You can`t sell a single house for debt, if it is not mortgaged. But what if the pledge is only the land on which the dwelling house is built? The courts differently resolved the debtor's business, which did not pay for its plot, but built a three-story hotel on it. The regional court regretted the defendant, who herself lived there with her family and children, and she had nowhere else to go. But the Supreme Court found this decision wrong.
You can`t sell a house for debts if this is the only home of the debtor and his family, which is not mortgaged. But if only the land under such a house is bought in a mortgage - it can be reclaimed, the Supreme Court explained in case 18-KG17-23. The story began in 2008, when Igor Nenashev * sold a plot in Anapa to Alexandra Zolotareva * with installments for 5 years and on bail. The total amount of the contract was 9.7 million. Zolotareva, however, did not consider it necessary to pay for land, but in 2010 she erected on it a three-story hotel with an area of 959 square meters. m. Permission to build (as well as certificates of registration of property) Zolotareva did not receive. Once the building was almost destroyed - the administration of Anapa wanted it. But Krasnodar Regional Court in 2013, she refused. The court came to the conclusion that the house meets all the rules and norms and does not violate anyone's rights, therefore it can`t be considered an unauthorized construction.
Meanwhile, the seller of the land plot decided not to repay the debt and assigned the right of his claim to Alexey Aleksakhin *. He successfully "sipped" the debt, and then set a goal to sell the hotel with the land plot for debts. According to the expert, for the building it was possible to raise 33.1 million rubles, and for the land - 5. Anapa city court saw no obstacles for sale and ordered to sell the property at public auction (2-2577 / 2016). The defendant's arguments in the decision are not set out.
Krasnodar Regional Court made point of it and overturned the decision. The disputed house is the only place for Zolotareva and her family, including young children. There is no other place of residence for the respondent (at least, this is not proved). As the land plot and the building are unified, they will be sold together, which means that Zolotareva will be deprived of a single dwelling, but the law does not allow this, follows from the appellate ruling 33-624 / 2016 (33-31309 / 2015).
Aleksakhin disagreed with this decision and complained to the Supreme Court. Its civic board overturned the act of the district court. You can`t levy on the property listed in art. 446 the Civil Code, and Zolotarevoy's land is not included in this list, the judges of the Supreme Court concluded. Mortgage arose, ownership of the building is not registered. In such situation, the land plot can be sold for debts, even if the house is on it, is specified in the definition18-KG17-23. In addition, the appeal did not apply paragraph 3 of Art. 340 GK as amended on the date of the pledge. This rule automatically extended the mortgage of the land plot to the buildings that are on it or are under construction, the Supreme Court noted. He sent the case for revision.
How to "save" the house from collection (and whether it is necessary)
The position of the Supreme Court is not new, since part 1 of Art. 446 CC explicitly permits to recover the collection on the pledged plot with the only housing of the debtor, according to Sergey Morozov from “Khrenov and Partners”. As a general rule, the mortgage of the land extends to the buildings that are located on it.
In addition, it is more profitable to sell a house with a plot, and the debtor will receive the rest of the money after paying off the mortgage, adds Roman Adilkhanov, senior lawyer of the National Law Company “Mitra”.
For "saving" house, it was necessary to prescribe in the contract that he is not burdened with collateral, Morozov said. However, this option will not save the debtor from the expenses, the lawyer warns: once the house is on a foreign land, its owner may want to receive rent.
In this case, the defendant purchased the land plot as collateral and installments from individual. Usually the seller of real estate wants at once the whole amount, and the buyer takes for this loan, says partner of the RBL Attorneys Bureau Denis Gerasimov. But with the mortgage of land, banks prefer not to contact, because it is rather risky, says Gerasimov: for example, the boundaries of a land plot may be wrong or the type of permitted use may change, which affects the cost of collateral. In addition, according to the lawyer, banks do not like situations with legal uncertainty - for example, the one that arose in this case.
However, the definition of the Supreme Court should make the practice on such issues more sustainable.
Materials were taken from “Pravo.ru”
