Recognition of ownership of real estate

Recognition of the actual owner of property rights through the court

Ownership rights to real estate, in particular apartments, are recognized in court.
The basis for considering a specific dispute in court is the filing of a statement of claim by the actual owner (proprietor) of a specific apartment. In accordance with the decision made by the court, after considering the case, the apartment is subject to registration in the Unified State Register of Real Estate Rights and Transactions Conducted with them. The registration period is regulated by current legislation. As a result of registration, the owner receives an official certificate that confirms ownership of the residential area in question. As the legal practice of specialists from the Moscow Municipal Bar Association shows, the procedure for recognizing the right of ownership of real estate by going to court includes several additional conditions and requirements. The list of these includes recognition of property rights:

• through privatization,
• for inheritance
• due to the age of acquisition,
• for an unauthorized residential building,
• for a new building.

Please note that when recognizing ownership of real estate, the decision is made exclusively in court. The court takes into account individual circumstances, studies the plaintiff’s motives, demands and evidence of his innocence, the current judicial position and other features of a particular case that may influence its outcome.

Legal basis for recognition of rights

The presentation by an interested party of a demand for recognition of the right through the court aims to eliminate all doubts about the ownership of the right to this particular person, while in order to satisfy the claims, a set of conditions must be present:

• dispute about law;
• violation of the plaintiff’s rights or their challenge;
• and, finally, evidence of the plaintiff’s ownership of the disputed object.

The special legal nature of real estate determines that a claim for recognition of the right of ownership of real estate is one of the special (in rem) remedies. Enshrined Art. 12 of the Civil Code of the Russian Federation, methods of protection relate to substantive legal ones, since their source is substantive legal norms.

Procedure for filing a claim for recognition of property rights

To recognize the right to own, use and dispose of an apartment by going to court, the plaintiff must file a claim in the prescribed form. A statement of claim requires a consistent and competent description of the realities of the current situation and the personal position of the plaintiff. The statement of claim also provides for a separate pleading part, where the applicant will have to list personal demands on the judge.

A statement of claim for recognition of property rights is accompanied by a standard set of documents that are in one way or another related to a specific case. You can clarify the list of documents for filing a claim directly in court or in consultation with specialists of the Moscow Municipal Collegium.

The claim is filed in court, determined taking into account the location of the apartment. In order to clarify which court a particular area belongs to, you can use the recommendations of a lawyer or information on the relevant websites. Submission of an application can occur by contacting the office, during a face-to-face meeting with a judge, or as part of a court expedition.

The set of documents that accompanies the statement of claim requires the preparation of at least three or more copies. This is due to the requirement that each party receive a complete set of documents. Thus, the judge receives one set, the defendant receives the second, and the third remains with the applicant. If there are several defendants, each of them must receive a separate set of documents, including a copy of the statement of claim.

The filing of documents should result in a mark on the plaintiff's copy by court personnel. This mark includes information about the date and number of the claim, and also serves as confirmation that the documents were received. After receiving the documents, the court sets a date and time for the first hearing. This information is transmitted to each participant in the process, usually in postal format. Given the likelihood of a summons being delayed in the mail, some applicants personally monitor the hearing scheduling process through regular calls to the clerk's office.

How to recognize ownership through court

To recognize the ownership of an apartment through the court, it is necessary to draw up a statement of claim, in which it is necessary to correctly and in order formulate and state the situation and position, as well as clearly state your requirements in the pleading part of the claim. The statement of claim must be accompanied by a package of documents related to the case. We will talk about the documents below.

The statement of claim must be filed with the court at the location of the property. You can determine the court in which you need to file a claim on the website in the jurisdiction section by indicating the address of the object. The application can be submitted directly at an appointment with the judge, or through the office or expedition of the court.

The submitted set of documents must be at least in three copies, one for each party to the process (i.e., for you, for the court and for the defendant). If there are several defendants, then they also need to provide a copy of the claim and all documents attached to it.

When submitting documents, court staff must put a mark on your copy indicating acceptance of the documents, which must contain the date and incoming number.

Next, the court must set a date for the first hearing and notify the participants in the trial. Typically, notification occurs by sending a subpoena by mail to the addresses specified in the statement of claim. But we all know how the post office works, so it’s better to call the court office (expedition) yourself and find out whether your statement of claim has been accepted and what date the court hearing is scheduled for.

Documents required for recognition of ownership

To recognize ownership through the court, you need to collect a set of documents with which you should go to court. Below is a list of documents that are included in the minimum set of documents. We advise you to attach copies of all documents that are relevant to the case to your statement of claim.

List of documents

• Statement of claim for recognition of property rights. You can find out how to write a statement of claim in the article “how to write a statement of claim.” You can also file a claim for recognition of ownership rights (option 1, option 2, option 3, option 4), but remember that each case is individual and the sample we offer must be adjusted;
• Documents confirming the fact of acquisition of real estate (purchase and sale agreement, equity participation or co-investment);
• The act of acceptance and transfer of real estate.
• Receipt for payment of state duty. You can calculate the amount of the state duty using the state duty calculator. In the claim price field, you must indicate the value of the object according to the BTI and o.

Features and mistakes of self-protection of ownership of an apartment in a new building

The list of the most popular claims with demands for recognition of ownership includes claims for living space in a new building. Despite the frequency of cases considered in judicial practice, such cases are still classified as the most complex. Relatively little experience in this direction entails frequent attempts by interested parties to develop new ways of legally “pure” deception of citizens. In practice, the vast majority of developers use independently drawn up contracts. Such agreements leave enough room for maneuver in the event that the developer’s obligations are not fully fulfilled. You may not fully understand what consequences failure to deliver the house within the specified time frame or a complete cessation of construction work will have for you.

The lack of sufficient legal literacy among citizens leads to the fact that most of the developers' clients simply do not understand what is being discussed in the contract and do not even notice some of its points. Moreover, it is precisely these points that in the future become the main obstacle to the effective protection of property rights. Of course, there are many examples when the procedure for recognizing the right of ownership of primary housing was completed in favor of the owner, including under the condition of full payment of the cost of this apartment and participation as a shareholder. Property rights can be recognized at any stage of construction work. The only condition for going to court is the real existence of the object.

The actual owner has the right to file a claim for recognition of ownership of primary real estate at the following stages:

• If construction work is completed, but the house has not yet been put into operation.
• If the construction work is completed, but the house has not yet been handed over to the commission.
• If the construction work is completed, the house has already been put into operation, but the registration of ownership has not yet occurred.
• If the developer is officially bankrupt.

Recognition of the actual owner's ownership of residential space in a new building without making preliminary requirements is possible if the following prerequisites are met:

• the real existence of an object,
• there is a dispute regarding the law,
• the absence of a binding relationship based on the property in question between the parties at the time of filing the claim.

In other cases, the requirements are transferred to a category of a different value.

Trying to assert ownership rights to an apartment on their own, many applicants make serious mistakes, which subsequently significantly complicate the legal process. The list of such errors includes the following:

• The applicant does not understand the real essence of the claim. For example, plaintiffs who do not have experience representing their own interests and rights in court often file claims for consumer protection in cases where the violation occurred not as a result of a simple purchase of a product, but as a result of a transaction with a residential property.
• The applicant confuses various legal institutions of claims. An ordinary person cannot answer the question of what the differences are between recognition of rights to property and reclaiming this property through court from someone else's possession. Thus, achieving the actual desired result becomes more difficult or completely impossible.
• The applicant does not know what the real nature of the claim is, in which the subject of the dispute is precisely the right of ownership of the living space in a new building or shared development. Instead of drawing up the necessary evidence for a specific claim, the applicant proves those claims that are not related to the subject of the claim. For example, in the case of recognition of rights to property in the presence of an agreement, including in the conditions of full prepayment, the primary issue is the legal protection of the legal relationship itself, after which the issue of obtaining ownership of the apartment is resolved.
• The applicant files a claim to acquire ownership of an apartment in a new building that does not exist legally or in principle. In case the construction work is not completed, it is impossible to obtain ownership rights. If we are talking about unregistered real estate, then the issue can be resolved subject to preliminary or parallel compulsion of the defendant to perform the necessary actions.

The list of possible errors is not limited to this. For example, an applicant may file a claim against a person not involved in the transaction or bring a claim against an incomplete circle of defendants, and so on. Given the prevalence of the problems and errors described, we recommend enlisting the help of qualified lawyers in recognizing rights with property in the form of living space in a new building or an existing house.

The procedure for recognizing ownership of real estate

If there is no record in the state register of registration of your ownership of real estate, then you have not acquired ownership rights. However, the law may provide otherwise (clause 2 of article 8.1, clause 1 of article 131 of the Civil Code of the Russian Federation). Thus, you can demand recognition of ownership, in particular:

1. if it arose before 01/30/1998, that is, before the Law on Registration of Rights to Real Estate came into force, and was not registered in the Unified State Register of Real Estate (part 1 of article 69 of the Law on State Registration of Real Estate, paragraph 59 of the Resolution of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated April 29, 2010 No. 10/22);
2. if you are the legal successor of an organization that was reorganized and was the owner of real estate (clause 2 of article 218 of the Civil Code of the Russian Federation, part 2 of article 69 of the Law on State Registration of Real Estate, clause 59 of the Resolution of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated April 29, 2010 No. 10/22);
3. due to acquisitive prescription (Article 234 of the Civil Code of the Russian Federation, clause 19 of the Resolution of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated April 29, 2010 No. 10/22).

Grounds for recognition of ownership of real estate through the court

A claim for recognition of ownership of real estate, as we answered above, is one of the special (in rem) remedies, which inevitably determines the features of evidence in this category of court cases. Thus, when considering cases on recognition of ownership of real estate, the arbitration court proceeds from the disposition of the relevant substantive rules (for example, Articles 554 and 607 of the Civil Code of the Russian Federation).

Consequently, the necessary evidence in the case of recognition of ownership of real estate includes evidence that makes it possible to individualize the disputed object of real estate.

The evidence and grounds for recognizing the right are

1. the construction of the facility is completely completed (that is, the citizen must have an act of putting the building into operation);
2. the person has in his hands the title papers, thanks to which the object was transferred into ownership (for example, a deed of transfer and a deed of gift);
3. a citizen can provide other evidence (testimony of witnesses, receipts and checks for payment for construction work and materials, cadastral and technical passports, etc.);
4. long-term and continuous possession of the object (at least 15 years, according to Article 234 of the Civil Code of the Russian Federation).

and,

• on recognition of ownership rights to unauthorized construction;
• on recognition of rights to reconstructed objects in the absence of permits obtained in the prescribed manner;
• on the recognition of rights to individual residential buildings, including those included in cottage villages, as well as to premises in apartment buildings that are built on land plots not intended for these purposes, including land plots in respect of which the law prohibits construction such objects.

The importance of determining the subject of proof

Circumstances that make it possible to individualize the disputed object of real estate are among the necessary evidence, since in their absence it is impossible to establish the facts of the subject of proof.

Individualization can be carried out by providing information that allows identifying the property to be transferred (for example, the location of the disputed real estate, the approximate area, other characteristics and properties determined, in particular, in accordance with the project documentation).

An example from the practice of the Supreme Court of the Russian Federation

If the requirement to recognize the ownership right as absent is stated by the real owner in relation to a person whose right to property was registered illegally, it should be satisfied. But only if the court has reliably established that the registration of property violates the right of the owner and it cannot be protected by filing a claim to reclaim property from someone else’s illegal possession.

In what cases will it not be possible to recognize ownership rights?

We do not recommend filing a claim for recognition of ownership rights if you, in particular:

1. created the property after 01/30/1998. In this case, ownership rights arise from the moment of its state registration (Article 219 of the Civil Code of the Russian Federation). In this situation, you should collect a package of documents to register ownership of the object, and if registration is refused, challenge it;
2. sold the property under a real estate purchase and sale agreement, the transfer of ownership to the buyer was registered, but the buyer did not pay the money for it. In this case, we recommend demanding termination of the contract and the return of the property transferred to the buyer as unjust enrichment. Based on the judicial act of return, you will be able to register your property rights (clause 65 of the Resolution of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated April 29, 2010 No. 10/22);
3. you bought an object under a real estate purchase and sale agreement, paid for it, but you cannot register your ownership right, since you do not have all the necessary documents (Decision of the Supreme Court of the Russian Federation dated May 23, 2016 in case No. 304-ES15-18474);
4. In order to purchase an apartment (premises), we entered into an agreement to participate in the shared construction of an apartment building, which has not yet been put into operation. Premises in an apartment building under construction are not objects of unfinished construction, since it is impossible to locate real estate objects in an object of unfinished construction (apartment building). You can only register the right of common shared ownership of an unfinished apartment building itself, and not of the premises (apartments) in it (Letter of the Ministry of Economic Development of Russia dated February 16, 2018 No. OG-D23-1407). Therefore, filing a claim for recognition of ownership of the premises (apartment) is inappropriate. In this situation, you need to wait until the house is put into operation, and only after that register ownership of your premises (apartment). If the construction of an apartment building for some reason cannot be completed within the period stipulated by the share participation agreement and (or) it is not put into operation, then you can file a claim for recognition of ownership of a share in the form of a premises (apartment) in an unfinished apartment building home.

What issues are resolved in parallel with the recognition of property rights?

In the process of asserting ownership of residential space, including in a new building, the plaintiff may be faced with some related issues. Their solution will be much more effective if you contact the services of a specialized lawyer in housing and civil procedural disputes. For example, helping to recognize the ownership of an apartment to their clients, lawyers of the Moscow Municipal Bar Association also offer the opportunity to:

1. 1. Refund of money that the applicant transferred to the developer or other party for registration of ownership. The demand for return is put forward together with the demand for confirmation of ownership through the court. In most cases, the shareholder or buyer of an apartment under development contributes money to ensure the apartment has ownership status at the time of signing the relevant agreement. At the same time, the cost of registration can be more than hundreds of thousands of rubles. If the developer or investor has not fulfilled his obligations regarding the registration of the apartment, the funds are most often not returned to the client. In such conditions, you can demand the return of this money in court, both in parallel and after completion of the procedure for recognition of the right to own, use and dispose of the apartment).
2. 2. Compensation for penalties due to delay in transferring apartments to full ownership. As a rule, the issue is resolved in parallel with the recognition of rights to property. The standard agreement provides for an indication of the exact timing of the commissioning of a new building and the transfer of residential space to equity holders or buyers. Thus, if this condition is violated, an experienced lawyer will help collect a penalty.
3. 3. Compensation for moral damage and forced expenses for legal assistance. Despite the fact that payment of the state fee and related expenses are borne by the plaintiff, the court allows the latter to demand compensation for these expenses from the developer who violated the obligations of the contract. When going to court, the lawyer will clarify your position regarding receiving compensation and, if necessary, file an appropriate petition.

You can clarify details about solving related issues by phone or in a personal consultation with a lawyer from our team.

How is ownership of real estate recognized through a court decision?

Claims for recognition of ownership rights are one of the most common and sought-after methods of protecting rights used in cases of improper fulfillment of obligations under real estate transactions.

According to the position of the Supreme Arbitration Court of the Russian Federation, set out in letter dated August 21, 1997 No. S5-7/OZ-581 “On the Federal Law “On State Registration of Rights to Real Estate and Transactions with It” (clause 12), state registration of rights for real estate, established by a decision of a court, arbitration court or arbitration tribunal, is carried out in accordance with Article 28 of the Federal Law “On State Registration of Rights to Real Estate and Transactions with It.” Rights to real estate established by a court decision are subject to state registration on a general basis.

What needs to be proven in court to recognize ownership of real estate

In court, you will need to prove first of all:

1. circumstances with which the legislation connects the emergence of property rights (clause 59 of the Resolution of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated April 29, 2010 No. 10/22). This can be proven with the help of various documents, for example, a charter, a constituent agreement, a resolution of a state or municipal authority on the approval of a privatization plan, on the reorganization of your legal predecessor;
2. ownership of real estate, the right to which is registered with another entity (clause 58 of the Resolution of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated April 29, 2010 No. 10/22). This can be proven using, for example, inventory cards for recording fixed assets, property tax declarations, and witness statements;
3. inability to register property rights in the manner prescribed by law, for example, if there are inconsistencies between various documents, the elimination of which will require an examination. Recognition of property rights is one of the ways to protect civil rights (Article 12 of the Civil Code of the Russian Federation). In practice, it is considered as an exceptional method of protection.

Please note that you may need to prove other circumstances depending on the basis for the emergence of ownership rights, the characteristics of the property, and the relationship with the defendant. For example, if you recognize the right of ownership by virtue of acquisitive prescription, you need to prove the fact of bona fide, open and continuous ownership of real estate as your own for 15 years (clause 1 of article 234 of the Civil Code of the Russian Federation, clause 15 of the Resolution of the Plenums

What documents are needed to file a claim in court?

In accordance with Article 132 of the Code of Civil Procedure of the Russian Federation, the claim must be supplemented with documentary evidence of the correctness and claims of the plaintiff. Such papers include:

1. technical certificate of the premises;
2. a document on the basis of which the applicant received the right to dispose and own the object (for example, a deed of gift);
3. form with paid fee;
4. applicant's passport;
5. power of attorney (if the citizen acts through a representative);
6. transfer deed confirming the fact of receipt of the premises.

Depending on the circumstances of the case, documents confirming your claims may also be, for example:

• a copy of the application for privatization of real estate, endorsed by the employee of the institution who accepted the application;
• evidence of your actions indicating the actual acceptance of the inheritance, including testimony of witnesses, an extract from the personal account of the residential premises indicating the absence of debts, copies of receipts for your payment of housing and utilities;
• discovered will;
• the notary's answer about the literal meaning of the will, the conclusion of a linguistic or handwriting examination.

What to do if you don’t have all the necessary documents

If you do not have documents confirming the circumstances on which you base your claim, file a petition for the court to obtain the necessary evidence. In the petition, indicate what circumstances can be confirmed or refuted by this evidence, the reasons preventing the receipt of evidence, as well as the location of the evidence. The court will issue you a request to obtain evidence or request evidence on its own (Parts 1, 2, Article 57 of the Code of Civil Procedure of the Russian Federation);

Terms of recognition

In accordance with article number 154 of the country’s Civil Procedure Code, disputes in this category are considered by the court within up to two months from the date of receipt of the statement of claim. This means that the court will confirm ownership within approximately two months. Additionally, it will take up to 12 days to register with Rosreestr (the deadlines are indicated for Moscow - up to 30 days for the Moscow region). Thus, the total duration of the process will be about 3-4 months on average.

If the developer actively “holds on” to the apartment or agencies, investors, and so on pose obstacles to meeting the requirements, consideration of the recognition case may be delayed. We advise our clients not to worry - the vast majority of problems remain completely solvable. Ultimately, the court will confirm the rights of the actual owner to the apartment, and in connection with the recognition of the rights to the property, the applicant will receive an official certificate and living space at his full disposal.

Please note that the speed of consideration of cases regarding rights to property - apartments - is determined depending on the court and the extent of practice in relation to a particular object. If the court already has practice in legal proceedings on a specific new building, then the time it takes for the court to make a decision is significantly reduced. The court always considers the first cases longer.

Rights approval results

The result in cases with recognition of property rights is the receipt of an appropriate court decision and a certificate from the state register of real estate. Due to the fact that, by a court decision, a specific residential area becomes the property of the applicant, the latter can use it at his own discretion: sell, donate, bequeath, use for registration at the place of residence, and so on. In addition, property can become collateral or the basis for obtaining loans.

In order for the court to take into account all the plaintiff’s demands, and the decision to best meet the applicants’ expectations, use the help of leading lawyers from our panel. Contact us by phone to schedule a consultation and get answers to any questions you may have.

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