Civil Code of the Russian Federation (CC RF). Civil Code of the Russian Federation (CC RF) Article 235 part 2

1. The right of ownership shall be terminated when the owner alienates his property to other persons, when the owner renounces the right of ownership, when the property is lost or destroyed, and when the right of ownership to the property is lost in other cases provided for by law.

2. Compulsory seizure of property from the owner is not allowed, except for cases when, on the grounds provided for by law, the following is carried out:

1) foreclosure on property for obligations (Article 237);

2) alienation of property, which by virtue of law cannot belong to this person (Article 238);

3) alienation of immovable property in connection with the seizure land plot due to its improper use (Article 239);

3.1) alienation of an object of construction in progress in connection with the termination of the lease agreement for a land plot that is state or municipal property (Article 239.1);

3.2) alienation of immovable property in connection with the forced acquisition of a land plot for state or municipal needs (seizure of a land plot for state or municipal needs (Article 239.2);

4) redemption of mismanaged cultural property, domestic animals (Articles 240 and 241);

7) alienation of property in the cases provided for in Article 239.2, paragraph 4 of Article 252, paragraph 2 of Article 272, Articles 282, 285, 293, paragraphs 4 and 5 of Article 1252 of this Code;

8) appeal by court decision to income Russian Federation property in respect of which, in accordance with the legislation of the Russian Federation on combating corruption, evidence of its acquisition with legal income is not presented;

9) the appeal, by a court decision, to the income of the Russian Federation of money, valuables, other property and income from them, in respect of which, in accordance with the legislation of the Russian Federation on countering terrorism, a person has not provided information confirming the legality of their acquisition.

According to the decision of the owner, in the manner prescribed by laws on privatization, property that is in state or municipal ownership is alienated into the ownership of citizens and legal entities.

The conversion into state ownership of property owned by citizens and legal entities (nationalization) is carried out on the basis of the law with compensation for the cost of this property and other losses in the manner prescribed by Article 306 of this Code.

Commentary on Art. 235 of the Civil Code of the Russian Federation

1. The norms of this article are general in relation to other articles. The commented article discusses the grounds for termination of the right of ownership, which can be classified into voluntary and compulsory, reimbursable and non-reimbursable. In addition, this article provides for the grounds for termination of the right of ownership, which may not depend on the will of the subjects of civil legal relations, in particular the loss or destruction of property, for example, by virtue of.

Among the voluntary grounds for termination of property rights are:

- alienation by the owner of his property to other persons, in particular, under contracts of sale, donation, exchange, rent, as well as making a contribution to authorized capital legal entity, etc. The term "alienation" means the termination of the right of ownership by the will of the owner with the transfer of the right to another person. As a result of alienation, the right of ownership of one person is terminated, and the right of another person arises. As K.P. Pobedonostsev, “in a strict sense, the word “alienation” means the voluntary transfer of property rights from one person to another; consequently, the means of such voluntary alienation are the same by which the right of property is acquired. Alienation in this sense is either complete, embracing the right of ownership of property in all its composition and space, or incomplete, when its constituent parts are separated from the right of ownership as the subject of alienation; for example, when the owner restricts his right to the recognition of outside participation or allows a third-party real right on his property (for example, a pledge) ”;

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Pobedonostsev K.P. Course of Civil Law: In 3 vols. M.: Zertsalo, 2003. Vol. 1. S. 381.

- refusal of the owner from the right of ownership (see commentary to article 236 of the Civil Code);

- destruction of property at the will of the owner, for example, as a result of processing.

2. Other methods of termination of property rights, in particular the loss of property rights, include the termination of property rights as a result of illegal actions, the impossibility of recovering from someone else's illegal possession on a vindication claim, for example, money, as well as bearer securities from a bona fide purchaser .

3. The provision of paragraph 2 of the commented article is aimed at ensuring the implementation of Part 3 of Art. 35 of the Constitution of the Russian Federation, according to which no one can be deprived of his property except by a court decision. The expropriation of property for state needs may be carried out only on the condition of prior and equivalent compensation.

The list of grounds for the forced termination of property rights, both due to violations of the law committed by the owner (subclauses 1, 2, 4 clause 2), and in order to protect state, public interests (subclauses 3, 5, 6 clause 2) is exhaustive . Such grounds, along with those directly listed in paragraph 2 of the commented article, include:

- payment to the participant fractional ownership without his consent, the rest of the owners compensate instead of allocating his share in cases where the owner's share is insignificant, cannot really be allocated and he does not have a significant interest in the use of common property (clause 4 of article 252 of the Civil Code);

- forced release of the land plot from the real estate belonging to the owner, in connection with the termination of his right to use the land plot (clause 2 of article 272 of the Civil Code);

- redemption of a land plot for state or municipal needs (Article 282 of the Civil Code);

- withdrawal of a land plot used in violation of the law (Article 285 of the Civil Code);

- termination of the right of ownership to the mismanaged contents of a residential building (Article 293 of the Civil Code);

- withdrawal from circulation of counterfeit material carriers of the results of intellectual activity and means of individualization equated to them and destruction without any compensation (clause 4 of article 1252 of the Civil Code);

- withdrawal from circulation and destruction at the expense of the violator of equipment, other devices and materials, mainly used or intended to infringe exclusive rights to the results of intellectual activity and to means of individualization (clause 5 of article 1252 of the Civil Code).

4. In para. Clause 9, Clause 2 of this article names privatization as a ground for termination of the right to state or municipal property (see Article 217 of the Civil Code and commentary thereto).

5. In para. Clause 10, paragraph 2 of this article refers to the nationalization of property, the basis of which may be a federal law (see the commentary to Article 306 of the Civil Code for more details). It is necessary to distinguish from nationalization requisition (see the commentary to Articles 242, 306 of the Civil Code), the voluntary transfer of property belonging to citizens or legal entities to the state, including by virtue of a direct indication of the law. For example, in accordance with Art. twenty federal law"On the implementation Housing Code Russian Federation” citizens who have privatized residential premises, which are the only place for them permanent residence, until March 1, 2010, they have the right to transfer the residential premises belonging to them on the basis of the right of ownership and free from obligations to state or municipal ownership, and the relevant executive authorities, local governments or persons authorized by them are obliged to take them into ownership and conclude contracts social recruitment these residential premises with citizens and members of their families living in these residential premises, in the manner prescribed by the legislation of the Russian Federation.

Full text of Art. 235 of the Civil Code of the Russian Federation with comments. New current edition with additions for 2019. Legal advice under Article 235 of the Civil Code of the Russian Federation.

2. Compulsory seizure of property from the owner is not allowed, except for cases when, on the grounds provided for by law, the following is carried out:
1) foreclosure on property for obligations (Article 237);
2) alienation of property, which by virtue of law cannot belong to this person (Article 238);
3) alienation of immovable property in connection with the seizure of a land plot due to its improper use (Article 239);
3.1) alienation of an object of construction in progress in connection with the termination of the lease agreement for a land plot that is state or municipal property (Article 239.1);
3.2) alienation of immovable property in connection with the forced acquisition of a land plot for state or municipal needs (seizure of a land plot for state or municipal needs (Article 239.2);
4) redemption of mismanaged cultural property, domestic animals (Articles 240 and 241);
5) requisition (Article 242);
6) confiscation (Article 243);
7) alienation of property in the cases provided for in Article 239.2, paragraph 4 of Article 252, paragraph 2 of Article 272, Articles 282, 285, 293, paragraphs 4 and 5 of Article 1252 of this Code;
8) the appeal, by a court decision, to the income of the Russian Federation of property in respect of which, in accordance with the legislation of the Russian Federation on combating corruption, evidence of its acquisition with legal income is not presented;
9) the appeal, by a court decision, to the income of the Russian Federation of money, valuables, other property and income from them, in respect of which, in accordance with the legislation of the Russian Federation on countering terrorism, a person has not provided information confirming the legality of their acquisition.

Commentary on Article 235 of the Civil Code of the Russian Federation

1. The commented article defines the list of grounds for termination of ownership. Under the grounds for the termination of the right of ownership should be understood the reasons and circumstances in the presence of which the property cannot exist as a property right.

Paragraph 1 of the commented article establishes the general grounds for termination of ownership. Conventionally, these grounds can be divided into three groups:
1) voluntary grounds - grounds, the occurrence of which depends on the will of the subject of ownership;
2) grounds that do not depend on the will of the subject of ownership;
3) other grounds.

The first group includes the following grounds:
1) alienation by the owner of his property to other persons - the conclusion by the owner of property with other persons of a civil law contract providing for the transfer of this property to the ownership of other persons;
2) refusal of the owner from the right of ownership - an expression of the will of the owner of the property, indicating his removal from the exercise of the powers of possession, use and disposal of property.

The second group of bases includes the following:
1) loss of property - loss of property, as a rule, due to force majeure circumstances, that is, not dependent on the will of the owner of the property;
2) destruction of property - bringing property into a state unsuitable for its use for its intended purpose.

It should be noted that, as follows from the materials of judicial practice, the concepts of "destruction of property" and "destruction of property" are equated. Thus, the Judicial Collegium for Civil Cases of Omsk regional court, considering the cassation appeal K.A. to the decision of the Pervomaisky District Court of the city of Omsk, by which she was denied satisfaction of the requirements, in particular, on the recognition of the right of ownership to the land plot; reclamation of a land plot from the illegal possession of S.P. and duties of S.P. demolish an unfinished building. The court found that the disputed land plot was granted to grandfather K.A. K.I. for perpetual use. A house was located on the land plot, which by the time of filing statement of claim was destroyed by fire.

court in this case proceeded from the fact that if the property is destroyed (died), then by virtue of paragraph 1 of the commented article, the ownership of it is terminated. Concluding that the object of immovable property in the form of housing construction ceased to exist, the court in its decision proceeded from the fact that the destruction (destruction) of an object of immovable property means the loss of immovable properties of an object of civil rights (in this case, the destruction of a building object), excluding the possibility of its use in accordance with its original purpose. According to the law, the termination of the right of ownership to an object of immovable property is made dependent not on circumstances indicating the complete destruction (death) of the object, but on circumstances indicating the loss of the properties of the object of civil rights by real estate, which excludes the possibility of its use in accordance with its original purpose. For the recognition of real estate as destroyed (dead), partial destruction of the real estate object is sufficient, preventing its further use in accordance with its original purpose.

The third group should include all other grounds, with the exception of those specified in paragraph 2 of the commented article, entailing the loss of ownership of property. Such grounds include, for example, the commission of criminal acts (theft, robbery, etc.).

2. Paragraph 2 of the commented article establishes the grounds for the forced seizure of property from the owner. By general rule which follows from Art. 35 of the Constitution of the Russian Federation and from paragraph 2 of the commented article, the owner cannot be deprived of his property otherwise than on the grounds provided for by law. Compulsory seizure of property is the alienation of property against the will of the owner. The grounds for such compulsory seizure are established by paragraph 2 of the commented article, and the content of each of them is disclosed in subsequent articles of the commented law.

It should be noted that some "mansion", based on paragraph 2 of the commented article, are such grounds for termination of property rights as privatization and nationalization, since these grounds cannot be classified as forced, since, in particular, privatization is carried out by decision of the owner. In general, based on paragraph 1 of the commented article, these grounds should be attributed to the third group - other grounds provided for by law.

We note that nationalization, according to paragraph 2 of the commented article, is the transfer of property from private property (the property of citizens or legal entities) to state ownership. Please note that nationalization must be carried out on the basis of the law with compensation for the value of this property and other losses. Thus, in February 2011, a draft federal law "On the paid seizure (nationalization) of the property of socially inefficient owners" was submitted to the State Duma of the Federal Assembly of the Russian Federation. However, on the basis of the Decree of the State Duma of the Federal Assembly of the Russian Federation of April 13, 2012 N 273-6 GD "On the draft Federal Law N 500676-5 "On the paid seizure (nationalization) of the property of socially inefficient owners" this project was rejected.

3. Court practice:
- cassation ruling of the Omsk Regional Court dated February 9, 2011 N 33-866/11.

Consultations and comments of lawyers on Article 235 of the Civil Code of the Russian Federation

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Civil Code The Russian Federation, along with the federal laws adopted in accordance with it, is the main source of civil legislation in the Russian Federation. The norms of civil law contained in other normative legal acts cannot contradict the Civil Code. The Civil Code of the Russian Federation, work on which began at the end of 1992 and initially went in parallel with work on the Russian Constitution of 1993, is a consolidated law consisting of four parts. In connection with the huge amount of material that required inclusion in the Civil Code, it was decided to accept it in parts.

The first part of the Civil Code of the Russian Federation, which entered into force on January 1, 1995, (with the exception of certain provisions), includes three of the seven sections of the code (section I "General Provisions", section II "Property and other property rights", Section III " a common part law of obligations). This part of the Civil Code of the Russian Federation contains the fundamental norms of civil law and its terminology (on the subject and general principles of civil law, the status of its subjects (individuals and legal entities)), objects of civil law ( various types property and property rights), transactions, representation, limitation period, the right of ownership, as well as the general principles of the law of obligations.

The second part of the Civil Code of the Russian Federation, which is a continuation and addition to the first part, was put into effect on March 1, 1996. It is completely devoted to Section IV of the Code "Certain Types of Obligations". Based on the general principles of the new civil law of Russia, enshrined in the 1993 Constitution and part one of the Civil Code, part two establishes a detailed system of norms on individual obligations and contracts, obligations from causing harm (torts) and unjust enrichment. In terms of its content and significance, part two of the Civil Code of the Russian Federation is a major stage in the creation of a new civil legislation of the Russian Federation.

The third part of the Civil Code of the Russian Federation includes Section V "Inheritance Law" and Section VI "International Private Law". In comparison with the legislation in force before the entry into force on March 01, 2002 of part three of the Civil Code of the Russian Federation, the rules on inheritance have undergone major changes: new forms of wills have been added, the circle of heirs has been expanded, as well as the circle of objects that can be transferred in the order of hereditary succession; introduced detailed rules relating to the protection of the inheritance and its management. Section VI of the Civil Code, dedicated to the regulation of civil law relations complicated by a foreign element, is a codification of the norms of private international law. This section, in particular, contains norms on the qualification of legal concepts in determining the applicable law, on the application of the law of a country with a plurality of legal systems, on reciprocity, back reference, establishing the content of foreign law norms.

The fourth part of the Civil Code (entered into force on January 1, 2008) consists entirely of section VII"Rights to the results of intellectual activity and means of individualization". Its structure includes general provisions- norms that apply to all types of results of intellectual activity and means of individualization or to a significant number of their types. The inclusion of norms on intellectual property rights in the Civil Code of the Russian Federation made it possible to better coordinate these norms with the general norms of civil law, as well as to unify the terminology used in the field of intellectual property. The adoption of the fourth part of the Civil Code of the Russian Federation completed the codification of domestic civil legislation.

The Civil Code of the Russian Federation has passed the test of time and extensive practice of application, however, economic offenses, often committed under the guise of civil law, have revealed the lack of completeness in the law of a number of classical civil law institutions, such as the invalidity of transactions, the creation, reorganization and liquidation of legal entities, the assignment claims and transfer of debt, collateral, etc., which necessitated the introduction of a number of systemic changes into the Civil Code of the Russian Federation. As noted by one of the initiators of such changes, the President of the Russian Federation D.A. Medvedev, “The current system needs not to be reorganized, fundamentally changed, ... but to be improved, unlocking its potential and developing implementation mechanisms. The Civil Code has already become and should remain the basis for the formation and development of civilized market relations in the state, an effective mechanism for protecting all forms of ownership, as well as the rights and legitimate interests of citizens and legal entities. The Code does not require fundamental changes, but further improvement of civil legislation is necessary ... "<1>.

On July 18, 2008, Decree of the President of the Russian Federation N 1108 "On the improvement of the Civil Code of the Russian Federation" was issued, which set the task of developing a concept for the development of the civil legislation of the Russian Federation. October 7, 2009 The concept was approved by the decision of the Council for Codification and Improvement Russian legislation and signed by the President of the Russian Federation.

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<1>See: Medvedev D.A. The Civil Code of Russia - its role in development market economy and the creation of a rule of law // Bulletin of civil law. 2007. N 2. V.7.

2. Compulsory seizure of property from the owner is not allowed, except for cases when, on the grounds provided for by law, the following is carried out:

1) foreclosure on property for obligations (Article 237);

2) alienation of property, which by virtue of law cannot belong to this person (Article 238);

3) alienation of immovable property in connection with the seizure of a land plot due to its improper use (Article 239);

3.1) alienation of an object of construction in progress in connection with the termination of the lease agreement for a land plot that is state or municipal property (Article 239.1);

3.2) alienation of immovable property in connection with the forced acquisition of a land plot for state or municipal needs (seizure of a land plot for state or municipal needs (Article 239.2);

4) redemption of mismanaged cultural property, domestic animals (Articles 240 and 241);

5) requisition (Article 242);

6) confiscation (Article 243);

7) alienation of property in the cases provided for in Article 239.2, paragraph 4 of Article , paragraph 2 of Article , Articles , , , paragraphs 4 and 5 of Article 1252 of this Code;

8) the appeal, by a court decision, to the income of the Russian Federation of property in respect of which, in accordance with the legislation of the Russian Federation on combating corruption, evidence of its acquisition with legal income is not presented;

The conversion into state ownership of property owned by citizens and legal entities (nationalization) is carried out on the basis of the law with compensation for the value of this property and other losses in the manner prescribed by the article of this Code.

Commentary on Art. 235 of the Civil Code of the Russian Federation

1. Paragraph 1 of the commented article in in general terms indicates the grounds for termination of the right of ownership by the will of the owner, as well as due to objective circumstances that cannot be qualified as actions of someone aimed at termination of the right of ownership. This norm is a reference (see, in particular, the commentary to Articles 217, 218, 223, 225, 226, 236 of the Civil Code). Although the list of grounds for termination of ownership contained in it is formulated as exhaustive, in reality it is not. For example, it does not name such methods of termination of ownership as the return to the former owner of an animal that has retained attachment to it (see the commentary to Article 231 of the Civil Code) and the cancellation of a donation (see the commentary to Article 578 of the Civil Code).

The basis for the termination of the right of ownership, which at the same time is not the basis for the emergence of this right for another person, is the death (destruction) of the thing mentioned in paragraph 1 of the commented article, which has already been discussed in the commentary. to Art. 209 GK. One can come across the opinion that the destruction of a thing in the process of its consumption is only the exercise of the right to use it (i.e., not a disposal), since the will of the owner is not directed at all to terminate the right of ownership, but to extract from things its useful properties (for example, burning wood in a fireplace). However, the qualification of an action as a disposition depends rather on whether the thing is retained by the owner as a result, rather than on the direction of the will of the owner. As long as the thing can still be used for its intended purpose, use takes place; at the moment of irreversible loss of purpose, disposal occurs by destroying the thing. At the same time, strictly speaking, the right of ownership to the material remains of the destroyed thing is present. So, from Art. Art. 86, 89 VK, it can be concluded that the destroyed aircraft is an object of property rights, but this is already a new right to a new object that has changed in its essence.

2. Article 35 of the Constitution determines that no one may be deprived of his property except by a court decision. The expropriation of property may be carried out subject to prior and equivalent compensation. The norm of paragraph 2 of the commented article, which is referential in its form, is precisely devoted to a general description of cases of forced seizure of property from the owner, as well as the concept of privatization (see also comments to Article 217 of the Civil Code). Termination of the right of ownership against the will of the owner can be considered in a number of cases as a sanction (see comments to paragraph 3 of article 220, paragraph 3 of article 222, articles 237, 238, 240, 241, 243, 284, 285 , 293, paragraph 2 of article 578, 1252 of the Civil Code); as a way to ensure the most important state and public interests (see comments to articles 239, 242, 243, 279 - 283 of the Civil Code); as a means of maintaining a balance of competing private interests (see comments to paragraph 4 of article 252 of the Civil Code).

The grounds for the forced termination of property rights must be directly and exhaustively provided for by federal law, which follows from both general principle inviolability of property (clause 1, article 1 of the Civil Code), and a direct indication of clause 2 of the commented article.

3. The process of forced conversion into state ownership of property belonging to individuals and legal entities is called nationalization (paragraph 10, paragraph 2 of the commented article). Nationalization is carried out on the basis of a special federal law with compensation for the cost of seized property and other losses in the manner prescribed by Art. 306 GK.

Most capitalist states the nationalization of the largest enterprises was carried out by exchanging shares for state securities with a fixed income. At the same time, the gain of the shareholders was that they received the right to demand the payment of a fixed amount of income instead of an indefinite dividend that fluctuates during periods of crises, and the state won in that it got the opportunity to influence the decision-making of an enterprise of interest to it. In this way, in particular, the post-war nationalization of the Bank of England, coal industry enterprises and railway enterprises in England was carried out during the policy of "Thatcherism" (see for more details: Belov V.A. Nationalization in Russian civil law: history and modernity // Legislation. 1999 No. 2, 3).

In the economy and some foreign legal orders, such as the United States, there is also the concept of "creeping expropriation" (creeping expropriation), i.e. hidden nationalization, when a special law is not adopted, but such unbearable conditions for doing business in a particular country are created that investors themselves are looking for an opportunity to get rid of their assets in favor of the state.

Currently, a special federal law on nationalization has not been adopted in Russia (in 2005, the Government of the Russian Federation withdrew the corresponding draft law from consideration in the State Duma of the Russian Federation). According to Art. 35 of the Constitution, the expropriation of property for state needs may be carried out on the condition of not only equivalent, but also its preliminary compensation. Therefore, the Federal Assembly of the Russian Federation, before a final decision on nationalization is made, must, with the help of executive authorities, determine in advance the approximate number of owners whose property will be nationalized, the total amount of compensation and approve the costs of compensating them for losses as a separate line in federal budget for the coming year.

Judicial practice under Article 235 of the Civil Code of the Russian Federation

"Review of the practice of the Constitutional Court of the Russian Federation for 2017"

16. By ruling No. 1163-O of June 6, 2017, the Constitutional Court revealed the meaning of the provisions of subparagraph 8 of paragraph 2 of Article of the Civil Code of the Russian Federation, as well as part 1 of Article 4, part 3 of Article 16, Article 17 and part 2 of Article 18 of the Federal Law "On control over the correspondence of expenses of persons holding public office and other persons to their income.

Determination of the Supreme Court of the Russian Federation of January 19, 2017 N 308-ES16-18902 in case N A53-22889 / 2015

Guided by the articles of the Civil Code of the Russian Federation, article 32 of the Housing Code of the Russian Federation, having established that the land plot on which the company owns real estate, withdrawn for municipal needs, the company is deprived of the opportunity to use its non-residential premises and in connection with the demolition of the apartment building there will be a forced termination of the company's ownership of them, the courts satisfied the claim, determining the amount of compensation for the confiscated premises, taking into account the results of the case forensic examination.

Ruling of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation dated January 24, 2017 in case No. 305-KG16-10570, A40-78400/2015

The courts of first and appeal instances, referring to Article 36 Land Code of the Russian Federation (hereinafter referred to as the LC RF), in force until 03/01/2016, articles of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), part 1 of article 36 of the Housing Code of the Russian Federation (hereinafter referred to as the LC RF), article 20 of Law N 122-FZ , clarifications given in paragraph 8 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 23, 2009 N "On some issues of the practice of considering disputes about the rights of owners of premises to common property buildings" (hereinafter referred to as Resolution of the Plenum No. 64), came to the conclusion that the Rosreestr Department had no grounds for state registration of the Company's ownership of the disputed land plot.

Ruling of the Supreme Court of the Russian Federation of February 8, 2017 N 305-ES16-20533 in case N A41-8521/2016

The courts of first and appeal instances, having examined and evaluated the evidence presented in the case file in accordance with the rules of articles 69 and 71 of the APC of the Russian Federation, guided by articles,, of the Civil Code of the Russian Federation, the explanations given in paragraph 52 of the Plenum resolution Supreme Court of the Russian Federation and the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 29, 2010 N / 22 "On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights", the legal position of the Supreme Arbitration Court of the Russian Federation, given in the decision of the Presidium of October 20, 2010 N 4372/10 in case N A40-30545 / 09 and in the decision of September 24, 2013 N 1160/13 in case N A76-1598/2012, taking into account the results of the construction and technical expertise conducted in order to determine the presence of disputed objects on the land plot, the expert’s opinion and the circumstances established arbitration courts when considering the case N A41-28014 / 2012, the defendant's registered ownership of the disputed real estate was terminated in connection with their death (destruction).

Ruling of the Supreme Court of the Russian Federation of February 8, 2017 N 304-KG16-19909 in case N A46-1758/2016

The courts of the first and appellate instances, having examined and evaluated the evidence presented in the case file, guided by articles 197, 198, 200, 201 of the APC of the Russian Federation, articles of the Civil Code of the Russian Federation, articles 3, 4 of the Federal Law of December 8, 2011 N 423-FZ "On the procedure for the gratuitous transfer of military real estate to the ownership of the subjects of the Russian Federation - cities federal significance Petersburg, municipal property and on amendments to certain legislative acts of the Russian Federation" (as amended on July 2, 2013), Articles 16 and 18 of the Federal Law of July 21, 1997 N 122-FZ "On State Registration of Rights to Real Estate and transactions with it" (as amended before 01/01/2017), the legal position of the Constitutional Court of the Russian Federation, given in the ruling of 04.12.2007 N 828-O-P, the explanations given in paragraph 52 of the decision of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme of the Arbitration Court of the Russian Federation dated April 29, 2010 N / 22 "On some issues arising in judicial practice in resolving disputes related to the protection of property rights and other property rights", taking into account the circumstances established by arbitration courts when considering case N A46-7548 /2014, came to the conclusion that there were no grounds for satisfying the stated requirements.

Determination of the Supreme Court of the Russian Federation of February 10, 2017 N 307-ES16-17333 in case N A13-15131 / 2015

Under such circumstances, guided by articles,, of the Civil Code of the Russian Federation, articles 44 and 53 of the Land Code of the Russian Federation, articles 198, 200, 201 of the Arbitration Procedure Code of the Russian Federation, article 36 of the Housing Code of the Russian Federation, article 16 of the Federal Law of December 29, 2004 N

Article 235. Grounds for termination of the right of ownership

2. Compulsory seizure of property from the owner is not allowed, except for cases when, on the grounds provided for by law, the following is carried out:

1) foreclosure on property for obligations ();

2) alienation of property that, by virtue of law, cannot belong to this person ();

3) alienation of real estate in connection with the withdrawal of the plot ();

4) redemption of mismanaged cultural property, domestic animals (Articles 240 and 241);

7) alienation of property in cases provided for by paragraph 4 of Article 252, paragraph 2 of Article 272, paragraph 2 of Article 272, paragraphs 4 and 5 of Article 1252 of this Code; (as amended by Federal Law No. 231-FZ of December 18, 2006)

Article 236. Refusal of the right of ownership

Citizen or entity may renounce the right of ownership to property belonging to him by announcing it or by taking other actions that definitely indicate his removal from possession, use and disposal of property without the intention of retaining any rights to this property.

The renunciation of the right of ownership does not entail the termination of the rights and obligations of the owner in relation to the relevant property until the acquisition of the right of ownership to it by another person.

Article 237

1. Seizure of property by levying execution on it against the obligations of the owner shall be carried out on the basis of a court decision, unless a different procedure for levying execution is provided by law or an agreement.

2. The right of ownership to the property on which the execution is levied shall be terminated by the owner from the moment the right of ownership to the confiscated property arises from the person to whom this property is transferred.

Article 238

1. If, for reasons permitted by law, a person has acquired property that by virtue of law cannot belong to him, this property must be alienated by the owner within a year from the moment the right of ownership to the property arises, unless a different period is established by law.

2. In cases where the property has not been alienated by the owner within the time period specified in paragraph 1 of this article, such property, taking into account its nature and purpose, by a court decision issued at the request of a state body or local self-government body, is subject to forced sale with transfer to the former to the owner of the proceeds or transfer to state or municipal ownership with compensation to the former owner of the value of the property determined by the court. In this case, the costs of alienation of property are deducted.

3. If, on the grounds permitted by law, a citizen or a legal entity acquires a thing the acquisition of which requires a special permit, and its issuance to the owner is refused, this thing is subject to alienation in the manner established for property that cannot belong to this owner.

Article 239

1. In cases where the withdrawal of a land plot for state or municipal needs or due to improper use of the land is impossible without termination of ownership of buildings, structures or other immovable property located on this plot, this property may be withdrawn from the owner by means of a state buyout or sale from public auctions in the manner provided for, respectively, and 284 - 286 of this Code.

The demand for the seizure of immovable property shall not be satisfied if the state body or local self-government body that filed this demand with the court does not prove that the use of the land plot for the purposes for which it is withdrawn is impossible without termination of the right of ownership to this immovable property.

2. The rules of this article shall respectively apply when the right of ownership to real estate is terminated in connection with the withdrawal of mining allotments, water bodies and other isolated natural objects on which the property is located. (as amended by Federal Law No. 118-FZ of July 14, 2008)

Article 240

In cases where the owner of cultural property, classified in accordance with the law as especially valuable and protected by the state, mishandles these values, which threatens to lose their value, such values, by a court decision, can be withdrawn from the owner by redemption by the state or sale at public auction .

When buying cultural property, the owner is reimbursed for their value in the amount established by agreement of the parties, and in the event of a dispute - by the court. When selling at a public auction, the proceeds from the sale are transferred to the owner minus the costs of the auction.

Article 241

In cases where the owner of domestic animals treats them in obvious contradiction with the rules established on the basis of the law and the norms of humane treatment of animals accepted in society, these animals can be seized from the owner by buying them out by a person who has filed a corresponding claim with the court. The redemption price is determined by agreement of the parties, and in the event of a dispute - by the court.

Article 242. Requisition

1. In cases natural Disasters, accidents, epidemics, epizootics and under other circumstances of an emergency nature, property in the interests of society, by decision of state bodies, can be withdrawn from the owner in the manner and on the conditions statutory, with the payment to him of the value of the property (requisition).

2. The valuation according to which the cost of the requisitioned property is reimbursed to the owner may be disputed by him in court.

3. A person whose property has been requisitioned shall have the right, upon termination of the circumstances in connection with which the requisition was made, to demand in court the return of the remaining property to him.

Article 243. Confiscation

1. In cases provided for by law, property may be confiscated from the owner free of charge by a court decision in the form of a sanction for committing a crime or other offense (confiscation).

2. In cases provided for by law, confiscation may be carried out in an administrative manner. A decision to confiscate an administrative decision may be challenged in court. (as amended by Federal Law No. 231-FZ of December 18, 2006)