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In which cases, the contract of pledge is considered invalid. Recognition of the contract of deposit invalid

Legislation
01.09.2020

The agreement of the collateral of real estate, from the point of view of judicial practice, is quite difficult. And often the agreement of the collateral of the property becomes for a citizen's fatal, in view of the deprivation of his only housing. Learn more about how to recognize the invalidation of the collateral of the property, the lawyer Oleg Sukhov will tell ("Lawyer Lawyer Oleg Sukhova"), president of the lawyers of the real estate market.

Basis

For recognition invalid contract Privacy Policy Citizen is entitled to use general groundswhich are offered by the current legislation.

1. The lack of a notarized consent of the spouse by order by the object of real estate, if it is jointly acquired property. If this requirement is not respected, the contract is considered insignificant.

2. Not complied with the form of the contract, since the contract is notarized notary.

3. Cheating and delusion - common grounds for recognizing an invalid contract of the collateral of real estate. True, it is difficult to prove these foundations, you need to have enough good reason. Most of the courts satisfy claims, for example, the elderly, referring to their age, illiteracy, violation of the functioning of the auditory and visual apparatus.

4. If a citizen could not understand the meaning of his actions and lead at the time of signing a deposit agreement, the court will evaluate the evidence submitted by the plaintiff, on the basis of which will conclude about the satisfaction of the claimant or refusal. In cases of this kind, it is necessary to conduct a judicial psychological examination in order to make a motivated and fair decision.

5. The incapacity of the person who signed the contract of deposit means insignificance of the transaction. The incapacity of the person is not re-proved in this process. It is necessary to submit a certified copy of the decision that the person was recognized as incapable.

6. The person who signed the contract is limited due to the received mental disorder, and this fact is established by the court.

How to recognize invalid contract pledge?

The agreement of the collateral of real estate is recognized as an invalid court. Cases on challenging susso courts general jurisdictionAnd in disputes with organizations - arbitration courts, consider their federal judges. To do this, it is necessary to prepare the statement of claim and pay the state fee.

A copy of the documents should be attached to the lawsuit on which the plaintiff bases its legal position and additionally, an appointment with an application for the number of persons participating in the case. If these requirements of the law are not respected, the court will leave a lawsuit without movement.

If the applicants missed the term of limitation For challenging, they need in writing to the claim to apply a petition for the recovery of the term and documents indicating the respect of the pass.

When recognizing the transaction with imaginary or pretended, or perfect for the purpose of, nasty the basics of morality and law and order, or if the contract is signed by a completely incapable person, the limitation period for appeal to the court will be three years. For other reasons, one year.

The statement of claim should be signed by the plaintiff or his representative. The representative is entitled to take part in the trial and issue procedural documents on behalf of the principal only if he has powers certified by notaries.

The respondents on the claim must be the opposite parties participating in the conclusion of the contract.

Within five working days from the date of filing, the statement of claim should be accepted by the court and the date of the court session is appointed - pre-trial. After that, the main court session is appointed.

Having heard the parties and investigating the proof presented, the court makes a decision that any Party has the right to appeal within a month. The complaint must be submitted through the court of first instance.

Legal consequences

If the transaction is invalid, it does not entail legal consequences. In other words, it is annulled by the court, and the parties return to the original situation, that is, the lender loses the right to implement the real estate object for covering the debt of a citizen, and the borrower relies its property from burdension.

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The feasibility of the conclusion of the contract

The conclusion of the pledge agreement should be based on the principles of feasibility in economic terms, as well as the parties should not be mercenary motifs When signing the Agreement, including the goal to cause property damage to third parties.

With regard to relations arising between banking organizations and other participants, the preparation and signing of the pledge agreement is one of the criteria for ensuring the fulfillment of obligations by the borrower.

If the facial insolvency procedure is initiated, then other lenders are trying to challenge the existing bail agreements. but judicial authorities Recognize this right in vain, if it is established that the borrower, concluding such a contract, did not try to get out of material responsibility to other citizens and organizations.

The judge is also guided also evidence, which indicate that at the time of the preparation of a document on a pledge, the borrower did not identify signs of insolvency.

That is, if the economic feasibility of concluding an agreement of the deposit took place, and the agreement did not carry a threat to the harm to other creditors, the court will decide in favor of which recognize bankrupt on the relevant procedure.

If the borrower at the time of signing the pledge agreement was completely solvent, then this is a clear sign that the agreement was drawn up without intenting harm to third parties, and it is recognized as valid by the law.

Ownership of pledged property

A collateral agreement can only be concluded with the owner of the thing that is transmitted to the pledgee is general ruleestablished by civil law.

The contract is often recognized as invalid in the case when the pledger passed the mortgagee property that did not have ownership.

The courts in their practice are often faced with situations where mortgagers are conscientious persons who do not have the concepts that the pledger, passing the thing, violated someone's interests. The same applies to the owners of the stuffy things.

Civil law protects the rights of conscientious mortgagers, where a new owner of things is a mortgagor due to the law (paragraph 2 of Art. 335 of the Civil Code of the Russian Federation).

The provisions of this article contain a reference to the unscrupulous selection of other people's property. For example, if the thing is stolen from the previous owner or dropped out of its possession due to illegal actions, the above rules are not applicable.

In judicial practice, there are cases when the mortgagee was conscientious from the point of view of legislation, and new owners were not aware of the signing of a pledge agreement, the subject of which was the right thing.

The courts can stand on the side of conscientious new property owners, despite the fact that the pledgee was not notified of the mercenary objectives of the actual pledger.

Grounds for recognizing an agreement invalid

Remember! For the assessment and recognition of the contract of deposit, the following criteria are invalid:

  • lack of legal capacity at least one of the parties to the Agreement;
  • absence legal rights to sign a deposit agreement;
  • one or both sides are citizens who have not reached the age of 18 years;
  • the contract is not registered in the prescribed manner;
  • the lack of obtaining the approval of the transaction by the spouse, if the contract is a citizen who is married;
  • the contract does not contain the conditions that are fundamental to conclude a transaction.

As for the situation in which the contract is negligible due to the incompleteness of the parties, it can be recognized in judicial order Or confirmed by the documents in which the age of a person who has entered into a deal.

The same can be said about whether a person under 18 years old, and he has no consent to conclude a deal from legal representatives - The contract of collateral will be invalid.

All contracts of the collateral, the subject of which are real estate objects, should undergo the procedure for registering the right in Rosreestra bodies. Otherwise, the transaction is considered insignificant.

Citizens, lawful marriage, are obliged to reveal each other consent about the lack of objections about the conclusion of the pledge agreement from one of them.

If the Parties did not refer to the main conditions of the document, it can also be recognized by insignificant.

Substitution provided

The question of the correctness of determining the jurisdiction of this kind of affairs causes citizens some difficulties. So, controversial situations between individuals It should be addressed in the courts of general jurisdiction, and if the organization is involved in the case, the application is submitted to the Arbitration Court of the region.

Taking into account! If the subject of the contract is the object of real estate, then all claims are considered at the location of the relevant property (Part 1 of Art. 30 Code of Civil Procedure of the Russian Federation).

Also challenging the rights to real estate, recognition of a contract of pledge of insignificant susso to the judges, in whose areas there are these facilities, buildings and structures.

Procedure procedure order

To recognize the contract of pledge to be insignificant, it is necessary to prepare a claim for the number of persons participating in the case. Copies are applied to the claim, and in some cases the original of the documents as evidence of challenging the transaction.

If the statement of claim is not compiled by the rules set procedural legislationOr the number of applications will not coincide with the number of persons participating in the case, the judge has the right to leave a lawsuit without moving with an indication of the correction of shortcomings to a certain date.

If the limitation period is missing, then the applicant must, along with the application, attach a petition for the recovery of the term for submitting a claim. There are documents that serve as evidence good reasons Pass.

The limitation period for the recognition of the pledge agreement is invalid - one year.

The exception is the following situations in which this period is equal to three years:

  • conclusion of an imaginary or preliminary deal;
  • the contract of collateral is contrary to the norms and principles of moral and law enforcement;
  • conclusion of an agreement with an incapable person.

Defendant B. judicial process There will be another party participating in the conclusion of the transaction.

Important! After filing of the statement The judge will make a decision on making a case for five days, which notifies the parties. The first court session occurs in the form of a conversation to establish details of the future proceedings.

After that, the judge sends a notice of call to the court for the first court session.

According to the results of the proceedings, which should last no more than two months, the solution is made. Until the entry into force, it may be appealed by the parties.

The appeal appears to the court of first instance, which sends it to a higher judicial body.

Watch the video. General provisions About pledge:

Legal consequences

In the case when the judge makes a decision, indicating the recognition of a contract of pledge of negative in full or in any part, then for the parties it means only one thing: all legal consequences of the agreement cease to have legal grounds.

So, for the mortgagee, this can be expressed in the absence of a loan. The pledger in this situation is practically nothing risks. However, the lender may subsequently change the conditions of the lending agreement and oblige the borrower to pay the whole amount entirely.

If the pledgee refuses to fulfill the court decision in terms of return of property, then the mortgager will need to apply to the court. In this case, the FSSP of Russia will control the process of returning the subject of the pledge agreement.

Thus, if the agreement is invalid, the legal implications occur for both sides of the legal relations.

Attention! Our qualified lawyers will help you with free and around the clock on any issues.

Arbitrage practice

Consider the judicial practice on the recognition of the pledge agreement invalid.

Case 1.

The subject of the collateral was the vehicle, whose passport was also at the pledgee. With systematic non-fulfillment of obligations, the borrower lenders filed a claim for the return of funds with the recovery of the laid out of movable property.

The judge satisfied the creditor's claims, but at the stage executive proceedings It was found that the unfinished borrower made a duplicate TCP and sold a vehicle that was listed by that time removed from the traffic police.

The lender again appealed to the court with a statement on the imposition of burdens on the car, as well as on the recovery of funds by the subject of pledge. The judge satisfied the claim partially.

The new owner of the transport filed a statement of claim to recognize the agreement on the pledge of insignificant due to the fact that it was not concluded.

The first thing to do is to declare the imposition of arrest on the vehicle by virtue of the provisions of Art. 353 GK of the Russian Federation. This measure will preserve the property from sales at the time while the trial is underway.

The new owner of the car is obliged to prove its good faith when considering the case, since in this case a citizen acquired transport, whose passport was made again.

By virtue of the provisions of paragraph 43 of the Resolution of the Plenum Supreme Court RF N 6, Plenum of the Russian Federation N 8 dated 07/01/1996 "On some issues related to the use of part of the first Civil Code Of the Russian Federation, "one of the essential conditions of the deposit agreement is indication of the deadlines and the size of the fulfillment of obligations. Otherwise, the transaction is insignificant.

If there is a lending agreement, the above condition can be issued in the form of reference to the relevant loan issuance agreement.

Case number 2-xxx / 2010Copy

DECISION

Name of the Russian Federation

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vladimirhh XXXXX 2010

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Leninist district Court Vladimir as part

presiding judgeypotapova N.V.

under Secretreabarinova O.E.

with the participation of the representative of the plaintiff by proxy S.A.

representative of the defendant - IKB Bank LLC,

by proxy Yu.A.

representative of the defendant -A.A., by proxy, T.A.,

examined in open court session In Vladimir, civil case on the suit L.Ya. To the Limited Liability Company, the Bank Investment Commercial Bank, A.A, on the recognition of the pledge agreement invalid,

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S T A N O V I L:

L.Ya. appealed to the court with a claim to LLC IKB "Bank" and A.A. On the recognition of the contract of collateral of the vehicle (carLexus RX. 330) concluded between IKB Bank LLC and her husband A.A., invalid.

In the justification of the claim indicated that the carLexus RX. 330, registered in the PCDD REO in the name of Spouse -A.A., was acquired for borrowed cash November 26, 2008, D.A., is jointly hurned by the property of spouses. Cash to acquire the specified car under the loan agreement dated November 26, 2008, Ya.O.

The plaintiff claims that due to the fact that in the district court there is a civil case under the claim of LLC IKB "Bank" Kee husband A.A., he learned about the conclusion on November 29, 2008 another agreement of the collateral of the same car, between IKB Bank LLC and her husband A.A. Also affirms that the defendants - IKB Bank LLC and her husband A.A., did not receive her consent to conclude a contract by the key to the above car. According to the plaintiff, the claims of IKB Bank LLC to her husband A.A. about the recovery of the carLexus RX. 330 are based on the above contract of collateral and affect it. property rights As the spouses of the defendant.

As a legal justification, the plaintiff pointed out Art. 34 and 35 Family Code RF.

At the court hearing the plaintiff L.Ya. She did not appear, its representative S.A., acting on a notarial power of attorney, supported the claims in full, referring to the arguments set forth in the statement of claim. Also explained that in November 2008, the spouses decided to acquire a car, a car was chosen worth 1.150.000 rubles, the spouses made cash in cash in Ya.O. Wherein it was assumed that it would be issueddebt commitment and take into account the key to the acquired car.November 26, 2008 was concludeda loan agreement, collateral contract, compiled and decorated written agreement on theconclusion of the pledge agreement and after that a contract of sale was concludedcarLexus with D.A. P ostropkaya Acquisition of a car occurred during marriage A.A. andL.Ya, by mutual consent and the desire of spouses, written writtenobligations, then the acquired property is a common jointproperty of spouses. Disposal of such propertycan only be committed by mutual consentspouses.

The representative of the plaintiff at the court session also explained that in early September 2009, L.Ya. It became known that the bank (LLC IKB "Bank") in which her son worked B.B., appealed to the court with a claim for recovery on the car Lexus, belonging to her (L.Ya.) and her husband A.A. Husband with her son explained L.Ya., in the period of dismissal from the bank of the son - B.B., an unpleasant situation arose and actually under pressure on their son in the bank was issued a contract for the acquired car on behalf of A.A., it was assumed That no difficulties will arise and the decorated contract of collateral will be temporary and very short, that some money will be returned to the bank and everything will be resolved. According to the representative of the plaintiff, the execution of the contract of deposit on the already laid property is unacceptable. Believes that IKB LLC bank "knew that A.A. Married and for the design of the deposit agreement should have received the consent of his wife. Argued that no loans nor L.Ya., nor her husband in the bank did not receive and respond to their property for someone's debt obligations L.Ya. should not. ? XML: Namespace\u003e

The representative of the defendant LLC ICB "Bank" claimed against the satisfaction of the claimant's claims, argued that the transaction committed by one of the spouses implies the consent of the second to its commit. Pointed out to skip the plaintiff of the limitation period.

At the hearing, the defendant A.A., properly notified of the time and place of the hearing, did not appear. Representative of the defendant T.A., acting on a notarial power of attorney, the claims recognized in full, as in the case file, there is a receipt (ld.19, 28), did not deny the hide from the plaintiff (his wife) L.Ya. defendant A.A. Fact of the conclusion of the contract pledgeLexus RX. 330 dated November 29, 2008 with IKB Bank LLC.

The court, after hearing the persons participating in the case, questioning as a witness BB .., examining the materials of the case, comes to the following.

According to Article 168 of the Civil Code of the Russian Federation, the transaction that does not comply with the requirements of the law or other legal acts is negligible if the law does not establish that such a claim is an option, or does not provide for other consequences of the violation.

It has been established that on November 29, 2008 between IKB Bank LLC (mortgagee) in the person of the manager of the Vladimir branch of B.B. - on the one hand, and A.A. (Senther) - On the other hand, a contract is concluded by the collateral of the vehicle. Subject of contract pledge is a carLexus RX. 330, 2005 release (ld7-9).

In accordance with P.P. 1.1, 1.2 of the pledge agreement, to ensure the fulfillment of the obligations of the pledger (borrower) to the mortgagee (creditor) on the loan agreement on November 29, 2008, the pledger transfers to a pledge to the mortgagee car acquired at the expense of funds provided by the Bank to the Loader on the loan agreement. The deposit provides execution by the pledger of all obligations to the mortgagee under the loan agreement in the amount of which it will be by the time of the actual execution of obligations to pay the amount of debt.

According to paragraph 4.1 of the contract of deposit, the pledge of the subject of the pledge ensures the execution of the pledger (borrower) of obligations under the loan agreement, including the return of the loan in the amount of 1,000,000 (one million) rubles.

Article 339 of the Civil Code of the Russian Federation identified essential conditions A pledge agreement, in accordance with which in the pledge agreement should be indicated: the subject of the pledge and its assessment; the size and period of execution of the obligation provided by the deposit; the condition about which of the parties is the pledger or mortgagee - there is a pledged property; The term of execution of the obligation.

Significant conditions are those conditions, without reaching the consent of which the contract is considered not disconnected.

The obligation specified in paragraph 1 of Art. 339 of the Civil Code of the Russian Federation, the conditions of the Page Agreement follows from Art. 432 of the Civil Code of the Russian Federation, according to which the Agreement is considered to be concluded, if the Agreement has been made between the parties in the form required in the form, under all the essential conditions of the contract, under which those named in law or other legal acts As significant or necessary for contracts of this species. Under the essence of a secured policy, the requirements are understood as the essential terms of the contract, which served as the basis of the emergence of the main obligation secured by the deposit. Therefore, the text of a pledge agreement should be clearly recorded by the essential terms of the contract, which the main obligation was issued. You should also specify the name of the parties to the main contract, its number, date and place of its conclusion.

Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation in their joint decree dated 07/01/1996 N 6/8 gave a special explanation: "If the parties have not been reached by an agreement at least one of those named in paragraph 1 of article 339 of the Civil Code of the Russian Federation or the corresponding condition The contract is missing, a pledge agreement cannot be considered prisoner. In the case when the debtor is in the main obligation, the conditions for the essence, the amount and timing of the fulfillment of the obligation secured by the deposit should be recognized as coordinated. This provision is legitimate, if there is a reference to the contract To the contract registering the main obligation and containing the basic conditions. "

During the court hearing, the parties did not deny the fact of the conseclusion of the challenge agreement to ensure the fulfillment of obligations of borrowers O.E. and I.I. Before IKB Bank LLC under the loan agreement of November 29, 2008. Did not deny the parties and the fact of the lack of debt obligations at A.A. Before IKB Bank LLC.

At the hearing a representative of the plaintiff S.A. indicated that during the conclusion of the contract of the collateral of the manager of IKB Bank LLC was the son of the plaintiff - B.B .. due to the emergence of the latter in the performance of labor duties of problems in the bank, and actually under pressure from the bank's leadership, he was forced to conclude specified contract Pledge on behalf of his father A.A. The plaintiff L.Ya. Local about the conclusion of the pledge agreement did not put.

These circumstances are confirmed by the testimony of the witness B.B. And they were not challenged by the representative of the defendant IKB Bank LLC.

Approval of the witness B.B .. that the contract is collateledLexus RX. 330, in fact, IKB Bank LLC was drawn by the back of the bank, in February 2009, also the representative of IKB Bank LLC did not dispute at the court hearing.

Taking into account the above, the Court considers that at the conclusion of the pledge agreement, the essential conditions for a pledge agreement defined by Art were not followed. 339 of the Civil Code of the Russian Federation, this transaction does not comply with the requirements of the law.

The plaintiff L.Ya. asks to recognize the contract of collateral from November 29, 2008Lexus RX. 330, prisoner between IKB Bank LLC and her husband A.A., invalid, referring to Art. 34 and 35 of the Family Code of the Russian Federation, and indicating that the car is a joint property acquired by them during a marriage. ? XML: Namespace\u003e

In accordance with Article 256 of the Civil Code of the Russian Federation and Article 34 of the Family Code of the Russian Federation, the property acquired by spouses during marriage is their joint property, if the contract between them is not established in other regime of this property.

In accordance with Article 253 of the Civil Code of the Russian Federation and Article 35 of the Family Code of the Russian Federation, possession, use and disposal of the common property of spouses are carried out by the mutual consent of the spouses. When committing one of the spouses, the transaction by order of the common property of spouses is assumed that it acts with the consent of another spouse. The transaction committed by one of the spouses by order of the common property of spouses can be recognized by the court of invalid on the missing consent of another spouse only at its request and only in cases where it has been proven that another party knew or knowingly should know about the disagreement of another spouse to make this transaction.

Article 174 of the Civil Code of the Russian Federation provides that if the powers of the person on making a transaction are limited, and if such a person has entered the limits of these restrictions, the transaction can be recognized by the court invalid on the claim, in the interests of which restrictions are established only in cases When it is proved that another party in the transaction knew or knowingly had to know about these limitations.

The case found that the defendant A.A. It is a registered marriage with the plaintiff L.Ya. From July 31, 1976, this circumstance is confirmed by a marriage certificate (ld.10).

It has been established that during the period of marriage, 11/26/2008, the defendant A.A. acquired a carLexus RX. 330, 2005 release, which is confirmed by the contract of sale of the vehicle concluded between A.A. and D.A. (ld.22).

According to the Contract for the Provision of Loan of November 26, 2008, for acquisitioncarLexus RX. 330 Citizen Ya.O. Provided the defendant A.A. cash in the amount of 1.150.000 rub. (ld3-24).

As established by the court, a loan agreement concluded by Ya.O. with A.A., provided mortgageLexus RX. 330 (ld.26). ? XML: Namespace\u003e

Since issueddebt commitment and issued a contract of collateral acquired car,11/26/2008 were the written consent of the plaintiff L.Ya. on theconclusion of the pledge agreement (ld 55).

Article 342 of the Civil Code of the Russian Federation is allowed a subsequent deposit in the event that it is not prohibited by the preceding pledge agreements.

At the same time, when concluding an agreement pledge with IKB Bank LLC this consent from L.Ya. The respondent was not received.

From the explanation of the witness B.B., it follows that IKB Bank LLC did not require the consent of L.Ya. At the conclusion of the pledge agreement and did not inform about the transaction.

Approval of the representative of IKB Bank LLC that the plaintiff missed the challenge of the track is not wealthy, since in accordance with Article 181 of the Civil Code of the Russian Federation, the limitation period on the request to recognize the consequence of the transaction invalid and on the use of the consequences of its invalidity is one year. The limitation period for specified requirement It begins from the day when the plaintiff learned or had to learn about the circumstances that are the basis for recognizing the transaction invalid.

As follows from the text of the statement of claim, the explanations of the representative of the plaintiff, and is confirmed by the explanations of the representative of the respondent T.A. And a witness. B., the plaintiff learned about the concluded agreement of the deposit only in September 2009. The party of the defendant is not presented any evidence to the opposite.

Thus, analyzing legal norms And established actual circumstances, the court acknowledgment statement of L.Ya.O.O.O.A. Recognizing the invalid contract of the collateral of the vehicle concluded between IKB Bank LLC and A.A. invalid - reasonable and subject to satisfaction.

Based on the above, and guided by articles 194-198 of the Code of Civil Procedure of the Russian Federation, the court

I DECIDED:

Claims L.Ya. to satisfy.

Recognize contract pledge contractLexus RX. 330, the investment commercial bank "Bank" and A.A., concluded between the Limited Liability Company, is invalid.

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The decision may be appealed to Vladimir regional Court Through the Leninsky District Court of Zladimir within 10 days from the date of decision-making by the court in final form.

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Presiding judge suppical. Potapova

Issues related to the protection of the deposit holder in cases where it turns out that the pledger did not have the right of ownership of the thing, there were not solved in the current legislation. The contract of collateral was recognized by the courts invalid, and the pledgee lost the subject of pledge.

In recent years, the problem of protecting a conscientious mortgagee has gained a very acute character. In this situation, an attempt to build a departure system of a pledgee, who did not know the absence of a pledger of rights to the property transferred to the pledge, took arbitrage practice.

At the conscientious mortgagee, the law enforcement spread the defense that applies to a conscientious acquirer. The entry in the registry of the right of the pledger does not guarantee the pledgee to protect his rights.

Question About who is such a conscientious mortgagee should be disclosed on the example of the basic casus and its subsequent variations. Consider, for example, such a source incident: there is someone who is recorded in one state registry Rights to real estate and transactions with it (hereinafter - EDRPN) as an owner of real estate.

Specified person, concluding a loan agreement with the bank and ensures the return of the loan by the mortgage. In the future, it turns out that this mortgager, recorded in the registry, in fact, did not possess the right of ownership of the property, because he bought this thing in a third party on an invalid transaction. The court recognizes this transaction invalid (for example, as a large or deal with interest, which has not received corporate approval).

Accordingly, a problem arises due to the use of the consequences of the invalidity of such a transaction. Obviously, a consequence of a judicial act on recognition of the transaction invalidation should be bilateral restitution - each part of the transaction should return to each other all received.

In this case, a record of the right of ownership of the mortgager should be repaid and the record of the right of ownership of the real owner of the seller has been restored. The seller must return money or other oncoming provision that they have received from the buyer. But we should not forget that the property is already burdened by mortgage.

And then the question arises - what is the fate of the pledge?

First of all, it is necessary to answer the question about whether the person is considered as the owner only because in relation to him recorded in EGRPS?

The answer to this question must be negative. The domestic registration system is arranged as a causal registration system, that is, the entry itself does not create the right.

The record is as it were, the "symbol" of the right, for which the properly rolled right is necessary, for example, in the form of a valid transaction. If there is no such right, then the record itself but at our own legal system No right gives rise to. So, if we come to the conclusion that the pledger was never the owner of the stuffy property, then what should happen next to the mortgage?

As a result, about 15 years of judicial practice suggests that the courts in disputes of this kind have never even thought that any person who trusted the registry should be protected.

When the pledgee in the casus described above, tried to declare his own conscientiousness, then the courts demanded to specify a reference to a specific rule of law following the example of Art. Art. 302 and 223 of the Civil Code of the Russian Federation, who protect the bona fide buyers.

Naturally, the norm regulating the protection of a bona fide mortar, there is no law. Therefore, in the case when the contract of deposit was not concluded by the owner, then such a transaction was recognized as insignificant.

Accordingly, the deposit did not arise, and the pledgee did not arise any mortgage rights to the property. In such cases, when applying the restitution, the property of the seller was restored, not burdened by mortgage, and the mortgage record was redeemed.

The conscientious mortgagee, trusted the registry data, should be protected.

In such a state, the judicial practice was staying until July 2011, that is, before the Presidium of the Russian Federation first turned to the problem of protecting the conscientious mortgagee. This was done in the judicial act of the highest judicial instance in the case of the Bank "Intesa" against the Kavalkad Society (Decision of the Presidium of the Court of the Russian Federation dated July 26, 2011 in case number A56-24071 / 2010).

By the way, it can be said that the subject of the dispute in this case was very similar to the above-considered incident. The only difference was that there was still a certain company between the buyer and the seller, which was used in order to violate corporate legislation when performing this sale were not so obvious.

One shareholders of the actual owner appealed to the Arbitration Court with a claim for the recognition of an invalid transaction with interest, that is, the sale and purchase of real estate from the seller to the final buyer. The courts, considering the case, agreed that the deal was committed with interest, and since the approval was not obtained, therefore, it is invalid.

But, as we remember, there were also a mortgage burden. Regarding this pledge, the courts did not express some special opinion, but the case was transferred to the Presidium of the Russian Federation precisely so that the Presidium shall formed a legal position but the question of how the mortgagee could be defended, who made the mortgage agreement in good faith, trusting the registry data .

The Presidium of the Russian Federation canceled everything judicial acts And sent a case to a new consideration. In the ruling on this case, the legal position was performed for the first time, according to which, if an open registration system was introduced, pushing, in essence, all interested parties committing real estate transactions, rely on the data of this registration system, the person entrusted to such a record cannot Be not protected. At the same time, it does not matter whether such a person makes a purchase and sale transaction or concludes a mortgage agreement.

The interests of the bona fide mortar are also subject to accounting, and the courts should apply the consequences of the invalidity of the transaction, taking into account the preservation of the collateral burden.

Thus, the summer of 2011 is the turning point in judicial practice, when the Presidium of the Russian Federation formulated the long-awaited legal position, saying that not only the one who buys real estate, trusting the registry, but also the one who takes her pledge .

This is based on an elegant argument, which at one time expressed the pre-revolutionary professor I.P. Trepitsyn, discussing the problem of protection not only a bona fide buyer, but in general, any individuals that relieve the registry data (these are tenants, mortgagers, and servitors).

The essence of this argument is as follows. If the rule of law provides an opportunity for good faith to acquire the largest, the most complete right to the thing - property, then we must inevitably come to the fact that limited things are not so complete, as the right of ownership, especially for good faith.

This is a very good logical argument that is impossible to refute. If our law enforcement gives a conscientious buyer who has concluded an agreement with an uncondimed person, the ability to protect the ownership ownership acquired them, then those who are in good faith acquire other rights than property smaller in its volume, this protection should be distributed.

In the case of the Bank "Inteza" against the Cavalcade society, the Presidium of the Russian Federation only identified this concept, but it, of course, requires clarification.

In which part of the refinement? First of all, when considering the question of how to be, if it is established that the entry on the ownership of the mortgager, which was replaced by the pledgee, arose a result of a life, violence, fakes or deception. Who should be protected in this situation? Valid owner? The problem is that he will receive back its thing from the one who was recorded in the registry as the owner, but he will receive it with the burden, because the conscientious mortgagee keeps mortgage law.

As a result, an unknown structure is obtained, when the pledge arises from a third party, and this burden, established but good faith. Protection of a bona fide mortgager is an attempt to find a balance between the interests of the owner and turnover. Consider the following example, an important length of understanding the concept of protecting a conscientious mortgageler.

An unscrupulous person by fake documents registers into an EGRN transition to the ownership of real estate ownership belonging to another person. In the future, he, applying force, drives out from the premises of this owner. Real estate alienated to a third party, which, naturally, does not know and can not know anything about unlawful actions Seller. The third person, believing himself with the appropriate owner, lays this object to the bank. The face deprived of real estate (the proper owner) appeals to the court on recognition of property rights and the recovery of property from someone else's illegal ownership.

Obviously, such a lawsuit will be satisfied because it will be found that the thing has dropped out against the will of such an owner. In this case, the conscientious purchase of the right is not protected. But again there is a cooler; - What is the fate of the collateral established by the acquirer in favor of a bona fide mortar?

It is worth noting that in the case of the Bank "INTEZ" against the Kavalkad society, the Presidium of the Russian Federation did not specify the Protection of a bona fide mortar. The fourth of justice suggests that if the right does not protect the buyer, then the mortgagee should not be protected.

This seems the central idea that is laid in Art. 302 of the Civil Code of the Russian Federation: on one cup of the scales there is the interest of the owner, on the other - the interests of the turnover. When the interests of the owner should be protected, and when are the interests of turnover? I believe that in cases where the owner itself makes any actions that lead to an entry in EGRPN, which in the future, the third person was replaced, then the right should defend the turnover, that is, those who have revealed on Record.

But if the owner did not commit any careless, ill-conceived actions - what can he be put in reproach?

In this case, of course, the owner must be protected. Property generally represents the Central Institute of Any Capitalist, Bourgeois Economic Uklade.

Therefore, to protect exclusively business turns, ignoring the interests of the owner without good reason, it would be conceptually wrong. Should a conscientious mortgagee be also protected as the buyer? I think yes, because in Art. 302 of the Civil Code of the Russian Federation formulated the general principle when we defend the owner, and when we protect the turnover.

There are many different explanations, why in some cases the law protects the owner, and in some - a conscientious participant in the turnover, which placed on the formal visibility of the right (recording to the USRP, the ownership of movableness, etc.).

In production of higher arbitration Court The Russian Federation received another case - Akb "Altaibusinessbank" against KIT Finance Bank (Decision of the Presidium of the Russian Federation of 12/06/2011 But case number A0Z-10830/2010).

Fabul affairs is such: there was a certain owner of the apartment, his rights were not registered with EGRPN, because they had arisen earlier.

The specified face dies and leaves the heirs. Someone A., using fake documents, draws up an apartment for himself, then his accomplice - B. goes to the bank and receives a loan for buying - selling a named apartment at A.

The bank issues such a loan, the contract of sale between fraudsters is, and from A. Makes up the transfer of the right to B.

Since on this deal, payment for the apartment is made by the Bank, due to the law, the mortgage arises in favor of the bank. The specified collateral burden was registered. Buyer, being a bank client, being a borrower, gives the bank to the mortgage. The bank of this mortgage in the whole pool of other mortgages sells another bank - Bank-2.

In the intentions of fraudsters, of course, no repayment of the loan was not to repay, and the mortgage sold became overdue.

Bank-2 is made to the court of general jurisdiction, the requirement to address the survey for mortgages. The court satisfies the requirement. In the process of enforcement proceedings, the scheme of fraudsters is revealed and it turns out that this apartment is firing, because the actual owner who died, no heirs.

Having learned about this, the municipality makes a claim for recognition of the property of ownership of the apartment. Such a claim is also satisfied because this apartment is essentially municipal since the death of the actual owner. And then the question arises - what to do a jar, who has a mortgage to the specified apartment with an unfulfilled credit commitment?

Executive proceedings were completed, as it was found that this apartment is alien, therefore there is no debtor on the executive production. The apartments for the sale and sale agreement is invalid due to the fact that A., without being the owner of this apartment, was not entitled to transmit it Pledge and draw up a mortgage, Bank-2 makes a claim for the first bank, which he sold this mortgage, to recover the monetary amounts paid by the contract of purchase and sale of mortgages. What comes from this, Bank-1 transferred to the Bank-2 valuable paperwhich does not certify the right to receive execution monetary obligations And the right pledge to the apartment. The courts of three instances were denied the Bank-2 in a lawsuit, referring to the fact that the decision of the city court with A. in favor of Bank-2 debt, interest and penalties on the loan agreement are charged, as well as the penalty for pledge.

The specified decision entered into legal force, the recoverer was issued performance list On the recovery of awarded debt. The case was submitted to the Presidium of the Supreme Arbitration Court of the Russian Federation, who otherwise approached the problem of protecting the security of a bona fide mortar. In its resolution, the Presidium indicated the following: a record of the right of ownership of the pledger A. On the apartment transferred to the pledge-1, the apartment was introduced into an EGRN against the will of the actual owner.

Entered into legal force by the decision of the Court of General Jurisdiction The right to ownership of the apartment is recognized for municipal education. The actual owner (municipality) did not know and could not know about the fact of making a named record.

Under such circumstances, the owner of the share and abducted and illegally pledged property should be protected, including on the requirements of the pledgee (Bank-1), which opened in good faith at the time, with which the law binds the emergence of pledge. Since the property from the municipality dropped out without any of his will, this means that a situation appears similar to that described in Art. 302 of the Civil Code of the Russian Federation. And in this case, even a conscientious mortgagee should not be protected.

The inconsistency of the owner entails the return of his property with a mortgage burden. The concept of protecting the rights of the bona fide mortgager was completed by the Rosselkhozbank against the Society "Alice" (Decision of the Presidium of the Court of the Russian Federation dated 07.06.2012 in case No. A37-2221 / 2010).

Fabulus this case is. A loan agreement was concluded between Rosselkhozbank and the company "Alice", according to which the lender pledged to provide a loan to the borrower and pay interest for the use of them.

In ensuring the fulfillment of obligations under the loan agreement between the Bank (pledgee) and the Avtotransservss society, a pledge agreement was concluded vehicle In relation to the Loader-owned Loader "Fiat-Allis".

The ownership of the pledge holder on the loader is based on the contract of sale, concluded between Avtotransservts (Buyer) and the Gold Project (Seller) project, and the act of acceptance and technology acceptance.

Since the borrower did not fulfill its obligations under the loan agreement properly, the Bank appealed to the court with a claim to the Societies of Alice and Avtotransservss on the recovery of the principal debt, interest for the use of the loan, as well as about the preparation of the recovery on the mortgaged property - the loader.

The decision of the court of first instance was satisfied: in favor of the bank from the Alice society, the main debt was charged, interest for the use of the loan and the recovery is drawn to the laid property-vehicle (loader). By the decision of the Appeal Court, the decision of the court of first instance is changed: in satisfying the requirement in terms of the appeal of recovery to superimposed property. The court recognized the contract of collateral invalid.

It was presented supplementary agreement To the sales contract between Avtotransservnes and "Gold Project", which enshrines the provision that the ownership of the loader passes only under the condition of full payment for a certain period.

In the absence of payment within the specified period, the contract is considered terminated, and the property proceeds to the seller. At the same time, the date of termination of the contract occurred a few months before the property was deposited by the Bank.

In other words, according to the circumstances of the case, the owner has never been. The Federal Arbitration Court left without a change. appeals instancebut the Presidium of the Supreme Arbitration Court of the Russian Federation with this position of the lower courts did not agree. Preremidium was once again expressed by the idea that if the mortgagee was in good faith with the visibility of the right, which was at the pledger (for movableness is possession), it should be considered as Good faith. In this case, the thing dropped up by the will of the owner - the seller her himself handed over to the buyer, so this thing is not stolen. It is definitely that the owner of this thing is the seller, because they have agreed with the buyer about termination of the contract and about the return of ownership. But due to the fact that the ownership was at the pledger, the deposit for the conscientious mortgagee is preserved, and the seller as a result receives a thing back to possession but burdened by keyboard. At the pledgee, an approach is distributed applicable to a conscientious acquirer.

To answer the questions who such a conscientious mortgagee and what goodness is, it seems to be logical to take advantage of the practice of WINDICATION disputes and the position that is expressed in the joint decree of the Plenums of the Armed Forces of the Russian Federation No. 10 and the Russian Federation No. 22 of April 29, 2010 "On some issues arising from 29.04.2010 In judicial practice, when resolving disputes related to the protection of the property in the property and other real rights"(Hereinafter referred to as Decree No. 10/22).

The construction of a conscientious acquirer in Resolution No. 10/22 is presented in this way: good faith is not assumed, it must be proved. However, it is not proved by the fact that the person must convince the court that I do not know and could not know - it is impossible, because it is a negative fact, and negative facts are not proved.

Goodness means that the person must prove that before making a transaction made all the necessary actions, which, according to the terms of turnover, a person who committing such a transaction is usually undertaking.

As a result of these actions, it is assumed that the person receives information from which it viciously has to flow out that the agreement with whom it is planned to conclude a contract with an order of ownership for a transaction. The same idea can be transferred to the mortgagee.

That is, the conscientious mortgagee is one who committed actions that usually under the terms of turnover from such a pledgee are required to check the powers of the counterparty.

It is clear that here you can allocate various groups of subjects, turnover participants, depending on what provisions are presented to them. It's one thing if a citizen is a mortgagee - it's enough to watch an extract. Approximately the same approach to simple merchants, which are often charged just in case something in a deposit to provide a loan.

But banks are professional mortgagers. Banks are such special subjects that are expected to be especially sophisticated and especially competent in the field of finance and in the field of intermittent transactions. From the bank you can require a greater level of diligence and more in good faith. For example, a pledger comes to the bank and suggests to give a mortgage any building. The bank looks not just an extract, here it is accepted also to look and the documents - grounds. And if you can see that the counterparty-lostener bought a thing, for example, a week before making a deposit transaction, and bought it clearly not at the market price, let's say ten times cheaper than it stands on the market, the question arises whether the bank will have a conscientious If you make such a deal?

For all criteria - no, because such behavior is not accepted in commercial circulation. Buying real estate but the price that is largely lower than the market, at least causes suspicions: the thing just purchased and immediately laid. Exactly the same position of the Presidium of the Russian Federation formulated in relation to the purchase and sale: if the merchant buys real estate and sees that the latter was purchased by the seller just at a non-market price, then such a merchant acts imprudent. It became, it cannot be protected by a reference to a good conscience. For the mortgagee, there are rules similar to those that exist to state a good conscience of the buyer.

In Russia, it is difficult to find a person who would never take a loan in a bank. Mortgage is also widely distributed - it is possible to quickly solve housing issue. A significant drawback is a deposit of an apartment under the loan.

Take money for 20-30 years - this is a great risk for both the bank itself and the borrower. Nevertheless, citizens sign contracts drawn up by banks without always understanding that in addition to the obligations of the borrower, they possess the rights of the consumer. And banks, in turn, are not eligible to make items to the contract, which contradict the law.

In case of violations of the legislation of one of the parties, the mortgage agreement may be terminated. In the article you will learn what to pay attention to when signing the contract, when a mortgage loan is invalid and what happens in the reality of judicial practice.

How the law regulates relations between the borrower and the bank

In Russia, the work of banks is regulated by the Central Bank of Russia. And the relationship of the bank as a lender with the population, as with the consumer, established the Civil Code of the Code of Code (Article 15.26) https://www.zakonrf.info/koap/15.26/, ZozPP (Consumer Protection Act), FZ "On Banks »Http://docs.cntd.ru/document/9004805, ФЗ" About mortgage "http://kodeks.systecs.ru/zakon/fz-102/, Criminal Code.

You, as a consumer, you need to know your rights. If you take an apartment or other real estate in a mortgage for myself personally, your family is not going to use for commercial purposes, then you are a consumer. The bank must refer to you as a seller of goods and services to the buyer.

All the subtleties of contracts in controversial issues are better to solve with the help of a lawyer who works precisely in the field of lending on the security of real estate.

If your claim is made a positive decision, the bank's work will be tested completely. If violations have been committed more than once, the Court may decide a license review and appoint a criminal punishment.

The reason why the mortgage agreement may be invalid and, as a result, terminate, can be terminated for the sale and purchase of an apartment, at home, other real estate, to buy which you took a loan.

Recognition of the contract for the sale and purchase of real estate invalid

According to Article 168 of the Civil Code, the deal can be recognized as invalid only by the court.

To recognize the purchase and sale transaction

You bought an apartment in the secondary market for mortgage money, concluded a contract, transferred the desired amount And happily lived in their own accommodation, for example, 3 years. Make payments monthly and everyone is happy. But suddenly an agenda appears in court. At the hearing, you will learn that another owner appeared, which has the right to ownership of the apartment, and the deal made without his knowledge, while he was (in prison, on earnings, abroad, etc.).

This is a very common situation: the sale of the apartment "Real" owner, the further appearance of another "real" owner, which has great rights. The chain comes to three people. It is very difficult to protect yourself from such a majynation, it's not easy to prove anything. This situation is typical for apartments in the new building.

The owner can make a developer, hiding that apartment house The bank's property has passed (as a pledge), customer or other organization, which has proprietary rights to build. Trial Long for many years, and it does not always help return the money.

In which cases, the apartment purchase / sale of the apartment is invalid

The sale transaction is considered invalid if:

  • in drawing up any law of the Russian Federation;
  • contradicts morality and law and order;
  • fictitious transaction;
  • one of the parties is partly and fully incapable;
  • signed a document of a child up to 14 years old, 18 without the consent of parents or OIP bodies;
  • the contract concluded a person who did not realize his actions;
  • signature put under pressure (blackmail, threat, deception, violence, etc.);
  • signing was misleading.

The contract and sale deal may challenge all interested parties, but how lawfully only the court decides:

  • buyer;
  • seller;
  • parents of a minor;
  • oIP bodies;
  • legal heirs who are eligible for real estate;
  • prescribed in the apartment citizens who did not privatize the apartment;
  • the seller who decided after a while she was not in himself when he signed the contract. This often enjoy the elderly owners of apartments. A year later, they are submitted to the court and return their apartment, but not always money back money back.

By acting law (Article 168 of the Civil Code) to recognize the transaction of the purchase and sale of invalid, insignificant can only part of the contract. That is, those who signed the contract. In court, all the facts and faces are considered. The decision is made on the basis of a combination of several laws.

If one of the participants in the sale and purchase transaction performed its obligations under the contract, he cannot contact the court with a claim for recognition of a contract invalid.

What are dangerous for sellers and buyers invalid real estate transactions

For the buyer:

  1. If in the contract one amount, and in fact you paid more, then no one will return the difference - according to the law, the seller must return the money about which is spelled out in the contract.
  2. Mortgage is taken, the loan is paid, and the seller took the apartment back through the court. At best, you will be returned to money completely and you will pay out some part of the loan.
  3. The seller will declare that money is spent. If the amount will be written off from his salary, then you will return your own for a very long time.
  4. The purchase agreement must be signed by the owner, which has the rights - an adult, capable, acts in the right mind and solid memory openly (relatives, spouse, children, other heirs, co-owners, shareholders) are aware of the sale and agrees. Written agreement certified by the notary necessarily.

For the seller:

  1. If you have sold an apartment, they have signed all the documents, received money, transferred their real estate to the buyer and did not speculate that the dispute will be resolved in court, they will not be able to submit to court. Your claim may take only if you have undisputed facts of any violations.
  2. We'll have to return money. By law, this process can be stretched for several years, but buyers are different. Some require to return urgently and in full.
  3. If you agreed with the buyer that in fact he will pay you more than under the contract, you can not get the same amount. And in court, I will not prove the opposite. Everything must be documented and signed by a notary.
  4. If the buyer asked you to make repairs, after signing the contract for a certain amount, promised to cover the costs orally, and after the entry into the right of ownership did not restrain the promise, you cannot prove without supporting documents that you are not "good Samaritan" - you do not compensate for money .

Claim for recognition of the contract for the sale of real estate invalid

The statement of claim is made according to a certain form. In each court, this form may differ slightly, but always contains the props of the parties, the type of contract, the date of signing, which is expressed in violation. In addition, you must send written demand Respondent by registered letter. In the lawsuit, specify the date of departure, the meaning of the claim (text attach).

To find the form necessary for your situation, you need to turn to a lawyer or place a lawsuit directly in the courthouse.

Arbitrage practice

Citizen Samoilova filed a lawsuit on the recognition of the contract for the sale of the apartment of his real estate owner's apartment, which disappeared immediately after the sale.

The defendant, Citizen Marina submitted a counterclaim about the eviction of Samoilova-registered residents.

During the proceedings, it turned out that stepfather sold an apartment, took the money and left the abroad. Due to the fact that the seller (the true side of the contract) is alive and living, Samoilova has no right to file a claim (denied).

Citizen Maryina could not satisfy his claim, as it is not eligible from the apartment registered who did not participate in the privatization of persons.

Recognition of the mortgage agreement invalid

So that the court recognize the mortgage agreement is invalid, we need good grounds. A serious document compiled by competent lawyers of the bank should be based on the legislation of the Russian Federation. Federal Law "On Banks" (ch. 3) http://docs.cntd.ru/document/9004805, which determines the procedure for organizing the work of institutions in this financial sector. State banks adhere to the law. Commercial - not always.

Often, to get maximum profits, such structures establish their rules in the contract, which infringe the rights of the borrower as a consumer of services.

The contract may be invalid if it is challenged or insignificant:

  • The insignificant is that it violates the legislation of the Russian Federation.
  • Clemented - the content of the transaction and the claim can be challenged.

When the mortgage lending contract is invalid

The grounds for recognition by the court of the contract invalid may be:

  • accrual of complex interest - the bank charges interest percent for another loan, which it gives you automatically when the payment is delayed. If you find it difficult to deal with the "multi-storey" calculations of interest, better contact that bank, where everything in the contract is simply clear;
  • violation of paragraph 2 of Art. 16 ZozPP (terms of the contract, infringement of consumer rights);
  • bankruptcy of the borrower;
  • bankruptcy of the bank;
  • violation by the Bank of the Law regarding the borrower - the accrual of commissions, an increase in interest for a loan, a reduction in the term of lending a contraction with the contract,

Council. Be careful. Some banks provide automatic lending in case of delay in payments included in the service package or under the contract. The percentage is very high. As a result, you pay the fines, penalties, expect a loan and forget about the debt. In a few years, the bank will provide you with debt, fines and penalties for the delay in another loan. In order not to get into this situation, find out the details of the lending, and after completing the payments, check whether you should another bank.

Regardless of whether your only housing is laid under a loan or this is another property, the bank will act under the contract. In case of overdue, the apartment will be transferred to the creditor.

Mostly banks are claimed by borrowers. But there are inverse situations.

Arbitrage practice

The family acquired an apartment in a mortgage and conscientiously made payments. After 4 years, the financial position of the family shake out, and delayed. Spouses reported this to the bank and pledged to pay debts, penalties and fines for several months. After some time, the situation improved and the borrowers repaid debts. The term of lending has expired, the apartment passed to the property of the family. After 2 years, the Bank sent a notice of overdue loan payments, which spouses did not know about. After the clarification, it turned out that during the period of overdue, the bank automatically issued a loan to the amount of the borrower's account in the amount of the amount of overdue payments under the high percentage, which did not notify the borrower.

The family filed a lawsuit to the court on the recognition of an invalid transaction, infringement of consumer rights in order to enrich and actions committed in incision with the legislation of the Russian Federation. The claim was satisfied.

The statement of claim for invalidation of the mortgage agreement

If you suspect that the bank exceeded its powers and damage your civil and consumer rights, consult a lawyer. The specialist will explore the contract and consider the situation. If your deal is negligible, then the Council will follow the application of the lawsuit. The form of the claim looks like on the sample, but it is better to take the form in the very trial of your city.

What is the appellate definition?

After the court decides on the case, a decision is made. Court decision can be challenged in deadlines In higher instances. To do this, the unsatisfied side includes a complaint. Higher judicial instance Considers it and makes an appeal decision (definition).

Can there be problems with the apartment purchased from the bank?

Problems appear if there are registered citizens in the apartment. You will not be able to write them down. In other cases, everything, as in the transaction with the civilian owner. The bank initially invites the debtor to sell the apartment to himself and repay the loan (refinance, buy a smaller apartment). If this fails to do this, the apartment is put up for auction. When purchasing a real estate auction, you should well navigate in the intricacies of such trading. Any owner can withdraw the apartment you purchased if the law was broken in something. If after 3 auctions (with a decline in price), the apartment will not sell, it goes to the ownership of the bank.

All real estate relations proceed to the strict rules of this sphere. Changes in the GC (Article 168) are aimed at reducing cases of deception and fraud. Simple citizen without legal education In the subtleties are quite difficult. Trust your trial by a lawyer.