Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 10 and the Plenum of the Supreme Arbitration Court of the Russian Federation No. 22 of April 29, 2014
52. In accordance with paragraph 1 of Article 2 of the Federal Law “On state registration of rights to real estate and transactions with it” (hereinafter referred to as the Registration Law), state registration of rights to real estate and transactions with it is a legal act of recognition and confirmation by the state of the occurrence , restrictions (encumbrances), transfer or termination of rights to real estate in accordance with the Civil Code of the Russian Federation. State registration is the only evidence of the existence of a registered right. The registered right to real estate can only be challenged in court. Since, in such a challenge, the court resolves a dispute over civil rights to real estate, the relevant claims are considered in the manner of claim proceedings.
Challenging the registered right to real estate is carried out by filing claims, decisions on which are the basis for making an entry in the Unified State Register. In particular, if the operative part of a judicial act decides on the existence or absence of a right or encumbrance on real estate, on the return of property to the possession of its owner, on the application of the consequences of the invalidity of a transaction in the form of the return of real estate to one of the parties to the transaction, then such decisions are the basis for making an entry in the Unified State Register.
At the same time, a court decision to declare a transaction invalid, which does not apply the consequences of its invalidity, is not the basis for making an entry in the Unified State Register.
In cases where an entry in the Unified State Register violates the plaintiff’s right, which cannot be protected by recognizing the right or claiming property from someone else’s illegal possession (ownership of the same property is registered for different persons, ownership of movable property is registered as immovable property, mortgage or other encumbrance has ceased), the registered right or encumbrance may be contested by filing a claim to have the right or encumbrance declared absent.
53. The defendant in a claim aimed at challenging a registered right or encumbrance is the person for whom the disputed right or encumbrance is registered. The defendants in a claim aimed at challenging the rights or encumbrances arising from a registered transaction are the parties to it.
The state registrar is not a defendant in such claims, but may be involved in such cases as a third party who does not make independent claims regarding the subject of the dispute.
If a claim aimed at challenging a registered right or encumbrance is brought against the state registrar, the court replaces the improper defendant in accordance with part of Article 41 of the Code of Civil Procedure of the Russian Federation or parts of Article 47 of the Code of Arbitration Procedure of the Russian Federation.
By virtue of Part 2 of Article 13 of the Civil Procedure Code of the Russian Federation or Part 1 of Article 16 of the Arbitration Procedure Code of the Russian Federation, the state registrar is obliged to make an entry in the Unified State Register on the basis of a judicial act, regardless of its participation in the case.
The presence of a judicial act, which is the basis for making an entry in the Unified State Register, does not exempt a person from submitting other documents that are not legal documents, which are necessary for making an entry in the Unified State Register in accordance with the Registration Law.
54. When the court considers a dispute over the right to real estate, the plaintiff presents an extract from the Unified State Register, issued in accordance with the rules of Article 7 of the Registration Law. If his right is not registered in the Unified State Register, the plaintiff submits a certificate (other document) from the state registrar about the absence of a registered right to the disputed property.
55. Failure of a person to contact the state registrar with an application for registration of a right or encumbrance before filing a claim in court aimed at challenging the registered right cannot be regarded as failure to comply with the pre-trial procedure for resolving a dispute related to the state registration of rights to real estate and transactions with it, since The legislation does not provide for a mandatory pre-trial procedure for resolving such disputes.
56. The registered right to real estate is not subject to challenge by filing claims that are subject to consideration according to the rules of Chapter 25 of the Code of Civil Procedure of the Russian Federation or Chapter 24 of the Arbitration Procedure Code of the Russian Federation, since in the procedure for proceedings in cases arising from public legal relations, a dispute over the right to real estate cannot be resolved.
At the same time, if a person believes that the state registrar committed violations during the state registration of a right or transaction, he has the right to apply to the court under the rules of Chapter 25 of the Code of Civil Procedure of the Russian Federation or Chapter 24 of the Code of Arbitration Procedure of the Russian Federation, taking into account the jurisdiction of the case.
A judicial act in such cases is the basis for making an entry in the Unified State Register only if this is indicated in its operative part. The court has the right to make such a conclusion if the change in the Unified State Register does not entail a violation of the rights and legitimate interests of other persons, and also in the absence of a dispute about the right to real estate. For example, when a judicial act is adopted at the request of both parties to a transaction to challenge the state registrar’s refusal to carry out registration actions.
57. The limitation period for claims aimed at challenging a registered right begins from the day when the person learned or should have learned about the corresponding entry in the Unified State Register. At the same time, an entry in the Unified State Register about a right or encumbrance of real estate does not mean that from the day it was entered into the Unified State Register, the person knew or should have known about the violation of the right.
Unless otherwise established by law, the general limitation period provided for in Article 196 of the Civil Code of the Russian Federation applies to claims aimed at challenging a registered right.
At the same time, by virtue of paragraph five of Article 208 of the Civil Code of the Russian Federation, in cases where the violation of the plaintiff’s right by making an inaccurate entry in the Unified State Register is not associated with deprivation of possession, the claim aimed at challenging the registered right is not subject to limitation.
58. A person who considers himself the owner of real estate in his possession, the right to which is registered with another entity, has the right to apply to the court for recognition of ownership rights.
59. Unless otherwise provided by law, a claim for recognition of a right is subject to satisfaction if the plaintiff presents evidence that he has the corresponding right. A claim for recognition of rights filed by persons whose rights and transactions in relation to the disputed property have never been registered may be satisfied in cases where the rights to the disputed property arose before the entry into force of the Registration Law and were not registered in accordance with paragraphs 1 and 2 of Article 6 of the said Law, or arose regardless of their registration in accordance with paragraph 2 of Article 8 of the Civil Code of the Russian Federation.
60. Clause 1 of Article 551 of the Civil Code of the Russian Federation provides that the transfer to the buyer of the right of ownership of real estate under a real estate sale agreement is subject to state registration.
The absence of state registration of the transfer of ownership of real estate to the buyer is not grounds for invalidating the contract for the sale of real estate concluded between this buyer and seller.
After the transfer of ownership of real estate to the buyer, but before the state registration of ownership, the buyer is the legal owner of this property and has the right to protect his possession on the basis of Article 305 of the Civil Code of the Russian Federation. At the same time, the buyer does not have the right to dispose of the property he has received into possession, since the ownership of this property remains with the seller until state registration.
61. If one of the parties to a contract for the purchase and sale of real estate evades taking steps to state registration of the transfer of ownership of this property, the other party has the right to appeal to this party with a claim for state registration of the transfer of ownership (clause 3 of Article 551 of the Civil Code of the Russian Federation).
The buyer's claim for state registration of the transfer of rights is subject to satisfaction, subject to the fulfillment of the seller's obligation to transfer the property. According to paragraph two of paragraph 1 of Article 556 of the Civil Code of the Russian Federation, unless otherwise provided by law or contract, the seller’s obligation to transfer real estate to the buyer is considered fulfilled after the delivery of this property to the buyer and the signing of the relevant transfer document by the parties.
If the seller’s obligation to transfer the property is not fulfilled, the buyer has the right in a statement of claim to combine demands for the seller to fulfill the obligation to transfer (paragraph seven of Article 12 of the Civil Code of the Russian Federation, Article 398 of the Civil Code of the Russian Federation) and for registration of the transfer of ownership. At the same time, the requirement to register the transfer of ownership cannot be satisfied if the court refuses to satisfy the requirement to fulfill the seller’s obligation to transfer the property.
When the contract for the sale of real estate provides that the transfer of ownership does not depend on the fulfillment of the seller’s obligation to transfer the relevant object, the seller’s retention of possession of this property is not an obstacle to satisfying the buyer’s claim for state registration of the transfer of rights.
It is also not an obstacle to satisfying the buyer's claim for state registration of the transfer of the right to the temporary possession of the property by a third party (for example, a tenant) on the basis of an agreement with the seller.
If the seller has concluded several purchase and sale agreements in relation to the same real estate, the court satisfies the claim for state registration of the transfer of ownership of the person into whose possession this property is transferred in relation to Article 398 of the Civil Code of the Russian Federation. Other buyers have the right to demand compensation for losses caused by failure to fulfill the purchase and sale agreement by the seller.
If the seller has concluded several purchase and sale agreements in relation to the same real estate and state registration has been made of the transfer of ownership to one of the buyers, the other buyer has the right to demand from the seller compensation for losses caused by failure to fulfill the purchase and sale agreement.
62. Based on Articles 58, 1110 and 1112 of the Civil Code of the Russian Federation, the seller’s obligations under the sales contract are transferred to his universal legal successors. Therefore, the buyer of real estate has the right to file a claim for state registration of the transfer of ownership (Article 551 of the Civil Code of the Russian Federation) to the heirs or other universal legal successors of the seller.
If there are no heirs of the seller or during the liquidation of the seller - a legal entity, the courts must take into account the following.
The buyer of real estate to whom possession has been transferred in pursuance of a purchase and sale agreement has the right to apply for registration of the transfer of ownership. The refusal of the state registrar to register the transfer of ownership due to the lack of an application from the seller can be appealed to the court according to the rules of Chapter 25 of the Code of Civil Procedure of the Russian Federation or Chapter 24 of the Code of Arbitration Procedure of the Russian Federation.
When considering such a demand from the buyer, the court checks the seller’s fulfillment of the obligation to transfer and the buyer’s fulfillment of the obligation to pay. If the only obstacle to registering the transfer of ownership to the buyer is the absence of the seller, the court satisfies the corresponding request of the buyer. In the operative part of the decision, the court obliges the state registrar to take actions for state registration of the transfer of ownership.
At the same time, registration of the transfer of ownership to the buyer on the basis of a court decision is not an obstacle to the founders of the liquidated seller or other interested parties challenging the buyer’s right to real estate.
63. If a transaction requiring state registration is completed in the proper form, but one of the parties avoids registering it, the court has the right, at the request of the other party, to make a decision to register the transaction (clause 3 of Article 165 of the Civil Code of the Russian Federation). A party to a transaction does not have the right to satisfy a claim for recognition of a right based on this transaction, since the relevant transaction before its registration is not considered concluded or valid in cases established by law.
64. Unless otherwise provided by law, the general limitation period provided for in Article 196 of the Civil Code of the Russian Federation applies to the requirement for state registration of a transaction or transfer of ownership.
Within the meaning of paragraph 1 of Article 200 of the Civil Code of the Russian Federation, the limitation period for a request for state registration of a transaction or transfer of ownership begins from the day when the person learned or should have learned about the violation of his right, for example, from the day the counterparty to the transaction refused to hand over the documents necessary for registration, or creating other obstacles to such registration.
65. When resolving disputes related to the termination of contracts for the sale of real estate, under which state registration of the transfer of ownership rights to buyers was carried out, the courts must take into account the following.
If the buyer of real estate has registered the transfer of ownership, but has not made payment for the property, the seller, on the basis of paragraph 3 of Article 486 of the Civil Code of the Russian Federation, has the right to demand payment under the contract and payment of interest in accordance with Article 395 of the Civil Code of the Russian Federation.
Registration of the transfer of ownership to the buyer of the sold real estate is not an obstacle to termination of the contract on the grounds provided for in Article 450 of the Civil Code of the Russian Federation.
By virtue of paragraph 4 of Article 453 of the Civil Code of the Russian Federation, the parties do not have the right to demand the return of what they performed under the obligation before the change or termination of the contract, unless otherwise established by law or agreement of the parties. At the same time, according to Article 1103 of the Civil Code of the Russian Federation, the provisions on unjust enrichment are subject to application to the demands of one party to an obligation to another for the return of what has been performed in connection with this obligation. Therefore, in the event of termination of the contract, the seller, who has not received payment under it, has the right to demand the return of the property transferred to the buyer on the basis of Articles 1102, 1104 of the Civil Code of the Russian Federation.
A judicial act on the return of real estate to the seller is the basis for state registration of termination of the buyer's ownership rights and state registration of ownership of this property of the seller.
