The Judicial Panel for Civil Courts of the Supreme Court examined a dispute concerning the rights of the debtor in relation to his home, which has already been seized by the bailiff. What a person who finds himself in such a situation has the right to do, and what he does not. The problem, alas, concerns many citizens.
In our case, the debtor wanted to register in his apartment. But it suddenly turned out that due to debts, the bailiff also imposed a ban on registration in this apartment. Three local courts decided that such a restriction was completely legal, because the Bailiff Service did it in the interests of the claimant.
But the Supreme Court of the Russian Federation did not agree with them. In his opinion, the bailiff can impose a ban only in order to prevent the debtor from disposing of the property. And not allowing him to register in his apartment is illegal.
Well, now the details of this dispute. Our story began several years ago when a magistrate charged almost 2.7 million rubles from one citizen in favor of another. The litigation was the most standard one – one person did not return a large sum of money given once on loan to another. And as a result, the creditor, tired of waiting, went to court. The court ruled to collect money from the debtor, and enforcement proceedings were initiated against him. And the bailiff imposed a ban on registration actions in relation to the debtor’s apartment. Including limited the possibility of registration. By the way, this apartment is half owned by the debtor.
But the owner did not find out about such a restriction immediately, but only two years later, when he tried to register in his apartment. And then he was refused, referring to the order of the bailiff. First, the dumbfounded debtor wrote a statement to the local branch of the Bailiff Service. He asked to remove the restrictions from his apartment, but was refused. Then the debtor went to court. In the lawsuit, he asked to declare illegal the bailiff’s order prohibiting registration in the residential premises as an owner. The citizen explained that the apartment was his only home. And because of the ban on registration, he cannot receive medical assistance at the address of his actual residence. In addition, his other social rights are being violated.
Studying the dispute, the district court checked that the bailiff, that is, the person authorized to do so, had issued the ban on registration in the debtor’s apartment. Such a restriction, the court said, meets the requirements of the law. And thus an employee of the Bailiffs’ Service prevented the debtor from disposing of his property “to the detriment of the interests of the claimant.” The district court also noted that the ban on registration does not prevent the debtor from living in the apartment. Therefore, the court decided that the decision of the bailiff did not violate the rights of the plaintiff. This decision was upheld on appeal and cassation.
Our hero had no choice but to go further – to the Supreme Court. And the Supreme Court, having studied the materials of the dispute, said the main thing – it is impossible to prohibit a person from registering. And he explained on what basis. The Supreme Court began its explanations with the Law “On Enforcement Proceedings”. This law really gives the bailiffs the right to compel the debtor to comply with the requirements. In particular, they can seize property, prohibit to dispose of it and restrict registration actions.
The main thing is whether the ban on registration is a proportionate measure and does not violate other laws
But the law does not give the bailiffs the right to “restrict other rights of the debtor or apply restrictions that would prevent him from fulfilling the duties imposed by other laws.”
The judges of the Supreme Court referred to the ruling of the Plenum of the Supreme Court (dated November 17, 2015 N 50). It says (paragraph 43) that the prohibition on the disposal of property (including the prohibition on the settlement and registration of other persons) cannot be recognized as illegal if it is imposed so that the debtor does not dispose of the property to the detriment of the interests of the claimant. This means that the prohibition to register in the living quarters belonging to the debtor is possible only in relation to “other persons” for the same reasons, the judges noted. The Supreme Court concluded that it is illegal to prohibit debtors from registering at the place of residence in their own, albeit arrested, apartment.
Experts believe that the lower authorities should have established in such a dispute whether the ban on registration is a proportionate measure and whether such a restriction violates other legislative acts. In their opinion, the Supreme Court correctly emphasized that the Law “On Enforcement Proceedings” does not give the bailiffs the right to apply restrictions that prevent the debtor from fulfilling the duties imposed by other laws, and one of these duties is to register within seven days at a new place of residence. … The bailiff did not take into account that the apartment was the only home of the debtor and that he wanted to register in it himself, and not “another person.” That is, the bailiff could not prohibit the free use of property and register in it.
As a result, the Supreme Court canceled the acts of local courts and made a new decision on the case. The Supreme Court canceled the decision of the bailiff in the part that prohibited the execution of registration actions in relation to the debtor himself.
Source: Российская Газета by rg.ru.
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