A bona fide purchaser under the Civil Code of the Russian Federation. What is a bona fide purchaser? Judicial practice on claims for recognition as a bona fide purchaser of an apartment

A bona fide purchaser is a citizen or organization that complied with the requirements of the law, but did not know that they were not acquiring property from the owner. What can threaten the interests of a bona fide purchaser and how to protect them.

When, according to the Civil Code of the Russian Federation, a bona fide purchaser is obliged to return the property to the owner

In the Civil Code of the Russian Federation there is section II - on the right of ownership and other rights in rem. Chapter 20 of Section II of the Civil Code of the Russian Federation deals with the protection of such rights. Including there are provisions of the law on how the owner should act if his property turned out to be in the hands of third parties. In the context of protecting the rights of the owner, the legislator introduced the concept of a voluntary purchaser.

A voluntary purchaser in the law is a citizen or company that bought property, but did not know and should not have known that it did not belong to the seller. Situations are implied when a company or a citizen was not able to find out whether the seller has the right to make transactions with property. That is, a bona fide purchaser is a person who, for his part, complied with all the requirements of the law, but acquired the goods from a third party, not from the owner.

If the seller did not have the right to alienate the disputed property, under Article 302 of the Civil Code of the Russian Federation, the bona fide purchaser is obliged to return the purchase to the owner. The owner may file a vindication claim, a negatory claim, or a claim for recognition of ownership. The law made a reservation in which cases the property would have to be returned. The return is necessary if the disputed object was with the owner or the person who received it from the owner into possession, and at the same time the property:

lost;
kidnapped;
was lost in any other way beyond the will of the owner or temporary owner.

In addition, according to the Civil Code, a bona fide purchaser is obliged to return the disputed property to the owner if he received it free of charge (Clause 2, Article 302 of the Civil Code of the Russian Federation). But money or securities bearer owner is not entitled to claim (clause 3 of article 302 of the Civil Code of the Russian Federation).

On June 22, 2017, the Constitutional Court of the Russian Federation issued a resolution in which it made a special instruction regarding paragraph 1 of Art. 302 of the Civil Code of the Russian Federation. The court emphasized that the provision of this paragraph to some extent does not correspond to Part 2 of Art. 8, parts 1 and 2 of Art. 19, parts 1 and 2 of Art. 35 and part 3 of Art. 55 of the Constitution of the Russian Federation. Let's say, in the jurisdiction of a public legal entity was escheated property - a dwelling. This structure did not take, in accordance with the principles of reasonableness and prudence, timely measures to establish control over the property and properly formalize its ownership rights. If a person buys such a premise based on the USRN data and registers the right in accordance with the law, and the owner files a lawsuit, under the article of the Civil Code, the bona fide purchaser will have to return the disputed housing. According to the court, in this case, the requirement of the law is at odds with the Constitution (Resolution of the Constitutional Court of the Russian Federation of June 22, 2017 No. 16-P).

How to protect the interests of a bona fide purchaser

According to Article 302, a bona fide purchaser must most often return the acquired property to the owner. The interests of such an acquirer need to be protected, for example, if a company buys property that:

is in pledge;
alienated without the consent of the owner.

With regard to a pledge under the Civil Code, a bona fide purchaser does not become a new pledgee if he did not know and should not have known that the property was under pledge. In this case, the pledge is terminated (subclause 2, clause 1, article 352 of the Civil Code of the Russian Federation). That is, in order to protect its interests, the buyer company must prove that it did not have the opportunity to obtain reliable information about the status of the property. It should be borne in mind that such information can be obtained from the register of pledges of movable property. If the court does not consider the purchaser to be in good faith, they can levy execution on the subject of pledge.

As for real estate, a company can prove its good faith with the help of a document from the Unified State Register of Real Estate. If the buyer relied on the data from the register, and the transaction corresponds to the signs of reality, this indicates the good faith of the buyer company. Such a legal position is present in the resolution of the Plenum of the Armed Forces of the Russian Federation, the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 29, 2010 No. 10/22.

You need to confirm good faith in order to keep the disputed property for yourself. The buyer will lose the property if the court:

satisfy the vindication claim of the owner,
invalidates the contract between the bona fide purchaser and the seller.

In the first case, in accordance with Art. 302 the owner must prove that the property was removed from his possession against his own will. If the owner does not prove this, the disputed object will remain with the acquirer. This is true even in cases where the court has found the sale illegal. (In addition, the burden of proving the bad faith of the buyer also lies with the owner, see paragraph 5 of article 10 of the Civil Code of the Russian Federation). But if the object is not yet with the buyer, the owner can win the process with the help of a negatory claim, a claim for recognition of a right or recognition of a right as absent. Then the good faith of the buyer will not affect the situation, and the property will be returned to the owner.

The claim may be for the recognition of the contract as invalid. Unlike a vindication claim, it is filed by the seller, and not by the third party owner. For the buyer, the factor of good faith in this case is not of decisive importance. In such situations, the court does not apply Article 302, this norm will not protect a bona fide purchaser (clause 3.1 of the Resolution of the Constitutional Court of the Russian Federation dated April 21, 2003 No. 6-P).

According to the Civil Code, a bona fide purchaser has the right to involve the seller in the process

The company received property under the contract (real estate, equipment, other goods). If, after fulfilling her obligations, she found out that she acted as a bona fide purchaser, this is a reason to demand compensation from the seller and termination of the contract (clause 5, article 453 of the Civil Code of the Russian Federation) or a price reduction (clause 1, article 460 of the Civil Code of the Russian Federation). In the event of a vindication claim by the owner, the bona fide purchaser has the right to involve the seller in the case on his side (paragraph 1 of article 462 of the Civil Code of the Russian Federation). It makes sense for the buyer to involve the seller in the proceedings, so that later there will be no obstacles in satisfying the claim against the seller for losses (paragraph 2 of article 462 of the Civil Code of the Russian Federation).

1. If the property was acquired for compensation from a person who did not have the right to alienate it, which the acquirer did not know and could not know (a bona fide purchaser), then the owner has the right to claim this property from the acquirer in the event that the property is lost by the owner or the person to whom the property was transferred by the owner into possession, or stolen from one or the other, or left their possession in another way against their will.

2. If the property was acquired free of charge from a person who did not have the right to alienate it, the owner has the right to claim the property in all cases.

3. Money, as well as bearer securities, cannot be claimed from a bona fide purchaser.

Commentary on Article 302

1. The text of the commented article restricts the claim by the owner of his property from someone else's illegal possession. The introduction of such restrictions is connected with the need to ensure the primary protection of the interests of another participant in the trade turnover - a bona fide purchaser.

2. The law protects only the interests of a bona fide purchaser. The latter must prove that he did not know and could not know that the property is being acquired from a person who does not have the right to alienate it, and believed that he had legally received the property into his ownership. The presence in the actions of the acquirer of intent and even gross negligence excludes the possibility of protecting his interests.

3. If the acquirer is in good faith, then the owner has the right to claim property from him only when it has left the possession of the owner or the person to whom it was transferred by the owner into possession, against their will (lost, stolen, etc.). Moreover, the owner must prove these circumstances himself. The presence in the actions of the owner of the will to transfer property to another person excludes the possibility of reclaiming it from a bona fide purchaser (Bulletin of the Armed Forces of the Russian Federation. 1991. N 2. P. 14; p. 19 of the Review).

The law makes two exceptions to this rule: a) if the property was acquired by a bona fide purchaser from a person who did not have the right to alienate it, free of charge, the owner can claim it under any circumstances (even if it left the owner's possession at his will); b) money (Article 140 of the Civil Code) and bearer securities (Chapter 7 of the Civil Code) as the most negotiable objects civil law cannot be claimed from a bona fide purchaser under any circumstances.

4. In cases where the property cannot be claimed, it becomes the property of a bona fide purchaser. At the same time, the owner has the right to file a claim for the recovery of losses from the person to whom he transferred his property into possession.

5. The Civil Code, following the laws on property, abandoned the principle of unlimited (regardless of the good faith of the acquirer) vindication of state, cooperative and public property (Article 153 of the Civil Code of 1964). Such property may be claimed by the owner on a general basis.

6. The Civil Code also abandoned what was previously enshrined in Part 2 of Art. 152 of the 1964 Civil Code of the prohibition for the owner to claim property sold in the execution order judgment. Now he can demand it in compliance with the rules of Art. Art. 301 and 302 of the Civil Code. However, if the person who acquired the property at the auction held by the bailiff is a bona fide purchaser, and the auction was not declared invalid, this person is recognized as the owner of the property. The former owner is no longer entitled to return it (paragraph 22 of the Review).

Cases when property can be claimed from the last acquirer and cases when recovery is impossible

Issues of claiming property from someone else's illegal possession are regulated by Articles 301 and 302 Civil Code RF, in accordance with which the recovery of property in judicial order from the last buyer of property acquired under a compensatory transaction can be carried out in the following cases:

If the person is dishonest the acquirer, then the recovery of property is possible in all cases.

If the person is conscientious the acquirer, then the recovery of property from someone else's illegal possession is possible only in cases where such property has left the owner's possession against his will.

In other words, in order for the last acquirer not to lose property in court in accordance with the application of Articles 301 and 302 of the Civil Code of the Russian Federation, two conditions must be simultaneously observed:

First, the last acquirer of the property must be conscientious the acquirer.

Secondly, the disposal of property from the original owner must occur at will the last one.

Thus, the validity and legality of the withdrawal of residential premises from citizens in the manner of applying Articles 301 and 302 of the Civil Code of the Russian Federation is directly related to such concepts as “good faith of the acquirer”, “bad faith of the acquirer”, “will” and “disposal against will”.

At the same time, the signs (criteria for determining) of the above concepts are not disclosed in the legislation.

conscientious article 302 of the Civil Code of the Russian Federation defines the acquirer as a person who, when acquiring property did not know and could not know that property is acquired from a person who does not have the right to alienate it. At the same time, such a wording does not allow establishing signs (criteria) by which it would be possible to accurately establish that a person knew or could know (or did not know and could not learn) that the property is acquired from a person who does not have the right to alienate it.

The concept of "unscrupulous purchaser" in the legislation is not disclosed at all. It is implied that dishonest the acquirer of property is the one who, for some reason, cannot be recognized conscientious the acquirer.

It should be noted that Article 302 of the Civil Code of the Russian Federation is not the only norm of legislation that reflects the attempt of the legislator to disclose the concept of " conscientious acquirer."

Article 2 federal law dated April 22, 1996 No. 39-FZ “On the Securities Market”, a bona fide purchaser of a security is a person who purchased the securities, paid for them and at the time of purchase did not know and could not know about the rights of third parties to these securities, unless proven otherwise.

It is noteworthy that Article 302 of the Civil Code of the Russian Federation, in contrast to Article 2 of the Federal Law of April 22, 1996 No. 39-FZ “On the Securities Market”, does not contain the words “ unless proven otherwise”, which inevitably gives rise to a discussion about who should prove the good faith (bad faith) of the acquisition of property that is not a security. Arbitrage practice not only of the lower courts, but also of the Supreme Court of the Russian Federation itself in this matter, as will be shown below, did not differ in uniformity until recently.

2.1.3. The will to alienate state (municipal) property and ways of its expression by the state, the concept of "disposal against the will" in relation to the owner - the state

As already mentioned, in accordance with the law, the basis for the seizure of property from a bona fide purchaser is the establishment of the fact of loss, theft or disposal of property from the owner's possession in any other way than his will.

If the expression of the will of a citizen can be established on the basis of an analysis of his actions, then in relation to the state as the owner of property, the application of such an approach causes certain difficulties.

The state acts in the face of numerous bodies state power and local self-government, which creates difficulties in understanding the legal content of the concepts “will of the state”, “disposal beyond the will of the state”, and also gives rise to a discussion about the proper ways for the state to express its will to dispose of property, since a number of questions immediately arise:

· What are the signs of disposal of property from state (municipal) property against the will of the state?

· To what extent the concept of "retirement against the will of the state", which is the owner of property, is identical to the concept of "retirement due to unfair (unprofessional, negligent, etc.) actions of officials of government bodies", which are entrusted with the functions of exercising the powers of the owner of the state (municipal) ) property?

· How, in relation to the concepts of “will of the state” and “disposal against the will of the state”, should we consider the situation when property is disposed of from state ownership as a result of illegal privatization, in the registration of which representatives of the state took part?

· How, in relation to the same concepts, to consider the situation when property is illegally withdrawn from state ownership on the basis of a court decision - a state authority (subsequently canceled)? including when we are talking on cases in which the authority exercising the powers of the owner in relation to state (municipal) property was involved, which did not object to the satisfaction of the relevant claims.

· How to consider a long-term failure to take legally significant mandatory actions in relation to an empty residential premises - for example, escheated property (legal inaction) on the part of authorized representatives of the authority exercising the powers of the owner in relation to state (municipal) property?

How, for example, to consider such special case when the Department of Housing Policy and the Housing Fund of Moscow, which at one time exercised the powers of the owner in relation to the city housing stock, for a long time (more than three years) did not take legally significant actions to ensure proper accounting and preservation of the relevant residential premises, which allowed during the specified period, it is illegal to assign the above residential premises to pseudo-military personnel on the basis of social employment contracts with their subsequent privatization on the basis of court decisions, and then sell them to third parties (citizens - bona fide purchasers)? Is the described inaction of employees of the Department of Housing Policy and Housing Fund of Moscow an expression of the consent (will) of the city to alienate the disputed apartments?

And this is only part of the questions, the answers to which are not available in the legislation.

A bona fide purchaser, according to Art. 302 of the Civil Code of the Russian Federation, is a person who received property on a reimbursable (paid) basis from someone who did not have the right to alienate (transfer) it, which the acquirer could not be aware of.

Thus, the status of conscientiousness is manifested in the acquirer only in the presence of a combination of the following circumstances:

Paid receipt of property from an unauthorized person, and not from its owner, who lost it against his will (see, for example, the definition of the Supreme Court of the Russian Federation of November 13, 2007 No. 59-В07-4).

Important! Incomplete payment or the absence of other counter provision for property on the date of due informing the acquirer about its illegal receipt is regarded as a gratuitous acquisition (paragraph 37 of the resolution "On Certain Issues ..." dated April 29, 2010 of the Plenum Supreme Court RF No. 10, Plenum of the Supreme Arbitration Court of the Russian Federation No. 22).
The lack of information from the acquirer (of which he could not have known) about the violation of the rights of the owner during the transfer of property.
Important! In judicial practice, the principle of the presumption of good faith operates, on the basis of which the acquirer is always assumed to be legal until the opposite is proven (see, for example, the appeal ruling of the St. Petersburg City Court dated September 13, 2016 No. provide evidence of their good faith, including paid receipt of property.

The gratuitous receipt of property always entails the possibility of the legal owner to reclaim it from a bona fide purchaser (clause 2, article 302 of the Civil Code of the Russian Federation). However, this rule does not apply to money and bearer securities.

Signs of good faith by the acquirer: resolution of the Plenum of the Supreme Court of the Russian Federation on a bona fide purchaser

The Civil Code of the Russian Federation does not establish the entire list of criteria (signs) according to which the acquirer can be recognized as bona fide. At the same time, judicial practice (Resolution No. 10/22, as well as a review of judicial practice approved by the Presidium of the Supreme Court of the Russian Federation on October 1, 2014) made it possible to form a number of such signs, which include the following:

The transaction concluded by the acquirer for the acquisition of the disputed property can be regarded as valid by all indications, except opposite side transactions - an unauthorized seller.
As of the date of the transaction, there was no entry in the USRN about another owner of the property (not the seller) or a note about litigation about this property.

Important! The above feature only applies to real estate transactions. At the same time, the indication in the USRN of an unauthorized seller as the owner is not considered sufficient evidence of the good faith of the acquirer, which must be examined by the court along with other circumstances of the case (paragraph 1 of resolution No. 10/22).
The purchaser has no doubts about the seller’s right to transfer property, which may arise, for example, if family ties participants in the transaction or an unreasonably low price of property (clauses 8 and 9 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation “Review of judicial practice” dated November 13, 2008 No. 126).
Important! Previously, there was another sign of the acquirer's good faith - taking reasonable measures to establish the seller's right to transfer property, however, by the decision of the Plenum of the Supreme Court of the Russian Federation "On application by the courts" dated 06/23/2015 No. 25, he was excluded.

Protection of the possession of a bona fide purchaser is carried out by ... Claim and counterclaim for recognition as a bona fide purchaser

Based on the analysis of the norms of the current legislation and judicial practice, it can be concluded that good faith cannot be recognized by filing a separate claim or a statement establishing the relevant legal fact. The protection of the possession of a bona fide purchaser is implemented by issuing a court verdict to refuse to satisfy the owner's claim for the recovery of property and to recognize the right of ownership to it as a bona fide purchaser.

Conclusion! Thus, the status of a bona fide purchaser can be obtained exclusively within the framework of the owner's vindication claim for the recovery of his property, which can be brought within 3 years, provided that the defendant actually has the disputed property. Presenting other claims to a bona fide purchaser, for example, as part of an application to establish the consequences of the invalidity of a transaction, is not allowed (see the ruling of the Constitutional Court of the Russian Federation of December 22, 2015 No. 2932-O).

Important! The absence of the acquirer of property on the date of the proceedings judicial authority entails a refusal to satisfy the claim (clause 32 of Resolution No. 10/22).

The person who is the defendant in such a claim has the right to object to the requisition of property from his possession, however, this claim is also not independent and cannot be regarded as a counterclaim to recognize the acquirer in good faith.

Important! When property is transferred to several persons by the acquirer, a plurality of persons is formed. Moreover, if at least one of them does not meet the signs of good faith, the claim of the owner of the property will be satisfied (paragraph 41 of Resolution No. 10/22).

Consequences of bona fide acquisition of property: can a bona fide purchaser claim reimbursement of expenses incurred

If the acquirer is recognized as bona fide, depending on the verdict of the court based on the evidence presented, the property may be left with the acquirer or returned to the original owner, who lost it against his will.

When leaving the property with the acquirer, as mentioned above, he has the right of ownership to this property. When returning the property to the owner, the bona fide purchaser has the right to:

demand compensation from the owner for the necessary expenses incurred by him on the property, starting from the date when the owner could receive income from such property (paragraph 2 of article 303 of the Civil Code of the Russian Federation);
retain the improvements made (subject to the possibility of extracting them without causing damage to property) or demand compensation for their expenses for improving the property within the limits of the increase in its price as a result (paragraph 3 of article 303 of the Civil Code of the Russian Federation);
submit a claim to the unauthorized alienator for compensation for losses caused by the seizure of goods on grounds that arose before the execution of the contract of sale (clause 43 of Resolution No. 10/22).

Note! If the owner's claim is satisfied, all income received by him after the date of receipt of the summons at the request of the owner or the moment when he became or should have become aware of the illegal acquisition of property (paragraph 1 of article 303 of the Civil Code of the Russian Federation) can be recovered from the bona fide purchaser.

Peculiarities of bona fide acquisition of pledged property

In practice, quite often a situation arises when the acquirer receives property that is pledged, which he was not aware of at the time of the transaction. In this case, if the debtor fails to fulfill its obligation, the acquirer may receive a summons to foreclose on this property in a judicial proceeding.

However, by general rule upon receipt of property for compensation by a person who was not and could not have been aware of its encumbrance, the pledge is terminated (clause 1, article 352 of the Civil Code of the Russian Federation). However, a bona fide purchaser should take into account that his due information about the pledge will be assessed by the court taking into account the following:

whether the contract concluded by him contained a condition on the absence of claims of third parties to the property, information that the property was the subject of a dispute, and was also under arrest, and other similar conditions;
whether the bona fide purchaser was convinced of the availability and quality of documents on the right of ownership of the property alienator (see, for example, the definition of the Supreme Court of the Russian Federation of May 24, 2016 No. 4-KG16-11);
whether the acquirer received information from available registers, indicating the absence of an encumbrance of property - the USRR, as well as the register of notifications of pledge of movable property at www.reestr-zalogov.ru (see, for example, the appeal ruling of the Moscow City Court dated October 20, 2016 in case No. 33-40413/2016).

For more information about the register of notifications on the pledge of movable property, see the article Register of notifications on the pledge of movable property.

Thus, a bona fide purchaser can be recognized as a person who received paid basis property from an unauthorized alienator, which he did not and could not be aware of at the date of the transaction. Recognition of the acquirer as bona fide is possible only within the framework of a dispute over property rights and cannot be claimed as an independent claim.

2. If the property was acquired free of charge from a person who did not have the right to alienate it, the owner has the right to claim the property in all cases.

3. Money, as well as bearer securities, cannot be claimed from a bona fide purchaser.

Expert comment:

The legislation allows that the owner can obtain the right to reclaim his property from bona fide buyer in those cases when it was lost by him or by the person to whom the legal owner transferred it in possession, was stolen or left their possession in another way against their will.

Comments to Art. 302 of the Civil Code of the Russian Federation

The law makes two exceptions to this rule: a) if the property was acquired by a bona fide purchaser from a person who did not have the right to alienate it, free of charge, the owner can claim it under any circumstances (even if it left the owner's possession at his will); b) money (Article 140 of the Civil Code) and bearer securities (Chapter 7 of the Civil Code), as the most negotiable objects of civil law, cannot be claimed from a bona fide purchaser under any circumstances.

6. The Civil Code also abandoned what was previously enshrined in Part 2 of Art. 152 of the 1964 Civil Code of the prohibition for the owner to claim property sold in the execution of a court decision. Now he can demand it in compliance with the rules of Art. Art. 301 and 302 of the Civil Code. However, if the person who acquired the property at the auction held by the bailiff is a bona fide purchaser, and the auction was not declared invalid, this person is recognized as the owner of the property. The former owner is no longer entitled to return it (paragraph 22 of the Review).