Removal of arrest from the only home

What is needed

If the seizure of the apartment is not lifted for a long time, it is necessary to find out which of the government bodies - Rosreestr or the bailiff - violated the deadlines established by law.

The basis for lifting the arrest from the apartment will be:

• Resolution of the bailiff to remove the encumbrance from the debtor's property.
• The relevant decision or ruling of the court.

Rosreestr does not have the right to independently make a decision to remove the encumbrance from real estate. He can do this only on the basis of a document received from the court or bailiff.

Expert opinion

Lawyer Alexander Vasiliev comments

If, during the preparation of the transaction, it turns out that there is an encumbrance on the apartment, it is necessary to find out from Rosreestr on the basis of the decision of which body it appeared. This information is in the extract from the Unified State Register of Real Estate, which can be obtained by an interested person.

After receiving information about which bailiff seized the apartment, you need to contact him to clarify all the circumstances. As a rule, encumbrances are lifted when the requirements contained in the writ of execution are met. However, it is also possible to lift the seizure of property early due to violations.

Removal of seizure of an apartment by bailiffs application

But if this is a private house, and the land under it belongs to the debtor as a property owner, then a part of the land plot that exceeds the minimum size of the land plots provided can be cut off and sold. The proceeds will be used to pay off debts. The resolution also states that the seizure of the debtor's apartment is carried out in order to ensure the rights of the creditor. In other words, so that the debtor cannot complete a purchase and sale transaction, fictitious or real, donation of housing, or does not find another way to lift the seizure of the apartment by bailiffs, a statement that would allow him to exclude the apartment from the list of property subject to possible recovery in favor of the creditor.

If everything you say is true, then if the mortgage payments were made properly and on time, no one would foreclose on the mortgaged apartment. It should also be noted that the bank itself cannot seize anything; this can be done by a court or bailiff at the request of the bank.

Withdrawal period

The rules for lifting the seizure of the debtor’s property are defined in Article 80 of Federal Law No. 229-FZ of October 2, 2007 “On Enforcement Proceedings”.

The period for the bailiff to remove the seizure from the apartment depends on the reason for which this action is being carried out. If the debtor has fully repaid the debt under the court decision and enforcement fee, the encumbrance is removed upon completion of the enforcement proceedings. In this case, the debtor can contact the bailiff with a statement that the debt has been repaid. The bailiff will have to consider such an application within 10 working days from the date of its receipt by the bailiff (Article 64.1 of the Law on Enforcement Proceedings). An additional 3 working days are added to this period for transferring the application within the FSSP department.

If the arrest is lifted due to its cancellation or appeal, the period for its cancellation depends on the time of entry into force of the relevant document.

The bailiff is obliged to send his decision to lift the arrest to Rosreestr within 3 days (excluding non-working days).

The resolution is sent in the form of an electronic document using the system of electronic interaction between government bodies (Part 8 of Article 80 of the Law on Enforcement Proceedings).

Having received the bailiff's order, the relevant territorial branch of Rosreestr registers the removal of the arrest in the Unified State Register of Real Estate (USRN). The deadline for this action is 3 business days. It is established by clause 1 of Art. 16 of the Federal Law of July 13, 2020 No. 218-FZ “On State Registration of Real Estate”.

After the seizure of the apartment is lifted, Rosreestr will send the owner a written notification about this.

Expert opinion

Lawyer Alexander Vasiliev comments

The general period for lifting the arrest from an apartment or other real estate is 6 working days from the moment the removal order was issued. The issuance of this ruling may take more than two weeks.

Exceeding the listed deadlines may mean that any of the government agencies involved has violated the deadline for processing documents.

Removing an apartment from seizure

Sometimes there are situations when debtors receive threatening letters from creditors stating that the apartment has already been seized, while there has not yet been a court decision and nothing is known about the proceedings. If necessary, each citizen can verify the veracity of the information received; perhaps this is a common way of pressure from the claimant. People who have huge debts should all the more worry and find out whether the apartment has been seized or not, since the bailiff can at any time apply such a measure based on a court decision. Also, when planning to purchase a home, it will be useful for the buyer to find out the legal purity of the property.

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Resolutions of the inquiry body, the inquirer, the investigator, the head of the investigative body on the refusal to initiate a criminal case, on the termination of the criminal case, as well as other actions (inaction) and decisions of the inquirer, the head of the inquiry unit, the head of the inquiry body, the inquiry body, the investigator, the head of the investigative body and the prosecutor, who are capable of causing damage to the constitutional rights and freedoms of participants in criminal proceedings or complicate citizens' access to justice, can be appealed to the district court at the place where the act containing elements of a crime was committed. If the place of conduct of the preliminary investigation is determined in accordance with parts two to six of Article 152 of this Code, complaints about the actions (inaction) and decisions of these persons are considered by the district court at the location of the body in charge of the criminal case.

What to do if the arrest is not lifted

If for any reason the documents are not received from the bailiff, the owner of the property (debtor) can independently submit to Rosreestr the bailiff’s decision to lift the arrest from the apartment. To do this you need:

• Application to lift the seizure of real estate belonging to the applicant;
• Resolution of the bailiff (original on paper, signed and sealed).

These documents can be submitted through the MFC or by mail, sending them to the Rosreestr branch at the location of the real estate.

If the desired Rosreestr branch continues to accept documents in person, the application can be submitted directly there. But in many regions this practice has been stopped, and Rosreestr accepts documents only through the MFC.

Some MFCs conduct so-called extraterritorial acceptance of documents. This means that through such a branch you can contact the Rosreestr authority, which is located in another region.

Rosreestr is obliged to review the received documents and remove the encumbrance from real estate within 3 working days (Clause 1, Article 16 of the Law on State Registration of Real Estate).

If the arrest is not lifted for a long time, it is necessary to find out why this happened and which government agency is not fulfilling its duties. This is necessary to file a complaint about his inaction.

How to remove the arrest from an apartment?

To lift the arrest, it is necessary to eliminate the effect of the reason that served as the basis for its application. Thus, if a measure is imposed due to the presence of a debt, it must be repaid.

The arrest is also lifted in the following situations:

• procedural violations on the part of performers;
• illegal seizure of property in respect of which such a measure cannot be applied;
• the arrest violates the rights of third parties who own property jointly with the debtor.

Only the authority that applied it earlier has the right to remove the arrest from the apartment.

Court imposed

Seizure may be imposed by a court or certain other government agencies that have the appropriate powers.

First of all, you need to find out the reasons for the arrest. Once the grounds are eliminated, the measure will be cancelled.

It should be understood that we are talking about a lawful arrest. If it was committed in violation of the requirements of the law, then the relevant evidence will have to be presented in court.

There is a list of property that is not subject to seizure by bailiffs. How to remove the arrest from an apartment after a court decision? Details in this article.

From a share

If the arrest was imposed on property that is jointly owned, the measure can be lifted by separating the share. To do this, an application is submitted to the court.

During the process, the shares of each owner are determined. After this, the debtor’s share remains under arrest, and part of the second owner’s real estate can be freely alienated.

Complaint against the bailiff

If the arrest is not lifted due to the fact that the bailiff untimely issued a decision on this, or did not send it to Rosreestr, the applicant may file a complaint about his inaction. A complaint can be filed:

• Higher bailiff;
• To a court of general jurisdiction in the form of an administrative claim (if enforcement proceedings are conducted on the basis of a document issued by a court of general jurisdiction);
• To the arbitration court, if it previously issued a writ of execution.

Read more about the procedure for appealing the inaction of a bailiff here.

Removal of seizure of property by bailiffs

The arrest procedure is entrusted to FSSP officers. However, they will be able to carry out these activities only after receiving the appropriate decision specified in the enforcement proceedings. Actions must take place only within the framework of the law, without violating the rights and freedoms of the debtor.

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If you have fulfilled your debt obligations a long time ago (for example, the court decision was made a year ago), then you need to talk to the bailiff and show him the documents that confirm your words. If you do not reach an understanding, you will have to go to court.

Complaint against Rosreestr

Missing the deadline for lifting the arrest from the apartment can also occur due to the fault of Rosreestr. If all the documents from the bailiff are received on time, but Rosreestr does not lift the arrest from the apartment, its owner can file a complaint about the inaction.

A complaint about the inaction of Rosreestr authorities can be filed:

• the head of the relevant body of Rosreestr or
• to a higher authority.

A pre-trial complaint can be submitted by mail, through the MFC or the State Services portal, or at a personal meeting with the head of the Rosreestr branch. It is also possible to submit using a special service provided on the Rosreestr website. The complaint is drawn up in free form. However, it must indicate:

• The name of the Rosreestr unit that delayed the registration of the removal of the arrest;
• Applicant details – full name, address, phone number;
• Description of the applicant’s situation - why the arrest should have been lifted within certain deadlines, which turned out to be missed;
• You can attach documents confirming its requirements to the complaint (for example, a copy of the submitted application to Rosreestr with a mark of its acceptance);
• Date, signature of the applicant.

The complaint must be registered within 3 days from the date of its receipt. The period for consideration of the complaint is 15 working days from the date of its registration (Clause 6, Article 11.2 of the Federal Law of July 27, 2010 No. 210-FZ “On the organization of the provision of state and municipal services”). In exceptional cases, this period may be extended.

Expert opinion

Lawyer Alexander Vasiliev comments

If, based on the results of consideration of the complaint, it was found to be justified, the removal of the seizure from the apartment must be registered no later than 5 working days from the date of the relevant decision on the complaint.

Rosreestr’s refusal to lift the seizure of an apartment can also be appealed in court on the basis of the Law on Registration of Real Estate (Articles 2 and 7). If the applicant is an individual, he has the right to file an administrative claim in accordance with Art. 218 of the Code of Administrative Proceedings to a court of general jurisdiction. If the applicant is a legal entity or individual entrepreneur in connection with commercial activities, the application is submitted to the arbitration court.

How to find out about the arrest of an apartment

The following have the right to seize housing:

• Judicial authorities;
• Customs;
• Law enforcement;
• Prosecutor's office.

For what actions can housing be seized?

Most of the seizures of real estate account for debts arising from tax payments. It happens that only one of the owners has a debt. In addition, seizure is also imposed for credit debts in financial institutions. A widespread reason for seizure of living space is debt incurred as part of a mortgage loan.

How to remove an encumbrance from an apartment?

Read about documents for removing encumbrances from an apartment here.

How to remove the encumbrance from an apartment after paying the mortgage in full, read the link:

It may also be that the client of a banking institution is not a “malicious debtor,” but simply, due to certain circumstances, has lost his official income and asks the lender to meet him halfway by organizing a “mortgage holiday.”

But for the bank to make such a concession, it needs certain guarantees. A similar guarantee is the imposition of a temporary seizure of housing. The bank itself does not have such powers; these actions are carried out when the corresponding claim is sent to the court.

Restrictions in force during the period of arrest

What series of restrictions are established when a property is seized (not only the entire property can be seized, but also a separate room in it):

• housing is prohibited from being sold;
• it cannot be pawned;
• prohibited from being used in a will;
• there is no way to transfer it by “deed of gift”;
• It is impossible to exchange such housing.

How to find out if an apartment has been seized?

Mostly, the question of how to find out about the seizure of housing appears when selling or purchasing real estate. In particular, it is important to clarify this issue before purchasing an apartment, since fraudsters can pass off an apartment that is under arrest as real estate without encumbrances, thus fraudulently obtaining money for it.

Fraudsters can prepare a power of attorney through a notary and take advantage of the carelessness of buyers.

To find out whether the property you are purchasing is under arrest, you should ask the seller to order a certificate from the Unified State Register of Rights. This register is a single state information resource from which you can obtain information about all rights to any registered property.

Attention should be focused on the date when this certificate was issued: it is better if the certificate is prepared fresh, since there is a possibility that the housing will be seized after the preparation of this document.

Thanks to this certificate, you can find out all the useful information about the property you are purchasing. It will help protect buyers from the tricks of scammers.

Removal of arrest

The right to lift the arrest is exclusively vested in the authority that caused its imposition. If such a reason is due to existing credit or tax debts, then release will become possible after the entire amount has been repaid.

State duty must be paid. To prove that the owner of the premises is the applicant and it was not purchased at auction, the appropriate fee is paid, after which the relevant certificates are submitted to the judicial authority.

Info

A document indicating payment of debt obligations must also be presented. After this, representatives of the judiciary must set a day for the consideration of the case. If, in your opinion, the decision made at the court hearing is unfounded, you can file a complaint.

The transfer of the writ of execution drawn up after a positive decision is made is carried out to the bailiff.