The principal of the company got into a difficult situation after buying an expensive apartment worth about 12 million rubles in the center of Yekaterinburg. So, after the conclusion of the sale and purchase agreement, the transfer of funds, the submission of the entire set of documents to the Rosreestr authorities and the transfer of the apartment, unforeseen circumstances arose. In particular, the said apartment was seized as an interim measure at the suit of the bank that issued the loan to the seller’s enterprise. Due to the seizure, the state registration of the transfer of ownership was suspended.
Further more. The seller stopped communicating, another arrest was imposed on the apartment, and the number of claims against the seller increased every day.
The buyer filed a claim with the court to release the property from seizure.
Based on the results of the preliminary court session, the plaintiff was asked to clarify the claim in terms of filing a claim for recognition of ownership of this apartment. In such a situation, the buyer turned to the law firm Rezolut.
In the court of first instance, the interests of the Principal were represented by the managing partner Vasily Dryga and the lawyer-partner Andrey Bochkarev. The lawyers additionally motivated the claim for the release of property (apartment) from imposed arrests (in accordance with Article 305 of the Civil Code of the Russian Federation), and also stated an additional requirement
o to state registration of the transfer of ownership (clause 3, article 551 of the Civil Code of the Russian Federation).
The court of first instance refused to satisfy the claims due to the allegedly inappropriate way of protecting the violated right. So, according to the court, instead of ownership protection (Article 305 of the Civil Code of the Russian Federation) and compulsion to state registration of the transfer of rights (by applying the provisions of Article 551 of the Civil Code of the Russian Federation by analogy and taking into account the provisions of Article 398 of the Civil Code of the Russian Federation), the buyer had to file a claim on the recognition of ownership.
Disagreeing with this decision, the partner of Rezolut Vasily Dryga appealed to the Sverdlovsk Regional Court with an appeal against this decision. Based on the results of the consideration of the complaint, the Sverdlovsk Regional Court agreed with the arguments of the lawyer, canceled the decision of the court of first instance and made a new decision. The claims of the Principal of the company were satisfied by the ruling, the apartment was released from arrest, and a decision was made on state registration of the transfer of ownership of this apartment in favor of the client Rezolut. This judicial act is the basis for making an entry in the Unified State Register of Rights to Real Estate and Transactions with It (USRR).
managing partner of Rezolut Vasily Dryga:
“The problem of misunderstanding the nature of the legal relationship between the buyer and the seller under the executed real estate purchase and sale transaction has been pursuing the courts of general jurisdiction for a long time. The joint resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 29, 2010, No. 10/22, seemingly solved this problem by giving clear explanations and strengthening the position of the principle of entering real estate in Russian law. Arbitration courts, for the most part, have taken this legal position of the highest courts correctly. Meanwhile, in the courts of general jurisdiction, unfortunately, the “claim for recognition” is often perceived as a lawsuit establishing rights, and not as evidence, which it really is. As a result, decisions are made on the recognition of property rights in situations where such a right has not arisen due to the lack of state registration. In our case, we were refused precisely within the framework of this logic. I am glad that in the present case this error was corrected by the court of appeal, and the rights of our client were restored. “