Home / Social Security Law / Can a non-privatized dacha be taken away in court for debts?
- Drawing up a statement of claim and collecting evidence.
- Filing a claim in court.
- A court hearing at which representatives of Themis listen to the arguments of both sides of the conflict.
- Obtaining a court decision (positive).
- Transfer of this document to the executive service.
- Eviction of a tenant from a non-privatized apartment under the supervision of bailiffs and law enforcement officials.
- Removing residents from registration.
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Julia, good day! Here it is necessary to clarify what debts are - what is the subject of the writ of execution being processed by the bailiff. At the same time, Article 79 of the Federal Law “On Enforcement Proceedings” dated October 2, 2007 N 229-FZ, as well as Article 446 of the Code of Civil Procedure of the Russian Federation provides for a list of property that cannot be foreclosed on. This list also includes a land plot, but only if there is a residential building on it, which is the debtor’s only place of residence. Among other things, we need information about who the debtor is; if both spouses are debtors, then arrest and its implementation are possible if the amount of the debt exceeds 100,000 rubles. If there is only one owner, then the actions of the bailiffs are illegal.
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No documents for the site? The dacha may be taken away
Photo: Ekaterina MARTINOVICH
On December 1, 2015, changes to the legislation regarding abandoned real estate came into force. This can be considered any one for which no legal rights have been registered.
Cadastral registration authorities are now required to transmit to local authorities information about buildings, unfinished objects and land plots on which this property is located, if data on the rights to this property are not available in the cadastre. That is, the land and the house are listed there, but there is no information about the owner. This must be done after five years from the moment such real estate was assigned a cadastral number. Next, local authorities can initiate a procedure to recognize the site as “ownerless” and return it to the state through the court.
For the information of those who have never privatized their land plot and are now afraid that it will be taken away: a non-privatized plot and an ownerless plot are not at all the same thing.
“Lifetime inheritable possession or permanent (perpetual) use are the same legal types of rights as the right of ownership,” explains lawyer Svetlana Zhmurko.
Those who should be concerned first of all are those who do not have any documents proving their rights to the land plot and buildings.
For example, the previous owners died, and the heirs, although they used the dacha, did not take care of registering their rights. Now it is imperative to do this (the right to inheritance will have to be proven through the courts after many years) - otherwise the property could be lost.
Another option is that there is only a garden book, which many consider to be a “document for the dacha.” This is not so: a gardener’s book confirms the fact of membership in a partnership or cooperative, but not the rights to land and buildings.
For those who have property documents, but they are of an old type (issued before 1998, when state registration of rights was not yet carried out), it is worth making sure, just in case, that information about you as the owner is correctly entered into the cadastre. To do this, you can take an extract from the local cadastral chamber (especially advanced Internet users can independently use the public cadastral map on the portal www.rosreestr.ru).
So…
— If there are no legal documents, it is necessary to issue them. Fortunately, in connection with the amendments to the Land Code, which are in force from March 1, 2015, until December 2021, those who previously did not fit into the dacha amnesty for some reason (for example, the same citizens who only have a garden book). You just need to secure a decision from the partnership meeting to allocate land to you.
— If there are documents, but for some reason there is no information about this in the cadastre, you need to come with the documents to the MFC (multifunctional center) or the Rosreestr branch at the location of the site and write an application for its cadastral registration and state registration of rights.
About other legislative innovations for gardeners and summer residents - in the next “Green Issue”.
For what debts do they have the right to take away an apartment?
If the use of a plot is carried out in gross violation of the rules for the rational use of land established by land legislation, in particular if the plot is not used in accordance with its intended purpose or its use leads to a significant decrease in the fertility of agricultural land or a significant deterioration of the environmental situation, the land plot may be seized from the owner (Article 285 of the Civil Code of the Russian Federation, Articles 44 - 46 of the Land Code of the Russian Federation, Article 47 of the Law on Gardening Associations and paragraph 3 of Article 6 of the Federal Law of July 24, 2002 N 101-FZ “On turnover of agricultural land").
Is privatization of a country house necessary?
Based on the passport, a certificate of ownership of property is issued. Lands are privatized according to the standards available in the current legislation of the Russian Federation. Thus, the dacha plot will become privatized, but someone may be concerned about the question: is it necessary to privatize the dacha house if the land is privatized? There is a lot of controversy about this issue. However, if this is done, the cost of the dacha will be higher.
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Is it possible to seize a land plot from the owner in SNT
Here the debt is joint and several between three residents, so death does not reduce this debt in any way. If water and electricity are charged according to consumption standards (there are no meters), then attach the death certificate of one, prove the actual place of residence of the other two and demand a recalculation from the housing office. But heating and maintenance will have to be paid in full. They have the right to evict only if they have not paid for housing and utilities continuously for 6 months, that is, if you have paid at least one penny within 6 months, then the administration loses the right to evict, although it is better to pay not a penny, otherwise the court will have to pay may be considered unimportant. and finally, from the filing of the statement of claim to the arrival of the bailiffs, that is, the end of the enforcement proceedings (before this, the bailiffs themselves have a lot of paperwork), based on practice, at least 3 months pass. Save your money, winter is coming.
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Can they take away their only home for debt on a loan?
Article 401. Is the conclusion of a transaction really carried out in the manner prescribed by Art. 421 Civil Code of the Russian Federation. A lease agreement may be submitted by another participant in shared construction; it is not a basis for termination of ownership of a real estate property. In some cases, a purchase and sale agreement is not required, it does not matter in which you made the agreement for your shares. The defendant must consider the opinion of money. The composition of the commission may be recognized by the court as having been fulfilled by the debtor of the right to the requirements specified in the federal law On Enforcement Proceedings, that is (such a position) on the issuance of a certificate to the head of the bailiff department with an application for installment execution of the enforcement document.
Inheritance of a non-privatized dacha
Having read the title of this article, one can rightly note that it is legally impossible to inherit property that did not belong to the testator, since it was not privatized during his lifetime. This remark is true, but only partially, since according to Part 1 of Article 1112 of the Civil Code of the Russian Federation, the inheritance includes not only things belonging to the testator, but also other property, including property rights and obligations. The testator, who had the right to own a non-privatized plot of land on the basis of membership in a horticultural non-profit partnership (SNT), certainly had property rights and obligations regarding this plot. These include, in particular, the right to cultivate a plot, live on it, that is, extract useful properties from the property, as well as pay for it, maintain it in proper condition, observe safety measures (fire safety), that is, bear property responsibilities.
Our dear readers are probably not interested in theoretical disputes regarding the meaning of these legal norms, but in practical recommendations on how to obtain rights to the property of the testator, which was not privatized by him during his lifetime.
Let's imagine a situation where a mother and an adult son lived and were registered in a non-privatized apartment. In addition, the mother had a non-privatized garden plot, of which she was a member. This is confirmed by the gardener's book that the mother had. The testator did not have any other real estate. After the death of the mother, the question arose of how the son could register the right to the above-mentioned property if it could not be inherited.
First of all, the son, despite the mother’s lack of inherited property, which is her property, should go to a notary and write an application for acceptance of the inheritance. This must be done because in the event of possible legal disputes regarding the dacha plot, a clear expression of the will of the heir indicating his intention to accept the inheritance, including property rights, will be useful. In addition, the son may not know about the mother’s other property, for example, bank accounts and savings. It may happen that the mother had some rights to property that she herself was not aware of. For example, the mother herself could claim the inheritance of a deceased relative, whose death she did not have time to learn about. If the son contacts a notary with the specified application within six months, he will definitely be able to apply for bank deposits. In addition, the son will have a high chance of defending his rights to inheritance in the second of these cases - by the right of representation instead of his mother
If the son does not contact the notary in due time, then after he becomes aware that the mother has any other property or property rights, he will be forced to restore the deadline for accepting the inheritance in court, by filing an appropriate statement of claim. It will be very difficult to win such a court, since the number of valid reasons for missing the deadline for accepting an inheritance is limited. In addition, paragraph 40 of the Resolution of the Plenum of the Supreme Court of the Russian Federation “On judicial practice in cases of inheritance” contains very specific explanations that such circumstances as short-term health disorder, ignorance of civil law rules on the timing and procedure for adoption inheritance, lack of information about the composition of inherited property, etc. So, dear heirs, there is inherited property, there is no inherited property, but it’s better to go to a notary.
The truth is that the situation here can be corrected. The lawyers of the Legal Bureau “Private Attorney” have repeatedly managed to solve the problems of heirs who did not contact a notary on time through the court. In such situations, success is achieved through the creative use of the opportunities provided by Part 2 of Article 1153 of the Civil Code of the Russian Federation (see the article “I didn’t go to the notary, but still accepted the inheritance”).
Returning to the problem of the son-heir, it should be noted that the easiest way to solve the problem is with the apartment. Based on the mother’s death certificate, the son will remove her from the register. After this, he will have the opportunity to renew the social tenancy agreement for himself, and, if desired, to individually privatize the apartment.
With the dacha plot the situation looks more complicated. The most optimal behavior for the son looks like this: firstly, he should pay all payments associated with the dacha plot, and secondly, he should contact the board of the gardening partnership with an application to accept him as a member of the partnership. The requirements for this application are contained in Article 12 of the Federal Law “On the conduct of gardening and vegetable gardening by citizens for their own needs and on amendments to certain legislative acts of the Russian Federation.” The submitted application must be considered at the general meeting of members of the gardening association. Practice suggests that such issues are considered rather formally at meetings. What really matters is only the opinion of the board, which usually does not object to accepting a new member into the gardening instead of a deceased one, provided that he is willing to pay the required payments. So the treasured gardener’s book is most likely guaranteed to the son-heir.
However, situations are also possible when a newly minted gardener faces obstacles for one reason or another. In this situation, the problem will have to be resolved in court, where the lawyers of the Legal Bureau “Private Attorney” are always ready to help citizens.
