What is the only housing of the debtor judicial practice. Foreclosure on single dwelling

Almost everyone knows that the only housing of the debtor cannot be foreclosed in the course of enforcement proceedings, with the exception of the collection of debts secured by a mortgage. However, is everything so simple in this formulation?

Property immunity of a single dwelling

Based on par. 1 hour 1 tbsp. 446 of the Code of Civil Procedure, execution under executive documents cannot be levied on a dwelling (its parts) owned by a citizen-debtor on the right of ownership, if for a citizen-debtor and members of his family living together in the owned premises, it is the only one suitable for permanent residence premises, with the exception of the property specified in this paragraph, if it is the subject of a mortgage and execution may be levied on it in accordance with the legislation on mortgage.

Thus, from a literal interpretation of the above norm, it follows that the debtor's premises owned are protected from recovery if:

the premises are residential according to their purpose and are used for the purposes specified in Article 17 of the Housing Code of the Russian Federation, that is, for the residence of citizens, and in some cases also for the implementation of professional activities or individual entrepreneurial activities by citizens legally residing in it. Non-residential real estate (commercial real estate, as well as auxiliary outbuildings, garages, etc.) are not protected from foreclosure;
the premises are suitable for permanent residence: it is important that the premises have the status of residential not only on paper, but also in real life;
the premises are the only one, that is, the debtor does not have the opportunity to use other residential premises belonging to him on the right of ownership or under a social tenancy agreement;
the premises are not mortgaged.

Residential mortgage

A mortgage is an exception to the property immunity of the debtor's only living quarters, as expressly stated in par. 1 hour 1 tbsp. 446 Code of Civil Procedure of the Russian Federation.

It is noteworthy that a loan (loan) secured by a mortgage does not have to be targeted at all in order for the claimant to have the opportunity to satisfy his requirements at the expense of the debtor's living quarters.

“Foreclosure on a mortgaged apartment is possible both in the case when such an apartment is mortgaged under a mortgage agreement (regardless of the purpose for which a loan (credit) is provided), and under a mortgage by virtue of law.”
Determination of the Supreme Court of the Russian Federation of September 4, 2018 No. 5-KG 18-149

A mortgage may arise either from a contract or by operation of law. In particular, a mortgage by virtue of law arises if a dwelling is acquired or built in whole or in part with the use of credit funds from a bank or other credit institution or funds from a targeted loan provided by another legal entity for the acquisition or construction of the said dwelling (paragraph 1 of Article 77 Federal Law No. 102-FZ of July 16, 1998 “On Mortgage (Pledge of Real Estate)”).

Property immunity within reasonable housing needs

The following exception from the prohibition of foreclosure on the debtor's only residential premises is not formulated in the law, but follows from the legal position of the Constitutional Court of the Russian Federation.

“[Establish] the limits of property (executive) immunity in relation to residential premises (its parts), if for a debtor citizen and members of his family living together in this residential premises, it is the only one suitable for permanent residence, in order to ensure the possibility satisfaction of the property interests of the creditor (collector) in the case when, according to its characteristics, the relevant real estate object clearly exceeds the level sufficient to satisfy the reasonable need of the debtor citizen and members of his family for housing, and also to provide for such persons guarantees of maintaining housing conditions necessary for normal existence."
Decree of the Constitutional Court of the Russian Federation of May 14, 2012 No. 11-P “On the case of checking the constitutionality of the provision of paragraph two of part one of Article 446 of the Civil Procedure Code of the Russian Federation in connection with complaints from citizens F.Kh. Gumerova and Yu.A. Shikunov"

In other words, the debtor's only living quarters are only protected from foreclosure to the extent that they are, at a basic level, able to meet the housing needs of the debtor and his family members. The recoverer has the right to foreclose on the debtor's luxury real estate in the part that remains after the debtor acquires a new, more modest premises, consisting, for example, of 2 rooms, and not 12. The claims of the claimant and the debtor's need for housing must be adequately satisfied.

However, to date, the legislator has not developed a mechanism for such an exchange of luxury housing for standard living quarters, and therefore the application of the above legal position of the Constitutional Court is practically impossible. The draft law on supplementing the Civil Procedure Code of the Russian Federation with a new article 447 on foreclosure on the only housing was developed by the Ministry of Justice at the end of 2016, but has not yet been submitted to the State Duma of the Russian Federation.

Despite the absence of legislative regulation, the Nikulinsky District Court of Moscow satisfied the requirements for foreclosure on ½ of the share of the residential premises owned by the debtor, because the area of this apartment significantly exceeded the accounting norm for the area of \u200b\u200bthe residential premises (Decision of the Nikulinsky District Court of Moscow dated 16.09. 2016 in case No. 02-3730/2016, upheld by the Appeal ruling of the Moscow City Court dated 12/16/2016). Meanwhile, at present there is no established judicial practice similar to the described decision of the Nikulinsky District Court of Moscow, and this decision is unique in its own way.

The debtor deliberately created a situation where the execution of the claims of the claimant is impossible in any other way

On November 29, 2018, the Supreme Court of the Russian Federation adopted ruling No. 305-ES 18-15724 in the bankruptcy case, in which it concluded that if the debtor behaves in bad faith, abuses the right and creates the appearance of circumstances preventing the foreclosure of the disputed apartment , then his right to property immunity of the only dwelling is not absolute.

Thus, the Supreme Court of the Russian Federation allowed one more exception to the prohibition of foreclosure on the debtor's only housing: in case of abuse of the right by the debtor, the court has the right to refuse judicial protection of his right to housing.

This position of the Supreme Court of the Russian Federation is highly debatable, because the concepts of "good faith" and "abuse of the right" are evaluative. Finding a balance between the values of stability of civil circulation and good faith, on the one hand, and the right to housing, on the other hand, is very difficult.

If you follow the general rules of foreclosure, then any property of the debtor owned by him is subject to arrest and subsequent sale at auction, within the amount of the debt. However, there is an exception to this rule - the only housing, the eligibility to foreclose on which is completely limited, except in cases where this housing is in pledge and collection of the debt secured by this pledge.

Until recently, the restrictive provision of the law actually applied both to the seizure of property and to the procedure for collecting at its expense (sale and repayment from the amount of debt received). This approach led to ambiguous interpretations by the courts, bailiffs and lawyers, often becoming the subject of litigation in all instances. However, whatever the legal position, common practice was unequivocal: insofar as it is impossible to foreclose on the only housing, it is impossible, or rather inexpedient, to arrest him.

Everything changed in November 2015, with the adoption of the Decree of the Plenum of the Supreme Court of the Russian Federation, in which clarifications were given on issues of law enforcement in the framework of enforcement proceedings and, in particular, regarding the powers to arrest and foreclose on the only housing of the debtor.

Can the only housing be seized for debts to the bank?

By its decision, the Supreme Court put an end to this issue - yes, they can. Such actions on the part of the bailiffs are recognized as competent, regardless of whether the housing is the only one for the debtor.

The arrest of the only housing is considered as an interim measure that provides for the imposition of restrictions on the disposal of real estate within a period until the debtor repays the debt in full. The prohibition of disposal of the only housing applies not only to the implementation of transactions, but also to the registration and (or) moving in of any persons after the restriction has been imposed. Formally, the borrower-debtor and members of his family will only have the right to live in an apartment (house) and use housing. It should be noted here that even if the debtor changes his registration and vacates the arrested housing himself, the status of the latter will not change in any way and will not lead to the lifting of restrictive measures.

How can such a decision of the court be explained?

Firstly, the provision of the law (Article 446 of the Code of Civil Procedure), limiting the foreclosure on the only housing, and without clarifications from the highest court, concerned only the foreclosure, and the measures taken to ensure it are formally a different procedure preceding the foreclosure procedure. It must be said that even earlier some bailiffs used the arrest of the only housing as an interim measure, however, the courts did not always meet them halfway and did not cancel the imposition of these measures based on complaints from debtors. Therefore, bailiffs did not have a wide practice of using this kind of action.
Secondly, the “single dwelling” rule very often became a stumbling block and deprived creditors of any opportunity to force the debtor to fulfill his obligations. While many borrowers-debtors did not live in "Khrushchev", but expensive country houses. At the same time, before the adoption of other interim measures, they managed to create all the conditions in order to apply them there was simply nothing to do. Realizing that the court would still make a decision to remove the arrest from the house based on the debtor’s complaint, the bailiffs did nothing, even if the creditor received a corresponding statement about the arrest of the dwelling. As a result, the debtor could well dispose of his property as he liked, and successfully ignore all oral and written demands for repayment of the debt.

By separating the concepts arrest of the only dwelling" and " foreclosure on single dwelling”, the Supreme Court actually confirmed the already existing legislative norm and turned its action into a mandatory law enforcement practice. At the same time, the problem of abuse by debtors of their right was also resolved. Retaining the status of the owner, they are now obliged to observe the legal safety and integrity of their housing, not acting for their own benefit, but to the detriment of the interests of the creditor.

The decision to arrest the only housing of the debtor and specific restrictive measures is taken by the bailiff - this is his right. The decision can be challenged in court, but the likelihood of winning the case is low.

Possible disputes include:

Reference to the fact that the cost of housing is disproportionate to the amount of debt.
Justification of the requirement to remove the arrest from housing by the presence of other property that can be foreclosed, and at the same time sufficient to pay off the debt.

There have been opportunities like this before. But their implementation after the clarifications of the Supreme Court is likely to be seriously complicated.

According to the law, the value of the seized property (any) must be commensurate with the amount of the debt. Thus, if the debt is, say, 100 thousand rubles, and the cost of housing is several million, then the disproportion is obvious. However, the Supreme Court admits that in exceptional cases the disproportion between the seized property and the debt may not be taken into account. An example of such a situation- the above case of the debtor living in an expensive cottage. At the same time, contesting the arrest of the only housing on the grounds that the debtor has other property, at the expense of which the recovery can be executed, is quite capable of winning the lawsuit. True, in such situations, the Supreme Court shifts to the debtor the need to provide the bailiffs with relevant information about the presence of such property, formally removing the bailiffs' obligation to search for it for the purpose of making or not making a decision to seize housing.

At present, it is still difficult to say what will be the judicial practice of resolving disputes arising from the application of arrest in relation to the only housing of the owners. It is possible that the debtors themselves will look for loopholes to circumvent the new rules, which seems to be potentially possible, even without violating the law. The seizure of a dwelling that is in the status of a complex property (shares, jointly acquired matrimonial property, contested property) may well create the conditions for numerous disputes. But based on the position of the Supreme Court, which, however, was typical of the activities of bailiffs before, no matter what disputes arise, the main burden of proving their position and the illegality of the actions of the bailiffs will fall on the debtors, family members living with him, other persons registered in the housing and (or) joint owners.

Single housing and mortgage

In terms of the possibility of seizing and foreclosing on the only housing that is pledged (mortgage), nothing has changed. Taking measures to repay the debt at the expense of mortgaged real estate is the right of the bank, which, depending on the characteristics of the mortgage, can be implemented independently or on the basis of a court decision.

Is it possible to seize the only housing from the debtor if he has no other property? If possible, how to do it? Does the court have the right to recognize the right of ownership of the said premises to the claimant? The courts of two instances answered these questions differently until the Supreme Court came to the rescue.

Irina Shinkareva* borrowed 3 million rubles from Igor Solodovkin* at interest. This loan was confirmed by Shinkareva's certificate of the right to inheritance under the law. Shinkareva did not return the debt within the prescribed period, and Solodovkin went to court. issued a decision to recover from the borrower 3 455 027 RUB. loans and interest. Enforcement proceedings were initiated against Shinkareva, but the property that could be levied could not be identified. In this regard, the enforcement proceedings were completed, and the writ of execution was returned to the recoverer.

Then Solodovkin went to court with a claim to foreclose on Shinkareva's inheritance - an apartment. He believed that this apartment acted as a security for the fulfillment of obligations. Shinkareva, on the contrary, challenged the conclusion of the pledge agreement. She pointed out that the literal content of the receipt for a loan does not imply a pledge of an immovable property, the subject of the mortgage is not indicated, its assessment, and the state registration of the pledge provided for by law was not carried out.

The Prikubansky District Court of Krasnodar denied Solodovkin's claim. At the same time, the court proceeded from the fact that the disputed residential premises are the only suitable for habitation, which means that execution cannot be levied on it.

CASE No. 18-KP 7-216

PLAINIT: Igor Solodovkin*

DEFENDANT: Irina Shinkareva*

COURT: Supreme Court of the Russian Federation

DETAILS: Claim for foreclosure on an apartment

DECISION: Cancel the appeal ruling, send the case for a new trial to the court of appeal

He canceled the decision of the court of first instance and satisfied Solodovkin's claim. He not only decided to transfer the apartment to the claimant and recognize his ownership of it, but also recovered from Solodovkin in favor of Shinkareva 1,140,974 rubles. the difference between the amount of debt collected and the cost of the apartment, determined on the basis of a commodity examination. At the same time, the panel of judges proceeded from the fact that Shinkareva in the receipt confirmed the loan with hereditary property, that is, in fact, indicated this dwelling as a pledge.

When it came to, he drew attention to the following: in the event of non-fulfillment or improper fulfillment of an obligation secured by a pledge, the pledgee acquires not the subject of pledge, but the right to receive satisfaction from the value of the subject of pledge, which is realized for this purpose. Therefore, according to the law, foreclosure on housing must be carried out by selling it at a public auction with the determination of the initial sale price. However, the Judicial Collegium for Civil Cases of the Krasnodar Regional Court did not take this into account and issued a ruling on the transfer of the apartment to Solodovkin's ownership bypassing a public auction, which is unacceptable. Of course, in some cases, the satisfaction of the creditor's claim under the obligation secured by the pledge can be carried out by transferring the subject of pledge to the ownership of the pledgee (paragraph 1 of article 334 of the Civil Code), but the appeal did not indicate this case. She also did not cite the law that guided her when transferring the subject of pledge to the pledgee. In addition, according to the Supreme Court, the appeal should have established the nature of the legal relations that arose between the parties and the nature of the obligations assumed by the parties. Therefore, the Judicial Collegium for Civil Cases of the Supreme Court canceled the appeal ruling and sent the case for a new trial to the court of appeal (No. 18-KP 7-216). The case is currently pending.

“The canceled appeal ruling is at least puzzling. Here we can see a rather obvious violation of the provisions of the law establishing the procedure for foreclosure on residential premises and requirements for the form of real estate pledge. On the other hand, from a purely everyday point of view, the current situation seems unfair. Probably, this is the reason for the fact that, first of all, the Supreme Court drew attention to the violation of the procedure for foreclosing the subject of pledge, and only after that relatively mildly questioned the registration of pledge relations, "said partner Ph.D. n. Roman Zaitsev. “It is noteworthy that a clearly unjust decision was made at the appeal level. The Supreme Court confirmed that, firstly, a mortgage cannot arise from a receipt (on the contrary, the law requires compliance with a written form for a mortgage agreement), and, secondly, the subject of the mortgage must be sold at auction, unless the law establishes other options.It is noteworthy that the court did not comment at all on the lack of state registration of the mortgage.There are two explanations for this: either the identified violations of the form of the contract and the procedure for the sale of the pledged property were so egregious that the attention of judges to state registration was no longer enough, or the principle of public reliability of the USRN register loses its weight in resolving disputes over the right to real estate, "said Sergey Patrakeev, partner of the KA" ".

The conclusions of the Supreme Court regarding the absence of collateral are consistent with established law enforcement practice. At the same time, the apartment was clearly mentioned in the receipt precisely to secure the obligations of the borrower. And although, due to the lack of registration, the pledge did not arise, nevertheless, the court needed to investigate the question of whether there was another security mechanism. Indeed, in Art. 329 of the Civil Code does not define the ways of securing obligations, which opens up the possibility for participants in civil circulation to independently design various security structures.

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