INFORMATION LETTER OF PRESIDIUM OF THE SUPREME ARBITRATION COURT OF THE RUSSIAN FEDERATION

of July 21, 2009 No. 132

About some questions of application by Arbitration Courts of articles 20 and 28 of the Federal law "About State Registration of the Rights to Real Estate and Transactions with It"

Due to the questions arising in court practice connected with entry into force of changes in article 28 of the Federal law "About State Registration of the Rights to Real Estate and Transactions with It" (further - the Law on registration, the Law), and according to article 16 of the Federal constitutional Law "About Arbitration Courts in the Russian Federation" Presidium of the Supreme Arbitration Court of the Russian Federation recommends to Arbitration Courts to be guided by consideration of disputes by the following.

1. The basis for state registration of the rights to real estate according to article 28 of the Law on registration are court resolutions in which substantive provisions there is conclusion about property accessory to certain person on corporeal or liability law (availability of encumbrance or restriction of the right) which is subject to state registration. Is among similar acts, in particular, and the determination about approval of the voluntary settlement providing origin or the termination of the right (encumbrance or restriction of the right) on real estate which is subject to state registration.

As appears from Item 1 of article 28 of the Law on registration, the rights to real estate established by the judgment are subject to state registration which the state registrar (further - the registrar) has the right to refuse only on the bases specified in paragraphs four, the sixth, the seventh, the ninth, the tenth, eleventh and twelfth Item 1 of article 20 of the Law.

According to the paragraph to the fourth Item 1 of article 20 of the Law on registration state registration of the rights it can be refused if the documents submitted on state registration of the rights in form or content do not conform to requirements of the current legislation.

Because the court resolutions which took legal effect are obligatory for public authorities, local government bodies, other bodies, the organizations, officials and citizens and are subject to execution in all territory of the Russian Federation, the registrar has no right to give legal treatment to the court resolution which took legal effect, and also to perform revaluation of the facts of the case and proofs on which the court resolution which took legal effect is based. The refusal in state registration of the right in this case is illegal.

Courts need also to mean that if on state registration by the applicant the copy of court resolution which is not containing mark about its introduction in legal force or is not certified by official stamp of court was provided, or the copy of court resolution was provided in number of copies smaller, than it is established by the law, the registrar according to article 19 of the Law has the right to suspend state registration of the rights and to suggest the applicant to eliminate violation. If during monthly term the applicant did not remove the causes interfering state registration, the refusal of the registrar in state registration of the right based on the paragraph of the tenth Item 1 of article 20 of the Law is legal.

2. According to the paragraph to the sixth Item 1 of article 20 of the Law on registration state registration it can be refused if person which issued the title document is not authorized to dispose of the right to this real estate unit.

By consideration of disputes over contest of refusal in state registration of the right on the called basis courts need to consider that in sense of the specified provision of the law removal of court resolution as which the right to real estate is recognized is not issue of the title document containing the act of the order real estate. With respect thereto the refusal of the registrar in registration of the right established by the court resolution which took legal effect motivated with the expected procedural violations allowed by the court which took out court resolution with reference to this basis for refusal in registration is illegal.

3. According to the paragraph to the seventh Item 1 of article 20 of the Law state registration it can be refused if person who has the rights limited to certain conditions constituted the document without specifying of these conditions.

Courts should mean that the refusal of the registrar in state registration on such basis is illegal if concerning real estate, the property right to which the restrictions registered for the third parties or encumbrances (the lease right, the pledge right, etc.) are available the court resolution which acknowledged took legal effect, and in court resolution specifying on the called restrictions (encumbrances) is absent. In this case the right to real estate is subject to registration with preserving earlier brought in the Unified State Register of Rights on real estate and transactions with it (further - the register) records about restrictions and encumbrances if other is not provided by the law.

4. Proceeding from the paragraph of the ninth Item 1 of article 20 of the Law on registration state registration it can be refused if the owner did not submit the application and other necessary documents for state registration of earlier arisen right to the real estate unit which availability is necessary for state registration arisen after enforcement of the Law of transition of this right, its restriction (encumbrance) or the transaction, committed after enforcement of the Law, with the real estate unit.

Courts need to consider that the court resolution which took legal effect as which the right to specific real estate is recognized is good cause for state registration of the right to property and when the registered right arose before entry into force of the Law on registration and later is confirmed with court in the corresponding court resolution. In this case submission of any other documents of title by the applicant on real estate is not required.

5. Based on the paragraph of the tenth Item 1 of article 20 of the Law state registration it can be refused if the applicant does not submit the documents necessary according to the Law on registration. The following documents belong to their number: statement for registration of the right; the documents confirming the personality (legal status) of the applicant; the cadastral passport of real estate (except as specified when the document containing the description of real estate was already represented earlier and it was placed in the corresponding case of documents of title); document on payment of the state fee. Due to the stated courts it must be kept in mind that the become effective judgment as which the right to real estate is recognized does not exempt the applicant from submission of the called documents. At the same time does not conform requirements of the registrar about submission of other documents of title to the law.

6. Because based on the paragraph of the eleventh Item 1 of article 20 of the Law state registration it can be refused if there are contradictions between the declared and already registered rights, courts by consideration of disputes on the rights to real estate need to proceed from the following.

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