by law. In addition, a ban on registration of transactions with property may be based on a court order - in this case, the withdrawal is carried out if the circumstances that served as the basis for establishing the encumbrance have disappeared.

What is a registration ban?

The ban on registration actions with property is very similar to the seizure of property. Only if the arrest implies a complete ban on the disposal of property, which is spelled out in paragraph 4 of Art. 80 of the Federal Law "On Enforcement Proceedings", then the prohibition is a restriction of the owner - the debtor precisely in certain actions that are prescribed in the writ of execution itself. This happens when the owner of this property has outstanding debts. The prohibition will stand until the owner of this property fully repays his debts. Such a ban can be imposed, for example, on a car, on an apartment.

This means that this car or this apartment cannot be sold or bought, or other actions that require their registration can be performed. A ban on registration actions is imposed by a court or a bailiff. It is also possible to remove such a ban through the court, or it is removed by the same bailiff. The purpose of imposing this prohibition is to ensure the execution of the writ of execution. The rules on the prohibition of registration actions with property, movable or immovable, are provided for in the Federal Law "On Enforcement Proceedings". Art. 80 of this law indicates that the bailiff may also impose a ban within the time period that is given to the owner-debtor so that he voluntarily fulfills the requirements specified in the writ of execution.

The contract for the sale of an apartment in the presence of a ban.

Buying an apartment with an encumbrance in the form of an arrest / ban is prohibited. Buying an apartment when it is encumbered is possible if there is a mortgage loan for this apartment. In such situations, banks, which are creditors at the same time, usually give their permission to conclude a sale and purchase agreement despite the prohibition or arrest of this property, since they are not interested in the apartment itself, but in repayment by the owner-debtor of the loan to the bank. After the transaction, the encumbrance from the former owner of the apartment is removed in the same way as the ban on registration actions with the apartment. With an arrest or a ban, this method will not help, because the courts and bailiffs act only within the framework of the law, it will not work to negotiate with them in the same way as with banks.

What should I do if I bought an apartment with a ban on registration actions?

In order to lift the ban, the owner-debtor must pay all debts together with interest. And only then can he sell the apartment, on which such a ban was imposed. If the buyer has entered into a sale and purchase agreement with such a seller and only then discovered that a ban has been imposed on registration actions with this apartment, then he can return the money by persuading the seller of the apartment to pay all debts and send it to the court or bailiff who imposed this ban, application for lifting the ban. If the seller refuses to do this, then the money can be returned only in court.

• The state duty for state registration of restrictions on rights is established by the Tax Code of the Russian Federation. Currently, for individuals, its amount is 2,000 rubles, for organizations - 22,000 rubles. (signature 22, clause 1, article 333.33 of the Tax Code of the Russian Federation).
How to find out about state registration of restriction of rights Before the start of the law No. 218-FZ, Rosreestr had to notify owners of the state registration of restriction of their rights, if this did not happen of their will (Order of the Ministry of Economic Development of Russia dated December 31, 2013 No. 802, which became invalid). Now he has no such responsibility. Knowing about the likelihood of imposing an encumbrance on property, the owner can send a request to Rosreestr to obtain the information contained in the USRN (read more about this in our article How to order and receive an extract from the USRR (EGRN)?).

How and why is a "ban" on real estate transactions established?

If you are afraid for the real estate objects owned by you, you can contact the office of the Cadastral Chamber or the Multifunctional Center for the Provision of State and Municipal Services (MFC) with a statement about the impossibility of state registration of the transfer, restriction (encumbrance), termination of the right to objects belonging to you real estate without your personal participation or the participation of your legal representative. In this case, an entry about such an application is made in the Unified State Register of Rights to Real Estate and Transactions with It (EGRP). The application may be submitted in the form of an electronic document certified by an enhanced qualified electronic signature of the applicant.

What does state registration of restriction of right mean?

Information about the state of affairs in relation to their real estate, the right holder receives at his personal choice: in the form of an extract or access to the FSIS USRN. The statement can be generated and sent in paper or electronic form. Granting access to the FSIS can be carried out in the form of sending notifications about changes in the information contained in the USRN (sub.
3 clause 16 of the procedure for providing information contained in the USRN, approved by order of the Ministry of Economic Development of Russia dated December 23, 2015 No. 968). Thus, the provision of information, including notification of the state registration of real estate encumbrance, is possible only for applicants. Once again, let us return to the question, what is it - registration of a restriction (encumbrance) of a right? The definition of this concept is given in para.
3 art. 1 of Law No. 218-FZ and sounds like this: this is a legal act of recognition and confirmation of the restriction of rights and encumbrance of property.

Prohibition on registration of real estate

Starting from mid-2016, the Federal Service for State Registration, Cadastre and Cartography has stopped issuing certificates of state registration of property rights. Thus, after the completion of the registration actions and the transfer of ownership, the owner of real estate receives only the document-base with the mark of the registering authority (agreement or other document), as well as an extract from the unified state register of real estate, which indicates the new owner, the established encumbrance or other information that should be reflected after registration actions.

Prohibition to perform registration actions without the participation of the owner

• Each encumbrance record is identified by an immutable and non-repeating registration number.
• The entry on the encumbrance of rights contains information on the grounds for the occurrence and type of restriction of the right, the date and number of the registration of the restriction, about persons who have limited property rights.
• If the encumbrance arises in connection with the adoption of the relevant act by a state authority or local self-government, then it (the body), within 5 days after the adoption of such a decision, must send to Rosreestr an application for state registration with the attachment of documents (clause 2, article 19 of law No. 218- FZ).
• Instead of a joint application from the lender and the borrower to register the encumbrance of the residential premises, if the loan issued / received is targeted, such an application can be submitted by a notary (clause 3 of Art.

Prohibition of transactions.

Documents submitted for state registration of restrictions on rights, requirements for them According to Art. 18 of Law No. 218-FZ, for state registration of encumbrance of rights, the following documents are submitted to Rosreestr:

• application according to the order of the Ministry of Economic Development of Russia dated December 08, 2015 No. 920 in the form on paper or in electronic form;
• documents that are the basis for state registration of restriction of rights (in 2 copies);
• a power of attorney, if the documents are submitted not by the applicant, but by his authorized representative.

Depending on the submission method, the above list of documents may be supplemented by a copy of the passport. If the documents are sent by mail, then their authenticity, including the authenticity of the applicant's signature, is certified by a notary (clause 12, article 18 of law No. 218-FZ).

Real estate registration ban

For example, accounting for the housing stock in accordance with the Decree of the Government of the Russian Federation “On State Accounting ...” dated 10/13/1997 No. 1301. Like any rules, the procedure for registering a restriction of rights implies exceptions. Thus, the encumbrance of the commercial rental of residential premises is not registered if such an agreement is concluded for a period of less than a year.
Thus, in the current legislation there is no definition of the concept of "encumbrance of the right", but we believe that the use of the old definition will not contradict real practice. Types of restriction (encumbrance) of rights The main types of restriction of the owner's rights are:

• easement;
• mortgage;
• trust management;
• rent;
• concession agreement;
• seizure of property, etc.

Under these circumstances, many owners, both individuals and legal entities, have objectively far-fetched risks: since there is a lack of a title of protection with the appropriate degrees of protection, it means that not only the possibility of implementing fraudulent schemes in relation to the property may arise, but it may also be failure of the Rosreestr software, in which the consequences can be unpredictable. We already wrote to the unstable work of Rosreestr - the owner received an extract from the USRN with no information about the property while the rights were confirmed by a certificate of state registration of the right. At the same time, the legislation introduced a warning tool - the possibility of filing an application for a ban on registration actions with a real estate object without personal presence.

What is a real estate ban

Within 5 working days from the date of receipt of the relevant application, an entry is made in the USRN about the application for the impossibility of registration. An entry in the USRN about the impossibility of registration does not prevent the state registration of the transfer, termination, restriction of the right and encumbrance of the property, if the basis for registering the right is a court decision that has entered into legal force, as well as the requirement of a bailiff. Since the beginning of 2017, facts have been recorded about a multiple increase in the filing of these applications, which once again confirms the concerns of the owners.

• to provide the creditor with the pre-emptive right to repay the debt, the debtor concludes a mortgage agreement from the value of the pledged property (which is registered with Rosreestr);
• in order to obtain the right to use someone else's land for passage or passage, an agreement is concluded between neighbors or an appropriate judicial act is adopted.

In any case, as a result of taking measures to restrict the rights of the owner of the property, the rights of the owner of the property are compressed, and the entitled persons have limited rights - property or obligations. In the legal literature, there are 4 groups on objects of limited property rights:

• the right to use foreign lands and other natural resources;
• the right to use other people's premises;
• security rights;
• the right to manage the property of the owner.

What is a real estate registration restriction

This is the presence of prohibitions and conditions that constrain a certain right holder of a particular property in the course of using the object or exercising other powers. Such conditions and prohibitions appear:

• by direct order contained in the legislative norms;
• based on the agreement of the subjects;
• at the initiative of the authorized bodies.

In accordance with Art. 131 of the Civil Code of the Russian Federation restrictions on rights require state registration:

• for real estate - without fail;
• for movable things - in cases specified by law.

In addition, in the same norm there is a provision according to which, in addition to general state registration, for certain types of real estate, separate (special) records can be kept.

What is a registration ban? The ban on registration actions with property is very similar to the seizure of property. Only if the arrest implies a complete ban on the disposal of property, which is spelled out in paragraph 4 of Art. 80 of the Federal Law "On Enforcement Proceedings", then the prohibition is a restriction of the owner - the debtor precisely in certain actions that are prescribed in the writ of execution itself. This happens when the owner of this property has outstanding debts. The prohibition will stand until the owner of this property fully repays his debts. Such a ban can be imposed, for example, on a car, on an apartment. This means that this car or this apartment cannot be sold or bought, or other actions that require their registration can be performed. A ban on registration actions is imposed by a court or a bailiff.

How and why is a "ban" on real estate transactions established?

It indicates the type of registered encumbrance, the number and date of its registration, as well as information about individuals or legal entities in whose favor this encumbrance is established, and indicates on what basis it was imposed. If there are no encumbrances on the apartment, then in this block of the USRN Statement we will see the phrase “not registered”. How it looks in the Statement itself can be seen on our website - in the section "Sample Documents for the Secondary Market".

Attention

The same methods allow you to find out whether the burden has been removed from the apartment. For example, in the case when the owner paid off the mortgage loan and submitted to Rosreestr a certificate from the bank on repayment of the debt and removal of the pledge. As for unregistered encumbrances and the possible existence of third-party rights to an apartment, it is already more difficult to detect this.

Prohibition on registration of real estate

The main thing is that the Buyer should be aware of this and understand that his property right will be limited (restricted) until the encumbrance is removed. Encumbranced apartments are bought, for example, in such cases:

• The seller of the apartment has not yet paid a mortgage loan for it, and is selling it together with a debt and a pledge (encumbrance);
• The buyer bought the apartment in installments (until the full amount is paid, the apartment is pledged to the Seller);
• The apartment is sold together with tenants living in it under a lease agreement (the buyer takes the place of the landlord);
• The apartment is being sold with an encumbrance of rent (the buyer takes the place of the rent payer, with the consent of the rent recipient).

If the apartment is being sold with any encumbrance, then it should be reflected in the Apartment Sale Agreement as a separate item.

Prohibition of transactions with property arrest

Each entry is assigned a digital identifier, after which it is displayed in the USRR. This allows the buyer of real estate to check the purity of the transaction by requesting an extract from the document. The cost of a document on paper when ordering through the MFC will be 400 rubles, in electronic form - 250 rubles.
To avoid an awkward situation, it is better for the seller to indicate the existence of an encumbrance in the contract of sale. Restrictions on Seizure of Property Seizure of the debtor's property is carried out by court order. At the same time, at all stages of the trial, the owner of the property will not be able to sell the property, donate it or transfer it on bail.

Seizure of property is used as one of the measures to ensure the claims of the plaintiff and guarantees the possibility of enforcement of the court decision.

Encumbrances of ownership of an apartment

Then Rosreestr deletes the record of the pledge of the property, the apartment becomes free from the rights of third parties, and goes to the full disposal of the owner. If it is not possible to remove the encumbrance from the apartment in the usual way, then the owner can do this in court (if there is evidence). Then the court decision is also transferred to Rosreestr and serves as the basis for the removal of any restriction of the right (incl.

seizure of immovable property). Making an entry in the register of rights to remove the encumbrance on the apartment takes place within 3 days from the date of application. There is no state fee for this. If we are talking about unregistered encumbrances, then the Buyer, in the process of checking documents for an apartment, needs to require the Seller to comply with the rules for conducting a sale and purchase transaction, and eliminate all reasons why third parties can claim their rights.

Important

These include:

• certificate confirming the ownership of real estate;
• cadastral passport for a house or apartment;
• a lease agreement or a certificate of opening a inheritance case;
• personal documents of the owner of the apartment (passport, marriage or divorce certificate).

In the event that the registration of encumbrance rights affects the rights of third parties, their notarized consent is required. This applies to real estate that represents shared ownership or housing acquired by spouses jointly during the period of marriage. You can issue an encumbrance through the MFC by transferring the necessary package of papers to its employees.

Info

The law allows documents to be sent by registered mail. In both cases, the encumbrance will take longer. You can speed up the process by visiting the Registration Chamber and handing over the papers to its employees personally.

What is the restriction prohibition of transactions with property with an apartment

There are other rights encumbering an apartment that people who are not its title (ie registered) owners have. For example, this: In all these cases, people who are not formally the owners of the apartment (or its share) can lay claim to it even after it has been sold. Then the transaction may be declared invalid, and the Buyer will lose his right of ownership.
Features of buying an apartment previously purchased with maternity capital. What is the danger for the Buyer here? How to find out if there is an encumbrance on the apartment? If we are talking about encumbrances registered in Rosreestr, then anyone can check this - this is public information.
The implementation of the procedure is possible if the right to conduct it is documented. For example, in the case of issuing a mortgage or a secured loan, the bank provides an agreement with the client, on the basis of which Rosreestr employees make a record that the property is under encumbrance. ⇒ In a situation where an encumbrance on living space must be imposed on an individual, it must be borne in mind that only the owner of the premises or his heirs (after the death of the testator) can do this without a court decision. Such actions are taken by property owners in order to avoid fraudulent actions by third parties.
An encumbrance, just like a property right, must be registered. The procedure is carried out at the initiative of the owner or acquirer.