Does the bailiff have the right to seize shares belonging to the owner of the property in different apartments?

A situation well known to many: a hopeless debtor physicist. There is no official salary, no bank accounts, he drives his mother-in-law’s car, and does not travel abroad. He owns an apartment, but since this is his only home, the bailiffs don’t even look at it: they keep talking about Article 446 of the Code of Civil Procedure. Is there really nothing that can be done about this?

It turns out that it is possible. On November 17, 2015, the Supreme Court of the Russian Federation adopted. Paragraph 43 specifically deals with the seizure of property that, by law, cannot be foreclosed on. The Supreme Court clarifies that such seizure in itself cannot be considered illegal.

List of property of a citizen-debtor, which cannot be levied against (Article 466 of the Code of Civil Procedure of the Russian Federation):

residential premises or part thereof - if for the debtor and members of his family who live with him, it is the only housing suitable for permanent residence. An exception is mortgaged housing that is secured by collateral.
a plot of land under the debtor’s only residential premises, again excluding mortgage items;
ordinary home furnishings and household items, clothing, shoes and other personal items. The exception is jewelry and luxury items;
things necessary for the debtor's professional activities. An exception is items costing more than 100 minimum wages;
breeding, dairy and draft cattle, poultry, rabbits, deer, bees and feed, which are not used for business activities and which are needed for maintenance before pasture, as well as outbuildings necessary for the maintenance of these animals;
seeds for the next sowing;
money and food in an amount not less than the subsistence level - for the debtor himself and his dependents;
fuel for heating and cooking daily food needed by the debtor's family during the heating season;
vehicles and other property necessary for the debtor due to disability;
state awards, prizes, memorable and honorary signs awarded to the debtor.

There is no need to confuse the two terms - foreclosure and arrest

To foreclose on a debtor’s property means to seize this property from him, sell it (including at auction, by force or by the debtor himself) or transfer it to the claimant. That is, when foreclosure is applied, a citizen is deprived of his property. During arrest, the debtor's property is not taken away forever. He is simply limited in his ability to dispose of this property, and sometimes he is prohibited from using it. That is, the debtor continues to be the owner of the seized property, but cannot sell it, donate it, lease it, bequeath it, etc.

It turns out that the debtor’s only home can be seized. This can be convenient, for example, if the debtor, secretly from the bailiffs, has planned some kind of transaction with the only housing: placing an arrest on the apartment will prevent the debtor from selling it.

Conditions for seizure of the debtor's only residential premises

What to do if the bailiff refuses to seize the debtor’s only home?

Contact the bailiff with a written request for seizure (hand over against signature on your copy or send by registered mail with notification). In your petition, try to justify why the absence of such a seizure may infringe on your interests as a claimant. If you have information about the debtor’s intentions to dispose of the only housing, be sure to write about this in the petition. It would also be nice if you can prove such intentions of the debtor with documents (provide printouts of advertisements for the sale of the debtor’s only home, etc.). If the bailiff does not respond to your petition, you will be able to appeal his inaction to a higher bailiff or to the court.

And further. Paragraph 63 also clarifies that the land plot under the debtor’s only residential premises can be foreclosed on: in the part that exceeds the maximum minimum amount for the provision of a land plot for this purpose. It is possible to foreclose on the “extra” part of the debtor’s land if he and his family do not use it to meet their needs and ensure the necessary level of subsistence. Moreover, the debtor’s income must be clearly disproportionate to the volume of his debts, and the debtor must not be able to repay all his debts within a reasonable time.

Arbitrage practice

In, approved by the Presidium of the Supreme Court of the Russian Federation on April 13, 2021, determination No. 78-KG15-42 is considered. The bailiff issued a ruling banning registration actions in relation to the debtor's only apartment. The courts of the first and appellate instances satisfied the debtor's application to cancel the bailiff's decision, but the Supreme Court of the Russian Federation did not agree with these decisions. The ban on registration actions is essentially a ban on disposing of the apartment. The right to use the apartment is not limited, no foreclosure is applied, because the apartment is not seized, sold or transferred to the claimant. In this case, the ban became a guarantee of ensuring the rights and interests of the claimant and does not violate the rights of the debtor, the Supreme Court confirmed.

In recent years, many citizens have been late in paying utility bills, late on loan payments, and failing to fulfill other financial obligations, as a result of which, if the situation worsens, the risk of losing real estate increases, which may be preceded by the imposition of encumbrances on it in the form of seizure. Since the legal awareness of the population is at a low level, in most cases the citizens themselves aggravate their own situation and end up having problems due to their own inattention.

When considering the seizure of an apartment, it should be noted that this is possible for the occurrence of large debts to utility services, a bank, and for some other offenses that have led to legal proceedings. The essence of the arrest is that until it is lifted, the owner of the property has no right to enter into any transaction regarding it. He cannot sell such an apartment, rent it out or rent it, exchange it, bequeath it or donate it. At the same time, the owner and his family do not lose the right to reside and register in such living space.

What is also important to consider is that property can be seized even because of the debt of one co-owner, if his share is not allocated separately.

Save your time and nerves. and within 5 minutes receive a free consultation
professional lawyer.

Overlay Information

Not only its owner, but also any outside interested party can find out about the arrest of an apartment for debts independently. The easiest way, if you need a paper document, is to order an extract from the Unified State Register of Real Estate (USRN). In this case, there is no need to submit any package of documents along with the request; it is enough to present your passport and a receipt indicating that the state fee has been paid for the service. The cost of the service depends on who makes the request (individual or legal entity), as well as on the form in which the finished document is needed (paper or electronic).

You can submit a request for an extract:

At the Rosreestr branch, processing takes a maximum of three days;
Through the Multifunctional Center - two days longer than in Rosreestr;
By sending a request by mail, the delivery time of a registered letter in both directions is taken into account;
Submit an electronic request via the Internet.

The arrest is imposed by decision of the court or bailiff. This could be an encumbrance for debts on utility bills, a bank claim, or alimony debts. In the case of banks, they do not have the right to independently impose any restrictions on property, just like any other body.

Can they take away the only housing?

You don’t have to worry about losing your property if it’s the only one you have. Your housing may be taken away from you if you have several apartments, residential premises, and also if we are talking about residential premises that are pledged to the bank. Also, you will not lose your apartment if it is registered to another person. If the bailiff violates your rights, then a complaint to the senior bailiff about the bailiff’s inaction can protect them and oblige the bailiff to restore justice.

Can they take away an apartment for debts if children are registered there? Registration of children is not considered an obstacle to the arrest or sale of real estate, however, in such a situation, the bank will have to obtain permission from the guardianship and trusteeship authorities, which rarely give it, but only in cases where the child’s parents have other housing. Therefore, it is impossible to do without a court order to evict people in this situation.

People are worried whether they can take away their only apartment for debts. After all, many owners are now familiar with the “single home” rule, who often live on debt. In the case where the housing is the only one that is suitable for living, it cannot be sold for debts under any circumstances. This rule also applies to a share in a house or apartment, even after the procedure of foreclosure on the property of spouses in enforcement proceedings initiated by the claimant.

ATTENTION : if your residential premises are subject to sale, consider the possibility of granting a deferral of execution of the court decision by applying to the court with an application for this.

The Supreme Court adopted the Resolution of the Plenum. Representatives of the judicial authorities can seize the borrower’s only home and establish restrictions on his disposal when such actions serve as an obstacle to the debtor’s desire to dispose of property to the detriment of the interests of the creditor.

Let's take a closer look at the question of whether the only housing can be taken away? This will not happen, but the arrest of such real estate is still possible, and it is under encumbrance until the debtor fulfills its financial obligations.

Such an encumbrance implies that a person will not be able to make transactions with the seized housing, as well as register someone in it or move in during the restriction period.

You should always think about the current situation. After all, even if a financial institution does not have the right to sell such real estate, it can always seize it, so the debts will have to be repaid in any case. This is important to take into account.

Online self-inquiries

To find out information about the presence or absence, you don’t have to leave the house at all. Using Internet services that provide the same information as when submitting a request with a personal visit to Rosreestr. So, for example, anyone interested can go to the official website of a specific district court at the location of the property and see if there are any registered court cases against the owner of this property. If there is no such information, then there is no arrest on the property either. However, it should be taken into account that information on such resources does not always and not always appear promptly.

The above-mentioned extract from the Unified State Register can also be ordered remotely online. It is best to do this through the official portal of Rosreestr or the government services website. By law, this information is open access, so anyone can find it out.

On the selected resource, you should find and click the desired section, then fill out the electronic request form, indicating the email address and passport information about the requested person. The request is processed only when the state fee has been paid (the details are sent immediately to the specified email address with further instructions).

The court's decision

When interested in information regarding whether an apartment has been seized for debts, you also need to know by whom and how it is imposed. In particular, it is important for the owner of the seized property to understand this.

The court imposes encumbrances at the initiative of the plaintiff and the statement of claim filed by him, along with documented grounds. This measure is applied to the debtor, in particular, when there are assumptions that the owner of the apartment can somehow get rid of the apartment (sell, exchange, transfer in another way), as a result of which it will be difficult to collect the debt.

The court considers the filed claim on the day it is filed, after which the papers are registered and copies are sent to the defendant. According to the received writ of execution, which is given to the plaintiff, the latter has the right to go to the bailiffs to execute the decision immediately. The judicial authority also independently sends information about the encumbrance to Rosreestr.

Thus, an apartment can be seized very quickly, which will immediately be recorded in the Unified State Register of Real Estate. Such a record will make any transaction impossible until the arrest is completely lifted. At the same time, restrictions will also have to be lifted through the courts.

Is it possible to seize your only home?

In November 2015, the Supreme Court of Russia issued a resolution allowing the seizure of the only home of any category of debtors. Before this decision was made, in such a situation the court acted at its own discretion and, as a rule, the only housing was seized only when the mortgage was overdue.

The meaning of this legislative restriction is that the debtor will not be able to sell the housing or register other residents in it. In this case, the preferential right of residence remains with the owner of the apartment. That is, the debtor undertakes to keep his property intact until the debt is repaid.

It is worth noting that jointly owned housing can also be seized, provided that the shares are not allocated. If any owner wants to allocate their share, they will be given such an opportunity. At the same time, part of the housing owned by the debtor will remain under arrest.

In addition, it is worth considering that if the debtor’s only home is a private house located on its own land plot, then in certain cases part of it may be sold. The court ruling states that foreclosure can be carried out on that part of the property that exceeds the minimum size of the land plot. However, this is only possible if the requirements for the debtor are quite high and cannot be satisfied within the specified time frame.

The procedure for seizing property

The procedure for seizure of property is determined by the article of the Civil Code. According to the Civil Code of Civil Procedure, an application for the need to secure a claim is considered by the court on the day it is filed. In this case, the defendant or other persons involved in the case are not notified. After considering the application, the court issues a ruling on its provision.

Security is provided in the manner established for the execution of court decisions. Based on this determination, the plaintiff is issued an additional writ of execution, and the defendant is sent a copy of the court decision.

It is worth noting that the bailiff can seize and impose restrictions on the disposal of only the property specified in the court decision. In addition, the imposition of restrictions on property should not act as an obstacle to the use of this property by the debtor and members of his family.

Interesting details

This resolution involves the seizure only of property that significantly exceeds the amount of the debt. But provided that the debtor did not report the presence of less valuable property. In addition, restrictions on property are not imposed in the event of a minor violation.

In addition, it is worth considering the specifics of collecting part of the land from the debtor. As a rule, only the territory that significantly exceeds the minimum size of a residential plot or a land plot for a special purpose is subject to seizure. Depending on the category of land, the minimum plot size ranges from 6 to 12 acres.

Possible encumbrances of the apartment

Encumbrance of an apartment is the acquisition by third parties of certain rights to property. These separate rights essentially limit the terms under which the owner owns the property.

The restrictions established by law are:

Mortgage.
Lifetime maintenance agreement with annuity.
Arrest.
Rent.
Easement.
Guardianship.
Status of a cultural monument.
Trust management.

A record of the presence of any burdensome circumstances must be contained in the title document for the property. As a rule, for an apartment this is a certificate of state registration of ownership.

Encumbrance may arise when:

Concluding an agreement.
When a court decision comes into force.

Responsible bailiff

Bailiffs have the right to seize real estate, referring to the sheet, which states that appropriate measures will be taken to secure the claim, after its consideration by the court. The arrest is registered by the Federal Registration Service without delay. The bailiff is obliged to initiate proceedings within twenty-four hours or abandon this procedure.

If the sheet contains detailed information about which apartment is subject to restrictions, its cadastral number, exact location address, total area, owner details, the bailiff has the right to seize it immediately. If this information is not on the sheet, the encumbrance is imposed immediately after it is received from Rosreestr.

Guided by the current enforcement proceedings, bailiffs can conduct cases regarding the collection of payments for loans, alimony, compensation for damage, administrative fines, debts for housing and communal services, and so on. Any bailiff has the right to impose bans as a result of consideration of such cases independently, on his own initiative. Notification of the decision is sent to the debtor on the same day or to Rosreestr within the next three days.

Impossibility of arrest

Russian legislation provides a list of real estate that cannot be foreclosed on in the form of seizure of sale. These exceptions include:

An example is a situation where the plaintiff went to court against the defendant, who owes him fifty thousand Russian rubles. If the plaintiff demands to seize the defendant’s apartment, which costs two million rubles, the court will refuse to satisfy the claim, since the difference is too significant. If the defendant in the same situation owes the plaintiff more than two million, then the arrest of his only home is possible.

How the encumbrance is removed

In a situation where the owner did not inform the potential buyer in advance about the presence of restrictions, which became clear during the execution of the main contract, it is not always necessary to refuse such a transaction. First of all, the buyer needs to find out the reason for the seizure (sometimes, perhaps, the process of removing it is simply unnecessarily delayed). In addition, transactions become possible by mutual agreement of the parties. For example, a buyer purchases an apartment with housing and communal services debts, while the seller reduces the price of the property by the same amount. Of course, such agreements must be documented and preferably approved by a notary so that no problems arise. This caution is due to the fact that the debt must be repaid before the property is foreclosed on.

In the case of an encumbrance imposed at the initiative of the bank, bank consent must be obtained to sell the property. Next, the debt is either covered by the buyer before the purchase, or transferred to him, as the credit structure decides and as the parties agree among themselves.

In Rosreestr, the encumbrance is lifted on the basis of documentary confirmation from the body that imposed the arrest - that is, the court or the bailiff.

In case of simultaneous arrest by decision of the court and the bailiff

When a card is seized for a debt for housing and communal services or for other reasons, imposed by both the court and the bailiff, here we are most often talking about a situation in which the bank is also involved. When collecting debt on a loan, in addition to the claim, petitions can be sent in parallel to the bailiffs, who impose restrictions on the received bank application.

A situation arises in which two arrests are imposed on one single apartment at once, one of which is imposed by the court, and the second by the bailiff. The situation gets worse when such property can be sold (not all restrictions categorically prohibit the sale). However, it is quite possible to remove the burden.

To lift the restrictions, it is necessary to submit a corresponding request to both the court and the bailiff who imposed the arrest. Having received the decision of these authorities, an application is written and submitted to Rosreestr directly or through the Multifunctional Center, by post at the discretion of the homeowner. At the same time, the judicial authority itself sends a notification to the Federal Registration Service that the encumbrance on the apartment has been lifted. The bailiff sends exactly the same within three days. In essence, the procedure for lifting a restriction is exactly the same as for imposing an arrest.

Does the bailiff have the right to seize shares belonging to the owner of the property in different apartments?

Lawyer Gorobets Igor Yurievich

Call now and get a preliminary consultation:

8-912-343-72-22 8

In accordance with Article 80 of the Federal Law of October 2, 2007 No. 229-FZ “On Enforcement Proceedings” (hereinafter No. 229-FZ), a bailiff, in order to ensure the execution of a writ of execution containing demands for property penalties, has the right, in including during the period established for the voluntary fulfillment by the debtor of the requirements contained in the writ of execution, to seize the debtor’s property. In this case, the bailiff has the right not to apply the rules of priority for foreclosure on the debtor’s property.

Thus, issuing a seizure order means restricting the debtor’s right to freely dispose of his property.

In accordance with Art. 69 No. 229-FZ foreclosure on the debtor’s property includes seizure of property and (or) its forced sale or transfer to the claimant.

In accordance with Art. 79 No. 229-FZ, foreclosure cannot be applied to property owned by a debtor-citizen, the list of which is established by the Civil Procedure Code of the Russian Federation.

In accordance with Art. 446 of the Code of Civil Procedure of the Russian Federation, recovery under executive documents cannot be applied to the following property, a residential premises (parts thereof) belonging to a debtor citizen by right of ownership, if for the debtor citizen 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 foreclosure may be made on it in accordance with the legislation on mortgages.

In accordance with Art. 78 of the Federal Law of July 16, 1998 No. 102-FZ “On Mortgage (Pledge of Real Estate)” the foreclosure by the mortgagee of a mortgaged residential house or apartment and the sale of this property are grounds for termination of the right to use them of the mortgagor and any other persons living in such residential house or apartment, provided that such residential house or apartment was pledged under a mortgage agreement or under a mortgage by force of law to ensure repayment of a loan or targeted loan provided by a bank or other credit organization or other legal entity for the acquisition or construction of such or other residential houses or apartments, their major repairs or other inseparable improvements, as well as for the repayment of previously granted credit or loan for the purchase or construction of a residential house or apartment.

Based on all of the above, the following conclusions can be drawn:

Arrest is an interim measure.
Seizure can be applied to property that will subsequently be transferred to the claimant or sold.

In practice, there may be cases where a bailiff may seize all property belonging to the debtor without clarifying the real circumstances of the case.

In this case, it is necessary to submit an appropriate application to the court to exclude the property from the inventory drawn up by the bailiff.

Thus, to accurately answer your question, you need to familiarize yourself with the materials of the enforcement proceedings.

For a more detailed analysis of your situation, we recommend that you seek advice from the reception office of lawyer Sergei Sergeevich Ivlev at the address: Orenburg, st. Shevchenko 20B, office 414, tel.: 8-912-343-72-22.

Attention! The information provided in the article is current at the time of publication.

How to do the right thing

Encumbrance on housing is often an unpleasant surprise for potential buyers, since the owner, who does not want to pay, usually knows that restrictions are imposed on his property. If this turns out to be the case and the buyer does not agree with such a transaction, he should contact Rosreestr with an application to suspend the registration procedure. Of course, this is done in the case when the contract with the seller is signed and papers have been submitted to re-register ownership rights. You need to act quickly, since today the registration procedure takes a maximum of three days.

The buyer may demand not only a complete cancellation of the procedure, but also its suspension for a period of no more than three months (ninety days). During this time, the issue can be resolved and the re-registration of property rights can continue when everything is resolved.

If we are talking about an apartment that has been seized for the debts of one of the spouses, despite the fact that the property is jointly acquired, the optimal solution is for the second spouse to allocate his share of this property separately. This is done not only during divorce, but also in marriage. By this action, part of the housing will be preserved in the event that payment of debts is not expected and the property may be taken away.

What information gives

Having figured out why, for what, by whom arrests are imposed and whether bailiffs can remove them in the same way as they impose them, you should understand how to use the information received. Referring to the provisions of the current Russian legislation, any encumbrance is a preventive measure aimed at ensuring that the debtor corrects the situation, repays the debt and avoids seizure of property.

If nothing is done, not only alienation and rental transactions are prohibited, but also inheritance of real estate. This can ultimately lead to completely illegal use of the apartment, which will entail a lot of problems and financial expenses. In addition, you will have to spend a lot of time visiting various authorities and courtrooms.

At the same time, knowledge of basic legal norms allows you to use the situation to your advantage. For example, few people know that if an independent expert issues an opinion that the seized apartment is unfit for habitation or there is evidence that the costs of the trial exceeded the cost of the apartment itself, the encumbrance will be lifted automatically.

The information in this article is provided for informational purposes only. We recommend that you contact our lawyer.

Seizure is a flexible concept, and, unfortunately, it also applies to property. That is, bailiffs can easily seize your apartment, that is, they deprive you of the right to use the property to the fullest. You will not be able to exchange bequeaths, and so on. It turns out that you will not be able to carry out any transactions or operations related to living space.

Not only bailiffs, but also the court, tax service and investigative bodies have the right to seize an apartment.

When an apartment is seized, the owner’s task is to keep it safe. As soon as the arrest is lifted, the owner becomes full-fledged and has the right to again dispose of the property at his own discretion. If a citizen is not one hundred percent the owner, that is, he only owns part of the apartment, then only this very part is arrested.

The Constitutional Court lifted the complete ban on the collection of the debtor’s only home

Photo: shutterstock The Constitutional Court of the Russian Federation considered a case related to the ban on the collection of the debtor’s only home. The court came to the conclusion that refusal to apply executive immunity is still possible, but subject to a number of conditions. The ruling is based on previous legal positions.

The Constitutional Court, without holding a hearing, verified the constitutionality of the provisions of the Code of Civil Procedure of the Russian Federation and the bankruptcy law. The reason was a complaint from a resident of the Kaluga region, Ivan Revkov. In 1999, he lent 772,500 rubles to a friend, but the loan was not repaid. It was not possible to achieve recovery in court, despite the initiation of enforcement proceedings. In 2021, the court indexed the amount to 3.9 million rubles. The debtor, meanwhile, declared herself bankrupt. Then Revkov began to insist on the sale of her apartment, purchased after the initiation of enforcement proceedings. But he received a refusal in the courts with reference to Art. 446 Code of Civil Procedure of the Russian Federation. This provision prohibits foreclosure on the only home of the debtor and his family members.

The Constitutional Court referred to its Resolution No. 11-P of May 14, 2012. Then the Constitutional Court considered that executive immunity in relation to the only home of a debtor-citizen, although justified, cannot be unconditional and requires legislative adjustments.

According to the press service of the Constitutional Court, the court remained in the same position. But at the same time, he decided that the contested norm of the Code of Civil Procedure of the Russian Federation will no longer be the basis for a complete ban on foreclosure on the housing of debtors if the court considers it unjustified to apply this executive immunity, including in cases of bankruptcy of citizens. It is still up to the legislature to determine exemptions, but until these decisions are made, refusal to apply executive immunity is possible subject to a number of conditions.

In particular, the debtor cannot be left without a home, with an area no less than that provided under social rent, or evicted to another settlement if he himself does not agree to this. When making such decisions, the courts have the right to take into account the time of awarding the debt, initiating enforcement proceedings, as well as notifying the debtor about these events. On the other hand, the time, conditions and amounts of transactions and other transactions of the debtor are important, including proven abuses in the acquisition of housing, when, in the event of an unfulfilled court decision, the debtor transfers his property under the protection of executive immunity in order to shelter it there from debt collection.

Revkov's case is subject to review.

In what cases can an apartment be seized?

As a rule, an apartment is seized if its owner or cohabitants have mortgage debts or tax debts. Property is often seized due to property disputes, or if the case involves claims related to compensation for damage or division of property. Not so often, but it still happens that a homeowner has debts on utility bills. In this case, the apartment may also be seized.

Seizure of an apartment is a very common measure in our country, and this is taking into account the fact that Article 139 does not provide specific grounds for seizure of property. In fact, this measure is applied when the court is dissatisfied with the decision, or the accused is able to prevent the implementation of the judge’s decision.

Who seizes real estate

Typically, it is very easy to seize property. You just need to submit a petition to the court, and you can submit it either with or without a statement of claim. The petition is considered on the same day on which it was submitted.

If the court has made an appropriate decision, then the apartment can be seized. Many people believe that banks and credit institutions have such powers, but this is a misconception. Typically, if a borrower is unable to pay for a mortgage, he goes to the bank and asks for a deferment. As for banks, quite often they agree with such a proposal and approve the request. Only in this case it is necessary to play it safe, which is why an application is submitted to the court on the issue of seizure of property. This is reinsurance, a guarantee that the loan will be repaid by the borrower. But the court may not always approve the bank’s application. That is, if, in the opinion of the court, the loan debt is insignificant, then there can be no talk of any arrest. Customs and tax authorities also have the right to seize.

Most often, questions about the seizure of an apartment arise from buyers of the latter. You can check whether an apartment has been seized using the Unified State Register of Real Estate (USRE). It is there that they issue an extract that describes all the details of the case. This document displays restrictions and encumbrances on real estate.

In this case, you need to be careful, since the certificate is issued on the day of the transaction. If the seller of an apartment gives you a certificate issued some time ago, you need to think about it, since during this period of time the apartment could have already been seized, and you are purchasing a home, and with it a lot of problems.

Rule 2: Housing is not sold at auction if it is proven that it is the only one suitable for habitation

Does arrest mean eviction from an apartment (house)?
Seizure of housing should not interfere with the owner’s right to use it. Because the restriction concerns only the right of disposal, i.e. transfer of real estate to anyone under transactions. Therefore, the bailiff, when imposing an arrest, should not go beyond what is permitted and deprive the debtor of the opportunity to live in the apartment. How is this rule implemented in practice? Most often, courts recognize such seizures of the only home as illegal. For example, consider case No. A06-5261/2017.

At IP Zhidovinova A.E. There is:

The minor daughter is disabled.
Registration in apartment No. 126 in building No. 4 on the street. Savushkina, Astrakhan.
Debts in the amount of 9,807,247.85 rubles, the need for payment of which was confirmed by the court.

To pay them off, the bailiff seized the apartment with the restrictive mark “without the right to use.” Courts in three instances declared this arrest illegal, because the use of such an interim measure should not run counter to the norms of the Constitution (Article 40), procedural law (Article 446 of the Code of Civil Procedure of the Russian Federation) and the rules of enforcement proceedings.

How to remove a seizure from an apartment imposed by a bailiff

Only the authority through which it was imposed has the right to lift the arrest from the apartment. In fact, the process of releasing property depends only on the desire of the court, the defendant or another interested party.

First of all, it is determined why exactly the apartment was seized. For example, the arrest was imposed due to mortgage debts. This means that the housing will be released only when the owner pays off his debts in full, as stated in the lawsuit on behalf of the bank filing the lawsuit. The same situation applies to tax debts.

As soon as the owner of the apartment submits an application to lift the arrest to the executive authorities, the work process is immediately launched. Moreover, this application can only be submitted by the owner of the property; this right does not extend even to authorized persons.

Secondly, you need to pay the state fee. To prove that the property belongs to the owner, he is obliged to pay a state fee, after which all the necessary documents are submitted to the court that confirm that this citizen is the owner.

In addition to the above documents, the owner must provide paperwork for payment of debts, fines and taxes.

Next, the court sets a date for the hearing where the case will be considered. In the same room, the court’s decision will be announced whether to lift the arrest from the apartment or not. if the court's decision was perceived as unfounded, it can be appealed.

As soon as the court makes a decision in favor of the homeowner, a writ of execution will be drawn up for the bailiff. As soon as the court decision comes into force, the seizure of the apartment is lifted.

As a rule, if all the documents and receipts are available, the court agrees with the owner. But it also happens differently if the owner has not satisfied all the judge’s requirements. If this happens, then there is no point for a citizen to contact other authorities; they will not be able to do anything anyway.

Questions and answers

What is the correct procedure for initiating enforcement proceedings?

Initially, a resolution must be drawn up, on the basis of which enforcement proceedings will be initiated. This document, or rather a photocopy, is handed over to the debtor, so that he will be aware that a process has begun against him. Plus, the bailiff gives the debtor exactly five working days to repay the debt. If this does not happen, an enforcement fee of 7 percent of the total debt is charged.

Next, the bailiff needs to find the debtor’s property and money available in his accounts, and an appropriate decision is made on this issue. A copy of this document is made, which is again handed over to the debtor for review. As soon as this happens, the bailiff has the official right to seize property, including the apartment.

To do this, an inventory of the seized property is made, a corresponding act is drawn up, and the debtor himself, as well as attesting witnesses, are present during the drawing up. A copy of the act is again transferred to the debtor. The debtor has the right to challenge the actions of the bailiff in court if he has not received at least one copy of the decisions, and the paperwork continues as if nothing had happened.

How will the bailiff search for the debtor's property?

Searching for the debtor's property actually does not take much time from the bailiff. Any movable property is searched at the place of registration of the debtor. If we are talking about a car, then a request is made in . Well, as for real estate, in this case the bailiff makes inquiries to the BTI and Rosreestr. All that remains is to wait for the results, nothing complicated really. Some people are concerned about how the inventory and seizure of property is carried out. Bailiffs are not detectives, and they do not need to crawl under laminate or parquet in order to find the debtor’s hiding place. Everything that is visible is described, roughly speaking.

Sometimes the debtor has a personal safe and does not intend to open it. And the bailiff, in principle, does not need this, since he describes the entire safe, including all its contents.

Can a bailiff seize an apartment (a share in an apartment) if this is the debtor’s only home?

In fact, a bailiff can seize property, say an apartment, if it is the debtor’s only home. But this does not mean that now the state has the right to sell this property and so on. In fact, by seizing an apartment, the bailiff prohibits the debtor from selling it or committing any other acts. But the debtor has the right to live in the apartment, that is, everything remains as it was, with the exception of deprivation of certain rights. And even then, they are returned as soon as the entire debt is paid.

News

On January 11, the Supreme Court issued a ruling in case 78-KG15-42, which clarified the powers of the SSP bailiffs in terms of arresting the only apartment of a Russian.

The Supreme Court recognized as legal the actions of the bailiffs to seize property, which, according to Article 446 of the Code of Civil Procedure

cannot be alienated from the defendant.

This type of property includes the only apartment suitable for habitation owned by the defendant .

The reason for considering the issue is an appeal against the actions of the bailiff, who arrested and prohibited the defendant and the state registration service from carrying out registration acts with his only own apartment until the claim of the debt collector is satisfied.

The debtor, a resident of St. Petersburg, appealed the actions of the bailiff in the appellate and cassation instances.

Both declared the actions of the bailiff illegal, since they contradict articles 446 of the Civil Procedure Code, 80 of the 229-FZ (Part 3) dated 02.10.2007.

The seizure of an apartment, in the opinion of these courts, cannot be an independent measure of execution.

Debt by seizure of property that cannot be seized cannot be recovered.

The claimant did not agree with their decisions and filed the case for cassation with the Supreme Court.

The Supreme Court Collegium for Administrative Cases overturned the decisions made by the lower courts, since both instances incorrectly interpreted the rules of substantive law .

According to Article 64 (Part 1) 220-FZ

, the list of legal actions of the bailiff that is given in it is not closed.

The bailiff has the right to perform, in addition to those listed, other legal actions in order to comply with court decisions, including prohibiting the debtor from disposing of property, even if it is not subject to collection by law.

Arrest as a measure of such influence is directly provided for by the fifth paragraph of part three of Article 68 of 220-FZ

The ban on registration actions also applies to them.

The seizure of an apartment does not make it possible to sell the apartment at auction or transfer it to a claimant, evict the defendant, or deprive him of the right to use the housing.

Its use is intended to ensure the safety of the apartment and make it impossible for the debtor to dispose of the property without taking into account the interests of the creditor.

Since such actions involve re-registration of property, the prohibition on carrying out registration acts , registration, and moving in new persons, except for family members living with the defendant, falls under this requirement.

It should be noted that paragraph three of part three of Article 68

Among the measures of influence of the bailiff on the debtor, he lists the right to collect from the debtor the payments due to him from renting and renting.

This presupposes the right of the defendant to dispose of his only apartment.

Since registration is not required when renting or renting for a period of less than a year, such an order will not be to the detriment, but to the benefit of the creditor.

It should be assumed that the seizure of the apartment should not apply to such actions of the defendant.

The bailiff in this situation must ensure that the parties respect their legal rights .

In our opinion, a long-term rental of housing agreed with the claimant with registration by third parties (all or part necessary for the defendant’s residence) would also lead to a resolution of the conflict.

Another option: exchanging the apartment for a cheaper one and transferring the difference to the lender.

Seizure of housing in the listed cases allows these actions to be carried out under the control of a bailiff.

Contact our lawyer for free regarding the seizure of your apartment by filling out the form below!

Those who have problems repaying loans, non-payment of fines or alimony often wonder whether their only home can be seized for debts? What does the law say and what is the actual judicial practice?

Whose side is the law on?

According to current legislation and judicial practice, the only housing of debtors cannot be seized.

Regardless of whether a judicial or pre-trial decision was made, in addition to the only living space, the list inviolable for collection includes:

more than 50% of salary, social benefits, maternity capital;

property necessary for the professional activities of the debtor;

Food.

On a note! The Civil Code (Article 446) allows the arrest of an apartment if the only housing is mortgaged (Article 54, 78 Federal Law-102 “On Mortgage”).

However, in November 2021, the Ministry of Justice proposed to amend the law “On Enforcement Proceedings”, and at the same time the Family Code. The tightening will affect persistent defaulters.

The department proposes to consider two options. The first is to allocate a share in the real estate, leaving the defaulter and his family with only the minimum allowable number of square meters, and after selling the “surplus” to pay off the debts. Such a compaction procedure will turn apartments into communal apartments where different families live.

The second is to also seize the only home, sell it, and let the debtor buy cheaper housing with a smaller area. The new norm, if approved, will be a good warning for everyone who decides to take out a loan: a person must assess the risks and understand that he may lose part of even one single apartment.

According to the authors of the bill, innovations should primarily hit those who live in grand style but do not pay, for example, alimony. At the same time, it is important to maintain reasonable boundaries so that situations do not arise in which families with financial difficulties also end up on the street.

According to experts, if the law is adopted, it will not be moneybags who will suffer, but average citizens who would like to pay off their debts, but do not have the opportunity to do so. Skeptics also say that the procedure remains unclear: who will evaluate the “surplus”, what are the criteria for “compaction”?

Let us recall that on the basis of Resolution No. 50 of the plenum of the Supreme Court of the Russian Federation dated November 17, 2015, a seizure of a single living space can be imposed “for the purpose of securing a loan.” The debtor and his family may continue to live in the apartment or house, but will not be able to make a purchase, sale, gift or other disposition in an attempt to remove the property from the list of property that the creditor can claim. In real estate that is under arrest, it is impossible to register a new person, nor to evict those already registered. It is also prohibited to rent it out.

The apartment came under arrest. The Supreme Court clarified what can be done with the debtor’s only home

The Judicial Collegium for Civil Cases of the Supreme Court examined the debtor's complaint against the actions of the bailiff. He seized the debtor’s only living space, and she considered that this violated her rights.

The situation with debt collection is relevant for many today. Debts must be repaid. Especially according to a court decision. This is why the bailiff service exists. But are their actions always legal? Almost all debtors know that it is forbidden to touch the only housing. Is this really so, and what actions does the bailiff have the right to perform with the debtor’s apartment without breaking the law?

The district court of St. Petersburg made a decision on a lawsuit against a local resident. According to a court decision, she was obliged to repay a considerable debt. The bailiff initiated enforcement proceedings and seized the land plot and part of the citizen's dacha. They were sold and the money was used to pay off the debt.

But these funds were not enough for the entire repayment, and the bailiff seized the apartment where the debtor and the child lived.

But the defendant did not agree with the seizure of the apartment. She went to another district court with a statement in which she challenged the order issued by the bailiff to seize the property. In support of her claim, the citizen wrote that the apartment is the only place of residence for her and her young son, so she cannot be arrested.

The district court agreed with this statement. In its decision, the court of first instance said that, according to Article 79 of the Law on Enforcement Proceedings, foreclosure cannot be applied to property owned by the debtor, the list of which is established in the Civil Procedure Code. The only premises suitable for permanent residence are included in this list (Article 446 of the Civil Procedure Code.)

“Since the disputed apartment, as the debtor’s only place of residence, cannot be foreclosed on, the seizure of property that cannot be foreclosed on cannot be used as an independent enforcement measure and cannot lead to the execution of a court decision,” - recorded in the district court's decision.

The creditor and the bailiff were offended by this verdict and wrote a complaint to the St. Petersburg City Court. The appeal states that the arrest of the apartment was made “not for the purpose of foreclosure, but as an independent measure of compulsory execution provided for by the law on enforcement proceedings.” But the city court did not support the bailiff and the creditor. The appeal said their argument was “based on a misinterpretation of existing law.” The court said that the measure taken by the bailiff is not included in the list of grounds for seizure.

Therefore, “the argument about the legality of seizure for the purpose of forcing the debtor to actually fulfill the requirements of the writ of execution does not comply with the current legislation” is written in the appeal decision. The city court also said that the seizure to ensure the safety of property in our case is devoid of legal significance, since “such an arrest in the present case cannot lead to the execution of a court decision.”

The creditor also did not agree with this formulation and went further and higher - to the Supreme Court of the Russian Federation. And there, after reading this case, they stated the following: the acts of the St. Petersburg courts are incorrect and subject to cancellation, since their conclusions are based “on an incorrect interpretation of the norms of substantive law.”

In its ruling, the Judicial Collegium for Civil Cases indicated that arrest as an executive action can be imposed by a bailiff “in order to ensure the execution of a court decision containing demands for property penalties” (Articles 64 and 80 of the Law on Enforcement Proceedings). According to the Supreme Court, despite the fact that Article 446 of the Code of Civil Procedure prohibits foreclosure on the debtor’s only home under writs of execution, it is possible to seize such housing, because seizure is not a foreclosure. These are different actions.

According to the panel, the court of first instance and the appeal erroneously equated the ban on performing registration actions with an apartment and enforcement measures. The decision of the Supreme Court states that “it is clear from the order of the bailiff that it was made in order to ensure the execution of the court decision.”

And the court clarified that this arrest does not provide for restrictions on the right to use the apartment and foreclosure on it, namely, the seizure of the apartment and its sale or transfer to the claimant. The debtor can live as she lived in her apartment in peace, but after the seizure the woman will not be able to dispose of the housing. That is, sell it, donate it or exchange it.

In this case, the Supreme Court used the resolution of the Plenum “On the application of legislation by courts when considering certain issues arising during enforcement proceedings” (November 2015).

That resolution states that the seizure of residential premises, which are the only permanent residence of the debtor-owner and his family, as well as the establishment of a ban on the disposal of this property (including the move-in and registration of other persons), cannot be considered illegal if these measures were taken by the bailiff so that the debtor could not dispose of the property to the detriment of the interests of the claimant. (Case No. 78-KG15-42)

a comment

Ivan Solovyov, professor at the Academy of the Ministry of Internal Affairs of Russia:

— The creditor’s task is to create such conditions for the debtor so that he, preferably, does not forget for a minute what he owes. The only housing for a long time remained an impregnable outpost for debt collectors and at least some kind of guarantee for those who did not calculate their financial capabilities or overestimated their prospects. The decision to impose encumbrances on it is quite predictable, since the growth of debt is growing month after month, and expensive loans remain the only effective way to revive the banking sector. In any case, we should not forget about the possibilities of the new rules on bankruptcy of individuals. 500 thousand rubles and three months of delay - it is quite possible to think about this legal procedure, but it is better to start and conduct it yourself, since the creditor will definitely conduct it in a way that is beneficial to him.

Source - "Rossiyskaya Gazeta"