How to confirm the seller’s capacity in real estate transactions?

Who is declared incompetent and why?

According to the Civil Code of the Russian Federation, full legal capacity of a citizen occurs at 18 years of age. However, those who suffer from mental disorders and are therefore unable to control their actions (or are under the age of 18, as well as in old age) are no longer considered legally competent. The relevant information can be obtained from the guardianship authorities, drug treatment and psychoneurological dispensaries: a forensic medical examination is also mandatory. It is on its basis that the court can declare a person (in our case, a real estate seller) incompetent. In this case, the guardian is responsible for his actions. If the incapacity is partial, the same.

Cases of recognition of incapacity

It is necessary to understand in what situations a person can be recognized as completely incompetent, and in what cases as limitedly incompetent. To recognize a citizen’s incapacity, the following conditions will be required:

• mental illness;
• complete inability to understand or control one's own actions.

A citizen who has a mental disorder is declared incompetent and loses the right to perform any legally significant actions. In particular, he cannot manage his own pension, purchase goods in a store, pay for various household services, etc. All transactions in his interests are carried out by the guardian.

In what cases is it recommended to obtain a certificate?

The certificate of legal capacity itself is not a mandatory document in real estate transactions; it can only act as an additional guarantor. By default, all transactions must be made in sound mind and good memory: the same Civil Code speaks about this. However, there are still a number of situations when obtaining a certificate of the seller’s legal capacity, to put it mildly, would not hurt. Here they are:

• the seller is registered in a psychoneurological or drug treatment clinic;
• the seller has previously been treated for mental disorders;
• bona fide relations between the buyer and seller as individuals are enshrined in the contract and notarized;
• the seller is an elderly person;
• the seller is from 14 to 18 years old (in this case, the consent of his guardian or legal representative is also required);
• the parameters and prices under the contract are clearly underestimated compared to the market average;
• a notary or one of the participants doubts the seller’s legal capacity (a similar situation, however, may arise in relation to the buyer).

In addition, sometimes the former owner may turn out to be dishonest and sue the buyer, trying to challenge the transaction. The situation can again be saved by a certificate of legal capacity, confirming that the seller acted in his right mind. Such a certificate is often taken when a notary is involved in a transaction: there have been many precedents for the cases described above. Of course, the seller is not obliged to provide a certificate upon request: it is not included in the list of mandatory documents and is done voluntarily (even if its absence is fraught with risk). But if the seller flatly refuses to provide it, this is a cause for concern.

Limitation of legal capacity

When a person suffers from a mild form of mental illness, most likely, he will not be deprived of his legal capacity, but only limited in it.

In this case, two conditions are required:

• the person has a mental disorder;
• a person, with outside help, is able to realize his actions and also control them.

A person with limited legal capacity has the right to perform simple everyday transactions (receive things as gifts, purchase basic necessities, etc.). To enter into more serious transactions, you will need the permission of the trustee in writing.

How is deprivation of legal capacity carried out by the court?

Where can I get a certificate?

As mentioned earlier, to do this you need to visit a drug treatment or psychoneurological dispensary (ND and PND, respectively) at the seller’s place of residence. If there are doubts about alcohol or drug addiction, then you should contact the ND; if you are in a mental state, you should contact the PND; As a rule, both certificates are not needed at the same time. You will need a passport, insurance policy, as well as a registration certificate or military ID for men. In the ND, tests are taken and an examination is carried out by a narcologist, in the PND - a conversation with a psychiatrist. The cost of a certificate from the PND will be about 1,400 rubles, from the ND - 200: a regular certificate stating that a person has not applied to the PND for a year and is not registered there is provided free of charge. The validity period of the document is from three months to a year (for the sale of an apartment, as a rule, this is 3 months: the same period is valid for a certificate from the ND).

The certificate must indicate the name of the document and its serial number, full information about the citizen, the dispensary employee who conducted the examination, the result of the examination, the date, the signature of the doctor and two stamps - the doctor and the medical institution. It is worth noting that the dispensary must be municipal: a certificate from a private institution does not in any way confirm the person’s status as registered at the district dispensary. And one more point: the buyer will not be able to receive a certificate instead of the seller, because The information provided in the documents is confidential. You can only be present when the certificate is presented to the seller who independently contacted the dispensary.

About procedural capacity/incapacity

The Code of Criminal Procedure of the Russian Federation establishes the rights of persons against whom legal proceedings are being conducted on the application of compulsory measures of a medical nature. At the same time, a reservation is made that the provision and implementation of these rights is possible if the mental state of the person allows him to exercise such rights [1] . In this case, the conclusions of experts participating in the forensic psychiatric examination are taken into account[2].

Typically, a forensic psychiatric examination is carried out in order to establish sanity/insanity. However, a person can commit the act charged to him in a short-term painful state, which has ended by the beginning of the criminal proceedings, i.e. There are no mental disorders that could affect his criminal procedural capacity. Thus, the insane subject turns out to be fully capable in procedural terms[3].

An option is possible when a sane or partially sane subject, after committing a crime, but before a sentence is passed, develops a severe mental disorder, as a result of which the patient becomes procedurally incompetent and also incapable of serving a sentence[4].

Accordingly, the assessment of a mental disorder affecting procedural capacity cannot be predetermined by an expert assessment of a mental disorder affecting sanity.

When assessing temporary mental disorders that violate criminal procedural capacity, you can use Art. 81 of the Criminal Code of the Russian Federation, but not always. This article provides for cases where a person committed a crime and only then fell ill, i.e. We are talking about a sane person, since there is no corpus delicti in the act of an insane person. Exemption from punishment is possible only when all the conditions necessary and sufficient for its purpose are present, i.e. no earlier than the moment a guilty verdict is passed finding the person guilty of committing a crime. A.A. Tkachenko believes that in this way Art. 81 of the Criminal Code of the Russian Federation does not cover situations where the question of the sanity or insanity of the accused remains unclear, as happens in cases where the symptoms of a temporary painful mental disorder do not allow experts to establish the mental state of the subject at the time of the commission of the act. Accordingly, compulsory medical measures cannot be applied to such accused persons - they are not included in the circle of persons to whom these measures can be applied. If the court nevertheless prescribes compulsory treatment to such a person and the patient is placed in a hospital to undergo it, subsequently the administration of the hospital cannot extend the terms of compulsory treatment, since another court - at the location of the hospital - may refuse to do this, rightfully considering that compulsory medical measures were applied against an inappropriate subject not provided for by law[5].

The norms of the Criminal Code and the Code of Criminal Procedure of the Russian Federation imply the exclusion of the direct participation of a person from the legal process due to the complete loss of procedural capacity due to a mental disorder. So, according to clause 4, part 1, art. 208 of the Code of Criminal Procedure of the Russian Federation, the preliminary investigation is suspended if there is a temporary serious illness of the suspect or accused, certified by a medical report, which prevents his participation in investigative and other procedural actions.

In turn, there is also a rule regulating the suspension of trial: the court suspends proceedings against the defendant until he recovers in the event of his mental disorder or other serious illness that excludes the possibility of the defendant’s appearance[6].

Despite the fact that the Criminal Procedure Code of the Russian Federation enshrines some provisions that allow us to speak about the existence of the institution of criminal procedural capacity (incapacity), the lack of wording in the law itself leads to the fact that the use of this institution is reduced to a minimum. Courts quite rarely send for an examination of criminal procedural capacity or pose to experts, in addition to the question of insanity, the question of criminal procedural incapacity. which leads to a violation of the constitutional right of citizens to judicial protection. Accordingly, the logical action would be to consolidate the definition of criminal procedural capacity in the Criminal Procedure Code.

It should be noted that the Civil Procedure Code, the Arbitration Procedure Code and the CAS directly establish definitions of procedural capacity[7]. It is interesting that the possibility of limiting civil legal capacity is provided only for citizens recognized as partially capable and incapacitated, however, in practice, incompetent people have the following procedural rights: apply for the restoration of procedural deadlines in the case of appealing the decision to recognize such a person as incompetent[8]; apply for recognition of one’s legal capacity[9]; the right, personally or through representatives chosen by him, to appeal both a court decision that has not entered into force and one that has entered into legal force in a case of incapacity, using all forms of appeal provided for by law[10].

According to the judge of the Constitutional Court of the Russian Federation G.A. Gadzhiev's incapacitated people (and, accordingly, those with limited legal capacity) should not be limited in their procedural capacity: “The Constitution of the Russian Federation provides that citizens recognized by the court as incompetent do not only have the right to elect and be elected (Article 32, part 3, of the Constitution of the Russian Federation). Consequently, the Constitution does not exclude the possibility for persons recognized as legally incompetent to exercise other electoral rights, in particular the right to campaign. I believe that a person declared incompetent to exercise civil rights is not deprived of the right to apply personally, as well as to send individual and collective appeals to state bodies and local governments (Article 33 of the Constitution of the Russian Federation). Thus, the provision of Article 29 of the Civil Code of the Russian Federation should not be understood in such a way that recognition as incompetent in the sphere of civil transactions means a restriction of rights in all other areas of life. In particular, recognition as incompetent should not lead to a loss of procedural rights”[11].

Apparently, with this resolution in mind, changes were made to the Code of Civil Procedure of the Russian Federation, namely: Part 5 of Art. 37 of the Code of Civil Procedure of the Russian Federation was supplemented with the following phrases: “The rights, freedoms and legitimate interests of minors under the age of fourteen, as well as citizens declared incompetent, unless otherwise provided by this Code, are protected in the process by their legal representatives - parents, adoptive parents, guardians, trustees or other persons to whom this right is granted by federal law. However, the court has the right to involve citizens declared incompetent to participate in such cases.” [12].

A.V. Yudin believes that this addition reveals an inaccuracy, since an incompetent person is already involved in participation in the case, since in relation to such a person there is either a court ruling on involvement in the case as a third party of one of the varieties (Article 42, Code of Civil Procedure ), or the initially incompetent person was named by the plaintiff as a defendant and the very fact of initiating civil proceedings is evidence of his involvement in the case. It is obvious that there is a confusion here between the concepts of “involvement in the process” and “personal participation in the process”, which, of course, is not the same thing[13].

“Involvement in the case,” which means ensuring the personal participation of the subject in the process, is also not an act of recognizing the subjective procedural rights of such a person and is not a guarantee of providing the person with the opportunity to exercise his procedural rights[14].

Functionally, subjective procedural rights granted to an incapacitated person are aimed at ensuring that such a person has the opportunity to obtain a review of the decision on incapacity, as well as at ensuring that, over time and changes in the circumstances that led to the decision on incapacity, being able to initiate the process of restoring legal capacity . In this regard, it is possible to assume that procedural incapacity as a consequence of “general civil” incapacity is a certain anomaly and in order to overcome it a person should not be limited in legal, including procedural, means.

It seems appropriate to bring the institution of procedural capacity in all branches of law to a single concept, and, by analogy with criminal law, where the assessment of a mental disorder affecting procedural capacity cannot be predetermined by an expert assessment of a mental disorder affecting sanity, to presume that incompetent persons have procedural capacity . A psychiatric examination should be carried out to analyze procedural capacity and only after that should procedural incapacity be recognized. The very concept of procedural incapacity (as well as limited procedural capacity) is subject to careful development.

[1] Clause 3 art. 196 Code of Criminal Procedure of the Russian Federation.

[2]P. 11 Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 21, 2010 No. 28 “On forensic examination in criminal cases” // ATP “ConsultantPlus”.

[3] Tkachenko A.A., Korzun D.N. Forensic psychiatric examination. M.: GEOTAR-Media, 2021. P. 300.

[4] Ibid.

[5] Tkachenko A.A., Korzun D.N. Forensic psychiatric examination. M.: GEOTAR-Media, 2021. P. 326.

[6] Part 3 art. 253 Code of Criminal Procedure of the Russian Federation.

[7] Art. 37 Code of Civil Procedure of the Russian Federation; Art. 43 Arbitration Procedure Code of the Russian Federation; Art. 5 CAS RF.

[8] Para. 3 tbsp. 222 Code of Civil Procedure.

[9] Para. 3 tbsp. 222 Code of Civil Procedure.

[10] Part 3 art. 284 Civil Procedure Code

[11] Resolution of the Constitutional Court of the Russian Federation dated February 27, 2009 N 4-P “In the case of verifying the constitutionality of a number of provisions of Articles 37, 135, 222, 284, 286 and 379.1 of the Civil Procedure Code of the Russian Federation and part four of Article 28 of the Law of the Russian Federation” On psychiatric care and guarantees of citizens’ rights during its provision” in connection with complaints from citizens Yu.K. Gudkova, P.V. Shtukaturov and M.A. Yashina"

[12] Addressing the editors of Part 5 of Art. 37 Code of Civil Procedure of the Russian Federation dated June 29, 2009.

[13] Yudin A.V. A new understanding of the category “civil procedural incapacity” and the Shtukaturov case. URL: https://psyhosp.ru/about/articles/novoe-ponimanie-kategorii-grazhdanskaya-protsessualnaya-nedeesposobnost-i-delo-shtukaturova/. Access date: 06/27/2019.

[14] Ibid.

How else can you check your capacity?

Sometimes it happens that the seller refuses to provide a certificate, but at the same time he is completely sane and can conclude transactions. Here's what helps determine the legal capacity of an apartment seller in the absence of appropriate documents:

• Driver's license. If the seller has it, it means he has already been examined at drug treatment and psychoneurological dispensaries, and successfully.
• Invitation of a medical professional at the conclusion of a transaction for a third-party examination. A professional can help you accurately determine the seller's condition.
• Personal assessment. You can independently assess the general adequacy of a person by his behavior, communication with his neighbors and relatives, and the content of social networks. Of course, it is not always possible to identify serious deviations in this way (unless the buyer is an experienced psychologist), but this is quite enough for a general verdict.
• Connecting a notary to the transaction. If he certifies the contract, then he acts as a guarantor of the transaction and is responsible for his actions. In addition, he has the right to request the information he needs, bypassing the seller.

Stages of the trial

The legal process recognizing a citizen’s incapacity includes the following stages:

• the applicant's speech;
• speech by representatives of the guardianship service and the prosecutor's office;
• giving explanations by a citizen in relation to whom the issue of legal capacity is being considered;
• announcement of medical documents available in the case, as well as the results of a forensic examination (opinion of a psychiatrist);
• hearing testimony;
• giving explanations by the medical worker who conducted the examination (when calling him to a meeting);
• Based on the results of consideration of the case, the court makes a decision to recognize the citizen as incompetent or refuses to do so.

What else does the procedure for depriving the mentally ill of legal capacity involve?