Which court and within what time period should I apply for consumer protection?

General and special limitation periods (SLD)

According to paragraph 1 of Art. 196 of the Civil Code, the plaintiff prepares and files a claim in court within 3 years (Article 200 of the Civil Code) after:

• obtaining information about a violation of one’s rights and the identity of the defendant;
• expiration of the time for execution of the contract, if it has been established.

3 years is the general statute of limitations for a statement of claim in a civil case; it cannot be changed by agreement or agreement of the parties (Article 198 of the Civil Code). But it also has limitations: it is impossible to file a lawsuit later than 10 years from the date of violation of the right, regardless of the moment when the SIA began (clause 2 of Article 196 of the Civil Code).

In addition to the general ones, there are also special limitation periods for certain types of offenses, for example:

• for labor disputes - 3 months, for disputes about dismissal - 1 month (Article 392 of the Labor Code);
• for cases of violation of the right of first refusal - 3 months (Article 250 of the Civil Code);
• to recognize the invalidity of a contested transaction - 1 year (clause 2 of Article 181 of the Civil Code);
• for claims against contractors for inadequate quality of work - 1 year (Article 725 of the Civil Code).

IMPORTANT!

The expiration of the SIA does not deprive the plaintiff of the right to judicial protection. The court is obliged to accept the claim for consideration regardless of the elapsed time. The court has the right to apply the consequences of an omission and refuse the applicant’s claim only on the initiative of the defendant citing delay (clauses 1, 2 of Article 199 of the Civil Code).

Appeal

The plaintiff and defendant have the right to challenge the initial decision. For this purpose, one month is provided from the date of production of the final edition. In the case of determinations, the time allotted for a private complaint is 2 times less - 15 days .

Two months are allotted for the adoption of a decision on appeal. The date of receipt of the case in a higher court is taken as the basis. If this happened within the period for appeal, then the countdown begins from its end.

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The Civil Procedure Code has a separate Chapter 46, dedicated to the procedure for canceling decisions of arbitration courts located in the Russian Federation. In this case, the application is submitted to the district court at the place where the procedural document was issued. According to Art. 420, 1 month is allotted for its consideration.

Cassation

Complaints against decisions of the first and appellate instances are authorized to be considered by both special cassation courts and the judicial panel of the Supreme Court of the Russian Federation. Depending on the judicial authority, there are differences in terms.

When an appeal is filed in a court of general jurisdiction, then according to the rules of Art. 379.4 of the Civil Procedure Code, it is considered within 2 months from the date of receipt . If the cassation appeal ends up in court before the end of the allotted period for appeal, then two months are counted from the moment of its expiration.

In the Supreme Court, the application is also considered within two months, provided there is no need for detailed acquaintance with the case. When requesting it, Article 390.8 defines 3 months from the date of receipt of materials .

Supervision

The consideration of cases at this stage is regulated by Chapter 41.1 of the Code of Civil Procedure of the Russian Federation. If there are grounds provided for in Art. 391.1 of the code, interested parties and the prosecutor have the right to appeal to the Supreme Court of the Russian Federation with a supervisory complaint.

First, one of the judges checks its validity. Based on the results, a decision is made on the advisability of submitting the appeal to the Presidium for consideration.

Procedural deadlines depend on the need to claim the case. If there is no need for this, the appeal will be considered within 2 months . Otherwise, a period of three months applies from the date of receipt of materials.

Newly discovered and new circumstances

Even when it would seem that the final point has been reached in the dispute, sometimes facts appear that can significantly affect the content of previously adopted court decisions. Their list is set out in Art. 392 Code of Civil Procedure.

When such circumstances become known, an application is submitted to the court that issued the procedural act subject to review. The decision is made during one meeting.

If satisfied, the case is reconsidered. In this case, the general time frames established by law apply.

In what cases is the limitation period not established?

Article 208 of the Civil Code defines the requirements to which the validity period of a statement of claim to the court does not apply. We are talking, in particular, about claims:

• on the protection of non-property rights, for example the right to non-interference in private life;
• to banking organizations regarding the issuance of deposits;
• on compensation for damage to life and health;
• on eliminating violations of the rights of the property owner that are not related to deprivation of possession;
• according to requirements arising from family relations (Article 9 of the Family Code).

Preparation

The preparatory part involves the actions of the judicial authority aimed at identifying the possibility of considering the case on the merits. If a certain kind of grounds are revealed, prescribed by Art. 169 of the Code of Civil Procedure of the Russian Federation, the court has the right to postpone the consideration of the civil dispute.

At this stage, the case that will be considered is announced. The secretary announces to the court which of the participants in the case is present and who is absent due to various reasons.

If a particular participant fails to appear, the issue will be resolved in accordance with current legislation. All aspects related to the interpreter present in the courtroom are clarified.

Witnesses who will be called during the trial are temporarily removed from the courtroom. The issue regarding declared challenges and self-recusations is being clarified. Consideration of the case on its merits.

This stage is opened by the report of the presiding judge or any of the judges. The presiding officer inquires from all subjects of the process as to whether they want to exercise the right to administrative actions (according to Article 39 of the Code of Civil Procedure of the Russian Federation).

The order of appearances of all parties to the process begins.

After the court has heard all parties, it is obliged to take their opinions into account when establishing the sequence of examination of evidence. Witnesses are called in for questioning. Research of audio and video recordings.

Actions are carried out in accordance with Art. 185 of the Code of Civil Procedure of the Russian Federation, as well as taking into account the requirements regarding the confidentiality of the personal life of the subject of law (in accordance with Article 182 of the Code of Civil Procedure of the Russian Federation).

If during the listening (viewing of recordings) any doubts emerged regarding the authenticity of the evidence presented, then the judicial authority has the right to send the materials for examination to establish authenticity (Article 186 of the Code of Civil Procedure of the Russian Federation). After all the evidence presented to the court has been analyzed, the presiding judge asks the parties to the proceedings whether they would like to add anything, and if the answer is negative, they proceed to the judicial debate.

Judicial debate is an independent part of legal proceedings, within the framework of which all subjects of law sum up their speeches, and also draw the judge’s attention to certain points that seem very significant to them. The order of speeches in the debate is regulated by Art. 190 Code of Civil Procedure of the Russian Federation. The parties have the right to refuse or delegate this action to their representative.

As soon as the parties' arguments are completed, the court retires to make a ruling.

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When the running of the limitation period is suspended or interrupted

Under certain circumstances, the LED is suspended. We are talking about clause 1 of Art. 202 Civil Code:

• emergency and unpreventable situations that prevent recourse to judicial authorities;
• cases where the plaintiff or defendant serves in the army during the period of martial law;
• introduction by the government of a moratorium on the fulfillment of obligations (for example, a moratorium on bankruptcy cases during the quarantine period);
• suspension of legal acts regulating violated legal relations.

The main condition is that these circumstances arise in the last 6 months of the limitation period. As soon as they stop, the period for filing a claim in court will continue to flow and will last for another 6 months (clauses 2, 4 of Article 202 of the Civil Code).

In addition, the limitation period is interrupted by actions indicating the defendant’s recognition of the debt. For example, if the debtor admits the claim, asks for a deferment/installment plan or signs a reconciliation report (clause 20 of the resolution of the Plenum of the Supreme Court No. 43 of September 29, 2015). If the plaintiff can prove such facts, the time to file a claim will begin to run again from that moment (Article 203 of the Civil Code).

Commentary on Article 154 of the Code of Civil Procedure of the Russian Federation

1. Establishing deadlines for consideration of civil cases is one of the procedural guarantees for the timely resolution of the case, and therefore the achievement of the goals of civil proceedings enshrined in Art. 2 GPC.

The trial of a case within a reasonable time is one of those basic procedural requirements that constitute the right to a fair trial, provided for by a number of international legal acts <1>. In one of its decisions <2> the European Court of Human Rights explained that the purpose of the requirement to consider a case within a reasonable time is to protect litigants - both plaintiffs and defendants - “from excessive procedural delays”, to protect all those who is charged with a criminal offense, from "staying in a state of uncertainty regarding one's fate" for too long.

——————————— <1> See: International Covenant on Civil and Political Rights of December 16, 1966 // BVS RF. 1994. N 12. P. 5 - 11; Universal Declaration of Human Rights (adopted at the third session of the UN General Assembly by Resolution 217 A (III) of December 10, 1948) // Russian newspaper. 1998. Dec 10; Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4, 1950, as amended September 21, 1970, December 20, 1971, January 1, 1990, November 6, 1990, May 11, 1994) // NW RF. 2001. N 2. Art. 163; Convention of the Commonwealth of Independent States on Human Rights and Fundamental Freedoms (Minsk, May 26, 1995) // SZ RF. 1999. N 13. Art. 1489. In addition, see: Opinion of the Advisory Council of European Judges of the Council of Europe dated November 24, 2004 No. 6 “On a fair trial within a reasonable time and the role of the judge in trials, taking into account alternative methods of resolving disputes” // Supreme Court of the Russian Federation. 2005. N 8. P. 193 - 198. <2> See: Case 1/1967/6/11 Stügmüller. Judgment of November 10, 1969

As for the criteria of reasonableness, as the practice of the European Court shows <1>, this takes into account the complexity and versatility of the case, the behavior of the applicant, the behavior of the authorities, the need for careful preparation of both the prosecution and the defense (plaintiff and defendant in civil cases), the need conducting an examination. Thus, the key role for the European Court is played not by the actual duration of the proceedings, but by its proportionality and proportionality to the nature of the case.

——————————— <1> See, in particular: The Koenig Case. Court decision of June 28, 1978 // Air Force of the Russian Federation. 1999. N 7. P. 73 - 81.

The deadlines provided for in the commented article relate to the activities of the court of first instance. At the same time, the law provides only time limits for the trial of civil cases, and not separately for the preparation of cases for trial and their consideration in court, as was enshrined in the Code of Civil Procedure of the RSFSR. This allows us to draw the following conclusion: the preparation of the case for trial must be carried out during the period from the moment the ruling is made to accept the statement of claim for the court's proceedings until the date of the court hearing, determined by the judge, taking into account the complexity and volume of preparatory actions that need to be performed, as well as the need to comply with the general deadline for consideration of the case in the court of first instance.

The commented article establishes the so-called general period for consideration of civil cases in the court of first instance. Moreover, if the federal court acts as the first instance (regardless of which level of the judicial system it belongs to), this period is two months from the date of receipt of the application to the court; if on the merits the case is subject to consideration by a magistrate, then the period for consideration is one month from the date the application was accepted for proceedings. In this case, the period for consideration of the case by a magistrate within the meaning of Part 2 of Art. 327 of the Code of Civil Procedure is also the deadline for considering an appeal against a court decision made by a magistrate.

The time for consideration of the case is considered to be the period from the date of receipt of the statement of claim (statement - in cases of non-claim proceedings) and until a decision is made on it or a determination to terminate the proceedings or leave the statement without consideration.

Thus, the total period for consideration of a case by the court of first instance (from the district to the Supreme Court of the Russian Federation) includes: 1) the time during which the judge decides on the acceptance of the application for the proceedings of this court; 2) the period of time spent preparing the case for trial; 3) time spent on consideration of the case in court. Only the period of time established by law for sending copies of the decision to persons participating in the case who were not present at the court hearing is not included in the total period (Article 214 of the Code of Civil Procedure). The total period for consideration of the case by the magistrate also does not include the time during which he decides on the issue of accepting the application for his proceedings. It seems that this approach is more correct, since it involves calculating the period for consideration of the case from the moment of its initiation.

In the Judgment of the European Court of Human Rights in the case of A.T. Burdov <1> and some other decisions of the European Court note that the execution of a court decision should be considered as an integral part of the judicial process. It seems that in this case there is a discrepancy in the terminology used by the European Court and adopted in Russian legislation and legal doctrine. In this regard, we can agree with O.V. Isaenkova, who talks about the European Court replacing the concept of “defense process” with the narrower concept of “trial proceedings” <2>. As for the substance of the issue, it is difficult to disagree with the position of the ECHR. After all, then we would have to admit that in paragraph 1 of Art. Article 6 of the Convention sets out in detail the procedural guarantees provided to the parties in a fair, public and speedy trial, and the enforcement of court decisions is not guaranteed.

——————————— <1> See: Case “Burdov v. Russia”. Resolution of the ECHR of May 7, 2002 // Rossiyskaya Gazeta. 2002. July 4th. <2> See: Isaenkova O.V. Problems of executive law in civil jurisdiction. Saratov, 2002. P. 17.

Terminologically unusual for the Russian Federation, the concept of “judicial proceedings” is also used by the Supreme Court of the Russian Federation to denote the entire mechanism of judicial protection. In Resolution No. 5 of October 10, 2003 “On the application by courts of general jurisdiction of generally recognized principles and norms of international law and international treaties of the Russian Federation” <1> The Plenum of the Supreme Court of the Russian Federation indicated with reference to paragraph 1 of Art. 6 of the Convention, that the time limit for judicial proceedings in civil cases begins to be calculated from the time the statement of claim is received and ends at the time of execution of the judicial act. Thus, within the meaning of Art. 6 of the Convention, the execution of a court decision is considered as a component of “judicial proceedings” (paragraph 12 of the Resolution).

——————————— <1> See: BVS RF. 2003. N 12.

The institution of leaving a statement of claim without progress gives an important advantage to the plaintiff who filed the application to the court shortly before the expiration of the limitation period: according to Part 2 of Art. 136 of the Code of Civil Procedure, if the applicant, within the prescribed period, fulfills the instructions of the judge listed in the ruling, the application is considered submitted on the day of its initial submission to the court. Following the logic of the legislator, the Supreme Court of the Russian Federation explained that the period for consideration and resolution of civil cases established by Part 1 of Art. 154 of the Code of Civil Procedure, in this case it is necessary to calculate from the date of initial submission of the application to the court; in this case, the period given by the court to correct deficiencies is not subject to accounting <1>.

——————————— <1> See: Review of judicial practice of the Supreme Court of the Russian Federation for the fourth quarter of 2005 in civil cases. Approved by the Resolution of the Presidium of the Supreme Court of the Russian Federation of March 1, 2006 // BVS RF. 2006. N 5.

In practice, it is very important to correctly determine the day of the first meeting. It should not be scheduled for the last days of the term, taking into account the possibility of postponing the trial of the case for reasons beyond the control of the court (Article 169 of the Code of Civil Procedure). If there is a certain reserve of time, even if the hearing has to be postponed, the court can ensure that the case is heard on time.

The Code of Civil Procedure does not provide for the possibility of extending the general period for consideration of civil cases by the court of first instance.

2. Along with the general period, the article under comment establishes a special (shortened) period for consideration of certain categories of civil cases considered at first instance by federal district courts - one month from the date of receipt of the application to the court. The law limits the scope of application of this period to only two categories of cases that affect the vital subjective rights of citizens that need the most prompt protection - cases of reinstatement at work and the collection of alimony.

Regarding the procedure for calculating the specified period for the first category of cases, the Plenum of the Supreme Court of the Russian Federation gave the following explanation: “Cases on reinstatement at work must be considered by the court before the expiration of a month FROM THE DATE OF RECEIPT OF THE APPLICATION TO THE COURT, and other labor cases within the jurisdiction of the magistrate must be considered by the magistrate by the judge before the expiration of a month FROM THE DATE OF ACCEPTANCE OF THE APPLICATION FOR PRODUCTION (emphasis added by me. - A.P.). The specified time frame also includes the time required to prepare the case for trial (Chapter 14 of the Code of Civil Procedure)" (clause 7 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation Federation" <1>).

——————————— <1> See: BVS RF. 2004. N 6. P. 4.

3. Part 3 of the commented article provides for the possibility of establishing shortened processing times for other (besides the two specified in this article) categories of civil cases. However, the requirement of the Code of Civil Procedure is of fundamental importance, according to which such deadlines can be fixed exclusively by federal laws.

One of the federal laws that stipulates shortened terms for consideration of civil cases is the Code of Civil Procedure. Thus, shortened deadlines have been established for the consideration of a number of categories of administrative cases (Articles 252, 257, 260 of the Civil Procedure Code) and special proceedings (Articles 299, 304, 306 of the Code of Civil Procedure), as well as for the consideration of cases not related to any from the types of civil proceedings (Articles 420, 425 of the Code of Civil Procedure).

Other laws include, in particular, the Code of Administrative Offenses (Article 30.5); Federal laws of August 28, 1995 N 154-FZ “On the general principles of the organization of local self-government in the Russian Federation” <1> (clause 9 of article 49); dated October 6, 1999 N 184-FZ “On the general principles of organization of legislative (representative) and executive bodies of state power of the constituent entities of the Russian Federation” <2> (clause 6 of article 29.1); dated June 12, 2002 N 67-FZ “On the basic guarantees of electoral rights and the right to participate in a referendum of citizens of the Russian Federation” <3> (clause 6 of article 31); dated November 26, 1996 N 138-FZ “On ensuring the constitutional rights of citizens of the Russian Federation to elect and be elected to local government bodies” <4> (clause 8 of article 3); dated July 11, 2001 N 95-FZ “On Political Parties” <5> (clause 5 of Article 20).

——————————— <1> NW RF. 1995. N 35. Art. 3506. The Federal Law of the same name dated October 6, 2003 N 131-FZ (SZ RF. 2003. N 40. Art. 3822) also contains a number of rules providing for special deadlines for the consideration of civil cases in courts (clause 3 of article 73, p. 3 Article 74, paragraph 6 Article 75), however, like most of the norms of this Law, they are in accordance with its Art. 83 will come into force only on January 1, 2009 <2> SZ RF. 1999. N 42. Art. 5005. <3> NW RF. 2002. N 24. Art. 2253. <4> NW RF. 1996. N 49. Art. 5497. <5> NW RF. 2001. N 29. Art. 2950.

4. A novelty is the rule enshrined in Part 3 of Art. 39 of the Code of Civil Procedure, according to which, if the basis or subject of the claim changes, or the amount of the claim increases, the period for consideration of the case begins from the day the corresponding procedural action is performed. According to the meaning of the law, in a similar way, the issue of calculating the period for consideration of the case must be resolved in several more cases, namely: 1) after the involvement of a co-defendant or co-defendants; 2) after replacing an improper defendant with a proper one (in both cases, the law establishes that the preparation and consideration of the case after the appearance of a new subject in the process is carried out from the very beginning; hence it necessarily follows that the period for consideration of the case must begin anew from the day the corresponding action was committed) . In other cases (when a third party enters into the case, declaring independent demands regarding the subject of the dispute, and when a third party enters into the process, not declaring independent demands regarding the subject of the dispute), only consideration of the case should be carried out from the very beginning.

It seems that the rule about the beginning of the calculation of the period for consideration of the case from the moment the corresponding action is taken should be applied in two more situations: 1) when the case was submitted to the consideration of this court in the order of transfer from another court (Article 33 of the Code of Civil Procedure); 2) when the case is sent for a new trial based on the results of a review of the decision of the court of first instance by a higher court (paragraph 3 of article 361, paragraph 2 of part 1 of article 390 of the Code of Civil Procedure). This is due to the fact that in both of these cases, the preparation of the case for trial and the consideration of the case in court will be carried out from the very beginning, despite the absence of a direct indication of this in the law.

5. Of great practical importance is the question of how the terms of consideration should be calculated when the proceedings are suspended (Articles 215 - 219 of the Code of Civil Procedure). Considering that when resuming suspended proceedings there may be a need to perform procedural actions that the court does not have the right to perform during the period of suspension of proceedings, the period for consideration of such a case should be calculated from the moment of resumption of proceedings. The time elapsed from the moment the application was accepted until the day the proceedings were resumed is not taken into account when calculating the period for consideration of the case, since the grounds for suspending the proceedings are objective circumstances.

6. Compliance with the deadlines provided for in the commented article is the duty of the court <1>. Their violation gives rise to red tape, untimely protection of the rights of interested parties, reduces the importance of legal proceedings, and undermines the authority of the court.

——————————— <1> The Advisory Council of European Judges of the Council of Europe in its Conclusion named several principles that must be observed by member states of the Council of Europe in order to ensure their citizens the right to a fair trial within a reasonable time: 1 ) the principle of considering a case in no more than two court sessions - preliminary and main (for presenting evidence, arguments and making a decision); 2) the principle of suppressing any attempts to misuse judicial procedures by applying sanctions against the parties and lawyers; 3) the principle of the active role of the court in ensuring the speed of judicial proceedings while respecting the rights of the parties and the principle of their equality; 4) the principle of freedom for the judge to determine the form of judicial proceedings (oral or written), except in cases expressly prescribed by law (see: Opinion of the Advisory Council of European Judges of the Council of Europe “On a fair trial within a reasonable time and the role of the judge in trials, taking into account alternative ways of resolving disputes").

Failure to comply with the deadlines for consideration of cases by the court of first instance without good reason is a violation of procedural law. It may be the basis for higher courts to issue a private ruling against the court of first instance (Article 368 of the Code of Civil Procedure) or for bringing the judge to disciplinary liability.

7. The deadlines for consideration of cases are among the deadlines established for the commission of relevant actions by the court. The Civil Procedure Code also has other rules that provide for deadlines for certain procedural actions by a judge (court), for example, the deadline for making a decision in final form (Article 199 of the Civil Procedure Code), the deadline for sending a copy of the decision to the persons participating in the case (Article 214 of the Code of Civil Procedure), deadline for preparing the minutes of the court hearing (Part 3 of Article 230 of the Code of Civil Procedure), etc.

Violation of such deadlines by the court does not relieve him of the obligation to perform a procedural action provided for by law. Therefore, it seems that the term “service periods” <1>, which was introduced into scientific circulation by the famous procedural scientist S.N. Abramov to indicate the timing of procedural actions by a judge, most accurately reflects the essence of the timing established by the commented article.

——————————— <1> See: Civil procedure: Textbook. M., 1948. P. 248.

Confirmation of the official significance of the deadlines established for the performance of procedural actions by the court is the instruction of the Supreme Court of the Russian Federation to judges that their violation of procedural deadlines in cases without good reason indicates their neglect of official duties and judicial ethics (clause 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated May 31, 2007 N 27 “On the practice of courts considering cases challenging decisions of qualification boards of judges on bringing judges of courts of general jurisdiction to disciplinary liability” <1>).

——————————— <1> See: BVS RF. 2007. N 8.

Calculation of procedural deadlines

The deadlines for performing procedural actions are determined:

• exact calendar date (for example, the day of consideration of the case after the hearing was adjourned);
• an indication of an event (the day when the applicant became aware of newly discovered new circumstances) that must necessarily occur;
• period of time (a cassation appeal can be filed within six months after the decision enters into legal force). In this case, the action can be performed during the entire period.

The course of the procedural period, calculated in years, months or days, begins the next day after the calendar date or the occurrence of the event that determines its beginning (Article 107 of the Code of Civil Procedure of the Russian Federation). For example, a decision was made by the court on April 20, the procedural period begins to run on April 21.

An example of the occurrence of an event is the entry into force of a court decision, after which the period allotted for appealing this decision, for example in cassation, begins to run.

If the term is calculated in months, it expires on the corresponding date of the last month of the term. If there is no given date in this month (for example, there is no 31st), then the period expires on the last day of this month. If a given day is a non-working day, then the following working day is considered the expiration date.

The term, calculated in years, expires in the corresponding month and day of the last year of the term.

Procedural actions for which a deadline has been established can be completed until 24 hours on the last day of the deadline. But if a person does not send documents, money via mail or telegraph, but goes to court in person, then this must be done before the court closes (Article 108 of the Code of Civil Procedure of the Russian Federation). For example, the last day for filing a cassation appeal is April 30 - up to 24 hours the complaint can be sent by mail or up to 18 hours personally submitted to the court.

Expiration (missing) of the procedural period (Article 109 of the Code of Civil Procedure of the Russian Federation) means that:

1) the right to perform a procedural action has been extinguished. For example, the expiration of the period established by law for the entry of a judicial act into legal force, if the corresponding complaint or presentation is not brought, leads to the fact that the decision enters into legal force and acquires the quality of irrefutability;

2) complaints and documents submitted after the expiration of the procedural deadlines remain without consideration.

The consequences of missing a procedural deadline vary depending on who made the omission. If a judge misses a procedural deadline, he is still required to take the appropriate procedural action. For persons participating in the case, missing a deadline means that their right to perform procedural actions is extinguished if it is impossible to restore the missed deadline. The reasons for missing a deadline are clarified at a preliminary court hearing or court hearing and may be grounds for refusing to satisfy the application.

If the deadline set by the judge is missed by other persons, i.e., those not participating in the case, this does not relieve them of the obligation to perform the prescribed actions.

Can they claim the only housing?

It often happens that an apartment or a country house purchased by a person becomes the only place suitable for living for him and his family members. Current legislation establishes a rule according to which such housing cannot be foreclosed on (executive immunity), except in cases where it is encumbered with a mortgage6.

However, the problem is that the nature of claims for recovery is not identical to claims for collection. Vindication is the subject of the return of a specific item - living space. While a claim for collection involves the “seizure” of property owned by the debtor in a certain sequence7: funds in rubles, if they are insufficient - funds in foreign currency, if they were not enough - precious metals, etc.

In addition, if we interpret the provisions of the law literally8, then “foreclosure on the debtor’s property” (collection itself) and “seizure from the debtor of property awarded to the recoverer” (vindication), even from the point of view of enforcement proceedings, represent different measures of compulsory execution.

Therefore, the courts take the position that the acquirer is not endowed with executive immunity in the event that his only housing is demanded. It does not matter whether he is conscientious or not.

The position of the courts is similar in cases involving the application of the consequences of an invalid transaction for the acquisition of housing (restitution): a reference to the fact that the residential premises are the only suitable place for the purchaser and his family to live will not have legal significance.

Who is a bona fide purchaser?

A purchaser will be considered a bona fide purchaser if, at the time of his completion of a paid transaction with housing, he did not know and could not know that the person who transfers the residential premises to him does not actually have the right to do so. That is, the acquirer will have to prove in court that, when making a transaction to purchase real estate, he showed reasonable care and diligence and took all possible actions in order to find out whether the seller had the right to dispose of the property3. An approximate list of such actions will be described below.

As a general rule, a bona fide purchaser who received residential premises on the basis of compensation, i.e. Having paid the actual price for it, he cannot be deprived of housing. However, the law provides for cases when the owner has the right to demand the return of property he has lost.