Alienation of property is the termination of the property of its owner with the subsequent transfer of this property to another person. This action is regulated by the Civil Code in the section “Termination of ownership”.
The concept of alienation should be distinguished from:
- refusal;
- providing an object for temporary use;
- providing a future possibility of alienation (for example, a preliminary purchase and sale agreement).
The subject of alienation can be either things or rights.
Regulatory regulation
Let us consider the features and nuances of the alienation of property prescribed in the Civil Code.
Reasons
The right of ownership may be terminated upon alienation of property by the owner in favor of other persons, upon his abandonment of the property, and in other cases to which legislative norms apply.
Forced alienation of property is unacceptable, with the exception of:
- collection of obligations;
- alienation of property that cannot belong to the person to whom it was transferred;
- seizure of the site;
- redemption of cultural property;
- confiscation;
- requisitions;
- By the tribunal's decision.
At the will of the owner, property belonging to state or municipal property may be alienated in favor of legal entities and individuals. In this case, the transfer of ownership is carried out with compensation for the value of the property.
Article 235. Grounds for termination of ownership rights
1. The right of ownership shall terminate when the owner alienates his property to other persons, the owner renounces the right of ownership, the destruction or destruction of property, and when the right of ownership to property is lost in other cases provided for by law.
2. Forced seizure of property from the owner is not permitted, except in cases where, on the grounds provided for by law, the following is carried out:
1) foreclosure on property for obligations (Article 237);
2) alienation of property that, by virtue of law, cannot belong to a given person (Article 238);
3) alienation of real estate in connection with the seizure of a land plot due to its improper use (Article 239);
3.1) alienation of an unfinished construction project in connection with the termination of a lease agreement for a land plot in state or municipal ownership (Article 239.1);
3.2) alienation of real estate in connection with the forced alienation of a land plot for state or municipal needs (withdrawal of a land plot for state or municipal needs (Article 239.2);
4) redemption of mismanaged cultural property and domestic animals (Articles 240 and 241);
5) requisition (Article 242);
6) confiscation (Article 243);
7) alienation of property in 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;
conversion by a court decision into the income of the Russian Federation of property in respect of which, in accordance with the legislation of the Russian Federation on anti-corruption, evidence of its acquisition with legal income has not been provided;
9) application by a court decision to the income of the Russian Federation of money, valuables, other property and income from them, in respect of which, in accordance with the legislation of the Russian Federation on countering terrorism, the person has not provided information confirming the legality of their acquisition.
By decision of the owner, in the manner prescribed by privatization laws, property in state or municipal ownership is alienated into the ownership of citizens and legal entities.
The conversion into state ownership of property owned by citizens and legal entities (nationalization) is carried out on the basis of law with compensation for the cost of this property and other losses in the manner established by Article 306 of this Code.
Alienation of property is a sale
According to the provisions of the Civil Code, the alienated property may be the subject of a purchase and sale transaction. In this case, the transfer of rights occurs by concluding a purchase and sale agreement between two parties: the seller and the buyer. The seller undertakes to transfer the property specified in the contract to the buyer, and he, in turn, undertakes to accept the property by paying its cost.
Alienation will occur only after state registration of the contract and transfer of ownership from one party to the other. Important: the purchase and sale transaction of non-residential premises is considered to come into force from the moment the parties sign the agreement (in this case, state registration of only the transfer of rights is required).
After registering the transfer of ownership and/or the purchase and sale agreement, the real estate is considered alienated, and it is no longer possible to cancel the transaction: if the parties suddenly change their intention to transfer/receive the real estate, they will have to enter into a new agreement and “switch” back.
Alienation of property is a gift
The transfer of ownership can also occur as a result of the execution of a gift agreement. It is also a bilateral transaction: the donor undertakes to transfer the object of the agreement to the donee free of charge, and he, in turn, accepts the property.
Alienation of property in this case occurs after registration of the transfer of ownership of real estate from the donor to the donee.
Important: if a gift agreement is concluded between relatives, the property is not subject to tax. Otherwise, the donee is obliged to pay 13% of the market value of the apartment/house/plot/other object.
The donee has the right to refuse to accept the gift until the donation is made.
Commentary to Art. 235 Civil Code of the Russian Federation
1. The provisions of this article are general in relation to other articles of Chapter. 15 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, compensated and gratuitous. In addition, this article provides for the grounds for termination of property rights, which may not depend on the will of the subjects of civil legal relations, in particular the death 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, gift, exchange, rent, as well as making a contribution to the authorized capital of a legal entity, etc. The term “alienation” means termination of ownership at the will of the owner with the transfer rights to another person. As a result of alienation, one person's property rights are terminated, while another person's property rights are acquired. As K.P. wrote Pobedonostsev, “in a narrow sense, the word “alienation” means the voluntary transfer of property rights from one person to another; consequently, the methods of such voluntary alienation are the same by which the right of ownership is acquired. Alienation in this sense is either complete, encompassing the right of ownership of property in its entire 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 limits his right to recognition of third-party participation or allows third-party property rights on his property (for example, a pledge)”;
——————————— Pobedonostsev K.P. Course of civil law: In 3 volumes. M. Zertsalo, 2003. T. 1. P. 381.
— refusal of the owner of 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 terminating the right of ownership, in particular the loss of the right of ownership, must include termination of the right of ownership as a result of illegal actions, the impossibility of reclaiming, for example, money from someone else’s illegal possession in a vindication suit, as well as securities payable to bearer from a bona fide purchaser .
Forced expropriation
In cases established by law, the transfer of ownership can be made forcibly: during confiscation or requisition of property, foreclosure, etc. The decision on alienation is made in court.
Alienation transactions require two stages of state registration: first, the transaction itself is registered (purchase and sale agreement, gift, rent, exchange, etc.), and then the transition from the previous owner to the next.
To re-register the alienated object, an application is submitted to the state body along with documents: a receipt for payment of state duty, identity cards of the parties, title documents and others necessary in each specific case.
In case of forced termination of the right, registration is carried out not by the owner of the property, but by the relevant official.
Voluntary and forced alienation
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 purchase and sale agreement. Alienation is possible only after state registration of property owners!
Giving. In this case, the property changes its “owner” free of charge under a gift agreement. If you alienate something in favor of a relative, the transaction is exempt from taxation. The “stranger” will have to pay 13% of the cost of the “gift” to the budget.
In legal practice, it happens that a gift is a forced alienation. The owner is forced to draw up 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 formalized by two sales and purchase agreements. Each participant in the transaction acts as both a seller and a buyer. By law, only property of equal value can be exchanged. If the exchange involves an additional payment, then this amount is subject to personal income tax.
Rent. Oddly enough, rent also refers to alienation. You can sign a life annuity agreement with the seller of the property. Until the end of his life, you undertake to provide 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 be individuals or non-profit organizations!
Forced 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 debt. Or when the transfer of rights is dictated by state necessity (extraordinary circumstances: large-scale disasters, public danger). This, theoretically, also includes the confiscation of property of corrupt officials if the owner is unable to confirm that he acquired it legally.
The law provides for situations when a Russian can be forcibly deprived of ownership of real estate:
- Collection of real estate according to the owner’s obligations (by law, by court or by contract).
- In connection with the end of a rental or lease agreement.
- If the land plot on which the property stands is seized.
- Alienation for the needs of the municipality or the state.
- Alienation due to requisition or confiscation.
- Termination of rights if the property is used for other purposes.
Type of forced alienation: state. For example, when a land plot falls into a state development zone. This is possible only subject to equivalent and preliminary compensation for 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).
- With full reimbursement of the cost of the object.
- With the consent of the property owners.
- When “good news” is announced to the owner at least a year before the actual alienation.
- By a court decision, where the government agency will prove its case (in the case where the owner of the property does not agree to voluntarily part with it).
