Limitation period for invalidating privatization

Court decision declaring privatization invalid

SOLUTION

In the name of the Russian Federation

March 11, 2011 Moscow

Federal judge of the Kuzminsky District Court of Moscow Ezerskaya Zh.A., with secretary Borodkova Z.V., having considered in open court a civil case on the claim of Ivanitskaya E.N. against the Department of Housing Policy and Housing Fund of Moscow, Senkina A. N. statement of claim to invalidate the transfer agreement and certificate of ownership .

installed:

The plaintiff filed a lawsuit against the defendants for recognition of the contract for the transfer of a room of 14.1 sq.m. to apt.

Invalid transaction

To be able to cancel privatization, it is necessary to prove the invalidity of the transaction. These include all transactions without exception that are contrary to Russian legislation.

The legislation of the Russian Federation provides for several types of such transactions:

Insignificant. In other words, the transaction is declared invalid from the period of its completion, regardless of whether the fact was revealed or not.
Contestable. The fact of invalidity is determined by a judicial authority at the request of someone.

The only difference is that insignificant privatization is considered such under Russian law. In the second situation, the final word remains with the judiciary.

Speaking about the consequences that apply to invalid transactions, after this fact has been established by the judicial authority, in most cases restitution is used - the return of relations to the situation before the initiation of the procedure.

In such a situation, the procedure, without exception, is subject to return to the previous owners, namely:

property;
cash and so on.

Often everything is returned to only one party or is completely subject to confiscation in favor of the state. However, this is only possible when the transaction has very dangerous consequences for society. The possibility of monetary compensation is also allowed if it is revealed that damage has been caused to one of the parties.

Grounds for invalidation

Challenging any civil transactions due to a violation of the law will be carried out according to various rules, depending on the following signs of invalidity:

contestability – in order to be declared invalid, the claim of the interested party whose rights have been violated must be presented to the court;
nullity - a transaction is recognized as invalid from the moment it is completed, regardless of whether you go to court (however, for the consequences of invalidity to occur, a judicial act will still be required).

These basic principles are enshrined in Article 166 of the Civil Code of the Russian Federation and will be used to challenge the results of privatization.

From the entire list of grounds regulated by Art. Art. 166-179 of the Civil Code of the Russian Federation, for declaring the invalidity of a privatization transaction, the following circumstances will be of practical importance:

if, when participating in the privatization program, the rights of employers were violated, including the illegal exclusion of minor children from the list of participants;
if the subject who registered the ownership of the residential premises did not have the appropriate powers, including being incompetent or partially capable;
if the privatization transaction was completed under the influence of delusion, due to a difficult financial situation, or against one’s will (under the threat of violence, etc.).

In each of these cases, the interested party will have to prove the grounds for applying to the court to declare the transaction invalid.

To the Federal Court of the Kirovsky District

Yekaterinburg.

Administration of the city of Yekaterinburg

The legislative framework

The main legislative acts on the issue under consideration are considered to be:

Federal Law No. 1541-1, which displays the requirements for the possibility of taking part in the procedure.
The Civil Code of the Russian Federation, which displays the rules for confirming privatization as invalid, also describes the consequences.
Federal Law No. 218 - reflects the execution of the act of recognizing the investigation as invalid.

It is these legislative acts that must be emphasized in order to invalidate a transaction.

Invalidation of privatization

Recognizing privatization as invalid requires compliance with a certain mechanism of action and nuances. In order to be able to protect your rights, we will consider the mechanism in more detail.

Reasons

An agreement to transfer property into private hands can be declared invalid through a judicial authority only if:

when it was signed, the rights of minor children and other citizens were violated;
the citizens who signed the agreement were incompetent or minors for this period;
citizens did not privatize property voluntarily, or became victims of fraudsters, were misled, and so on.

These conditions are grounds for invalidating privatization.

Presence of minor children

The participation of minor children in privatization is quite possible. Often, due to ignorance of Russian legislation, parents come to the conclusion that the procedure needs to be appealed to a judicial authority and declared invalid.

This is allowed in the following cases:

minor children are excluded from the procedure without prior permission from the guardianship and trusteeship authorities;
the contract bears the signature of a child under 14 years of age;
the agreement was signed by children aged 14 to 18 years, but without prior parental permission.

Please note: actions directed against children regarding the issue of obtaining a share in an apartment at the place of residence are illegal, and this is grounds for invalidating the transaction.

In 2020, this rule also applies to citizens who are recognized as legally incompetent under Russian law.

Repeated participation

Based on Russian legislation, the right to privatize any type of real estate can be used by adult citizens only once in their life.

Repeated participation is strictly prohibited.

Based on this, upon repeated participation, the transaction is considered void. Real estate obtained in this way must be returned to the state or municipality. The violation does not apply to those citizens who previously refused to take part in the transaction on their own initiative.

The period when you can use your right is limited only by the provisions of Russian legislation.

Incapacitated persons

Some mental illnesses can lead to the fact that relatives, in order to protect themselves from various actions of a person, ask the court to declare him incompetent.

All transactions without exception, including privatization, are considered void. From these types of transactions is the one that was carried out by an adult with limited legal capacity.

In most cases, this is done with those who suffer from alcohol or drug addiction.

Without exception, all legally significant transactions are subject to appeal, if permission to carry them out has not been obtained from the trustee.

Temporarily deregistered

Based on the Federal Law “On Privatization,” only citizens who are registered in the property at the time of privatization can take part in the procedure.

In addition to them, there is a list of citizens who have the right to privatization without the necessary registration:

military citizens;
persons who are in prison.

Due to their absence and deregistration on a temporary basis, the right to receive part of the real estate remains with them.

Misconception

It is very difficult to prove that the person who signed the agreement was in a state of delusion. This is due to the fact that Russian legislation considers only misconception regarding the subject of the transaction and its consequences to be significant. As for motives, they do not play a serious role.

You can often find another option when, under delusion, citizens, on the contrary, refuse to participate in the privatization procedure.

In this case, there are good chances to defend your position in the judiciary. If the judge finds the arguments convincing, a decision will be made to invalidate the agreement.

After appealing the transaction, the privatization procedure can be initiated.

Find out how to challenge the privatization of an apartment. Is it possible to privatize the land under the garage? See here.

Deception or threats

An additional basis for appealing the result of privatization is coercion to conclude such an agreement:

by deception;
as a result of violence, threat to property or life and health.

Despite the obvious illegal behavior of one of the parties, the transaction is not considered void, but directly voidable.

The party that is convinced that rights have been violated has the right to appeal its opinion to a judicial authority. Recognition of such a transaction as invalid has differences from other consequences.

A participant who threatens or deceives will not be able to get his property back. It should go to the benefit of the state.

Limitation period for apartment privatization in 2020

The transfer of municipal property to residents does not always occur according to the law. If the rights of citizens are violated, this is a reason for a judicial appeal to review the transaction. It is important to draw up the application correctly and meet the statute of limitations for the privatization of the apartment. Today we’ll look at how much it is and how to calculate it correctly.

General rules on deadlines and calculation of limitation periods

It will be possible to challenge the privatization of an apartment only taking into account the statute of limitations for claims. Limitation is governed by Chapter 12 and Art. 181 of the Civil Code of the Russian Federation. The claim period is calculated as follows:

void transactions – 3 years;
voidable transactions – 1 year;
for the party to the transaction, the period runs from the date of registration of the right;
for other persons - from the date when they learned about the illegality of the transaction and who the proper defendant is;
the maximum limitation period does not exceed 10 years from the date of registration of the right.

To challenge the illegal privatization of an apartment, you need to decide on the following:

What grounds to refer to – nullity or voidability.
From what moment does the period begin to run?

We recently talked about the statute of limitations for claims related to real estate, and provided a convenient summary table of the grounds. This article can be used as a supplementary article.

ATTENTION! The starting point of the deadline will be the date of registration of ownership of the apartment. No more than 10 years should pass from this moment. The deadline is preclusive. If you file a lawsuit outside of it, the chances of winning tend to zero.

Peculiarities of timing during privatization

The most common grounds for challenging the privatization of an apartment are presented below.

Factual basis	Legal basis	Statute of limitations
The person did not participate, although he was registered in the apartment. The court will definitely look at whether the citizen actually moved in, whether he lived in the apartment	Part 2 art. 168 Civil Code of the Russian Federation	3 years Insignificance
The rights of minors whose parents did not include in the apartment transfer agreement were violated
The person participated in the procedure again, although he did not have such a right
Transfer of an apartment using forged documents
The person signed the waiver under the influence of threats, delusion or violence. This is often cited by plaintiffs who were minors between the ages of 14 and 18, who themselves signed the waiver under the influence of their parents.	Art. 178 and 179 Civil Code of the Russian Federation	1 year Contestability
The man did not understand the meaning of his actions, refusing privatization, although in general he is mentally healthy	Art. 177 Civil Code of the Russian Federation

The plaintiff may be a participant in the transaction (new owner and administration) or a third party:

guardianship authority if the rights of minors are violated;
a person who did not participate in the privatization of housing, although he should have;
a citizen who signed a refusal under the influence of threats, violence or delusion.

For everyone, there are different starting points for the return of the apartment to the state (municipality).

Transaction side	Example	Beginning of the limitation period
Transaction participant	New homeownerAdministration (prefecture) of the municipalityAdministration of the subjectDepartment, housing committee	From the date of state registration of the rights of the new owner of BTI, Unified State Register, Unified State Register of Real Estate
Third party	Former minor who was not included in the agreementRefusator who did not understand the meaning of his refusalGuardianship and trusteeship authority	From the day when the person learned or should have known about the privatization that took place

Representatives can act on behalf of participants on the basis of a notarized power of attorney.

Attention! The wording “knew or should have known” is quite vague. Refuseniks need to remember that the court most often calculates the claim period from the moment the procedure is completed, even if the person was a minor at the time of signing the waiver.

Judicial practice for minors

A significant part of real court cases is occupied by proceedings on claims of citizens who were minors at the time of privatization.

The transaction is asked to be canceled when:

a minor signed a waiver of privatization at the instruction of his parents, not realizing that he was giving up property - they cite a misconception;
the child was simply not included in the privatization, he was registered in the apartment, but was not included in the social tenancy agreement by the employer - a reference to a violation of the law under Part 2 of Art. 168 Civil Code of the Russian Federation.

There is an opinion that the statute of limitations for minors is calculated from the moment they reach 18 years of age. This is a gross mistake - there is confusion with the legislation on alimony.

The period of claim for minors is calculated from the moment when the child learned or should have learned about privatization. A striking example is a 16-year-old teenager who signed a waiver.

The court recognizes that such a teenager could clearly and in detail understand the consequences of his refusal, which means that the limitation period for him began from the date of completion of the privatization of the apartment (for example, the Determination of the Penza Regional Court of October 9, 2012, case No. 33-2397).

If a citizen learns that his rights were violated as a child, the claim period for protection should be tied precisely to the moment of receiving the information, and not to the date of majority. This position is also shared by the Supreme Court of the Russian Federation (see, for example, Review of the judicial practice of the Supreme Court of the Russian Federation for the third quarter of 2008, dated December 5, 2008).

For example, if a child did not write a refusal, he could find out about privatization many years later, having received this living space as an inheritance from a deceased parent. The limitation period will begin from the moment of issuance of the inheritance certificate (but not more than 10 years from the date of privatization) - as mentioned by the Supreme Court in the Review presented above.

The problem with this approach is serious. Children, even older teenagers, find it difficult to adequately assess that their rights are being violated. Parents can abuse this position by excluding their children from participating in the privatization of the apartment. Despite this, judicial practice follows the path indicated above.

Statement of claim – download

To file a claim, you need to decide:

with the requirement that the plaintiff asks the court for;
and laws that need to be referred to.

When preparing an application, you need to take into account exactly what legal norms were in force at the time of privatization of the apartment. The court will examine the law under which privatization took place, even it has already lost force.

statement of claim to cancel privatization.

If the defendant claims that the statute of limitations has applied, you will need an application to reinstate the missed period. It can be downloaded for free here.

Attention! The court will restore the statute of limitations if there are valid circumstances for missing it that arose in the last six months.

In order to correctly calculate the statute of limitations for the privatization of an apartment, you need to decide on the requirement (1 or 3 years) and the start date of this period. In this case, you need to focus on the 10-year limitation period, after which it is almost impossible to cancel privatization.

Any questions about calculating deadlines and drawing up documents can be asked to our on-duty lawyer via chat.

Leave a like and repost the article so as not to lose useful information!

You may also be interested in step-by-step instructions for privatizing an apartment.

Source: https://ipotekaved.ru/problemy/srok-iskovoj-davnosti-po-privatizatsii-kvartiry.html

Procedure

To be able to invalidate an agreement, a certain mechanism of action must be followed.

Initially, it is necessary to make sure that there was a violation of Russian legislation or someone else’s rights. This can be done by consulting with a qualified attorney.

Going to court

The second stage is to contact the judicial authority, since it is within its competence to confirm the legality or invalidity of the transaction and decide on the consequences that will be applicable.

This is especially true when it comes to voidable transactions, where only a court ruling matters.

Documentation

In addition to the statement of claim, you must additionally attach:

passport + copies of completed pages of the claim;
evidentiary documentation;
a certificate regarding the presence of incapacity or limited abilities - if available;
receipts confirming all expenses incurred;
birth certificate of minor children - if available;
a certificate from the Federal Migration Service confirming registration;
title documents for living space.

Depending on each specific case, the list of documents may expand.

Sample claim

The statement of claim regarding the recognition of the agreement and the result of privatization as invalid must be prepared in writing.

The standard requirements of Russian legislation apply to it.

the statement of claim can be found here.

Reasons for terminating a privatization deal

The initiative to terminate a real estate privatization transaction may come from:

The person whose interests were affected as a result of the transaction, or his representative,
State supervisory authorities (prosecutor's office, department of guardianship and trusteeship, housing inspection, and so on),
Local authorities who acted as owners of the privatized property.

Violation of rights in the privatization process means the following situations:

Failure to notify about the privatization of registered persons in privatized real estate,
Inclusion in the privatization process of a citizen who has already used his right to privatize and deliberately hid this from the participants in the transaction,
The use of forged documents for privatization or deliberate distortion of data in documents,
Not inviting minors registered or living in this housing to participate in privatization,
Participation in the privatization process of a person who was incapacitated or inadequate at the time of signing the documents,
Concluding a privatization transaction under pressure, threats or misleading of one or more parties to the transaction,
Exceeding the powers of a trustee,
Lack of legal grounds for the owner organization to carry out privatization.

A person who has complaints about the privatization process can express them in the form of a lawsuit in court. The period for filing a claim in court to protect one’s rights is calculated either from the moment of privatization or from the moment when the interested person learned about the infringement of his interests and rights.

For citizens who were not parties to the transaction, the statute of limitations is 3 years from the date of conclusion of the transaction. In the event of a claim to invalidate a privatization transaction, the limitation period will depend on the recognition of the transaction as void or voidable. In the first case, the limitation period will be 3 years, and for voidable transactions - 1 year.

Legal consequences

The main consequences based on Chapter 9 of the Civil Code of the Russian Federation are considered to be:

forced termination of the transaction;
return of each party to the initial stage of privatization;
the property is returned to the rightful owner.

If the fact of damage to property or health was revealed, the party must pay monetary compensation.

Read why privatization of a private house is necessary. What are the rights of minor children when privatizing an apartment? Information here.

How much does it cost to privatize land under a private house? Details in this article.

Arbitrage practice

Judicial practice that has developed in such cases suggests that even in relations between one of the parties, which is the state, you can become a victim not only of exceeding obligations, but also of illegal actions in full.

The solution often adopted is deprivatization.

Here is presented judicial practice on invalidating a privatization agreement.

It is worth noting that, according to statistics, litigation on this issue is only increasing every year.