Why is there a ban on apartment registration? Imposition by a bailiff of a ban on registration actions with real estate

Updated 07/03/2019

2017-03-11T13:53:54+03:00

Prohibition on committing registration actions with real estate - what is it for? To ensure that another person does not have the opportunity to perform any actions with real estate without the owner’s knowledge. How can you protect yourself from unscrupulous participants in a transaction? What needs to be done to formalize the impossibility of registration actions with the apartment? Answers to all questions in the article.

Why is there a ban on registration actions with an apartment? Real estate transactions are completed more often than others. And during their execution, it is very important to be sure that you, as a participant, will not be deceived. Unfortunately, the percentage of fraud in such transactions is growing every year. Therefore, if you decide to sell your own living space, you need to take care of the safety of your square meters in advance so that they do not fall into the hands of a fraudster. Let's figure out how to protect ourselves from unscrupulous participants in the transaction?

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Why make a ban on registration actions with an apartment?

It's possible:

in case of bankruptcy of the payer if the apartment is secured by a bank with a mortgage loan;
at the appropriate request of the bailiff who performs these actions in accordance with legislative norms.

The situations described above are legal. In other cases, a ban on performing registration actions with real estate will protect you as the owner in such transactions.

It is useful to know that you can register property online using , this will save you time.

How to apply for a ban on the sale of real estate

In order to prohibit third parties from performing any actions with your apartment, house or land, it is enough to contact one of the government organizations:

multifunctional center for the provision of services to the population (MFC);
Rosreestr;
branch of the Cadastral Chamber.

You must write and submit a statement to the selected structure prohibiting any registration actions with real estate of which you are the owner, without the personal presence of you or your representative. Lawyers advise indicating a clause on the mandatory personal presence of the owner.

Fact
In a situation with a possible representative, many loopholes open up for fraudsters to commit fraud.

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A ban on performing registration actions with real estate can be imposed by the owner himself, as well as when filing an application, at the request of persons based on a decision of a judicial authority or a resolution of a bailiff. The article discusses the legal aspects of imposing a ban, the consequences of its violation, the procedure for application and methods of lifting if the ban was imposed by a judicial authority.

Why is the ban needed?

The ban on registration of actions with real estate helps to avoid situations in which an unauthorized person could carry out any actions with the property without the knowledge of the owner. Thus, the owner of the property imposes a ban on sale, registration as collateral (for example, with a mortgage) and other actions that make changes to the title documents by the state registration authorities.

After the ban is imposed, it will be impossible to perform any actions with the property without the personal presence of the owner of the real estate. It can be completed using an application to prohibit registration actions with real estate, which is entered into the unified state register, where all amendments regarding a particular property are indicated.

Legal grounds for the ban

The ban on registration of real estate comes into force due to:

Direct prescription of the law (for example, with a mortgage or easement).
Submitting an application by the owner himself if he wants to limit the ability of third parties to carry out registration actions with real estate.
Judicial decisions.
Enforcement proceedings: registration actions with real estate may also be prohibited by a resolution of the bailiff.

The main feature of the transfer of ownership of real estate is the mandatory registration in the state cadastral register. The imposed ban does not allow free disposal of property, including the registration of ownership rights of new guests.

Real estate objects that may be subject to a ban

Article 130 of the Civil Code of the Russian Federation lists all types of property subject to seizure. These include:

residential and non-residential premises, as well as other buildings that are registered in state register;
land(including those with mineral deposits located) and unfinished buildings;
air and sea (inland navigation and not only) vessels;
other objects of property that are expressly specified in the legislation as real estate.

How to issue a ban

To limit registration actions with real estate, you must contact one of the government agencies with a corresponding application. Where you can impose a ban:

MFC (multifunctional center that provides services to the population);
Rosreestr;
one of the branches of the Cadastral Chamber.

The statement indicates a prohibition on performing registration actions with real estate without the personal participation of the owner or his representative. Many lawyers insist that the personal presence of the owner be indicated during the execution of any transactions, since after making an entry in the Unified State Register of Real Estate, no one will be able to carry out registration actions without the participation of the owner. And even if the representative has a power of attorney to carry out registration actions with real estate, the application for re-registration of property rights will be returned to him.

After this, the application will be considered by the filing authority and an appropriate decision will be made on the case. A note will appear in the cadastral register about the prohibition of registration actions with real estate, and there will be no fear of fraudulent actions on the part of the seller or his intermediaries.

By the way, you can also issue a ban online on the Rosreestr website.

Documentation

As part of the restrictions on registration actions with real estate, it is provided for the provision of the necessary information to the relevant authorities. What is this documentation:

documents confirming ownership of the specified real estate;
passport or other identification document;
a statement that can be drawn up in free form.

Imposition of a ban on registration actions with real estate

As part of enforcement proceedings, the bailiff may restrict any actions performed with real estate(for example, sale). This is done in the interests of the claimant (creditor) in order to fulfill the stated requirements: thus, the owner’s hands are “tied” - he cannot dispose of the property.

Also, a ban can be imposed by a court decision to secure a claim, which is predetermined by a petition to ban registration actions with real estate, which is filed by the plaintiff as part of the trial.

The arrest comes into force from the moment the court makes the relevant decision. Direct restriction of the owner’s rights occurs from the moment documents about this are received by the bailiff.

Grounds for imposing a ban

There are only two reasons for encumbering and limiting the rights of the owner.

As a coercive measure.
As a security measure (creates the possibility of executing a court decision, but does not imply forced execution).

Legal Consequences

Transactions made with real estate subject to a ban on registration actions are considered illegal and have corresponding legal consequences for all parties. In the event that registration was carried out contrary to the imposed ban, the registering authority will bear responsibility for all damages caused. All costs will be collected from him.

At the same time, Article 174.1 of the Civil Code of the Russian Federation states that the owner may not take into account the restriction on registration actions with real estate if:

the transaction is made to pay off a debt;
the property is transferred to the claimant (creditor).

In this case, it is assumed that the buyer should have known or knows about the imposed restriction. If such information was not received by him, the acquirer has the right to recognize this transaction as invalid and refuse the presented property, compensating for losses.

Withdrawal from real estate

The grounds and procedure for lifting the ban depend on the conditions under which it was imposed. For example, if the restriction was imposed by the owner, then only he can cancel it by preparing a corresponding application.

The procedure for lifting a ban is similar to its imposition. The application is submitted to the Rosreestr department or the territorial body of the MFC.

A seizure for registration of real estate, based on a bailiff's decision, can only be lifted by decision of the body that issued it. But also a seizure, which involves restricting the use of real estate, can be lifted by satisfying the claimant’s demand (by repaying a loan, for example) or if the value of the seized property does not correspond to the amount declared by the creditor. The restriction can also be lifted if the owner submits an application in which he offers other real estate as a replacement for the seized property. However, in the latter case, the court may not grant the applicant's request.

The basis for canceling the interim measures that the court issued during the consideration of the case is the refusal to satisfy the plaintiff’s stated demands.

Examples of judicial practice

The possibility of imposing a ban on registration actions is recognized by the Constitutional Court Russian Federation. Since the actions of the bailiff are aimed at forcing the debtor to fully, timely and correctly fulfill the requirements specified in the executive document, such a prohibition limits the disposal of property from the property, which can subsequently be foreclosed on.

However, this approach violates the rights and interests of the debtor, and the ban will be legal only if it is issued by a specific judicial act, and not by decision of a bailiff. This is justified by the fact that not a single Federal Law provides for an arbitrary resolution to limit the ownership of property as a separate procedural action issued by a bailiff.

The ban should be applied only in exceptional cases. Otherwise, the rights of the debtor are subject to protection as a person participating in enforcement proceedings.

A ban will be legal if:

the property is commensurate with the plaintiff’s stated requirements;
the resolution does not impose restrictions on other types of property of the debtor.

In some cases, courts satisfy the imposed ban on real estate, since this restriction concerns only the disposal of property and not its use.

It is worth noting that if the residual value of the property significantly exceeds the total debt, the court may lift the ban. Then the judicial authority recognizes the excess of its powers or the bailiff and cancels the restriction regarding real estate.

Therefore, the preventive measure must meet certain criteria:

Be acceptable for timely and complete fulfillment of stated requirements.
Take into account the rights and interests of both parties.
Be consistent with the law.
The requirements specified in the executive document must be taken into account.

How to protect yourself from scammers

When buying real estate, you can easily run into the tricks of unscrupulous sellers or scammers. It is worth considering that any transaction with real estate must be registered in the state register of the Unified State Register of Real Estate.

Therefore, before completing a purchase and sale transaction, lawyers recommend making sure that the ownership of the property really belongs to the seller. This can be done by requesting an extract from the Unified State Register or other government agency who deals with property registration.

You can request real estate data either in person or online on the Rosreestr website. Here you can also find out whether a ban has been imposed on performing registration actions with property.

Thus, a ban on registering property can be imposed either by the owner himself or by a judicial authority or a bailiff. In the first case, this is done to avoid transactions without the participation of the property owner. And the second case is considered as a coercive measure for the owner, which is aimed at satisfying the demands of the claimant during the trial. The procedure for lifting the ban involves filing a petition with the judicial authority, which indicates the reasons for the violation of rights

Such an approach violates the rights and legitimate interests of debtors, since a prohibition on a debtor to perform certain actions is lawful only if it is applied on the basis of an appropriate judicial act, and not on an arbitrary decision of a bailiff. This statement follows from the content of the law. Neither Law No. 229-FZ, nor other federal laws do not contain the powers of the bailiff to issue orders prohibiting the performance of any actions as a separate procedural action. Exceptional cases when a ban on carrying out registration actions with real estate is not considered illegal Since a ban on carrying out registration actions with the debtor's real estate limits the rights of the owner to alienate it, such a ban can be applied only in exceptional cases.

Prohibition on registration of real estate

Arrest on registration actions is a restrictive measure used against debtors or violators. Its effectiveness is due to the fact that the ban on registration, and as a result, the impossibility of carrying out various transactions, encourages the elimination of the violation that caused the arrest. What does it mean? A seizure on a car's registration means that neither the car nor real estate, such as an apartment or Vacation home, it will not be possible to sell, buy, exchange or give away.

Attention

All of the above transactions can be carried out only after the ban is lifted. To do this, you will need to follow a certain procedure established by law, which will be described below. Who imposes restrictions? The law provides for a range of government agencies that have the right to seize property.

Seizure on registration actions with property

Thank you, installment execution of a court decision, deferment of execution of a court decision, ban on car registration, ban on registration actions, appeal of a court decision, deadlines for execution of a court decision, ban on action with an apartment Collapse Victoria Dymova Support employee Pravoved.ru Similar questions have already been considered, try to look Here:

Is it possible to impose a registration ban on a spouse’s car?
Is it possible to drive a car if there is a registration ban on it?

Lawyers' answers (5)

All legal services in Moscow Debt collection under a writ of execution Moscow from 7,500 rubles. Drawing up a claim for the release of property from seizure Moscow from 3000 rubles.

Real estate transactions during enforcement proceedings

The opposite approach is common when the courts recognize the executive action in question as lawful (see, for example, the ruling of the Leningrad Regional Court dated March 6, 2015 No. 33-1091/2014, the ruling of the Moscow City Court dated December 12, 2014 No. 4g/8-11300, the ruling of the Chelyabinsk Regional Court court dated December 23, 2014 No. 11-13314/2014, ruling of the Vologda Regional Court dated February 25, 2015 No. 33-957/2015). In the specified court decisions It is noted that a ban on registration actions cannot be considered as a foreclosure on the debtor’s only property. The courts consider such a ban as an interim measure aimed at preserving property.

In this case, the rights of the debtor are not violated, since the property is not confiscated and the debtor is not deprived of the right to reside in the apartment.
If a ban on registration actions does not give the right to register the transfer of rights in Rosreestr, then arrest is a broader concept. The bailiff, in the event of a seizure, has the right not only to prohibit the debtor from disposing of the property, but also from using it.

The presence of property as collateral. A typical example: a mortgage. This encumbrance is registered in Rosreestr at the moment when the loan agreement is concluded.
It is important to know that it is possible to foreclose on a mortgaged property, even if it is the debtor’s only home.

In other cases, alienation of real estate is not prohibited. The task of the bailiffs is to promptly identify real estate owned by the debtor and take measures to ensure that the debtor does not make transactions with his property.
When a ban on taking actions to register a property is not provided for by law. Seizure of the debtor's property includes a ban on disposing of property, and, if necessary, restriction of the right to use or seizure of property (Part 4 of Article 80 of Law No. 229-FZ). The type, volume and period of restriction of the right to use property is determined by the bailiff in each case, taking into account the properties of the property, its significance for the owner or possessor, the nature of its use and other factors. Restrictions on the right to use real estate also include a prohibition on performing registration actions in relation to it. Thus, this measure is not directly provided for either by Law No. 229-FZ or by a separate federal law.

Imposition by a bailiff of a ban on registration actions with real estate

These include:

courts;
investigative services;
Traffic police (if the measure applies to vehicles);
customs;
other bodies provided for by current legislation.

Thus, courts often resort to this measure if a dispute develops about the ownership of a car to one or another owner. This is done in order to prevent the possibility of alienation of the vehicle before a final decision is made. A lien can be used when pledging a car to enforce a property claim.

Customs may impose a ban if there is reasonable suspicion of a violation of the law during customs clearance of a car imported from abroad. Another body that may impose restrictions is the social security service.
Such portals may be the bailiff service, the traffic police (if a restriction is imposed on the car), or the website of the customs authorities. To obtain information, you need to know the vehicle registration number, VIN code, and in some cases, the make or model of the car.

You can obtain information by visiting the mentioned government bodies in person, but to do this you will need to make a request. In addition, the answer will not be received immediately, as is the case with official sites, but only after a certain period of time.

Usually this takes from 5 days.

Documents To lift the arrest, you will need to prepare a small package of documents:

A photocopy of the civil passport of the debtor or violator.
Technical documentation for transport, passport for the car.
A document confirming the absence of debts (it must be issued by the authority that initiated the arrest).
An application drawn up in accordance with the rules.

Sample application If the car is under arrest for registration actions, then to lift the ban you will need to study a sample application. A sample application for lifting the arrest for registration actions is here. Differences between arrest and ban Citizens often confuse concepts such as “ban” and “arrest”.

It applies the ban in favor of persons under the age of majority. Restrictions may be introduced by the traffic police search units. What does the law say? All issues related to arrest are generally considered by Federal Law No. 229 “On Enforcement Proceedings”.
Certain points are regulated in more detail by Order of the Ministry of Internal Affairs No. 1001 of 2008. The latest legal act establishes that in relation to Vehicle Restrictions may be introduced related to the prohibition of registration actions. It is known that they are carried out without fail when carrying out various transactions, for example, when buying or selling. Arrest on registration actions A bailiff has the right to impose a ban only if there is a court order to collect a certain debt from a person (for example, an unpaid fine).

Important

What happens? The debtor is obliged to pay some amount of money to the claimant. According to the Law “On Enforcement Proceedings”, bailiffs have the right to foreclose on property. In such a situation, it is very important to know the answer to the following question: is it possible to make real estate transactions in the presence of enforcement proceedings? General rule making real estate transactions in the presence of enforcement proceedings Based on the Constitution of the Russian Federation and Civil Code, we can say that the fact of the existence of a resolution to initiate enforcement proceedings does not in any way affect the rights of the owner.

He, in particular, can dispose of his property as he sees fit. Law “On Enforcement Proceedings” and some others legislative acts establish some exceptions, indicating situations when a real estate transaction cannot be completed.

Has the court placed encumbrances on your apartment? Let's figure out how you can quickly lift the arrest, referring to the norms of the legislation of the Russian Federation that are relevant in 2019.

Dear readers! The article talks about typical ways to solve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

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The realities of life are such that not all citizens are now able to pay their monthly expenses, including for the provided utilities.

And the question quite justifiably arises: will the apartment be seized for debts, and how to rent it. By the way, the process of lifting a lien on real estate is complex and takes a lot of time. Difficulties arise if a lawyer is not able to defend the rights of clients.

To simplify the procedure, you need to prepare a motivated statement of claim, present all the evidence, and also know all the intricacies of lifting the arrest. Let's determine how to remove encumbrances from the premises.

General points

Seizure is possible if:

the claim is filed by a citizen or a commercial company;
the object is used for an illegal action.

The right to arrest:

Judicial authority;
customs;
authority of the Ministry of Internal Affairs;
prosecutor.

Basic Concepts

Seizure of an apartment is a ban on carrying out any operations. Premises are seized if there are debts to a utility service or a banking institution.

But it is worth pointing out that the right to live in the seized apartment is retained. Arrest may impose a court. And the implementation of the court decision on debt payment will be monitored bailiff.

Judicial-executive proceedings are called judgment over debtors, which is carried out forcibly, if such a need arises.

What is its role

When real estate is seized, encumbrances appear that will not allow the owner to dispose of the property.

If the defendant fulfills all obligations, the arrest will be lifted by making appropriate entries in the Unified State Register. You can appeal the court's ruling in accordance with.

Features of the procedure

If the owner of the apartment received a court decision on arrest in absentia, it is possible to refute it.

How to remove the arrest from an apartment after a court decision? For this:

establish the reasons for the restrictions;
submit an application to the registration authorities to suspend the registration procedure;
file a lawsuit to overturn the determination;
register a court decision, implement it or challenge it.

If the claim is satisfied, then the court will decide on the annulment of the restrictions. The application is filled out, referring to (a sample application can also be found on the Internet).

Acts are obtained based on claims that are accepted by the court for security. You can go to court without waiting for the end of the proceedings.

The application is written either by the owner himself or his person. The document is accepted after depositing funds (state fees).

The following must be attached to the application:

a certificate that confirms the existence of ownership rights to the object;
that will confirm the repayment of debts or the fulfillment of other obligations;
citizen's passport.

In response to a claim to lift the arrest, a ruling will be issued in court, based on which an employee of the state body will make an entry in the document.

Based on the court decision, they draw up performance list, which can be independently submitted to the executive services (bailiff), or in accordance with oblige the court to comply with the requirements.

How long does it take to lift the arrest from an apartment? The bailiff will issue a resolution within 3 days, which will be sent to the Rosreestr office.

An employee of the registration chamber will make changes to the Unified State Register, and within 5 days will send a notification to the apartment owner that the restrictions have been lifted. Sometimes the process can take a long time.

Rosreestr employees must rely on standards.

If the establishment of restrictions is related to the presence of financial obligations, then the arrest will be lifted at the same time when it is repaid.

Any circumstance under which the ban on the disposal of real estate will be lifted is discussed with the plaintiffs and defendants even before the claim is filed with the court.

The release of living space from encumbrances is carried out if:

there are procedural violations on the part of the bailiff;
upon arrest, recovery or confiscation is impossible;
encumbrances will violate the rights of a third party (if there are registered children in the premises).

The arrest can only be canceled by the authority that imposed it. If the decision was made by the court general jurisdiction, then the cancellation is also carried out through this body.

If the property is seized by the investigative body because a criminal case is being considered, then it is removed if such a measure is no longer necessary.

Owners of the seized premises who plan to conclude the property have the right to suspend registration, but for 3 months.

During this period, it is possible to resolve the issue of removing encumbrances. Usually, owners are able to negotiate even with banking institutions.

If the arrest was lifted, but no entries were made in Rosreestr, you need to fully go through the procedure for issuing certificates, which is necessary to resolve the issue.

You need to get a copy of the court decision to lift the arrest from the archives. If such a decision has not been made, then prepare a statement.

After a positive decision is made, a writ of execution is drawn up and sent bailiff. As soon as the court decision comes into force, the seizure of the property is lifted.

How much does it cost

This means that even before concluding an agreement, it is worth checking whether a seizure has been imposed. If an apartment is seized, the court will notify the territorial Rosreestr about these restrictions.

The registration authority will enter the information received into the Unified State Register. To check whether the arrest has been lifted or not, you need to obtain an extract from the Unified State Register.

This is especially true for those who are planning to buy an apartment. Look at the date when the certificate was issued, because arrest can be imposed after the document is issued.

You can obtain an extract from the Federal Reserve System or the Multifunctional Center. You can order a certificate online on the Rosreestr portal. Any citizen who needs this information has the right to receive an extract.

The buyer has the right to clarify this information with the bailiff at the place of residence or at the location of the property.

To do this, you can go to the FSSP service in your region. You can also visit an employee of the authority yourself.

If you order a certificate online from the court, then you do not need to pay, but when receiving an extract from Rosreestr, a state fee is paid.

Video: arrest of the debtor's only apartment. Legal law

The only thing that needs to be noted is that an extract from Rosreestr will be more informative than the database on claims.

How to get an extract online:

Go to the website of Rosreestr	It is necessary to enter the address of the apartment or the number assigned by the Cadastral Chamber. Procedure: click the "Electronic Services" button; fill in the fields in the corresponding tab; click "Order an extract from the USRR"; wait for the notification that will come to your email, pay the state fee; When the payment is confirmed, a message about acceptance of the application will be sent to your email address, which is processed no longer than 5 days
Order a document on the portal or another intermediary	You have to pay extra for these
Apply on the Gosuslugi.ru website	—

It happens that restrictions on the apartment are imposed at the approval stage.

And the statement will not reflect such information. The buyer will need to resolve problems when such circumstances arise.

During the enforcement proceedings, the bailiff announced a ban on registration actions to exclude from the Unified State Register a record of the debtor's rights to his only apartment.

The debtor considered this enforcement action illegal, since the disputed apartment, as the only place of residence, is protected from penalties (paragraph 2, part 1, article 446 of the Code of Civil Procedure of the Russian Federation). The courts of two instances agreed with this (Obninsk City and Kaluga Regional Courts) and satisfied the applicant’s request to lift the ban (texts of judicial acts, unfortunately, are not available).

Note that there is no unanimity at the level of regional courts on this issue. The opposite approach is common when the courts recognize the executive action in question as lawful (see, for example, the ruling of the Leningrad Regional Court dated March 6, 2015 No. 33-1091/2014, the ruling of the Moscow City Court dated December 12, 2014 No. 4g/8-11300, the ruling of the Chelyabinsk Regional Court court dated December 23, 2014 No. 11-13314/2014, ruling of the Vologda Regional Court dated February 25, 2015 No. 33-957/2015).

These court decisions note that a ban on registration actions cannot be considered as a foreclosure on the debtor’s only property. The courts consider such a ban as an interim measure aimed at preserving property. In this case, the rights of the debtor are not violated, since the property is not confiscated and the debtor is not deprived of the right to reside in the apartment.

Similar arguments were voiced in the cassation appeal of the Federal Bailiff Service of Russia for the Kaluga Region. In addition, the bailiffs indicated that the purpose of the measure in question is to encourage the debtor to comply with the requirements of the writ of execution.

Judicial Collegium for Administrative Cases Supreme Court The Russian Federation (SC), by a ruling dated February 25, 2015 in case No. 85-KG14-9, recognized the cassation appeal as unfounded.

The Supreme Court came to the conclusion that the ban on carrying out registration actions in relation to property means nothing more than its arrest (Part 4 of Article 80 of the Law on Enforcement Proceedings). The purpose of the seizure is to ensure the safety of property that is subject to transfer to the claimant or sale (Clause 1, Part 3, Article 80 of the Law on Enforcement Proceedings).

In this case given goal unattainable, because It is impossible to either transfer to the claimant or sell the debtor’s only apartment.

As for the stated goal of inducing the debtor to fulfill the requirements of the executive document (Part 1 of Article 64 of the Law on Enforcement Proceedings), it does not serve as the purpose of seizure.

“On the contrary, the establishment of such a prohibition unreasonably limits the rights of the debtor to dispose of his property, to which, in accordance with civil procedural legislation foreclosure cannot be applied...” noted the Supreme Court. After all, the debtor can, for example, sell such property and use the proceeds to pay off the debt. Which, by the way, is what happened in the present case.