Article 181 of the Civil Code of the Russian Federation. Limitation periods for invalid transactions (current version)

Even after successfully purchasing an apartment, you cannot completely relax. Real estate transactions are considered the most complex and time-consuming. Any party can challenge it if it considers its rights to be violated. There is a time limit for filing a claim in court, which can be extended or shortened depending on the circumstances. Let us tell you what the statute of limitations is and what it depends on.

What is the statute of limitations?

Buyers should approach transactions with real estate especially responsibly. Even after the transfer of money and execution of papers, the transaction may be considered invalid if it was initially made illegally or violated someone’s rights.

Only through a judicial process can a transaction or its outcome be declared invalid. There is a limitation period for appeals - this is the period during which the injured party to the transaction and third parties whose rights have been violated can go to court and demand that the transaction be declared invalid.

The injured party has the right to initiate litigation at a later date, but then the defendant may claim that the time limit has expired, which will be a reason for dismissal of the claim.

The victim also has the opportunity to restore the statute of limitations. To do this, you need to prove to the court that there were good reasons for the absence: serious illness, temporary incapacity, helplessness.

When is a spouse's notarized consent required to complete a transaction?

By virtue of clause 3 of Article 35 of the Family Code, the notarial consent of the spouse is necessary to carry out the following transactions with the common property of the spouses:

1. Or it must be a transaction for the disposal of property, the rights to which are subject to state registration .

These are not only real estate transactions, but also transactions with shares in the authorized capital of a limited liability company (clause 3 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 N 25), results of intellectual activity and means of individualization (in some cases), small and some other sea and inland navigation vessels, aircraft.

Rights to cars and shares are not subject to state registration, and therefore the notarized consent of the spouse is not required to complete a transaction with them.

1. Or it must be a transaction for which the law requires a notarial form .

This may be a rent agreement, a pledge of a share in the authorized capital of an LLC, an escrow agreement (except for cases of depositing non-cash funds and uncertificated securities), an inheritance agreement, a transaction for the disposal of real estate under the terms of guardianship, an agreement on the transfer of a share in the authorized capital of an LLC ( with some exceptions), an agreement for the alienation or pledge of a share in the right of common ownership of real estate.

1. Or it must be a transaction subject to mandatory state registration .

This may be a mortgage agreement or an agreement on the transfer of non-residential premises for long-term lease (for a period of 1 year or more).

It is necessary to distinguish between the concepts of “state registration of transfer of rights to property” and “state registration of a transaction”.

For example, when making a transaction for the sale and purchase of non-residential premises, only the transfer of ownership of the premises is registered, but not the contract itself. Such an agreement is considered concluded from the moment it is signed by the parties.

But when a transaction for the sale and purchase of a residential building or apartment is completed, both the contract itself and the transfer of rights are registered. Such an agreement is considered concluded from the moment of its registration, and not from the moment it is signed by the parties.

Limitation period for void transactions

The invalidity of a void transaction does not need to be confirmed in court: it should not and could not have been completed under the law. Therefore, from the very conclusion it is obviously considered invalid, and they go to court to recognize its consequences as such. Here are the grounds for insignificance:

1. Acquisition of real estate as a result of a transaction using false documents, powers of attorney, forged signatures.
2. Purchasing real estate from an incapacitated citizen.
3. Purchasing an apartment from a child under 14 years of age. In life, this, of course, almost never happens, but it’s worth knowing about all the reasons.
4. Acquiring an apartment as a result of an imaginary or feigned transaction. For example, a citizen who owes a large sum for a loan transferred his dacha to a close friend. The deal will be canceled and the property will be taken away.
5. Acquisition of an apartment during a transaction that violated the law or other regulations. This happens especially often with housing in which there should be small children among the owners, for example, when buying an apartment using maternity capital.

Challenging transactions in bankruptcy

The term “contested transactions” is often applied to bankruptcy. This is because such illegal actions are often taken by companies and individuals who have serious financial problems. The initiators of declaring a transaction voidable during bankruptcy are:

• a manager who can act either independently or as a representative of creditors;
• an alternative representative of the interests of creditors, directly one or a group of creditors, if they believe that the insolvency administrator is not able to protect their interests;
• party to the transaction.

Key legal nuance: voidable transactions during the bankruptcy of individuals are practically no different from similar transactions for organizations. In this case, the grounds for committing certain actions play a particularly noticeable role when making a judicial decision.

What transactions can be canceled

With some degree of convention, contested transactions can be divided into three categories. Each of them has its own characteristics:

1. Purchase and sale. The most common type of contested transactions. It is with purchase and sale agreements that the verification of the activities of the bankrupt begins - it does not matter whether it is an individual or an organization. Among the most indicative signs of such transactions are the following:
   selling a product or service at a price significantly lower than the market average;
2. acquaintance of the parties to the transaction;
3. awareness of the second party about the presence of financial problems of the first.

Voidable transaction

Voidable transactions can only be declared invalid in court proceedings. Here are examples of voidable transactions:

1. One of the parties entered into the transaction as a result of fraud, coercion, or threat from the other party.
2. The victim entered into a transaction as a result of being materially misled. For example, when instead of a two-story country house, the buyer received a dilapidated two-story barn.
3. The transaction was concluded by a person with limited legal capacity. This includes people who are addicted to alcohol or drugs.
4. The transaction was concluded with a child between 14 and 18 years of age without the consent of parents, guardians or trustees.
5. The deal was concluded for an apartment, not all of whose owners gave their consent.

After the transaction is declared invalid, both parties must return to the original owners everything they received under the transaction. The buyer returns the property, and the seller returns the money. If something happens to the property and there is no way to return it, it is necessary to reimburse the cost.

Legislative regulation of the procedure

In addition to the above Resolution of the Plenum of the RF Armed Forces, the procedure for declaring a transaction voidable is regulated by a large number of other legal documents. The most important of them are the following:

• Resolution No. 6/8, issued on July 1, 1996 by the Plenums of the Armed Forces of the Russian Federation and the Supreme Arbitration Court of the Russian Federation;
• Art. 288 Arbitration Procedure Code of the Russian Federation. The Code was adopted after the signing of No. 95-FZ of July 24, 2002. Today, the version of the document approved on December 2, 2021 is in effect;
• No. 127-FZ, signed by the President on October 26, 2002 and introducing bankruptcy procedures in Russia;
• No. 229-FZ, adopted on October 2, 2007 and defining the procedure for enforcement proceedings;
• Federal Law No. 4015-1, issued on November 27, 1992 and establishing the rules of insurance in Russia;
• No. 179-FZ, dated December 21, 2001. Contains the basics of state policy in the field of privatization of property owned by the state and municipalities;
• No. 161-FZ, approved on November 14, 2011. Includes rules for the activities of state unitary enterprises and municipal unitary enterprises;
• No. 1-FKZ, signed by the President of the country on April 28, 1995 and introducing the institution of Arbitration Courts on the territory of the Russian Federation;
• Resolution No. 6288/02, adopted by the Presidium of the Supreme Arbitration Court of the Russian Federation on November 12, 2002;
• Resolution No. 5-P, issued by the Constitutional Court of the Russian Federation on April 10, 2003;
• No. 208-FZ, approved by the Head of State on December 26, 1995 and defining the rules of operation of joint-stock companies.

What determines the statute of limitations?

The statute of limitations depends on the type of transaction. For insignificant ones, the standard period is 3 years. It begins to be counted from the day the deal was concluded.

For voidable transactions, the period is reduced to 1 year. But its course begins only from the moment the danger or threat under the influence of which the transaction was concluded has disappeared, or from the moment when the person should have received information about the violation of his rights.

The period cannot be more than 10 years (Article 196 of the Civil Code of the Russian Federation). It is also impossible to change it by mutual agreement of the parties.

The concept of invalidity of a transaction. In order for a transaction to give rise to the legal consequences that the parties sought when concluding it, the requirements established by law must be met. These requirements also apply to the subject matter of the transaction, its form and content, as well as to the will and expression of the parties.

Failure to comply with these requirements may result in the invalidity of the transaction, i.e., the non-occurrence of the legal consequences inherent in this type of transaction by force of law. For example, a gift agreement concluded by an incapacitated person does not give rise to the “done”’s right of ownership to the transferred thing. An invalid transaction does not cause the legal result desired by the parties, but negative consequences provided for by law, since an invalid transaction is an illegal action.

Article 168 of the Civil Code of the Russian Federation establishes as a general rule that a transaction that does not comply with the requirements of the law or other legal acts is invalid.

At the same time, violation of the law does not always cause the transaction to be invalid: Art. 168 also establishes that the law may provide for other consequences. For example, by virtue of paragraph 1 of Art. 162 of the Civil Code of the Russian Federation, failure to comply with a simple written form does not entail the invalidity of the transaction, but deprives the parties of the right to refer to witness testimony in support of it. An extra-statutory transaction of a legal entity cannot be declared invalid if the other party did not know and obviously should not have known about the illegality of the transaction (Article 173 of the Civil Code of the Russian Federation). The foregoing indicates that in a number of cases the legislator, despite the presence of an offense, recognizes the force of a transaction behind the committed action. The invalidity of a transaction as a sanction for an offense occurs due to non-compliance with the most significant legislative provisions.

Taking into account the general permissive orientation of the method of civil law regulation, the freedom of subjects to determine their rights and obligations, the legislator, under certain conditions, gives the opportunity to the parties to an invalid transaction (or their legal representatives) to carry out a kind of reorganization of such a transaction by filing a lawsuit to recognize it as valid. For example, at the request of the parents (adoptive parents, guardian) of a minor citizen, the transaction concluded by him may be recognized by the court as valid if it was made to his benefit.

Classification of invalid transactions. Article 166 of the Civil Code of the Russian Federation divides all invalid transactions into void and voidable.

Transactions that are invalid by virtue of the law itself are recognized as void (or absolutely invalid). They are such from the moment of their conclusion and do not give rise to rights and obligations for the parties, regardless of whether or not a claim is filed in court to declare them invalid.

A statement of claim can be filed by any interested person. The subject of the claim is a demand to apply the statutory consequences of the invalidity of a void transaction, and not to declare it invalid, since it is void by force of law and does not need such recognition. The court has the right to apply the consequences of a void transaction on its own initiative.

Unlike void ones, voidable (relatively invalid) transactions give rise to rights and obligations for the parties from the moment of conclusion (i.e., they are valid), but due to challenge on the grounds provided for by the Civil Code of the Russian Federation, they can be declared invalid by the court.

If the parties simply have the right not to execute a void transaction, since it does not entail legal consequences (except for those related to its invalidity), then the parties are obliged to perform a voidable transaction before it is declared invalid by the court.

And, finally, the last difference between a voidable transaction and a void one is that the subject of the claim in relation to a voidable transaction is, first of all, the requirement to recognize it as invalid, and not only to apply the consequences of invalidity. At the same time, the court may recognize such a transaction as invalid if the existence of circumstances established by law as grounds for such recognition is proven (for example, misconception or deception when concluding a transaction).

In addition to the already discussed gradation of invalid transactions into void and voidable, they can be classified according to the defect that the transaction suffers from.

Just as the conditions for the validity of a transaction are combined into four groups (requirements for subject composition, form, content, will and expression of will), all invalid transactions can be divided into four types: transactions with defects of the subject composition, transactions with defects of form, transactions with defects of will , deals with vices of content. The moment from which the transaction is considered invalid. Clause 1 of Art. 167 of the Civil Code of the Russian Federation contains a general rule according to which an invalid transaction is considered invalid from the moment of its completion. This rule applies to both void and voidable transactions.

With regard to void transactions, the above provision of the law is obvious, since they do not give rise to any rights and obligations from the moment of completion, with the exception of those related to their invalidity.

Voidable transactions, as stated, give rise to rights and obligations for the parties. Therefore, a court decision to recognize such a transaction as invalid is given retroactive force, as if it had been made already at the time the invalid transaction was completed.

At the same time, there are cases when it is impossible to declare a voidable transaction invalid from the moment of its conclusion due to the peculiarities of its content and the fact that it has already been executed. For example, plastic surgery was performed under a contract for the provision of medical services. In such cases, in accordance with clause Zet. 167 of the Civil Code of the Russian Federation, the court, declaring a transaction invalid, terminates its effect for the future, and the rights and obligations of the parties that arose previously remain in legal force and are subject to protection. Consequences of invalidity of part of the transaction. Violations of legal norms may not concern the transaction as a whole, but only its individual parts. In such a situation, the question arises about the legal fate of the transaction. In order to ensure the stability of civil circulation, Art. 180 of the Civil Code of the Russian Federation contains a rule according to which the invalidity of a part of a transaction does not entail the invalidity of the transaction as a whole, if it can be assumed that it would have been completed without the inclusion of such a part. For example, under the influence of a threat, a clause regarding an exorbitantly high penalty is included in the contract; in this case it is possible to invalidate it.

To recognize a transaction as partially invalid, certain conditions must be met.

Firstly, violation of the law should not concern its subject composition and form, since such grounds for invalidity discredit the transaction as a whole. Partial invalidity may occur in transactions with defects in content (see § 9), when one or more conditions do not comply with the requirements of the law, as well as in cases where the inclusion of one or another condition was a consequence of a defect of will (deception, violence, etc. .).

Secondly, there must be the possibility of separation and independent existence of the actual part of the transaction.

Thirdly, it is necessary that even after the invalid part of the transaction is excluded, it retains the ability to satisfy the interests of the parties and achieve the goals set at its conclusion. This is precisely the meaning that the legislator puts into the wording of Art. 180 of the Civil Code of the Russian Federation: “if it can be assumed that the transaction would have been completed without the inclusion of its invalid part.”

In some cases, the legislation contains a direct indication of the invalidity of part of the transaction. So, paragraph 2 of Art. 977 of the Civil Code of the Russian Federation establishes the invalidity of a condition in an agency agreement that limits the rights of the parties to withdraw from the agreement at any time. Special rules sometimes define differently the grounds and consequences of declaring a transaction partially invalid. As a rule, in such cases, no importance is attached to the possibility of isolating the actual part of the transaction and its ability to satisfy the interests of the parties. For example, in accordance with paragraph 1 of Art. 16 of the Law of the Russian Federation “On the Protection of Consumer Rights”, the terms of the contract that infringe on the rights of consumers in comparison with the rules established by law are recognized as invalid. The transaction remains valid regardless of the fact that it may not correspond to the interests of the seller after eliminating invalid conditions from it.

Basic and additional property consequences of invalid transactions.

In cases where an invalid transaction is not only completed, but also executed, it becomes necessary to determine the legal fate of the performed execution. The application of certain property consequences depends on the grounds for invalidity of the transaction.

The property consequences of the invalidity of a transaction are divided into main and additional.

The main ones include bilateral and unilateral restitution, as well as seizure of property of both parties to the income of the Russian Federation (confiscation).

Bilateral restitution means that the parties who made and executed the invalid transaction are restored to their original position. Each party is obliged to return to the other party everything received under the transaction, and if it is impossible to return what was received in kind (when the property is consumed, lost, or if what is received is expressed in the use of property, work performed or service provided) - to reimburse its value in money (clause 2 Article 167 of the Civil Code of the Russian Federation).

Bilateral restitution is a general rule and always applies, unless other (more serious) consequences are specified by law. Bilateral restitution is applied not only when such consequences are directly indicated in the law (for example, in paragraph 1 of Article 171 of the Civil Code of the Russian Federation), but also in the absence of such instructions. For example, in Art. 173 of the Civil Code of the Russian Federation does not name the legal consequences of an extra-statutory transaction, which means that it is necessary to apply the general rule (clause 2 of Article 167 of the Civil Code of the Russian Federation) on bilateral restitution.

Bilateral restitution applies to all transactions with defects of form and subject composition, as well as to three types of transactions with defects of will: transactions made under the influence of delusion, transactions of a capable citizen who, at the time of their commission, could not account for or direct his actions, as well as transactions made in excess of authority.

Unilateral restitution is possible only in cases expressly specified in the law, and consists in the fact that only one of the parties is restored to its previous position, receiving back what was executed. A punitive sanction is applied to the other party: everything transferred by it under the transaction (or what should be transferred) turns into the income of the Russian Federation.

Unilateral restitution applies to enslaving transactions, transactions concluded under the influence of deception, threat, violence, malicious agreement of a representative of one party with the other party, as well as transactions made for a purpose contrary to the foundations of law and order or morality (if one of the parties has the intention of such transactions). It is easy to see that the use of unilateral restitution is limited to cases where one of the parties intentionally violated the law when concluding a transaction. It is she who is subject to punitive sanctions. The innocent party returns to its original position.

Seizure of the property of both parties for the benefit of the Russian Federation (confiscation - Part 2 of Article 169 of the Civil Code of the Russian Federation) applies to transactions made for a purpose contrary to the foundations of law and order or morality if there is intent on both sides and the transaction is executed in full or in part at least one of them . Consequences of the impossibility of withdrawing what was received in kind Art. 169 of the Civil Code of the Russian Federation are not defined. However, neither consumption nor alienation of illegally obtained goods under such a transaction should exempt the perpetrators from liability to the state. Therefore, it seems possible to apply by analogy to the law, paragraph 2 of Art. 179 of the Civil Code of the Russian Federation, i.e., to recover the cash equivalent from the income of the Russian Federation.

Additional property consequences of invalidity include the obligation to compensate for losses caused by the fact of the completion and execution of the transaction. Additional property consequences apply only in cases expressly established by law: in transactions involving defects of will

(except for transactions made in excess of authority) and in transactions with defects in the subject composition (except for extra-statutory transactions provided for in Article 173 of the Civil Code of the Russian Federation).

Since compensation for damages is a form of civil liability, the corresponding obligation should be assigned to the party responsible for the invalidity of the transaction. In transactions involving incapacitated, partially capable or minor citizens, the obligation to compensate for losses rests solely with the capable party, provided that he knew (i.e. acted intentionally) or should have known (guilt in the form of negligence) about the insufficient level of legal capacity of the other party.

In enslaving transactions, as well as in transactions made under the influence of threat, violence, malicious agreement between a representative of one party and the other party, the damage to the victim is compensated by the offender who acted intentionally.

And only for transactions concluded under the influence of error, the legislator established an exception to the principle of guilt as a basis for liability. Due to the fact that a mistake can arise due to circumstances beyond the control of the parties, the obligation to compensate for damage falls on the party that requested the recognition of the transaction as invalid.

The obligation to compensate for losses caused by the conclusion and execution of an invalid transaction is limited to actual damage.

Limitation periods for invalid transactions. The law (Article 181 of the Civil Code of the Russian Federation) establishes special limitation periods for invalid transactions.

A shortened period of one year is established for the requirements. on recognizing a voidable transaction as invalid and applying the legal consequences of its invalidity. It is calculated from the day when the person entitled to bring a claim learned or should have learned about the circumstances serving as the basis for recognizing the transaction as invalid. As an exception to this rule, a requirement to invalidate a transaction made under the influence of a threat or violence may be brought within one year from the date of termination of the violence or threat.

A longer period than the general one (three years - Article 196 of the Civil Code of the Russian Federation) is a period of ten years established for claims to apply the consequences of the invalidity of a void transaction. It is calculated from the day when the execution of the invalid transaction began.

How to protect yourself from scammers and lawsuits

Before concluding any real estate transaction, especially on the secondary market, carefully study all documents and owners. Errors, forgeries, lack of consent of one of the owners - all this can lead to the transaction being declared invalid.

The main step when checking real estate is obtaining an extract from the Unified State Register of Real Estate. In it you can see all the main characteristics of the property, information about the owners, sales history, the presence of encumbrances and many other factors that may be a warning sign. If you see that the seller has owned the property for more than three years, then there is much less risk.

Order an extract from the USRN right now!

Roots of the problem

In the Russian legal system, there is a de facto regime of hidden matrimonial property. In the public register (for example, the Unified State Register), one person may be listed as the owner, but in fact there is another owner - his spouse, about whom the bona fide purchaser may not know.

And this does not in any way contradict the rule of Article 8.1 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code), according to which rights to property subject to state registration arise from the moment the corresponding entry is made in the state register.

The fact is that after these words there is a clause “unless otherwise provided by law.” And this “other” is established by Article 34 of the Family Code of the Russian Federation (hereinafter referred to as the FC), by virtue of which property acquired by spouses during marriage is their joint property “regardless of which spouse’s name it was acquired in.”

If the second (“unregistered”) spouse is the same owner as the first, then his opinion must be taken into account.

According to the general rule, paragraph 2 of Article 35 of the Family Code, when one of the spouses makes a transaction to dispose of the spouses’ common property, it is assumed that he is acting with the consent of the other spouse. Such a transaction can be challenged on the grounds of lack of consent of the other spouse only if the other party to the transaction knew or should have known about the other spouse’s disagreement with the transaction.

However, there is one exception to this general rule - this is clause 3 of Article 35 of the Family Code, according to which for certain three types of transactions it is necessary to obtain the notarized consent of the other spouse, i.e. the presumption of the spouse's consent does not apply in these cases.