Can bailiffs seize a share in an apartment?

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Declining incomes are hitting the wallets of ordinary people hard. Often people simply cannot repay the loan, debts arise, and legal proceedings begin. Soon the bailiffs will seize the share in the apartment. What does this mean for owners? Will the housing be taken away for debts, and the residents will end up on the street?

The situation with the seizure of property requires clarification. Not everyone knows about their rights, the powers of bailiffs and the procedure for encumbering shares in an apartment. Let’s dispel the most “terrible” myths and talk about the peculiarities of collection.

What is seizure of a share in an apartment?

The concept of “arrest” is found quite often, but is not associated with deprivation of liberty in relation to property.

If the debtor is in arrears on the loan, the lender has the right to make a demand for the allocation of a share in the common property. Then the share will be offered to be purchased by the co-owners. If there are no takers, the property will be auctioned (Article 255 of the Civil Code of the Russian Federation).

However, in the case of an arrest, the goals may differ:

• ensure the safety of property (for example, before dividing the spouses’ shared apartment);
• asset confiscation;
• execution of a court decision to seize a share in an apartment.

Not all authorities can impose penalties. Only courts and employees of the Bailiff Service (SSP) have this right. Lenders, banks, microfinance organizations, collectors and other creditors do not have the authority to seize property. However, there may be threats on their part to do this.

Housing encumbrances always have a reason. Bailiffs cannot seize and describe your property without reason.

Reasons for arresting a share in an apartment:

1. Loan debt . Delay in payments threatens to result in foreclosure on the share in the apartment. Moreover, the bank will require repayment of the “body” of the loan + fines and penalties for late payments.
2. Mortgage debt . A serious reason for the real alienation of housing. If the debtor took out a loan against collateral, the bank has the right to take away the share in the apartment (see “How to deprive the owner of a share in the apartment without consent”).
3. Non-payment of alimony . Sanctions may affect unscrupulous parents (more often fathers). The first collection will affect accounts and bank cards. If the amount of debt is too large, and the repayment bill may go to the share in the apartment. Seizure is not a penalty, but a measure of security or incentive for the defaulter.
4. Securing a claim . Occurs in case of property disputes between citizens. If a wife suspects that her husband wants to sell the shared apartment, she can go to court. The application will contain a requirement to ensure the safety of the property. One of the measures is the seizure of a share in the apartment.
5. Crimes and criminal cases . Economic crimes require compensation for damages. In order for the fraudster to pay the full amount, the bailiff can describe his property.

Thus, the arrest is intended to resolve a property dispute. A distinction is made between arrest followed by confiscation and sanction without alienation of property. Which option to apply depends on the nature of the case.

How can I find out if an arrest has been made?

An encumbrance on a share in an apartment prohibits its disposal. You can find out about the arrest based on an extract from the Unified State Register of Real Estate. The document contains the date of collection, the name of the bailiff, as well as the address of the local SSP.

How to order an extract from the Unified State Register of Real Estate:

• through the State Services portal;
• personal visit to FKP "Rosreestr";
• request through the MFC “My Documents”.

A paper sample will cost 400 rubles , and an electronic one – 250 rubles . Certificates are issued to any applicants, not just owners. Once you learn about a possible arrest, you can understand what to do next.

How to seize a share in an apartment?

Doubts about the actions of the owner are a reason to resort to seizure of the disputed property. This is especially true in the case of securing a statement of claim (for example, when dividing an apartment).

The applicant has the right:

• file a petition with the court;
• contact the bailiffs to inventory the share in the apartment.

In order to impose an arrest, you must have compelling reasons. No one will simply encumber property.

Procedure

The starting point is the nature of the disputed situation. If you need to ensure the safety of your share in the apartment, you need to file a petition with the court. If the decision has already been made, contact the bailiffs.

Algorithm of actions:

1. Make a petition or statement.
2. Collect documents for the general package.
3. Contact the court at the place where your case is being considered or the territorial SSP.
4. Hand over the package with documents.
5. Wait for a decision.

There are no particular difficulties here. The main thing is that you do not doubt your decision.

Example:

Rusin flooded the apartment from below, causing damage to Zinoviev. The flood victim tried to negotiate voluntary compensation. However, Rusin did not want to compensate for the damage from his actions. Zinoviev filed a lawsuit for forced recovery of damages.

Having learned of Rusin’s intention to sell his share in the apartment, the plaintiff attached a petition to secure the previously filed claim. The judge did not object to this step. Soon a ruling was made to secure Zinoviev's claim. The plaintiff submitted the writ of execution to the FSSP, and three days later Rusin’s share was arrested.

The hearings took place in a calm atmosphere. The court ordered the culprit to compensate for damage caused by flooding of the apartment.

Sample request for securing a statement of claim

Sample application to the FSSP for seizure of a share in an apartment

Documentation

The petition and/or application must be supported by a number of documents:

• copy + original of the plaintiff’s passport;
• writ of execution from the court - when contacting the bailiffs.

The main difference from a claim is the absence of state duty. The petition is an addition to the claim and is therefore submitted without payment.

Deadlines

The issuance of a court order is an intermediate stage. Next, the writ of execution is sent to the Bailiff Service. Delivery time – 3 working days . Sometimes it is reduced to 1 day - if the case requires immediate execution.

The responsible bailiff initiates enforcement proceedings - this takes from 24 hours to 3 days .

During this time, the bailiff meets with the defendant, conducts a conversation, and offers to repay the debt voluntarily. The deadline for making payment is 5 days , after which the bailiff will notify you of the seizure of the property.

Encumbrances make it impossible to dispose of housing. If you believe that the bailiff did not have the right to seize, you can challenge his actions/inactions (Article 19 of the Federal Law No. 118 “On Bailiffs” dated July 21, 1997).

At the same time, the owner has the right to file a complaint against other actions of SSP employees. For example, if they visit the property on weekends, early in the morning or at night.

Reasons

Before filing a complaint against arrest, you need to decide on its content. It will not be possible to appeal a sanction simply because of disagreement. It is important to point out a specific violation and demand the removal of the encumbrance.

There are four reasons on the basis of which an arrest can be challenged:

The grounds give the right to appeal not only the bailiff’s arrest, but also the court’s decision on collection.

Where can I appeal?

Anyone who disagrees with the decision of the bailiff/court may send a complaint to the following authorities:

• addressed to the senior bailiff - to the SSP department , where the decision to seize was made;
• to the city (district) court - where the decision was issued.

Make sure you select the correct recipient. If a court has issued a sanction, there is no point in turning to the SSP. Go to the authority whose seal is on the copy of the seizure order.

Step-by-step instruction

The applicant's procedure consists of the following steps:

1. Prepare a complaint - in the form of an application to lift the seizure of the share in the apartment.
2. Collect documents and evidence - the same for the SSP and the court.
3. Send the complaint to the appropriate authority: the court secretariat or the reception desk of the Bailiff Service.
4. Receive a copy of the registration of the application.
5. Wait for the final decision.

Following the satisfaction of the complaint, the bailiffs are obliged to lift the arrest. To do this, they contact the Rosreestr authority. The registrars record the changes and uncheck the “encumbrance” checkbox. From now on, the share in the apartment will be considered free from arrests.

Encumbrance is just one of the problems when buying a home. Read about what other pitfalls and risks there are in transactions with apartment shares.

Sample application for cancellation of claim security

Sample application to bailiffs to lift the seizure of a share in an apartment

Documentation

Simultaneously with the complaint (application), the owner must submit:

• copy of passport;
• documents for ownership of shares (for example, an extract from the Unified State Register);
• a copy of the bailiff's resolution to initiate enforcement proceedings - in the case of an appeal to the SSP;
• a copy of the court's writ of execution.

You can substantiate your complaint with evidence. They must be reported in the application itself and then attached to the package of documents.

Evidence can be considered:

• an extract from the EIRC - about the absence of debt;
• a certificate from the bank confirming loan repayment;
• settlement agreement with the plaintiff (for example, ex-wife);
• documents for the share - if it belongs to third parties and not to the recipient of the loan;
• other information.

Please note that the complaint is submitted free of charge. The applicant does not pay the state fee, as is the case with a claim. No receipts or receipts are required.

Deadlines

There is no point in delaying filing a complaint against arrest. The law allows only 10 days . The countdown begins from the moment a copy of the resolution is received from the BSC. If the owner does not have time to file a complaint, he will have to defend his position in court.

The period for consideration of complaints to the SSP is 10 days, but it may take 30 days. Judicial review takes from 2 months, and in the Supreme Court of the Russian Federation - up to 3 months from the date of filing. The prosecutor's office considers appeals within 30 days, and if the complaint does not require verification - up to 15 days.

The removal of the encumbrance from the share in the apartment takes place in Rosreestr. immediately after issuing a decision to cancel the arrest, the bailiff sends information to the FKP Rosreestr. 5 working days are allotted for this . It will take the same amount of time to make changes to the real estate register.

Can bailiffs seize a share in an apartment:

Minor

The child's property does not affect the provision of the claim in the form of an inventory of shares. Here you need to understand that we are not talking about arresting the entire apartment. The executor makes an inventory of only the share of the borrower or spouse. The minor’s “squares” will not be affected (see “How to register a share in an apartment for a child”).

So, even if the share belongs to the child, the bailiffs can seize other shares in the apartment - however, it will not be possible to put the housing under the hammer. We will have to take into account the interests of the children.

If this is the only housing

According to the law, bailiffs cannot take away a person’s only home , even if he has a huge debt (Clause 1, Article 446 of the Code of Civil Procedure of the Russian Federation). But, again, we are only talking about arrest - securing a claim for the only housing is possible. Selling a share or apartment to pay off a debt is prohibited!

The exception is mortgaged housing. If the borrower cannot repay the loan, the bank will simply take away the apartment through the court.

If purchased with maternity capital

FSSP employees can even seize a share that was purchased with maternal capital. In this case, the shares of parents (mother and father) and children are distinguished. There is no need to worry about children's parts in the apartment - they will not be harmed. However, spouses may be limited in their disposal of an apartment - this is achieved through arrest. The use or non-use of maternal capital does not matter.

By inheritance

It also happens that bailiffs work with heirs. For example, if you have debts, but received property from a deceased relative, the FSSP may impose sanctions. First of all, for a share in the inherited apartment of the testator.

Finding out about receiving an inheritance is very simple: the bailiff submits a request to the FKP Rosreestr and receives information about the debtor’s assets (including inherited property).

Advice on how to avoid arrest? Refuse inheritance in the form of a share in the apartment. It is advisable that it be received by a family member or close relative. In this way, you can protect your property from seizure. However, if the owner is a family member, he will allow you to live in the apartment without any restrictions. Bailiffs cannot describe the share of third parties.

If the debtor is registered elsewhere

Choosing a place of residence is the free right of any person. Very often, owners have registration at one address, but live in another place. Of course, the bailiffs may not know about this. They will probably come for the debtor at the registered address.

The owners of an apartment where the borrower does not have property must prove that the housing belongs to them. Provide a certificate of ownership or an extract from the Unified State Register of Real Estate, a purchase and sale agreement, privatization agreement, etc. will also be suitable.

However, in some cases, relatives are liable for the debts of the borrower:

• the owner acted as a co-borrower or guarantor (Article 365 of the Civil Code of the Russian Federation);
• entering into an inheritance with debts;
• joint loan of spouses (Article 45 of the RF IC).

Consequently, if the borrower has nothing to pay, the bailiffs may come to his relatives (guarantors or co-borrowers). They will have to answer for their debts - quite possibly by seizing the same share in the apartment.

Read more about this in the article “Should relatives pay the loan for the debtor?”

Conclusion - let's summarize

Conclusions from the above:

1. Collection is carried out by bailiffs.
2. The main decision to seize a share is made by the court - after an application from the creditor (lender) or the second owner.
3. A distinction is made between a regular arrest and an inventory with the sale of property (confiscation). The first type only limits the disposal of shares, and in the case of sale, the owner may lose property.
4. The seizure of a share can be initiated by a person interested in it (for example, a second spouse or a creditor).
5. The copyright holder can challenge the arrest: file a complaint with the FSSP or an application for the removal of the encumbrance (to court).
6. Encumbrance on the share of minors, heirs, as well as those who have only one home is allowed.
7. It is impossible to seize the property of third parties, not borrowers.

Are you faced with an inventory of your share in an apartment? Get ready to defend your interests. Very often difficulties arise with this. Especially if the bailiff is overloaded with work and does not want to understand your problems.

Or, on the contrary, he seized the apartment, although he had no right to do so. Or maybe you need advice on how to avoid inventorying your property? The lawyers of our portal will help in a difficult situation.

Describe your problem and you will receive an answer soon.

Watch a video about how to dispose of a share in an apartment if it was arrested by bailiffs:

Seizure on an apartment

The seizure of a property means the imposition of a ban on the owner of any legally significant actions - sale, exchange, pledge, rental of a house (apartment), etc. To ensure the safety of seized real estate, civil law obliges the owner to notify the registration authority of this within three days after the relevant court decision is made.

The imposition of an encumbrance on an apartment, in the vast majority of cases, is associated with the owner having an outstanding debt. It does not matter to whom exactly the owner of the apartment owes money - the state, a financial institution or another creditor.

The main criterion for prohibitive measures regarding assets is the amount of debt, which must be commensurate with the value of the property.

Arrest may be imposed:

• government bodies - tax and customs services,
• bailiffs;
• judicial authorities.

A ban on the disposal of assets may be initiated by the inquiry authorities as part of the investigation of criminal cases. In such cases, sanctions against a house or apartment may be recognized as providing compensation for damage in a criminal case or as a precursor to the confiscation of property by a court verdict.

Grounds for seizure of an apartment

The seizure of real estate can be carried out on the following grounds:

• the presence of debt for housing and communal services - refers to housing in municipal ownership;
• overdue payments on bank loans, incl. if the apartment is taken out on a mortgage;
• compensation for damage caused by the owner of the apartment to individuals or legal entities;
• division of property in court (see All options for dividing an apartment during a divorce);
• a court decision on confiscation of property;
• overdue tax payments.

Judicial practice shows that in reality, residential premises can be seized and sold only in the case of mortgage debts or a loan is taken out against real estate.

If a ban is imposed on other grounds, the owner can protest the imposed restriction and have it removed.

The procedure for seizing an apartment

• The procedure for seizure of property is carried out within the framework of enforcement proceedings initiated by a court decision or order of state authorities.
• The Civil Code and legislation regulating enforcement proceedings require that the debtor and all interested parties be notified of the initiation of the enforcement procedure.

From the moment the debtor receives the writ of execution, a period begins to count (in normal practice - 10 days), during which the person has the right to voluntarily pay off existing debts without waiting for sanctions on the property.

During this period, no procedural actions to seize the debtor's property are allowed.

After the expiration of the ten-day period, bailiffs must take the following measures:

• an inventory of property subject to recovery and the imposition of a ban on it with the drawing up of a corresponding act;
• assessment of the cost of the apartment;
• putting up an apartment (house) for public auction and selling seized real estate.

The arrest may be of a security nature - when the court makes such a decision in order to avoid concealment of property by the debtor. In such situations, the apartment is not sold; the debtor is only deprived of the right to dispose of it.

In order to avoid undervaluation of assets, the debtor is recommended to insist on conducting an appraisal examination only by specialized and licensed companies.

In particular, this applies to apartments repossessed as compensation for a mortgage loan. Otherwise, the property may be sold at a significantly reduced price, which will not cover the debt to the financial institution.

Is it possible to lift a lien on an apartment?

In such cases, all circumstances under which the ban on the disposal of property will be lifted are agreed upon by the plaintiff and defendant before filing a statement of claim in court.

It is also possible to free living space from encumbrance in the following cases:

• in case of existing procedural violations committed by the bailiff;
• when there is a restriction on the disposal of property for which the law cannot be subject to foreclosure or confiscation;
• if prohibitive measures violate the rights of third parties (for example, a child is registered in the apartment).

Cancellation of an encumbrance on a residential premises is possible only by the same body that previously made the decision to impose the restriction. When considering an application for seizure of real estate by a court of general jurisdiction, the decision to cancel should be made only on the basis of a corresponding decision of the same court.

If property is seized by the investigative bodies as part of a criminal investigation, then removal of the encumbrance is possible only if the need for such a measure of security has ceased.

One of the most common special cases is the imposition of restrictions on the disposal of assets that are jointly owned when the debtor is one of the co-owners. If the confiscated premises are the only home for both parties, then no problem arises.

Otherwise, the interested authorities may seize all the property, despite the fact that at least one of the owners does not own another area suitable for living. To lift the ban in this case, you will have to transfer the housing into shared ownership, and only then submit an application to cancel the court decision.

The imposed restriction must be recorded in the Unified State Register (see Extract from the Unified State Register), and it is impossible to carry out any transactions with such real estate - the territorial body of Rosreestr will definitely refuse to register the transfer of ownership.

If the owner of a living space on which an encumbrance has been imposed is interested in concluding a sale and purchase transaction with his apartment as quickly as possible, he can suspend registration for up to three months.

During this time, the owner of the square meters can resolve the issue of removing the imposed encumbrance with the body that initiated the ban. As judicial practice shows, it is possible to reach an agreement even with banks that intend to foreclose on the mortgaged property in the event of a long delay in payments (see Selling an apartment with a mortgage).

If the owner manages to prove in court his good faith intentions towards the creditor, then the court may decide to lift the prohibitive measures on the property.

The removal of a restriction, as well as its imposition, must be registered in the manner prescribed by law. Based on the court decision, a record of the removal of the encumbrance is made in the Unified State Register and the owner will be able to dispose of the residential premises at his own discretion.

It is possible to remove real estate from encumbrance by filing a corresponding statement of claim with the judicial authorities. Exemption from the ban must be clearly justified by the owner, and all available evidence of the unlawful imposition of sanctions must be attached to the statement of claim.

Filing a claim for the release of real estate from restrictions is allowed within the three-year limitation period and only until the disputed living space is sold.

The application must indicate all the facts regarding the introduction of a ban on the disposal of square measures:

• date of compilation of the inventory and imposition of sanctions;
• document-basis for carrying out such a procedure (resolution on initiating enforcement proceedings);
• description of the property, indicating the exact address and total area.

Next, the owner must list the existing violations of the established regulations committed by the bailiff, if any.

The application must refer to the current legislation, in accordance with which property can be removed from sanctions - Articles 131-132 and 442 of the Civil Code of the Russian Federation and Art. 119 Federal Law “On Enforcement Proceedings”.

The following documents are attached to the application:

• a receipt confirming payment of the state duty;
• seizure order (copy);
• title documents for the applicant’s property;
• papers that are evidence of the unlawful imposition of an encumbrance on housing.

Appealing the seizure of an apartment in court

Appealing a real estate encumbrance is a right that is reserved for the debtor or other interested parties. The procedure for seizing a home is strictly regulated - the bailiff is obliged to act in strict accordance with current legislation:

• unhindered presence of bailiffs is possible only in the premises that belong to the debtor;
• inventory and confiscation of property is carried out on the basis of a written permit issued by a senior bailiff;
• actions of bailiffs are not allowed at night and on weekends.

Violation of any of the listed conditions is grounds for appealing against the actions of bailiffs and the unlawful imposition of a ban on the disposal of property.

The spouse of the debtor can also appeal against the seizure of the home if the encumbrance was imposed on the entire area and not on the share belonging to the defaulter.

If the subject of the encumbrance is an unfinished house, then the spouse has the right to initiate an appeal against the actions of the bailiffs due to the fact that other family members took part in the construction of the house, and the house will belong to them as common property.

Real estate not subject to seizure in an apartment

• the apartment (or share in the apartment) is the only premises suitable for permanent residence;
• the house and the land plot located underneath it are the debtor’s only housing.

The exception is premises purchased on mortgage terms and which are the subject of bank collateral - in such cases the law does not apply.

To avoid encumbrance of the mortgaged home and subsequent eviction, it is advisable for the debtor to file an application with the court for a deferment of enforcement actions. If there are reasoned grounds (presence of minor children, long-term illness of the defaulter), the court may make a decision favorable to the debtor.

  Claim for acceptance of inheritance

Is it possible to seize the debtor’s only home?

A situation well known to many: a hopeless debtor physicist. There is no official salary, no bank accounts, he drives his mother-in-law’s car, and does not travel abroad. He owns an apartment, but since this is his only home, the bailiffs don’t even look at it: they keep talking about Article 446 of the Code of Civil Procedure. Is there really nothing that can be done about this?

It turns out that it is possible. On November 17, 2015, the Supreme Court of the Russian Federation adopted Plenum Resolution No. 50. Paragraph 43 specifically deals with the seizure of property that, by law, cannot be foreclosed on. The Supreme Court clarifies that such seizure in itself cannot be considered illegal.

List of property of a citizen-debtor, which cannot be levied against (Article 466 of the Code of Civil Procedure of the Russian Federation):

• residential premises or part thereof - if for the debtor and members of his family who live with him, it is the only housing suitable for permanent residence. An exception is mortgaged housing that is secured by collateral.
• a plot of land under the debtor’s only residential premises, again excluding mortgage items;
• ordinary home furnishings and household items, clothing, shoes and other personal items. The exception is jewelry and luxury items;
• things necessary for the debtor's professional activities. An exception is items costing more than 100 minimum wages;
• breeding, dairy and draft cattle, poultry, rabbits, deer, bees and feed, which are not used for business activities and which are needed for maintenance before pasture, as well as outbuildings necessary for the maintenance of these animals;
• seeds for the next sowing;
• money and food in an amount not less than the subsistence level - for the debtor himself and his dependents;
• fuel for heating and cooking daily food needed by the debtor's family during the heating season;
• vehicles and other property necessary for the debtor due to disability;
• state awards, prizes, memorable and honorary signs awarded to the debtor.

There is no need to confuse the two terms - foreclosure and arrest

To foreclose on a debtor’s property means to seize this property from him, sell it (including at auction, by force or by the debtor himself) or transfer it to the claimant. That is, when foreclosure is applied, a citizen is deprived of his property.

During arrest, the debtor's property is not taken away forever. He is simply limited in his ability to dispose of this property, and sometimes he is prohibited from using it.

That is, the debtor continues to be the owner of the seized property, but cannot sell it, donate it, lease it, bequeath it, etc.

Can they take away a share in an apartment for debts?

Based on the law, namely Article 255 of the Civil Code of the Russian Federation, the creditor, that is, the one to whom the borrower owes, has every right, if the debtor has no other property that can be recovered for debts, to foreclose on his share in real estate, if such a share exists. After all, shared ownership is a very common phenomenon and for many people the apartment is in shared ownership and each owner can own the apartment in a proportion of 50 to 50%.

For example, an apartment may belong to a mother and son, that is, each owner has 1/2 of the apartment.

I’ll say right away that in some cases you can really lose a share in an apartment for debts, and in some cases, even if you have such a share, they won’t be able to take it away from the debtor, since it would be illegal.

Bailiffs can foreclose on an apartment or a share in it; they are the ones who are responsible for foreclosure on the debtor’s property, but there is a list of property that cannot be foreclosed on under enforcement documents.

This list is presented in Article 446 of the Code of Civil Procedure of the Russian Federation and this list says, namely in paragraph 2 of paragraph 1, that foreclosure cannot be applied to residential premises if this premises is the only suitable premises for the residence of the debtor and members of his family.

The following situation arises: if the share in the apartment of the debtor is the only premises suitable for living, then they will not be able to take away the share in any way; this will contradict paragraph 1 of Article 446 of the Code of Civil Procedure of the Russian Federation.

But there is another situation when a share can be lost, because the law says that only the only habitable housing cannot be recovered, that is, those whose share is not the only habitable housing can completely take the share for debts.

After all, bailiffs are the last thing to foreclose on residential premises; first of all, they look for money, check the debtor’s accounts, bank deposits, look for the debtor’s place of work in order to foreclose on part of his wages and make monthly deductions.

If the property that the debtor has in addition to the residential premises is sufficient to repay the debt, then the bailiffs will not touch the apartment or other residential premises.

But when the debtor has an apartment and has a share in the apartment, then the bailiffs can foreclose on both the apartment itself and the share; in general, the law on enforcement proceedings states that the debtor himself can propose to the bailiff which property can be foreclosed on first collection.

Practice on this issue is different everywhere, it all depends on the amount of the debt, because according to the law, if the amount of the debt is not commensurate with the amount that will be received from the sale of the residential premises, then the residential premises will not be foreclosed on. For example, the amount of debt is 200,000 rubles.

and the apartment costs 1,500,000 rubles, in this case there is a high probability that foreclosure on the residential premises will not be made.

• If, for example, you only own a share in an apartment and this is the only residential premises suitable for living, then, on the basis of Article 446 of the Code of Civil Procedure of the Russian Federation, they cannot legally take this property from you for debts.
• And if, in addition to your share in the apartment, you have another living space, then the bailiffs can foreclose on either the share or the second living space, it all depends on the amount of the debt.
• The same thing with your only living space, even if you owe at least several million, your only home will not be taken away from you only if it is on a mortgage and you do not pay for the mortgage for more than the established period, which is given to the payer if for some reason he does not wash pay off.

If you have an apartment and a share in another apartment, if the bailiffs decide to foreclose on the share, then first of all, on the basis of Article 255 of the Civil Code of the Russian Federation, first of all, the debtor’s share in the apartment should be offered for purchase to the remaining participants in shared ownership, since they have the right of first refusal, and if they refuse, the share is sold at auction. The entire procedure, of course, takes place through the court, since only the court decides whether to foreclose on the share or not, so the debtor has every right to defend himself in court and defend his rights.

Of course, it is not possible to describe every situation in an article, judicial practice is diverse and it is impossible to write an article for every case, each case is unique, but in general I told you how everything will happen, if you still have questions, then ask your question on the site. And I wish you good luck!

Guard! The only housing will be taken away for debts (in fact, not really)

If the court decides to foreclose on the property, it will be sold. The proceeds from the sale will be used to pay off the debt, enforcement fees and legal costs.

To prevent debtors from being left on the street, after the sale they will in any case receive money to buy housing at the minimum rate for all family members.

That is, a family with two children will be able to buy some housing, even if the apartment does not cover the amount of debt.

Will they take the apartment???? but they won’t leave you homeless

The Ministry of Justice proposes to foreclose only on those properties whose area is 2 times larger than the standard norm and whose price is 2 times more expensive. That is, if the debtor does not pay the loan or alimony, but lives in luxury, his home may be put up for sale in order to pay off the debts. The difference will be refunded.

The bill is undergoing public discussions.

Until the new law is adopted, Part 1 of Art. 446 Code of Civil Procedure of the Russian Federation. This norm prohibits taking away housing for debts if the family has only one and is not on a mortgage. Land plots on which the only housing is located cannot be taken away either.

This seems fair. But this formulation gives debtors the opportunity to abuse the norm: a debtor can live in a luxurious house and not pay his debts.

• If the only apartment has a mortgage, then they can take it now.
• The Ministry of Justice proposes to sell the only housing and the land on which it is located in order to pay off creditors.
• If a person has debts for alimony, for causing damage to someone else’s car in an accident, or he does not pay a loan, the bailiffs will be able to foreclose on his only apartment, even if he lives in it with his wife and child.
• If the debtor has a large house and land, but has an overdue loan, he will be forced to move to a smaller apartment or part of the land will be taken to pay off the debt.

If the debtor divorced his wife, has a share in a shared apartment and has not paid alimony for a long time, the bailiff may oblige him to sell this share to his wife to pay off the debt and vacate the premises. The court will not take into account that the ex-husband temporarily has nowhere to live. After selling the share, the debtor will receive money to purchase the minimum area.

The only housing will be foreclosed on only if it is impossible to repay the debt in any other way. The bailiffs will make sure that the debtor has no other property or funds that can be seized to pay off the debt. At the same time, the debtor has a small salary, from which there is nothing to deduct according to the writ of execution.

The creditor or bailiffs will go to court. When the application is submitted to the court, the debtor will not be able to register relatives in the apartment or sell the apartment. In two months, the judge will study the documents, listen to the arguments of the parties, the opinion of the guardianship authorities and make a ruling.

If the judge issues a foreclosure order, the apartment will be seized. Within 7 days, the creditor will receive an offer to buy it at the price determined by the court based on an expert assessment.

Proceeds from the sale will be used to pay off the debt. The rest will be returned to the debtor. Regardless of the amount of debt, the owner will receive money that is enough to buy an apartment at the minimum rate for each family member.

If 10 days have passed and the sale has not taken place, the property will be put up for auction at the same price. If it is not possible to sell the apartment at auction, repeat auctions will be scheduled within 1 month without reducing the price.

If the apartment is sold, it must be vacated within 14 days.

The price of an apartment cannot be reduced. It can only be sold at a price set by the court. And it is determined on the basis of expert assessment.

If the housing is not sold at the repeated auction, it will be returned to the owner, and a new auction will be scheduled only after a year. These 12 months will be counted from the date of re-tendering. All this time you can live in peace.

A simple example. The debtor does not have a family, but has an apartment of 50 square meters. m for 3 million rubles. He has accumulated an alimony debt of 300 thousand. His ex-wife is suing, but refuses to buy an apartment. At the auction, the debtor's only home is sold for 3 million. This money is used to pay off the alimony debt, enforcement fees and legal costs. The rest is given to the debtor.

The example is more complicated. Debtors are husband and wife. The family has no children, but has an apartment of 100 square meters. m and cost 5 million. Debt to the bank is 6 million. The bank will buy an apartment for 5 million.

, but will return the money for the purchase of housing according to the norm and will not count it against the debt. Debtors can only spend this money on housing.

The bailiffs will ensure that they are not used to buy a trip to the sea or a diamond ring.

An example with a mortgage. The family took out a mortgage on the apartment for 10 years. The borrower is a husband. The mortgage is paid on time. But my husband has other debts worth 4 million rubles that are not being repaid. There is no other property, no official salary either.

The mortgaged apartment cannot be foreclosed on, since it is already under encumbrance. The bank can take it away if there are problems with repaying the mortgage itself. Theoretically, the apartment can be taken away only if the amount of mortgage debt is small and the bank gives court permission to sell it.

Example with registration. The debtor is registered in the parents' apartment, but is not the owner. Neither the parents nor the debtor have any other housing.

The parents' apartment will not be taken away for debts, because collection can only be made on the property of the debtor himself, and not his relatives.

The fact that the parents are registered in the apartment does not matter in this case, because this apartment does not belong to the debtor.

Living space standards are set in the regions. For example, in Moscow, each member of a family of 4 people is entitled to 18 square meters. m. The standard living space for Tula is 15 sq.m.

If your family has two adults, two children and an apartment in Moscow with an area of ​​70 square meters. m, they can’t take her away for debts.

If your ex-husband lives in a small one-room apartment in Tula, he cannot be forced to give up this housing to pay off his alimony debt.

If you inherited a large but old house, and it costs less than twice the norm in the region, it will also not be taken away for debts. Space and price conditions must be met simultaneously.

Family members are the spouses, children and parents of the owner (Article 31 of the Housing Code of the Russian Federation). Mother-in-law, brother, aunt and grandfather can also be recognized as family members if it is in this capacity that you moved them into the apartment and registered them there. That is, they run a common household with you and do not pay you for rent.

The composition of the debtor's family members will be determined by the court. You can ask your neighbors to confirm that your relatives did not come to visit for the weekend, but have been living with you permanently and for a long time. If there is other evidence, provide it (Article 55 of the Code of Civil Procedure of the Russian Federation).

The court will take into account the proportionality of the debt and the value of the property. The bailiffs will refuse the claim if the debt, including legal costs, is less than 5% of the price of the apartment. It will not be possible to put your only home up for auction if after the sale you are entitled to more than 50% of its value.

The law has not yet been adopted. But the Ministry of Justice justified the amendments by protecting the interests of minor children and creditors. Banks cannot collect money from debtors living in luxury apartments. Parents do not provide housing for their children during a divorce or refuse to support them. Bailiffs do not have mechanisms for collection. These are powerful arguments for deputies and the public.

If the law is adopted, it will come into force 3 months after its official publication. Now you can prepare to keep things fair.

Agree in advance with the bank about debt restructuring. Create a payment schedule and stick to it. Talk to the bailiff and start paying off your debt regularly.

If you have children, but they are registered with your mother-in-law, register them in your apartment so that the housing standards are calculated for all family members.

If your grandmother lives with you permanently or you are caring for a disabled relative, it is worth registering them. Collect evidence for the court that this is a family member and not a guest. The court will consider all the circumstances and may increase the living space standards.

If a share in your apartment formally belongs to a person who has a lot of debt, register the property in your name. If you have a share in your parents’ apartment and a lot of debt, do not put other people’s property at risk - give the share to your parents.

If you have a spacious apartment and a lot of debt, consider moving to a more modest home. And give the difference in price to the bank to pay off at least part of the debt. Now you have time to sell your apartment for a good price. Then the court can evaluate it cheaper.

Property on the right of common shared ownership, can bailiffs seize it?

Firstly, in accordance with the current legislation of the Russian Federation, seizure is possible only on property owned by the debtor under a writ of execution.

The apartment mentioned in your question is in shared ownership of the debtor and other persons.

Consequently, bailiffs can seize only the share of property in this apartment belonging to the debtor, but not the entire apartment.

Can bailiffs seize a share in property?

If the allocation of a share from real estate in kind is impossible, or the remaining participants in shared ownership object to this, the creditor (bailiff) has the right to organize the sale by the debtor of his share to the remaining participants in the common property at a price commensurate with the market value of this share, with the circulation of the proceeds from the sale in repayment of debt under a loan agreement.

Can bailiffs seize 1

If the allocation of a share from real estate in kind is impossible, or the remaining participants in shared ownership object to this, the creditor (bailiff) has the right to organize the sale by the debtor of his share to the remaining participants in the common property at a price commensurate with the market value of this share, with the circulation of the proceeds from the sale in repayment of debt under a loan agreement.

1.1.

The seizure of the debtor's property under a writ of execution containing a demand for the collection of funds, with the exception of the seizure of funds, the seizure of pledged property subject to recovery in favor of the mortgagee, and the seizure of property under a writ of execution containing a demand for seizure, is not allowed if the amount of recovery is according to enforcement proceedings does not exceed 3,000 rubles.

We recommend reading: Civil Code article 182

Does the bailiff have the right to seize shares belonging to the owner of the property in different apartments?

“On Enforcement Proceedings” (hereinafter No. 229-FZ), the bailiff, in order to ensure the execution of a writ of execution containing demands for property penalties, has the right, including during the period established for the voluntary execution by the debtor of the requirements contained in the writ of execution, seize the debtor's property. In this case, the bailiff has the right not to apply the rules of priority for foreclosure on the debtor’s property.

What property is not subject to seizure by bailiffs: list and explanations

The first thing that is seized is bank accounts. Credit cards are prohibited because they are not the property of the defendant, but belong to the bank, and therefore it is impossible to seize them.

The salary account can be frozen, but not completely, the maximum amount is 50%, and the balance cannot be less than the minimum wage in the region. But the bailiff’s duties do not include finding out where and why the funds are coming to the debtor’s account.

To lift the ban, you need to contact the bailiff service and document that this is wages.

Common shared ownership of the apartment

It is quite obvious that it is not possible to create a separate entrance to the premises in the apartment, as well as to re-equip them. To allocate a share in an apartment, you need to file a lawsuit to recognize your ownership of specific rooms, and recognize common areas (hallway, kitchen, bathroom) as shared ownership.

Bailiff's Handbook

Foreclosure of the debtor's property held by third parties is carried out on the basis of a judicial act. However, under foreclosure in accordance with Art.

69 of the Law on Enforcement Proceedings implies seizure of property and (or) its forced sale or transfer to the claimant. Accordingly, the seizure of the debtor’s property can be carried out in accordance with Part 3 of Art.

80 of the Law on Enforcement Proceedings to ensure the safety of property that is subject to subsequent sale. Non-seizure makes it essentially meaningless to foreclose on joint property in common property, since the spouse can alienate it.

At the same time, in accordance with Art. 12 of the Law on Bailiffs, the bailiff is obliged to take measures for the timely, complete and correct execution of enforcement documents.

Seizure of the debtor's property by bailiffs

Despite the fact that after opening an individual entrepreneur, the defaulter is given 5 days to voluntarily repay the debt, his property may be seized before the expiration of this period. That is, the bailiffs have the right to describe the debtor’s property literally on the first day after the initiation of the IP.

Seizure of property not belonging to the debtor

In the event that it was not possible to apply other effective measures to the person against whom legal proceedings were launched, a group of executors arrives to him. The procedure for conducting an inventory of property is described in detail in Law 229, Article 80.

Seizure of property: what bailiffs can and cannot seize

People who receive wages by wire transfer also try to find out whether bailiffs can seize a credit card. Much to the regret of debtors, funds in bank accounts are one of the first items subject to seizure when a court order is issued. FSSP employees can take away from the debtor:

Some current issues of foreclosure on the debtor's common property

It is important to note that the car itself was not confiscated from the debtor’s spouse, and he was not deprived of the right to own and use the said car. The measure chosen by the bailiff was aimed only at prohibiting the disposal of the disputed property, thereby making it potentially possible to satisfy the claimant's claims at the expense of the debtor's common property.

Features when foreclosure on a share in joint ownership. However, this algorithm for foreclosure would be incomplete if it were not for mentioning an important detail in the process of foreclosure on a share in the joint property of spouses.

Seizure of husband's property for wife's debts

• Living space (part), if for the debtor and his relatives living in the same premises, the living space is the only suitable place to live.
• Household items, home furnishings, individual items (shoes and clothing).
• Food and a sum of money not exceeding the subsistence level of the debtor and the persons who are dependent on him.

How to avoid seizure of property located in an apartment where a debtor who is not the owner of this apartment is registered

Part 1 of Article 33 of Federal Law No. 229-FZ “On Enforcement Proceedings” provides that enforcement actions are carried out and enforcement measures are applied at the place of residence, place of stay of the debtor or location of his property.

The place of residence or place of stay of a citizen is the address of the residential premises at which he is permanently or temporarily registered (Article 2 of the Federal Law of June 25, 1993 No. 5242-1 “On the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and residence within the Russian Federation”, clause 3, clause 4 “Rules for registration and deregistration of citizens of the Russian Federation”).

The fact that the residential premises belong to another person by right of ownership does not have legal significance for foreclosure on the property located in this premises.