Obtaining a certificate of ownership through the court. Registration of rights through court

It often happens that having paid for an apartment from the developer, you cannot receive ownership of it due to the company’s dishonest actions. Or you cannot enter into an inheritance and register ownership of it. This article provides detailed information about the steps to take in this case.

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Ownership

First of all, you need to decide what property rights are.

The civil legislation of the Russian Federation defines the right of ownership as the ability of a person to exercise powers regarding his property without any obstacles or restrictions. Powers usually mean possession, disposal and use of a thing.

At the moment, the theory identifies two ways of acquiring property rights: initial and derivative.

Let's talk about the original. In simple language, this means that a person independently performs certain actions and thereby acquires ownership of the resulting result of labor.

There are many examples of this method of obtaining property:

• Creating a new thing.

This method is quite simple. Suppose you owned certain materials from which you subsequently produced a certain thing. This means that since you owned the ownership of the materials, you also have the ownership of the result of labor, namely a new thing or building.

But there are also some questions. For example, what if you used someone else's materials that you didn't own? In this case, the ownership of the result of work will belong to the person whose materials you used.

• Collection of publicly available items.

If you like to go into the forest and pick mushrooms and berries there, no one will deny that you have ownership rights to the things you collect.

• Income received from the use of property.

If you own a plot of land and grow, say, apples on it, everything that grows automatically becomes yours.

• Acquisition of property rights using acquisitive prescription;

If you own and dispose of it for 15 years (for real estate) or 5 years (for movable property), then after this period you become the full owner of the thing.

Registration of a site within the framework of a civil contract. Registration of land in Moscow

In addition to the fact that land is transferred to a person as part of a will, it can also be transferred as part of civil legal relations, if the land is their object. In all this, registration of ownership will take place within the framework of either a donation or as part of the purchase and sale of a plot. To formalize the transfer in such cases, you need to pay attention to how and under what conditions the contract will be drawn up.

The algorithm of actions will be as follows:

1. The conclusion of an established agreement with a clear indication of the characteristics of the site, on the basis of which this very site can be accurately identified and allocated. Among such characteristics will be data such as the cadastral norm and any other information that is in the extract of the state register. Also, the contract must be accompanied by a correctly completed cadastral map of the site, in which this site will be highlighted with colored lines along the perimeter. This is also important if the land registration will be carried out within the framework of shared ownership;
2. Providing the authorities and structures of the registration chamber with the established application for registration of property rights, as well as copies and documents that are mandatory. Among these should be: a receipt for payment of state duty, a cadastral extract, an agreement, as well as identity cards of both the seller and the buyer;
3. Registration and receipt of a receipt for the transfer of all collected documents, followed by completion of registration within 30 days. At the moment, improved technologies have begun to be actively used, so the applicant can find out that registration actions have been completed via SMS messages.

Mechanism for protecting property rights

In the Russian Federation, property rights are protected through the courts. A person has the right to go to court with a demand for the restoration of violated rights, with a vindication claim (for recovery from someone else’s possession), or with a negatory claim (for the removal of any obstacles to the ability to exercise ownership and other property rights).

Interestingly, the legislator believes that a person has the right to file a claim from the moment when he learned or should have learned about the existence of an obstacle to the exercise of property rights.

Of course, in theory, obtaining ownership is not difficult. However, in practice this can cause big problems. Next, we will consider the main types of civil cases related to the recognition of property rights through the court.

With a claim - to court

As a general rule, a statement of claim must be filed with the court at the location of the property. But, according to the practice of the Supreme Court of the Russian Federation, it is also possible to file at the place of residence of the plaintiff or at the location of the defendant.

The judge, within 5 days from the date of receipt of the statement of claim in court, is obliged to consider the issue of accepting it for court proceedings.

After accepting the application, the judge issues a ruling on preparing the case for trial.

Then you need to prepare a number of judicial requests, for example, to request BTI documents, a protocol for the distribution of apartments, documents from the administration, etc.

In practice, the issue of recognition of property rights is resolved not at one, but at several meetings, usually two or three. At the last meeting, after hearing the parties' arguments, the court makes a decision. It is “made” by the court, usually from a week to 2 months. If the decision is not appealed, it comes into force after 10 days. Otherwise, the period for consideration by the cassation court is approximately 2 months.

When the decision is positive and not cancelled, then it is necessary to obtain the required number of copies of it to register ownership rights, and to certify the copy of the decision in the prescribed manner. After receiving certified copies, it is necessary to register the court-recognized ownership right with the registration service (FRS) at the location of the apartment. It is important to note that to register property rights based on a court decision, only a court decision and documents from the BTI are required. There is no need to provide more than 20 documents that are necessary to register property rights in the general manner for the first applicant. Your task in court is to prove that the house was built, the object (apartment) exists, and you have fully fulfilled your contractual obligations. There are already quite a lot of positive court decisions in this category of cases.

Recognition of ownership rights to unauthorized construction

If you have erected an unauthorized building on your land plot and want to legalize your rights to it, then you need to go to court.

Civil legislation, namely Article 222 of the Civil Code of the Russian Federation, recognizes as unauthorized construction a structure erected on a land plot not intended for the construction of this building, or in the absence of the necessary construction permits or in violation of technical construction standards.

The same article states that the right of ownership of an unauthorized structure can be assigned to the person in whose ownership, perpetual use or inherited possession is the land plot on which the structure is erected. This means that persons using a land plot on the basis of gratuitous temporary possession, lease, sublease, as well as those who use the plot under the right of limited use, will not be able to recognize their ownership of an unauthorized construction through the court.

However, in this case, you can find a way out. First of all, you need to buy the land. If it is privately owned, then there is no problem with this. However, if the plot belongs to the state, then it can be redeemed only if there is at least one legally registered real estate object on its territory, the ownership of which is registered in accordance with the law.

After the plot has been purchased, a person who wants to recognize ownership of an illegal building has the right to go to court. In court, the plaintiff will have to independently prove, in accordance with the Code of Civil Procedure, that the preservation of the building on the site does not violate the rights of third parties or does not create a threat to their life and health.

If your building does not pose a threat and does not violate the legal rights and interests of third parties, then you have a high chance of having your ownership rights recognized. In order to increase the chances of a positive decision, you can provide the following documents:

• proving the construction of the building at your expense;
• that the rights to the construction do not belong to third parties;
• that the construction of the building does not violate technical, environmental and sanitary-epidemiological standards.

The presence of these documents, according to practice, significantly increases the chances of a positive outcome of the case. By collaborating with a lawyer, a good outcome can be achieved in just 3 months.

Forgery cases

This happens to people who did not pay enough attention to verifying the authenticity of title documents for real estate or decided to save on notary services. As a rule, fake certificates or contracts for the alienation of property are used. Quite often, scammers use stolen passports or realtor IDs. After receiving money for the “sold” apartment, the attackers disappear in an unknown direction. After some time, the real owners appear, who have formalized their right notarized and registered it with a government agency. It is quite clear that this cannot be done without registration of ownership of property through the court. However, the result is easy to predict. The property will be transferred to those who acted officially and registered housing in Rosreestr. The unlucky buyer who fell for the scammers' bait is left with nothing. He can only hope for law enforcement agencies to find the attacker. In order not to become a victim of forgery and not to participate in the hopeless task of registering an apartment through the court, you need to carefully check with government agencies the identity of the seller and the history of the property.

Recognition of ownership rights to land plots

Cases in this category are very common. This is due to the fact that many citizens who received land for use during the USSR do not have documents on hand that can confirm their right to this plot. And since 1991, since the adoption of the Land Code, the right to own a plot must be documented.

The best way to secure ownership of such a plot of land is to go to court.

In accordance with the law, all citizens who received land plots at their disposal before 1991 have the right to free recognition of ownership of their land. Even if it is impossible to establish for what purpose the land was allocated, the plot can still be registered as ownership. The only exception to this rule will be the case when this particular site cannot be registered as private property due to any of its features.

In court, citizens need to provide evidence, testimony and other facts that can confirm the fact of ownership of the plot before 1991. For example, the testimony of your neighbors or the chairman of the gardening partnership. If the court finds the evidence valid, it will rule in your favor.

Litigation with developers

Registration of ownership of an apartment through a real estate court in a new building is carried out in cases where developers delay the process of state registration of housing and its registration. This prevents owners from taking any action with their property.

Another reason for registration is its sale to several buyers. This happens by mistake or malicious intent. As a rule, the owner is the one who first registered the purchase in Rosreestr. The rest are left to conduct long legal proceedings with the developer, demanding that he return the invested funds.

Recognition of ownership rights to unfinished construction

There are a lot of situations when disputes between the administration and the developer prevent you from obtaining legal recognition of ownership of an apartment. This is due to the imperfection of our legislation.

Let's imagine this situation. The developer, using the administration's money, undertakes to build the house on time, but due to numerous problems associated with the construction of the building, construction is delayed. The administration is demanding compensation from the developer for delayed construction, which can amount to millions of rubles. In this case, the developer is not able to complete the design of the building and receive all the necessary documents. And therefore, you cannot get your legal square meters.

You must remember that until the developer gives you legal ownership of your square footage, nothing - neither actually owning the apartment nor living there for a long time - means that you own the title to it.

You ask: “So why should I register ownership through the court if I already live in the apartment I bought?” A developer who loses a dispute with the administration can often pay in square meters. And since it is the developer who owns the square meters in the house before transferring ownership rights to the buyers, your apartment may be included in the number of precisely these square meters. Therefore, by registering ownership through the court, you not only receive the right to own, dispose of and use the occupied living space, but also insure yourself against the actions of an unscrupulous developer.

If your apartment was used as compensation to the administration, then you can demand a refund from the developer.

The basic process of registering ownership of an apartment

It is necessary to clearly understand that the path of litigation for recognition of property rights arises only when disputes arise over property, the actions of certain officials are recognized as unlawful, as well as in cases of gross violation of the rights to use and property. Only in these cases can the court make any decision.

There must be a defendant. There may be situations where it is impossible to determine the address and location of the defendant on your own. In this case, it is necessary to contact law enforcement agencies, who can help determine the exact address of the defendant.

Ideally, the process of obtaining ownership of an apartment is as follows:

• contacting the Federal Cadastre and Cartography Service, whose functional centers exist in all cities;
• provision of originals and photocopies of identity documents. These could be:

1. Passport;
2. Pensioner's ID;
3. Driver license;
4. Certificate of criminal record (for those who previously served a sentence in MLS).

Passport is priority.

• provision of an original or a notarized copy confirming the right of a particular person to own and dispose of property. Such documents include:

1. Contract of sale;
2. Court ruling;
3. Will;
4. Agreement on participation in shared construction.

In general, any document indicating the right of a certain person to the property being registered is suitable.

• an extract from the Unified State Register of Individual Entrepreneurs (if the apartment has already been registered and a change of owner is necessary), or technical passports, which are issued by the developer or at the regional BTI at the location of the living space.

The rest of the list of documents depends on the status of the apartment. The only exception is a certificate in form No. 6 (certificate of family composition). It is necessary in any of the options for registering ownership of an apartment.

This is the simplest algorithm of actions, but there is another option - recognition of ownership of an apartment through the court.

Recognition of ownership rights to real estate

To protect your rights to real estate, especially if it was purchased jointly, you should obtain ownership of this property.

Let's consider a simple situation. You purchased a home together with your relatives, but when drawing up the purchase and sale agreement, only one buyer was registered, the same as during registration. The consequences of this are very easy to foresee: it will be difficult for you to protect your rights to real estate, despite the fact that you contributed a significant portion of the amount when purchasing it.

In order to acquire ownership of real estate through the court, you need to provide evidence that there was an agreement between you and your relatives to jointly purchase housing. This may be the seller's testimony or other documentary evidence.

The size of the ownership share is determined by the court in terms of how much of the total cost of the property you contributed.

Consideration of inheritance law

The testator may pass away with or without a will. If there is a will, everything is resolved quite simply, since all shares are assigned to the heirs. No one is allowed to violate the will of the deceased, even if some relatives feel violated. In the event that there is no will, the division of property according to law comes into force. It is divided evenly into heirs of the first, second or subsequent order. It is necessary to declare your rights to the property of the deceased within 6 months after his death.

Registration of ownership of an apartment in inheritance disputes can be carried out for the following reasons:

1. Restoring the missed deadline for filing an application for the right to inheritance. The court only takes into account compelling reasons, such as failure to arrive on time, serious illness or lack of information. Arguments in your favor must be supported by strong evidence in the form of documents with signatures, numbers and seals. Only then can you count on the apartment registration being successful.
2. Recognition of a will as such that it is not valid. There can be many reasons and reasons for this. In judicial practice, there have been cases of incorrect drafting of a document, errors in writing the data of heirs and damage to the document itself. The reason for challenging the essence of the will may be the fact that it did not indicate close relatives who have the right to their share in any case. Often, paper can simply be counterfeited using modern computer technology.
3. Insanity of the testator at the time of signing the document. It is almost impossible to prove this, since the court will only take into account papers issued by official bodies.

Quite often, the testator changes his will under the influence of his immediate environment. Registration of an apartment through the court is possible only using the testimony of witnesses, video and audio materials.

Recognition of ownership of inheritance

In accordance with the norms of civil legislation of the Russian Federation, inheritance is carried out by will, if there is one, or by law.

Both in inheritance by law and in inheritance by will, the rights of some persons to inheritance may become the subject of a dispute between some of the heirs. For example, between children from a first marriage and the second wife of the deceased, who is entitled to a share in the deceased’s inheritance, even if it is not included in the will.

Situations may arise when a notary, due to a delay in entering into an inheritance, refuses to issue a certificate to the heir. In this case, you must go to court.

In court, claims related to the recognition of ownership of inherited property are considered quite often, so a certain practice of considering cases has been developed.

The plaintiff must prove his case through testimony or other documentary evidence of his position.

Why do you need a good lawyer and lawyer?

As can be seen from the article, almost all cases related to the recognition of property rights require proof. This means that you need to collect a large number of certificates, papers and documents that confirm your position. In addition, you will have to take care of witness statements, because they are of great importance for the court.

If a lawyer is involved in the process, the process of collecting evidence takes significantly less time. And as you know, the less time you spend preparing for the trial, the faster it ends with a positive outcome for you.

How much will the state duty be?

Before filing a claim, you must pay a state fee. The following controversial situation has arisen regarding the amount of state duty:

Calculation example No. 1.

Some lawyers and advocates who specialize in such cases (statements of claim for recognition of ownership of an apartment in a new building) pay the state fee, guided by clause. 1 clause 1 art. 333.19 of the Tax Code of the Russian Federation, which states that when filing a claim of a property nature, subject to assessment, if the price of the claim: over 1,000,000 rubles (it is unlikely that there will be a cheaper new building in Moscow) - 13,200 rubles plus 0.5% of the amount exceeding 1,000,000 rubles, but not more than 60,000 rubles.

For example, under a shared construction agreement you paid 3,500,000 rubles. The fee will be:

3,500,000 – 1,000,000 = 2,500,000 rubles, 2,500,000 x 0.5% = 12,500 rubles, 13,200 + 12,500 = 25,700 rubles (duty amount).

These types of claims are related to consumer protection. In accordance with the Tax Code of the Russian Federation, when filing claims of a property nature or containing simultaneously claims of a property and non-property nature to courts of general jurisdiction, as well as to magistrates, payers are exempt from paying state duty if the price of the claim does not exceed 1,000,000 rubles. If it exceeds (in our example, we recall, the cost of the claim is 3,500,000 rubles), payers pay the state duty in the amount calculated above and reduced by the amount of the state duty payable if the cost of the claim is 1,000,000 rubles (13,200 rubles). This means that the final amount of the duty, calculated according to our option, will be: 25,700 – 13,200 = 12,500 rubles.

Calculation example No. 2.

And if you follow these calculations, the amount of the state duty will be significantly less. And this is what these considerations are based on.

In the statement of claim, we demand recognition of the right of ownership, that is, although our claim is related to an expensive apartment, recognition of the right of ownership is a requirement of a non-property nature. And as stated in the Tax Code of the Russian Federation, when filing a claim of a property nature that is not subject to assessment, as well as a claim of a non-property nature, the fee is: for individuals - 200 rubles; for organizations – 4000 rubles.

The Ministry of Finance of the Russian Federation adheres to the same position (Letter dated December 29, 2008 No. 03-05-06-03/50).

If the judge considers that the state fee was incorrectly calculated, then the application will be left without progress and will offer to eliminate the shortcomings, that is, to pay extra. But paying extra is still easier and faster than returning what you paid in excess of what was due. In practice, such claims are subject to both a state duty of 200 rubles and a state duty of 10,900 rubles.