Illegal retention of someone else's property

The owner of any property assets is guaranteed by law full legal protection from attacks by third parties. This also applies to cases of illegal retention or appropriation of someone else’s property, when the copyright holder is deprived not only of the opportunity to dispose of his property, but also of actually possessing it. In our article we will learn what is considered as illegal seizure and retention of someone else’s property, as well as the composition of possible penalties for the offender.

The concept and signs of theft of other people's property

Appropriation is the illegal conversion of someone else's property to one's own benefit, committed for selfish purposes and free of charge. It should also be taken into account that appropriation is established only in cases where its legal owner has objected or objects to such actions. If the owner knowingly transferred his assets free of charge to another person and does not object to the withholding, there will be no penalty for misappropriation.

The illegality of these actions is as follows:

there is no agreement or other document defining the obligations between the parties, according to which the violator legally receives the property, can use it and turn it to his advantage (for example, in the process of rental relations formalized in the form of an agreement, the transfer of property occurs on a legal basis);
termination of legal grounds for ownership of someone else’s property - expiration of the contract, early termination of contractual relations, etc.;
absence of direct permission of the proper owner to retain property by another person (with the exception of cases when retention is expressly permitted by law for security purposes).

Note!

Article 359 of the Civil Code of the Russian Federation indicates that the retention of other people's things or objects will be completely legal if this occurs in the presence of a debt to the person withholding. At the same time, the conditions for actually receiving the thing are important - this must happen legally.

If any item or object was transferred during the period of the loan agreement as collateral to secure obligations, the creditor not only has the right to retain the thing until full settlement, but can also foreclose to fully repay the debt. Such rules must be specified in detail in the contract or follow from the law.

If an item was obtained illegally, then it may be a case of theft, robbery or another type of theft. For such illegal acquisition and subsequent appropriation of someone else's property, articles of the Criminal Code of the Russian Federation are applied (for example, under Article 158 of the Criminal Code of the Russian Federation).

The article for appropriation of someone else's property is also present in the Criminal Code of the Russian Federation; it applies to cases where the guilty person tried to turn the entrusted property to his own benefit, i.e. transferred on a legal basis. Article 160 of the Criminal Code of the Russian Federation contains penalties not only for the appropriation of someone else's property, but also for its embezzlement, i.e. consumption, expenditure or disposal. When the trustee was obliged, on behalf of the owner, to deposit a certain amount into a pre-specified bank account, violation of such an order and misappropriation of entrusted money will also be punishable under Art. 160 of the Criminal Code of the Russian Federation.

Criminal liability for misappropriation occurs in the presence of the following circumstances:

the size of the assigned assets will only matter for the division of responsibility between different parts of Art. 160 of the Criminal Code of the Russian Federation, and according to Part 1, the amount of stolen funds or the value of the property does not matter at all;
the guilty person must commit the crime with direct intent. If, for objective reasons, the return of property was impossible, and the detaining person stored it for subsequent transfer to the proper owner, punishment under the Criminal Code of the Russian Federation will not follow;
in the actions of the criminal, the nature of the gratuitous appropriation must be established. If a redemption price is paid for the transferred property, but it does not correspond to market or other indicators, we will be talking about a civil dispute and not a criminal case.

In addition to the appropriation of someone else's property, Art. 330 of the Criminal Code of the Russian Federation, which contains punishment for arbitrariness. This illegal behavior consists of committing actions, the legality of which is disputed by a citizen or legal entity. A typical case of arbitrariness is a ban or other restrictive measures for the use of property by the proper owner. In this case, the property is not converted to one’s own benefit on a mercenary basis, but the owner is deprived of the opportunity to fully realize his rights.

Right to use property

The right to use property is the legal opportunity to exploit and extract useful properties from a thing. The owner of a thing exercises the right to use the thing, taking into account its specific consumer properties.

The owner of a thing can use it for his own interests. Thus, the owner wears clothes, eats food, and lives in residential premises that belong to him.

The owner can transfer the thing for use to other persons . So, in accordance with Art. 30 of the Housing Code of the Russian Federation, the owner of a residential premises has the right to transfer it for use to other persons on the basis of a rental agreement, free use or on other legal grounds. For example, under a lease agreement, the owner-lessor undertakes to provide the tenant with property for a fee for temporary possession and use or for temporary use (Article 606 of the Civil Code of the Russian Federation).

Consequences of improper use of a thing . In some cases, the law specifies how a thing should be used and provides consequences for violations. For example, the Land Code of the Russian Federation identifies several categories of land plots and indicates that they must be used for their intended purpose, in accordance with its category and permitted use (clauses 1, 2 of Article 7 of the Land Code of the Russian Federation).

In a number of cases, for violation of legal requirements for the proper maintenance of certain property, ownership of it may be terminated against the will of the owner, and the property may be confiscated. Such cases are provided for in particular in Art. Art. 239, 240, 241, 284, 285, 293 of the Civil Code of the Russian Federation).

The right of limited use (easement). The property is usually used by its owner, but there are exceptions. For example, the owner of a land plot in whose favor an easement has been established may have limited use of a neighboring land plot for the purposes of travel to his plot, but he will not be the owner of the neighbor’s plot (clauses 1, 2 of Article 274 of the Civil Code of the Russian Federation).

Differences

Appropriation is considered as one of the options for theft of property that does not belong to the offender. Other offenses include theft, fraud, robbery, etc. The key differences between the various types of property crimes aimed at taking someone else's money or property are as follows:

a basic sign of misappropriation or embezzlement of someone else’s property under Art. 160 of the Criminal Code of the Russian Federation is illegal actions with entrusted assets or money, i.e. the criminal initially received them on a legal basis by the direct will of the owner;
theft implies the secret seizure of property, in which the proper owner not only does not consent to such an action, but in most cases does not even know about it;
robbery consists of open theft, when the owner of money or assets is forced to part with property under the threat of violence, the use of weapons or other types of illegal behavior;
robbery is a direct attack on the owner of property, committed with the aim of stealing and converting other people's money or assets into one's own property;
Fraud means the illegal taking of other people's money, things or objects under the influence of deception, abuse of trust and other actions not related to violence.

Note!

The distinction and distinction between various types of theft is established not only according to the norms of the Criminal Code of the Russian Federation, but also according to the guiding clarifications of the Supreme Court of the Russian Federation. In particular, the appropriation of someone else's property is also disclosed in the provisions of judicial practice - Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 27, 2007 No. 51 distinguishes between appropriation, embezzlement and fraud.

The law on appropriation of someone else's property also provides for enforcement measures under the Civil Code of the Russian Federation, since the owner has the right to demand the return of things or money from the illegal possession of other persons. To do this, a statement of claim may be filed in the district court, and when considering a criminal case, a claim may be filed, including for damages.

Thus, determining the following circumstances will be of key importance when investigating misappropriation cases:

whether the property came into the possession of the offender legally;
whether violence, threat, deception or other illegal actions were used against the owner, the purpose of which was to seize other people’s things or finances;
whether the retention was unlawful;
whether the offender had selfish motives.

Sale of someone else's property for selfish purposes Art. 160 of the Criminal Code of the Russian Federation is considered embezzlement. Personal consumption of entrusted property (for example, food products), as well as spending money on one’s own needs, is also considered a crime.

Article 160 of the Criminal Code of the Russian Federation on the illegal appropriation of someone else’s property provides for the following types of punitive sanctions:

under part 1 - a fine of up to 120 thousand rubles; compulsory, correctional or compulsory work; imprisonment for up to two years;
under Part 2 (if a preliminary conspiracy is established, or significant damage is caused) - similar penalties, and imprisonment can be up to five years;
under Part 3 with major damage may be punishable by up to six years;
Part 4 (especially large scale, or participation in an organized group) - imprisonment can be up to 10 years.

To bring to justice under Art. 160 of the Criminal Code of the Russian Federation does not matter what assets ended up in the hands of the criminal, however, determining the amount of the stolen property may differ significantly depending on the type of property.

How to take ownership of someone else's and ownerless property

Grounds for acquiring property rights

Citizens and legal entities can acquire ownership of someone else's or ownerless property for free. To do this, you must honestly, openly and continuously own movable property as your own for five years or real estate for 15 years. This process is called acquisitive prescription (clause 1, article 234 of the Civil Code).

Integrity

It is implied that the owner does not know and should not have known that he has no grounds for the emergence of ownership rights (Resolution of the Plenum of the Supreme Court No. 10, Plenum of the Supreme Arbitration Court No. 22). “The main problem of obtaining a thing by acquisitive prescription is that you need to prove a lot, in particular to confirm your good faith. Essentially, the owner must believe that he is the owner of the thing,” explained a partner in the dispute resolution practice of Bryan Cave Leighton Paisner (Russia) LLP Bryan Cave Leighton Paisner (Russia) LLP Federal Rating. group Antimonopoly law (including disputes) group Arbitration proceedings (medium and small disputes - mid market) group Foreign trade activities/Customs law and currency regulation group PPP/Infrastructure projects group Land law/Commercial real estate/Construction group Intellectual property (Protection of rights and litigation) group Intellectual property (Consulting) group International arbitration group Tax consulting and disputes (Tax disputes) TMT group (telecommunications, media and technology) group Transport law group Labor and migration law (including disputes) group Digital economy group Bankruptcy (including disputes) (high market) group Compliance group Corporate law/Mergers and acquisitions (high market) group International litigation group Tax consulting and disputes (Tax consulting) group Natural resources/Energy group Family and inheritance law group Criminal law group Pharmaceuticals and healthcare group Financial/Banking law Private Capital group 2nd place By revenue 2nd place By revenue per lawyer (more than 30 lawyers) 5th place By number of lawyers Company profile (RUSSIA) LLP Ivan Veselov. “A person should not know about the illegality of taking possession of property. This is possible, for example, if the property was initially stolen, and then it passed to the heirs who are not aware of the theft,” said Moscow City Agency lawyer Barshchevsky and Partners Barshchevsky and Partners Federal Rating. group Dispute resolution in courts of general jurisdiction group Arbitration proceedings (medium and small disputes - mid market) Alexandra Didenko. Partner of Pepelyaev Group Pepelyaev Group Federal rating. group Antimonopoly law (including disputes) group Arbitration proceedings (medium and small disputes - mid market) group Foreign trade/Customs law and currency regulation group Land law/Commercial real estate/Construction group Intellectual property (Registration) group Compliance group Tax consulting and disputes (Tax consulting) group Tax consulting and disputes (Tax disputes) group Labor and migration law (including disputes) group Digital economy group Intellectual property (Protection of rights and litigation) group Intellectual property (Consulting) group Natural resources/Energy group Pharmaceuticals and healthcare group Financial /Banking law group Environmental law group Bankruptcy (including disputes) (mid market) group Corporate law/Mergers and acquisitions (high market) group International arbitration group TMT (telecommunications, media and technology) Alexey Konevsky advises showing that the citizen exercised rights and obligations public legal education (No. 5-КГ17-76). “Inventory cards of objects will help prove good faith - the organization on whose balance sheet they were indicated is indicated there. The privatization plan will confirm the right of the successor if the property has not been removed from the possession of his predecessor. The good faith of the purchaser is also indicated by the fact that the property was not stolen. You can also present documents confirming the costs of maintaining the property,” said the manager of MAB Lawyers and Business Lawyers and Business Federal Rating. group Dispute resolution in courts of general jurisdiction group Arbitration proceedings (medium and small disputes - mid market) group Criminal law 7th place by revenue per lawyer (less than 30 lawyers) 19th place by revenue Company profile Dmitry Shtukaturov.

There are more court decisions refusing to apply acquisitive prescription than on its application. To win, you need to prove a lot of facts, which is difficult to do in practice.

Victoria Danilchenko

Openness

A person must not hide ownership of property (resolution of the plenum of the Supreme Court No. 10, plenum of the Supreme Arbitration Court No. 22). You can help confirm open ownership by:

lease agreement for the land plot on which the disputed object is located. “Often in the process of recognizing ownership of buildings by acquisitive prescription, there is a risk of complete loss of the land plot. Sometimes illegal use and disposal of land is discovered, which can lead to fines,” said lawyer, chairman of the Moscow Pavel Astakhov Bar Association, Victoria Danilchenko;
lease agreement for the disputed object. In this case, the openness of ownership can be confirmed, for example, by resolutions and orders of local governments in relation to the disputed property;
contracts for electricity supply, gas supply, security, garbage removal, maintenance of gas equipment and other evidence of the maintenance of the facility, as well as receipts for payment for all these services;
documents on registration of the owner at the location of the disputed property (No. A56-16350/2015);
checks for repairs of the facility;
permission to reconstruct the facility;
acts and notifications on the transfer of ownerless property and placing it on the balance sheet of the acquirer (No. 13AP-20619/2015);
correspondence on issues of property ownership with authorities;
witness's testimonies.

The Supreme Court told how to get ownerless property
Continuity

It is necessary that the new owner has movable property (for example, a car) for at least five years, and if it is real estate - 15 years (Resolution of the Plenum of the Supreme Court No. 10, Plenum of the Supreme Arbitration Court No. 22). As the Supreme Court points out, the transfer of property for temporary possession to another person does not affect continuity (No. 32-KG15-16, No. 307-ES14-329). Continuity is indicated by:

lease agreements and additional agreements thereto;
financial documents;
documents confirming the placement of equipment at the site;
property tax payment receipts;
receipts for repairs and operating costs.

All these documents must relate to different time periods (for example, from 2013 to 2022 the car was rented under a contract, and in 2022 it was repaired five times, for which there are receipts).

If the object was sealed and the owner could not use it, there would be no continuity (No. A40-115/13).

Owning a thing as one's own

There should be no rental, storage, gratuitous use or other agreements between the owner and the owner (Resolution of the Plenum of the Supreme Court No. 10, Plenum of the Supreme Arbitration Court No. 22 of 04/29/2010). Otherwise, a thing cannot be acquired into ownership, since its possession is carried out not instead of the owner, but along with him - unless, of course, the owner has renounced his right to the thing and has not lost interest in it (No. 127-KG14-9).

Ownership of property as your own is confirmed by witness testimony, inventory cards for recording fixed assets, property tax declarations, service agreements, and documents on the costs of maintaining the facility.

The 10-year “objective” limitation period established by the legislator (clause 2 of Article 169 of the Civil Code) will help you defend your interests in property. This period is much more difficult to recognize as unexpired, which increases the chances of fighting off other claimants for the property.

Ivan Veselov

Procedure for acquiring ownership rights

If you have owned movable property (for example, a car) as your own for five years in good faith, openly and continuously, ownership of it will arise automatically. In the case of real estate, you will have to go to court with a claim against the previous owner. If the previous owner is unknown, the trial takes place as a special proceeding, and a representative of Rosreestr is involved as an interested party. The court decision becomes the basis for registration of property rights (clause 1 of Article 234 of the Civil Code).

The applicant, a long-term acquirer, must prove the moment of possession of the thing. There is no need to register ownerless real estate; it is also not necessary to wait for the court to refuse to recognize the right of municipal ownership of real estate (clause 19 of the Resolution of the Plenum of the Supreme Court No. 10, Plenum of the Supreme Arbitration Court No. 22 of 04/29/2010).

The Supreme Court indicated: the owner of real estate always knows that he does not have ownership rights, since it needs to be registered, but this should not interfere with obtaining ownership rights due to acquisitive prescription (clause 20 of the resolution of the Plenum of the Supreme Court No. 10, Plenum of the Supreme Arbitration Court No. 22 of 04/29/2010, No. 127-KP6-12).

When the municipality or other interested parties claim their rights to real estate before the long-standing owner has managed to register ownership of this property, the court proceeds to litigation. In this case, it will be decided whether the previous owner was known to the old owner. The court takes into account:

whether the municipality took any action prior to filing the claim;
whether the municipality exercised its rights as an owner in relation to the said property;
whether he challenged the legality of the plaintiff’s possession of the disputed property (No. 5-КГ17-76).

“A person who considers himself the owner of real estate due to acquisitive prescription must prove that local authorities knew exactly about his disposal,” noted Capital Legal Services partner Capital Legal Services Federal Rating. PPP group/Infrastructure projects group Arbitration proceedings (medium and small disputes - mid market) group Land law/Commercial real estate/Construction group Intellectual property (Registration) group Dispute resolution in courts of general jurisdiction group Antimonopoly law (including disputes) group Bankruptcy (including disputes ) (mid market) Group Corporate Law/Mergers and Acquisitions (high market) Group Private Capital Group Intellectual Property (Consulting) Group Tax Consulting and Disputes (Tax Consulting) Company Profile Elena Stepanova. The inaction of a public legal entity means that the property can be transferred to the applicant (No. 81-КГ18-15). If the municipality did not show interest in the disputed property and did not declare its ownership, no obstacles should arise for the long-term acquirer.

What you can and cannot buy

“There is no acquisitive prescription in land legislation. The rules on public ownership of land should be known to everyone, therefore a person who has built an object on someone else’s land is not a bona fide developer and cannot acquire ownership of it (“Review of judicial practice in cases related to unauthorized construction”, approved by the Presidium of the Supreme Court 19.03 .2014),” said the head of the real estate and construction practice Maxima Legal Maxima Legal Regional rating. group Arbitration proceedings (medium and small disputes - mid market) group Land law/Commercial real estate/Construction group Intellectual property group Corporate law/Mergers and acquisitions group Tax consulting and disputes group Family and inheritance law group Bankruptcy (including disputes) group Dispute resolution in courts of general jurisdiction group Criminal law Konstantin Boytsov. The fact is that land that is not owned by citizens, legal entities and municipalities is state-owned (clause 2 of Article 214 of the Civil Code). The land plot abandoned by the owner becomes the property of a public entity from the date of state registration of termination of ownership rights (clause 1 of article 16, clause 1.1 of article 19 of the Land Code). However, do not forget about the “dacha amnesty” - if you have a land title document issued before October 30, 2001, the property must be registered (“The Federation Council has extended the “dacha amnesty” until 2022”).

It is impossible to obtain ownership of an unauthorized construction by acquisitive prescription if it threatens the life and health of citizens (Article 222 of the Civil Code, Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 143). When there is no threat and the interests of third parties are not violated, no problems arise (clause 12 of the Information Letter of the Presidium of the Supreme Arbitration Court No. 143). An unauthorized building must be located on a legally occupied land plot (“Review of legislation and judicial practice of the Supreme Court for the first quarter of 2003”), provided that its owner could not previously legalize the construction (clause 9 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 143).

Alina Mikhailova

What can be subject to appropriation?

As part of bringing to responsibility for any forms of theft, including misappropriation and embezzlement under Art. 160 of the Criminal Code of the Russian Federation, the following objects are considered as property:

money in rubles or other foreign currency;
things, objects and other material products;
real estate objects or rights to them;
securities, including in non-documentary form;
other types of property for which ownership belonged to another person.

The amount of funds appropriated, which will affect the division of responsibility for different parts of Art. 160 of the Criminal Code of the Russian Federation coincide with similar criteria for other types of theft. They are listed in the notes to Art. 158 of the Criminal Code of the Russian Federation. A large size must exceed 250 thousand rubles, and a particularly large one - 1 million rubles.

If a case of embezzlement of funds is being investigated, determining the amount of the stolen money will not be difficult. If the object of the theft were any things, objects or other material assets, their value will be determined during the investigation of the case by assigning various types of examinations.

If you are facing criminal prosecution for illegal retention of someone else's property, contact our lawyers who have extensive practice in handling such cases. Call us at the numbers listed on the website or ask your question online.