Property lawsuits and disputes are not uncommon in modern society. Ownership of the object and exclusive rights there are different concepts on him, and often the presence of one does not imply the presence of the other.
Distinguish in this case the true owner and title owner (for example, under a lease or storage agreement) that are entitled to recover property from someone else’s illegal possession.
Conditions for claiming property
In order to file a vindication claim, the following conditions are necessary:
- The owner has lost the actual ability to use the object.
- The property must be preserved in its original form, not destroyed or recycled.
- The property has dropped out of the legal possession of the true (or title) owner against his will. A bona fide acquirer who obtained ownership rights from a person who did not have the right to dispose of the property did not suspect this circumstance.
In judicial practice, claims are often considered that are similar in essence, but do not belong to the category of vindication:
- Cancellation of a transaction.
- Property division.
- Loss of ability to dispose of the facility.
- Recognition of property law and others.
Claiming property from another's illegal possession is lawful if all the necessary conditions for filing a claim are met and the requirement is correctly defined.
In the event that the property (most often the living space or the entire building) was sold to the buyer by a person who did not have the right to do this, the question of the intentions of the acquirer is considered. The second point that must be taken into account is the situation when the buyer did not know or could not find out about the absence of rights from the seller.
Example
The owner of the apartment issued a friend with a power of attorney to perform any actions related to housing, including the right to sell and sign. At the time of the alienation, the trustee presents the document to both the buyer and the employees of the registration authority. At the same time, the homeowner cancels the previously issued power of attorney and notarizes a new one, but on different conditions.
The new owner faithfully transferred, and the principal accepted the required amount. Ownership was registered at a time when the previous document ceased to be valid. The principal used the funds for his needs.
The lawsuit of the previous owner of the apartment was as follows: the recovery of property from another's illegal possession (according to the former owner) with full reimbursement of the transaction amount.
The lawsuit was denied, as the property was alienated by the will of the owner (power of attorney to perform legal actions with housing). Also, the refusal was justified by the fact that the bona fide purchaser could not know that the seller’s power of attorney was practically canceled during the transaction.
Longtime owner
Claims for claim may be filed in other cases. There is the concept of a long-standing owner - a person who has openly and conscientiously owned property for 15 years (in the case of real estate), which after this period becomes its property. A long-standing owner, with the rights of the owner, can dispose of the object at his discretion, including claiming a violation of property rights, selling, destroying and reconstructing real estate.The claims of third parties who file a lawsuit with the court to recover property from someone else’s illegal possession are not satisfied if these persons did not previously have rights to it. In this case, the new owner acts as the defendant, and the applicants must prove the illegality of the transfer of the right to real estate.
Statutes of limitations depending on requirements and model of claim
To file a lawsuit, you need to prepare. You must correctly determine the type of claim that will be presented in court. In case of violation of property rights, which can be expressed in a continuing event that impedes the proper use of property, negative claim. The limitation periods are not applicable to such situations, since the applicant reports a real-time violation of rights. In the event that events have occurred that directly indicate the seizure of property without the will of the owner, and from that moment no more than three years have passed (limitation period), the legal owner has the right to vindication - the recovery of property from someone else’s illegal possession. Sample claim (for courts of general jurisdiction) may be housed in a courthouse.
General order
The court considers the attached documents, interviews witnesses, if necessary, requests are submitted and a decision is made. The court may refuse the claim to the applicant on the basis of good faith in the acquisition of property by the buyer, who took all measures to ensure the legality of the transaction, but could not assume the absence of rights from the alienator. It also takes into account the will of the owner to sell (lease or storage) - the presence or absence thereof.
In the event that for some third party the methods of penetrating into a dwelling have become available and a citizen has illegally begun to live in it, the only way to evict is to recover property from someone else's illegal possession, a sample of the claim about which is given above.
Counterclaim
The Civil Code of the Russian Federation contains articles governing the rights and obligations of the plaintiff and defendant, as well as the conditions under which the claim can be considered vindication.
In particular, article 121 states that a defendant’s counterclaim may be filed against the plaintiff. The claim is presented at the trial stage. And regardless of jurisdiction is considered in conjunction with the original lawsuit. This significantly reduces the procedural costs and time required to make a decision on the case, and also protects the defendant procedurally.
The ability to satisfy a claim by type of acquisition
The claim of property from another's illegal possession of the Civil Code of the Russian Federation is considered as a substantive claim against the acquirer. According to article 302, this requirement can be satisfied only in cases where there has been a theft of property or criminal possession against the will of the owner (in this context, real estate is considered). In all other situations, the law takes the side of the acquirer.
- Paid and gratuitous transfer of property by the seller to a bona fide buyer. If a third party illegally seizes the premises, in addition to the will of the owner, vindication occurs in any case. In case of a gratuitous transfer, the property is transferred to the true owner, the transaction of transfer of ownership is recognized as void. Paid transfer of premises involves bilateral restitution. In this case, the owner receives his property, the claim for the recovery of property from another's illegal possession is satisfied. The Civil Code of the Russian Federation allows the buyer to present the seller with a claim for compensation for material damage.
- The owner transferred the property on the basis of an oral agreement or under an agreement of his own free will to the tenant who sold the property to a bona fide acquirer. In this case, the law is on the side of the buyer.The court is guided by the fact that the former owner can recover the money received during the sale, even in court, from the tenant, as he concluded an agreement with him and, accordingly, is familiar with the alienator. The buyer, not knowing the true state of affairs, acquires the object from a completely stranger person, and the chances of recovering material losses become much less.
Determination of Integrity
However, the parties have the opportunity to contact higher authorities to exercise the right to recover property from someone else’s illegal possession.
Judicial practice shows that the good faith of the buyer is a relative concept, therefore it is important to take into account a situation where he did not know or could not know that the seller has no rights to alienate the property. In the event that, according to the circumstances, the acquirer should have known that he was not buying the object from the owner, he was considered unscrupulous. At the same time, simple indiscretion in actions is not enough, there must be intent or gross negligence
Vindication of organizations
Legal relations in relation to property (premises or buildings as a whole) arise between legal entities. Objects may include buildings, structures, residential and non-residential premises. In this case, the firm or company has the right to file a claim for the recovery of property from another's illegal possession. Judicial practice shows that vindication in such situations is much more complicated, and the document base is larger than for individuals.
Example
LLC applies to the company. The object of the requirement is the building, which the company uses for its own purposes. Moreover, the LLC is legally the owner of this property.
The decision of the arbitral tribunal provided for the transfer of the building into the ownership of the LLC, which reimburses the costs of maintaining the building. During its use, the company significantly reconstructed the property, which increased its usable area and allowed to reduce the accident rate.
The SAC RF, having considered the appeal, quashed the previous decision. The court was guided by the definition of the law, which narrates that the recovery of property from another's illegal possession (vindication) can only be in relation to an object that has been preserved in kind. Since only the supporting walls and the foundation remained from the previous state of the building, the LLC claim was denied.
Instances and complaints against a court decision
To file a vindication lawsuit, you should contact the arbitration court (for organizations) or the court of general jurisdiction (for citizens) at the location of the property. The correct preparation of the application and the provision of all documents are necessary conditions for the consideration of the claim. If the evidence base is incomplete, as well as if errors are made in the documents, the court will refuse to accept the application.
If the parties do not agree with the outcome of the consideration of the case, they may appeal it. Therefore, the next stage for organizations will be an appeal to the Arbitration Court of the district, for citizens - an appeal to a higher court of the subject.
The difference between instances is that the plaintiff claims a violation of the review process in the city / district (arbitration) court to a higher authority and briefly describes the essence of the claim for recovering property from someone else’s illegal possession. Jurisdiction (territorial or functional) in civil matters is defined by law, namely the Code of Civil Procedure of the Russian Federation.
The next stage in the consideration of a case for citizens occurs when the subject court appeals in the Presidium, then to the Supreme Court of the Russian Federation (RF Supreme Court). Organizations or entrepreneurs submit a cassation appeal to the Supreme Arbitration Court of the Russian Federation (SAC RF).
The rules for filing a vindication claim require an indication of the amount of state duty. The amount depends on many conditions and is regulated by article 333.19 of the Tax Code.
State duty and sample claim in arbitration
There is a certain amount that must be paid to consider a claim for the recovery of property from another's illegal possession. The state duty (arbitration, court of general jurisdiction, higher authorities) is:
1. Up to 100,000 rubles - 4%, but not less than 2,000 rubles.
2. From 100 001 to 200 000 thousand rubles. - 4 000 rub. and 3% of the amount over 100 thousand rubles.
3. From 200 001 to 1 million rubles. - 7,000 and 2% of the amount exceeding the minimum threshold.
4. From 1 000 001 to 2 million rubles. - 23,000 and 1% of the amount over 1 million rubles.
5. From 2 million rubles. - 33,000 and an additional 0.5% of the amount of more than 2 million rubles.
Benefits are provided for certain categories of citizens specified in article 333.37 of the Tax Code.
The state duty must be paid before filing a lawsuit, since a receipt must be attached to the application. The plaintiff is exempted from the duty by the defendant.
The following document for claiming property from another's illegal possession is a sample of a claim (first instance arbitration), which can be used to prepare an appeal to a court.
Property law
In the CIS countries, including Russia, based on the general institution of law, a definite legislative framework has been formed, which differs only in article numbers.
However, there are some doubts regarding the institution of ownership and ownership in the Civil Code of the above countries. Judicial practice shows that not always the rights of the owner of the property, whether it be titular or for any other reason, are fully protected. In this case, the meaning of the possession claim is lost, which consists in protecting the owner of the property (even on illegal grounds) from unlawful actions against him by third parties or the owner.
Vindication in Belarus and Kazakhstan
The recovery of property from another's illegal possession in the Republic of Belarus (Belarus) is similar to the Russian process. The main provisions by which the actions and relations of persons are regulated are reflected in the Civil Code of the Republic of Belarus, in Articles 283-287.
The statement of claim is made according to the rules enshrined in the legislation, which indicates the object of the claim, title documents and the essence of the claims against the defendant. In the event that the property is located in another country, the application is filed according to the rules of territorial jurisdiction. The court does not have the right to refuse the plaintiff to exercise the right arising from the determination of jurisdiction.
The claim for property from another's illegal possession in the Republic of Kazakhstan (the Republic of Kazakhstan) is enshrined in the civil code, in articles 259-264, including the protection of property rights of the illegal owner.
Features of vindication
Vindication lawsuit is associated with some difficulties. It is important to correctly determine the requirements of the plaintiff, as well as the ability to combine or separate them. In the event that one claim arises from another, they can be considered in one court, despite jurisdiction.
It is also necessary to correctly interpret the law, which provides for the return of property (in case the claim is satisfied) to the plaintiff, who may not be the owner, but be the owner. In this case, the true owner of the premises cannot claim the right to any object, that is, file a lawsuit to recover property from someone else’s illegal possession. This action is not possible under article 226 on the protection of property rights.
Privileges
The following categories enjoy special rights when paying state duty:
- The prosecutor's office and the bar.
- State bodies.
- Disabled organizations.
- Disabled persons, except for group III.
In the event that the price of the property claim is determined and amounts to more than 1 million rubles, the plaintiffs pay the state duty specified in article 333.19. It has been reduced for certain categories of citizens by an amount payable for a lawsuit of more than one million rubles.
The categories of citizens who provided the grounds on which the state duty cannot be paid are determined. In this case, the amount is distributed between the remaining plaintiffs (if there are several).If the applicant, by a court decision, is exempted from the payment of a claim for claiming property from someone else’s illegal possession, the state duty is paid by the defendant in the case.
Second instance
Any court decision may be appealed to a higher authority. Stages of calls are indicated above. The time period during which a participant can file a complaint is strictly defined in each case.
An appeal is filed within 30 days from the date the court decision is ready, that is, its paper form. The complaint is submitted to the court, where the case was initially considered, but to a different structure. Particular attention in the appeal is given to violations of the trial in the first instance, if any. The essence of the claim is not so important, but should be voiced during the trial. When considering new circumstances of the case cannot be declared, unless they were accepted court of first instance what is the record in the minutes of the meeting. If the plaintiff considers that any evidence is of great importance, he may petition for his presentation at the meeting. In the event that the plaintiff is not satisfied with the results of the lawsuit for recovering property from someone else’s illegal possession, the court decision is appealed to the next instance.
Third instance
Cassation is possible within six months from the date of the formation of the decision on the appeal. The complaint is submitted to the office court of cassation. Attention is paid to significant violations of the second instance process, which significantly affected the outcome of the case. Parties to the court of cassation are not called. The complaint is considered by the judge, who either refuses or sends the case to the presidium of the court, in which the parties can participate according to the requirements.
Next steps
The fourth instance for a complaint in an initial lawsuit to recover property from someone else’s illegal possession is the Supreme Court of the Russian Federation. The application is submitted to the Judicial Board within 180 days from the date of entry into force of the decision of the court of cassation. The essence of the appeal is to identify violations of procedural legislation in lower instances, the consequences of which do not allow to fully restore the rights of the plaintiff.
The results of the meeting in the Judicial Board can be appealed to the Presidium of the RF Armed Forces - a supervisory appeal is filed. The time period during which a citizen has the right to apply to the Armed Forces is 90 days from the date of entry into force of the previous decision.
Thus, any citizen (or organization) can protect their rights and file an application for the recovery of property from someone else’s illegal possession - a vindication lawsuit.
