Legal aspects of the case
Today, creditors do not seek to take away housing when it is necessary to pay off the resulting debt. The explanation is quite simple: you have to wait a long time for a court decision, and there is no guarantee that it will be positive. Moreover, usually the arrears of consumer loan products are much lower than the nominal value of the apartment.
It also implies additional costs for paying financial attorneys, appraisers, and other persons. It turns out that you need to incur significant losses in advance without any certain hope of successful completion of the process. There is another important point - if the property is the only one, until recently it was strictly prohibited to take it away.
Today the situation has changed, since the preparation of the bill, which caused a public outcry, has been completed. It provides for the opportunity to “cut” the defaulter’s living space to the minimum established by law, even if the person has no other housing. In any case, there is no need to panic in advance, since there is a clear limitation in the project that justifies such an unpopular court decision.
General features of foreclosure on credit debt for apartments
Taking into account that consumer products are not issued for large sums, compared with mortgages, banks will not take away property. There is a logical explanation for this:
- The need to obtain a decision from the court, which is quite difficult. The amount of debt must be large enough to justify the seizure and subsequent sale of the home. Due to non-payment of even 100,000 rubles, no one will come to seize the property.
- It is not enough to simply take the apartment; it is important to successfully sell it, pay off debts, and, if possible, return the remaining funds to the former owner.
The situation becomes even more complicated when there are various types of encumbrances that significantly limit any types of disposal of this object:
- many people are registered;
- collateral issues, etc.
Therefore, when making statements to take away an apartment, the bank or collectors apply pressure, rather of a psychological nature. Faced with the possibility of losing property, people begin to look for options to get out of the current situation.
Shared ownership of real estate
Shared ownership of real estate can be a serious source of conflict. Often, shareholders are unable to agree on a comfortable use of joint property for everyone - due to reluctance to live with someone under the same roof, refusal to pay utility bills, etc. But even more often, the stumbling block becomes the fact that all shareholders are not going to live together under one roof, but neither are they going to sell their shares for someone else’s benefit.
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The only housing
This rule is known today to many owners who exist on debt. If, apart from the apartment, there is nothing suitable for normal living, it is impossible to seize and then sell it. This condition applies if we are talking about a share of real estate.
Although, starting from November 15, 2015, after the Supreme Court adopted the relevant Resolution No. 50, the situation has changed somewhat. It recognizes the competence of the actions of bailiffs when seizing the only housing with the establishment of a number of restrictions. They concern those attempts made by debtors to dispose of disputed property, causing obstacles to collectors.
To put it more clearly, it became possible to seize an apartment, which will be considered “encumbered” until the borrower fully pays off the accumulated debts. At the same time, the ban applies to all types of transactions, including registration and moving in of someone. As a result, a person has the right to simply live and enjoy public amenities.
If a debt has arisen due to non-payment
Following the Law of the Housing Code of the Russian Federation, Article 90, an apartment can be seized from the owner if debt payments are not made without a good reason. Then the company receives a court order and seizes the premises. When housing is social, citizens are not provided with a replacement.
If the apartment is privatized, it is sold, after which the remainder of the sale is returned to the owner, taking into account the deduction of the amount of debt. There are several valid reasons why payment may not be made:
- the owner maintains a person with disabilities;
- the job was lost;
- one of the payer’s relatives (or the owner himself) became seriously ill;
- there was a delay in the payment of wages or pensions.
The authorities can only seize an apartment from ownership if the debt is really high and the property is not the citizen’s only home. Before taking the apartment, the owner is given notices of debts, and then some services are turned off, for example, gas or electricity.
Note! Privatized housing may go to the state after the death of the owner; this is possible if there are no heirs by law or will. Also, housing will be transferred to the ownership of the municipality when the heirs do not apply for rights to the apartment within the prescribed period.
A child is registered in the apartment
In fact, the fact that children are registered in the disputed housing, after selling which the bank wants to return the money, does not become a legal basis for seizure and sale. The need to obtain consent from the guardianship authorities may act as a barrier. The latter are obliged to carry out all actions in full accordance with the interests of minors, which explains their reluctance to confirm such transactions. Although the decision may be positive if the parents have other property, it is important that the relocation does not lead to a deterioration in the child’s living conditions.
Factors when guardianship authorities refuse to take radical measures:
- results of analysis and assessment of family financial situation, status in society;
- the amount of debt in terms of the value of the property.
The final decision is always made by the court with the participation of representatives of the prosecutor's office who protect the interests of minors.
Share in an apartment
In this case, the general rules according to which collection occurs will “work”. However, it is necessary to take into account all the nuances:
- availability of other housing;
- encumbrances in the form of a registered child.
The following problem may also arise: the debtor owns real estate, and the bank is authorized to collect the share where close relatives also live. And here trouble awaits everyone:
- the owner is deprived of a certain share;
- his family could be evicted.
It is difficult to find those who want to buy a small part, it is problematic to get rid of such a “broken” object, which explains the involvement of collectors in solving the problems. But their actions are completely unpredictable, even to the point of creating unbearable conditions. Typically, such conflicts end with the payment of the required amount, a kind of “redemption” of one’s own share.
Nuances of the new law
The time is not far off when Russians will have to say goodbye to housing, provided that:
- its cost will cover the delays;
- the debtor exceeds the established minimum standards.
Such measures will be aimed only at persistent violators who do not pay off debts on existing payments. This includes alimony, other socially significant payments, traffic police fines imposed for violations committed on the country’s roads.
Obviously, financial structures will not be able to take away the apartment because of this. The immediate scheme of such a development of events is as follows:
- the court takes the side of the creditor;
- the borrower’s living space is confiscated (taken away) by the bailiff;
- then the real estate is sold;
- the debtor receives the amount to purchase an apartment based on the minimum standard.
For various constituent entities of the Russian Federation, the figures range from 14 to 18 sq.m. for each family member. It’s easy to calculate, for four people (husband, wife, two children), this room is 56-72 m².
The law allows for the recovery of those apartments whose sizes exceed the minimum by 2 times. Although options are possible - it is enough to register relatives in a timely manner, which will tip the scale of justice on the side of the debtor.
Alienation procedure
So what can bailiffs take?
If an appropriate decision is made, FSSP inspectors have the right to seize the apartment with a mandatory assessment of the housing. The borrower can file a protest against the established value, which will significantly delay the consideration of the case. Upon final verdict, the lender will be offered to buy the property.
The alienation procedure begins only after a decision has been made. Then they send a letter indicating the market value of the property, and a week is given to think about it. If after 10 days it has not been possible to sell the property, it can be put up for auction with repeated auctions a month later without reducing the price set by the court.
If the sale is successful, the former owner has two weeks to move out. Otherwise, a one-year “respite” is given. For the specified period, restrictions on residence are lifted; the lender will be able to initiate re-bidding after 12 months, during which debt obligations can be repaid. Which will be a good reason to stop the started procedure.
Under what conditions can property be taken from a person?
With the development of capitalism in Russia, when former state property has already been divided, the number of cases of so-called Household raiding increases. This term refers to the assignment of ownership rights primarily to apartments, houses, garages and land plots. Unfortunately, the law is on the side of household raiders. Now we will look at several typical cases of property seizure and ways to counter them.
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Mortgage arrears
Many citizens are faced with a rather serious problem when financial troubles do not allow them to make timely payments on their invoices. This is especially important when it comes to housing purchased in installments. Unfortunately, it is worth recognizing that in most cases the court takes the side of the creditors, although there are options to correct the current situation.
Sometimes it is enough to register minors in the disputed apartment, especially if it is the only one. But you should not firmly count on the leniency of judges, since the next development option is quite possible - seizure of property by a bailiff.
The optimal option would be a personal visit to a banking structure with the preparation of compelling arguments in your favor, justifying the existing economic problems. It must be proven that this is:
- temporary phenomenon;
- you are not unemployed;
- ready to cooperate;
- make every possible effort to solve the problems that arise.
According to the new rules, it is possible to allocate funds to the defaulter sufficient to purchase a smaller home, or the provision of suitable premises is mandatory.
In what cases does an apartment go to the state?
Inheritance of the second type occurs when the testator draws up an official will, formalizing a unilateral transaction regarding the disposition of a person's property after death. This document comes into force after the opening of the inheritance.
Can a privatized apartment go to the state?
After the adoption of the law on privatization, many fraudulent schemes arose to formalize this very privatization in violation of the law. There were different cases - forgery of documents, deception of a privatization participant, various threats, intimidation and much more.
The plaintiff, whose share respectively accounted for 2/3 of the living space, went to the courts in the hope of depriving her neighbor of property rights, recognizing his share as insignificant, and expressed full readiness to buy it out. However, the man did not acknowledge the claims and refused to sell. The district and city courts dismissed the claim. But the Supreme Court overturned these decisions and sided with the plaintiff. He found grounds for the forced sale of the disputed share and the transfer of monetary compensation to the owner, considering the case in question exceptional, and also indicated that this was “necessary to restore the violated rights and legitimate interests of other participants in shared ownership.”
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Here is a typical example. The defendant owned a 1/3 share in a three-room apartment in St. Petersburg. Back in the 90s, he purchased it from the plaintiff’s ex-husband. But in the end they failed to become good neighbors. Living together turned into a nightmare that the judiciary had to sort out.
And when the court definitely decides not in favor of the property owner
Housing purchased with a mortgage and pledged to the bank is the only one of all real estate that can be seized for debts, even if the borrower does not have another apartment. Therefore, the courts, as a rule, always satisfy the creditor's claims to collect money from the debtor through the sale of real estate at public auction.
Another question that worries many: can an apartment be taken away from the owner ? As follows from the information above, creditors or local authorities have such an opportunity, but then registering real estate as a property does not provide reliable protection against the fact that it can be taken away.
Debts on utility bills
Delays in paying for utilities, especially if the amount of debt is significant, become the basis for the housing and communal services to prepare a writ of execution in order to begin proceedings in court to collect money. In this case, real estate is taken into account, acting as a reliable guarantor of repayment of all payments. This is an excellent way to encourage citizens who have made mistakes to correct the situation for the better.
If the property is private, what can the bailiff do?
Take away, but only in the following situations:
- the family debtor has a place to live;
- mortgaged property is collected in accordance with the relevant Federal Law;
- in the presence of a court decision.
When an apartment is the only place suitable for living, the debt has arisen under a mortgage, based on Article 446 of the Code of Civil Procedure of the Russian Federation, it cannot be used to cover the resulting financial obligations.
The absence of valid reasons for non-payment of rent in public housing for six months becomes grounds for losing it with the eviction of debtors by court to another premises at the rate of 6 m2 per person.
Bailiffs: rights and responsibilities
If a trial was held over you and your debts, at which it was recognized that the statute of limitations had not passed, the appearance of a bailiff will not be long in coming. However, he must follow the notification or seizure procedure. Since few debtors understand the law, bailiffs often impose their own conditions.
Firstly, the bailiff assures that according to judicial enforcement proceedings , he can come to your home at any time and seize the necessary property. In fact, the bailiff is obliged to notify the debtor about when and where he will seize the property. This is a mandatory procedure, failure to comply with which may result in a trial against the bailiff himself. An appeal against the actions of a bailiff is carried out in accordance with the Law on Enforcement Proceedings, Article 122. It states that the debtor has the right to file a complaint with the court against the actions of the bailiff within 10 days.
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For consumer loans
When protecting the rights of debtors, the law provides for several exceptions relating to real estate. This circumstance significantly limits the actions of banks, based on the characteristics of a particular case and the legal status of the residential premises. For example, it is quite difficult to lose the property in which you live. Unless the total amount of non-payments significantly exceeds its value. In some cases, they can take the car for debts.
At what amount of debt to the Federal Tax Service can an apartment be seized?
- land plots on which the objects specified in paragraph two of this part are located, with the exception of the property specified in this paragraph, if it is the subject of a mortgage and can be foreclosed on in accordance with the legislation on mortgages;
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- residential premises (parts thereof), if for the debtor citizen and members of his family living together in the premises owned, it is the only premises suitable for permanent residence, with the exception of the property specified in this paragraph, if it is the subject of a mortgage and on it in in accordance with the legislation on mortgage foreclosure may be made;
The process of further sale of property
Based on the provisions of the draft law that has not yet been adopted, the discretion of the court remains the right to decide on the possibility of seizure of property and the sale of the only apartment. But only if there are no other ways to close outstanding financial obligations.
It is all the more important to clearly understand that before the draft comes into force, such actions on the part of the judiciary are illegal. Seized housing must be returned to the owners. The question still remains open: to accept or reject this law, since even in the State Duma there is no consensus. If the decision is positive, debtors will be required to repay overdue loans through the sale of their only living space.
Actually, the process is standard and is within the competence of bailiffs. They are responsible for preparing a package of documents and further implementation after the relevant resolution is received.
Features include the following:
- the court may set the minimum amount that the debtor has the right to count on in order to purchase new property that fully complies with legal norms and requirements;
- no one dares to simply throw a person out into the street;
- To determine the cost, experts are invited whose services are paid;
- the interests of each family member are taken into account;
- the lender has the right to purchase the property within one week;
- ten days later, tenders are announced while maintaining the established value; the procedure can be repeated a month after the first;
- The sold apartment must be vacated within two weeks.
Until the adoption of a new law, they proceed from Article 446 of the LC. Not a single legal act of the Russian Federation contains permission to sell land or surplus residential space.
Why can the state take away an apartment?
Everything is clear with mortgages and debts for utility services. But there are precedents when owners were deprived of their hard-earned housing for other reasons. Let us consider such cases in more detail. For example, you can be left without an apartment if it is illegally redeveloped. Do you want to demolish a load-bearing wall? But you shouldn't do this. Any architectural changes to housing must be approved by the housing inspectorate.
Alimony payments and utilities
A separate problem is associated with minors who are registered in housing. According to the law, the rights of persons under 18 years of age cannot be infringed. It is possible to sell housing under arrest only with the written consent of the guardianship and trusteeship authorities, which take into account the circumstances of the civil case. How to help yourself? First, the judge considers each case individually. Apartments are seized only in extreme cases for malicious failure to pay utility bills, mortgages or alimony. The judiciary may offer debt restructuring as one of the payment options. Seized real estate cannot be donated or alienated, and no legal actions can be taken with it.
Paragraph 7 of the same Article 235 of the Civil Code of the Russian Federation introduces grounds for the forced alienation of a share in an apartment with subsequent payment of compensation from other owners. If the owner’s share in the apartment is insignificant and in reality cannot be allocated (for example, a fifth of a one-room apartment), and the owner does not agree to the alienation voluntarily, then there is only one way out - forced redemption of a small share with the participation of the court.
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In legislation (Article 243 of the Civil Code of the Russian Federation) there is also confiscation. It involves the gratuitous seizure of property from the owner by court decision as punishment for a criminal offense or administrative offense committed by him. Confiscation can pursue different goals - compensation for harm, termination of ownership of property due to its dishonest acquisition, for example, if it was acquired by criminal means. Confiscation can also be applied by the court when determining the consequences of invalid transactions.
If the apartment was purchased with income whose legality has not been proven
You can easily lose your mortgaged apartment if you don’t pay the mortgage for it. The bank will sell it to pay off the debt. The fact that the disputed apartment is the only place of residence of the evicted citizens will also not have any significance. This nuance is spelled out in Article 446 of the Civil Procedure Code of the Russian Federation.
Example with registration. The debtor is registered in the parents' apartment, but is not the owner. Neither the parents nor the debtor have any other housing. The parents' apartment will not be taken away for debts, because collection can only be made on the property of the debtor himself, and not his relatives. The fact that the parents are registered in the apartment does not matter in this case, because this apartment does not belong to the debtor.
An example with a mortgage. The family took out a mortgage on the apartment for 10 years. The borrower is a husband. The mortgage is paid on time. But my husband has other debts worth 4 million rubles that are not being repaid. There is no other property, no official salary either. The mortgaged apartment cannot be foreclosed on, since it is already under encumbrance. The bank can take it away if there are problems with repaying the mortgage itself. Theoretically, the apartment can be taken away only if the amount of mortgage debt is small and the bank gives court permission to sell it. In practice, a bank is unlikely to refuse a legal security measure if the borrower already has debt problems.
Who decides how much space a family needs?
The court's ruling will establish the minimum amount that the debtor will receive after the sale of the home and settlements with creditors. Even if the cost of the apartment does not cover the debt, the debtor will still be returned the amount that should be enough to purchase housing according to the standards.
Since the owner has privatized the apartment, he is charged with maintaining the premises, as well as paying for services provided by various authorities. When the debt accumulates and the citizen cannot pay it off, the apartment is repossessed. This is legal only if the housing is not the only one owned.
