Seizure of property is a mandatory procedure when collecting debt in favor of a creditor. The decision to implement this measure is made in court. However, due to circumstances and new factors, it has retroactive effect and the seizure can be canceled so that the owner can dispose of his property.
Conditions
Seizure of property implies a ban on the right to dispose of it. This can be expressed not only in complete, but also in partial restriction. For each specific proceeding, the measure is determined individually. After the court decision is made, the bailiff makes the appropriate note, and the data is entered into the state register. The procedure is determined by Law No. 229-FZ, and in particular by Article 80.
Removal of seizure of property can only be carried out in the following cases:
- Full repayment of debt to the creditor. This can be done only after a positive court decision has been made to terminate the enforcement proceedings. This situation occurs most often and requires the owner only to pay the entire amount of the debt and follow the procedure for registering the removal of property from seizure.
- Disputes arise. The reason for their appearance is an incorrect determination of the ownership rights of property that has come under arrest. In this case, it is necessary to refer to Article No. 118 of Law No. 229, which clearly describes the procedure for resolving controversial issues. Interested parties (owners) must file an application with the court.
- Filing an appeal to the court. This step is due to an incorrect decision to satisfy the material claim. But in practice, the only limitation is the amount of debt. If it does not exceed 3,000 rubles, seizure of property is not a mandatory measure.
For each case, certain conditions must be met.
They differ in the procedure for submitting applications, the set of documents and the timing of the decision. As an example, we can consider the most common case when all debts have been paid.
The main provisions on the procedure for withdrawing a lawsuit from property are set out in Article No. 144 of the Code of Civil Procedure of the Russian Federation . For this process, it is necessary to correctly prepare a package of documents and draw up an application to the court. The last paragraph is important because it indicates the reason why the property must be removed from the seizure.
Rules for removing restrictions on property rights:
- Only the owner can file an application with the court. An exception is property owned by several legal entities or individuals. In some cases, it is possible to submit from a third party acting on the basis of a notarized power of attorney.
- Reasons for lifting the restriction. This could be payment of a debt or an incorrect court decision. In any case, the application must fully describe the reason;
- Payment of state duty. It directly depends on the valuation of the property and is determined by the legal authority.
- Hearings. In their process, the competence of making a positive decision is determined. The result is the satisfaction or failure of the claim.
Each of these points must be considered in detail, possible difficulties and nuances must be studied.
Submitting an application
Drawing up an application is the first step to return ownership rights. To do this, it is recommended to involve professional lawyers, since the content of the document will largely determine the likelihood of a positive decision.
Russian legislation does not provide for a strict form of application for consideration of the possibility of lifting the seizure of property.
But for correct preparation, the sample application must contain the following points:
- The name of the government agency to which the application is being submitted. Most often this is a district court, but if the case is controversial, it is recommended to go to the appellate court.
- Data of the defendant, applicant and third parties involved in the case.
- Amount of claim. It depends on the valuation of the property. In some cases, it is possible to consider an additional case for compensation (moral and material).
- Information from the deed regarding the restriction of property rights to possession.
- List of identified errors and violations.
- Requests to change a court decision or the status of property.
- Date and signature of the owner.
This application is submitted to the judicial authority.
After registration, you need to receive a copy of the document with a stamp and an indication of the incoming number.
As additional materials, you should provide a copy of the court decision on the arrest, a receipt for payment of the state duty and a list of documents confirming the right of ownership. This should have a positive impact on making a positive decision.
The consideration of a court case is carried out in several stages. Upon application, the government agency collects the necessary documents. Therefore, the applicant must be prepared that at the preparatory stage he may be required to provide additional data, certificates, etc.
Procedure for consideration of litigation.
- Preparatory stage. It is regulated by articles of the Civil Code of the Russian Federation No. 150-163. For the first meeting, agendas are sent to interested parties. After the start of the process, the presence of the plaintiff and defendant is checked. During the meeting, the subject of the dispute is clarified and witnesses are interviewed. The judge then announces who is acting as prosecutor, etc. At this stage it is possible to apply for a change of judges.
- Consideration on the merits and debate. The judge clarifies all the circumstances of the case, familiarizes himself with the documents provided, and interviews witnesses.
- The court's decision. After clarifying the circumstances of the case, the court will need some time to consider it. For the second meeting, the mandatory presence of the parties is determined in advance. In some cases, consideration may be postponed due to current circumstances. These include the failure of witnesses to appear, the involvement of third parties, etc.
After a decision is made, one of the parties can appeal it, if such a possibility exists at the legislative level.
If at the preparatory stage the correct package of documents was collected and evidence was presented to the court about the incompetence of continuing the seizure of property, the decision should be positive.
In economic and criminal cases
The vast majority of cases to lift restrictions on property rights are heard in civil court. But if there is a violation of the Criminal Code, all data will be transferred to the appropriate government agency.
Therefore, it is important to know the differences between these procedural procedures:
- In civil proceedings, the applicant has the right to waive or change his claims. The conduct of criminal proceedings does not depend on this circumstance. Exceptions are a small group of cases where the victim and the accused can agree on a peaceful resolution of the issue;
- Determining the degree of punishment. In civil cases, the extent of damages or the possibility of restoration of the applicant's rights is determined. In criminal cases, the degree of violation of the law is first determined. Also, the decision of the criminal court after the death of the sentenced person does not apply to his relatives or loved ones. For civil law, transfer of responsibility is the norm;
- The difference is in advocacy. Civil cases are aimed at satisfying the applicant's demands, and these decisions do not have an impact on the state. Criminal proceedings involve compliance with the national interests of the rule of law.
The main difference between a criminal case and a civil case is the inability of the plaintiff to influence the completion of the process. This is explained by the transition of consideration from private to state interests.
When a positive decision is in hand
According to current legislation, the court is obliged to send a copy of the decision to the state registration authority within three working days. This function is performed by an electronic interdepartmental interaction system. The property owner is left with the decision of the authorities.
The procedure for changing the status of property:
- Making a decision by the court and sending it to the relevant registration authorities.
- Providing a court decision to bailiffs. This process may take several months. Therefore, in practice, they file a petition to expedite the issuance of documents.
- Changing data in registers, obtaining a new document on the right of ownership of property. The last point is required, as the registration number may change.
If a positive decision is made, the owner can independently contact the state registration authorities without waiting for the interdepartmental interaction system to work.
To do this, you will need a court decision, an application and copies of identification documents. The same procedure can be done by a trusted person. A power of attorney is first drawn up by a notary public, which specifies the rights of a third party, and in particular the possibility of providing data to change the register.
Practice
Russia is gradually implementing reform to protect owners of seized property . Its main focus is the elimination of judicial errors. For this purpose, on September 15, 2017, amendments to Law No. 130-FZ came into force.
They are as follows:
- The judicial authority is obliged to determine restrictions on ownership and the ability to dispose of it;
- Identification of persons responsible for property under arrest. This implies the possibility of filing claims for damage and possible compensation;
- Minimizing judicial errors. One of the most common is the seizure of property that the accused does not own. This could be a spouse’s apartment or car, which are their only property. Contradictions also arise when dividing property during a divorce. Therefore, such cases are considered in more detail.
It was most of the mistakes of the judicial and executive powers that led to the start of reforms. Now, if the seizure of property is proven unfounded, the victim has the right to demand monetary compensation.
But how this will be implemented in practice is still unknown. In general, changes to legal provisions help to minimize miscarriages of justice. However, it should be taken into account that the processing time for cases increases. This also applies to the procedure for lifting the seizure of property in court. Therefore, you should carefully prepare the necessary documents and consult with professional lawyers.