Art. 165 of the Civil Code of the Russian Federation describes the results of a party’s reluctance to notarize a transaction or register the transfer of rights to property. It also describes the algorithm of actions of the second party to protect its rights. Some provisions also affect the nuances of going to court.
Normative regulation
The first part of Art. 165 of the Civil Code of the Russian Federation in the current version differs from the original version. Previously, she pointed to the absence of notarization and state registration, as on the basis of invalidity of transactions. The nullity of such transactions was emphasized - automatic invalidity without recognition of this fact by the court.
Now these provisions are excluded, and all other paragraphs of the article are otherwise numbered.
Also, an addendum was added to clarify the limitation period, the reservation applies to disputes arising after September 1, 2013.
Deal Form
Contracts are concluded orally (mainly for small amounts), in writing and in a notary. A simple written form obliges to state the conditions on paper and put signatures and seals (if the participants are legal entities or individual entrepreneurs). This ends the requirements.
The third form is notarial, the participation of a notary is mandatory. He develops the text of the contract, checks the documents, (passports, powers of attorney, paper on property), verifies the adequacy of the signatories of the agreement.
Using the services of a notary public, citizens go through the facilitated process of registering a transaction - entries in the registry are entered into the registry automatically, without checking the contract. However, something else is important. A transaction without a notary certification, where it is required, is considered invalid and does not give rise to either rights or obligations for the parties. Thus, in art. 165 of the Civil Code emphasizes the importance of proper design.
Conclusion procedure
Most people are used to believing that a deal or contract is considered concluded from the moment of signing. But this is only a partial truth. Contracts in which the property is a property require registration of transfer of rights. That is, they do not formally register a transaction, but transfer the rights to property. These rules apply to transactions concluded in both simple and notarized form.
If registration is required, the contract becomes effective from the moment of registration or making an entry in the register. Until the procedure is completed, the buyer or the donee has no rights to the property (cannot sell, donate or bequeath the property). Thus, the provisions of Article 165 of the Civil Code cannot be attributed to simple formalities.
Grounds of application
Art. 165 of the Civil Code of the Russian Federation refers to the partial or full execution of a transaction by a party to the terms of an agreement. It is, for example, about paying for property or accepting it. The law does not exactly describe what actions are spoken of, and the court proceeds from the circumstances.
What is considered evasion or failure? A party wishing to obtain a positive court decision is required to prove the fact of contacting a partner. A letter sent by courier or mail is enough. Legal entities and individual entrepreneurs use the claim procedure.
A notice of delivery and an inventory of the investment are provided to the court. If the letter is not accepted by the addressee, it remains with the plaintiff and is opened in court.
Significant Messages
In Art. 165.1 of the Civil Code of the Russian Federation is referred to messages of legal significance in the form of requirements, statements, notifications.
It is believed that the message was delivered to the addressee, even if he refused it or did not take measures to receive it. A message shall not be deemed delivered if the non-receipt is due to objective reasons, and not to dishonesty of the person to whom it was addressed.
The article was introduced into the law because of the ambiguity in the question of how to prove the second party’s refusal of claims and whether evasion of receiving correspondence is considered refusal.
The provisions do not apply when the law or contract is indicated. The court has the right to refuse to apply them, taking into account the previous practice of relations between the parties. This approach is controversial. It is worthwhile to prescribe in the text of the contract the conditions for sending requirements and the consequences of rejection of correspondence in order to avoid risks.
Drawing up requirements
The scheme is approximate, the applicant, at his request, has the right to supplement it with other points:
- information about the sender (F. I. O., place of residence or name of organization, its location);
- information about the addressee (F. I. O., place of residence, name of organization, location);
- details of the agreement (date, number, name, parties);
- the requirement to provide documents or take actions to register the contract (indicate a specific list);
- deadline for sending a response;
- date and signature.
If the document is signed by a representative, a copy of the power of attorney is attached.
Drawing up a claim
Consider the general rules for preparing a statement to the court:
- name of the court to which documents are submitted;
- full indication of F. I. O. or the name of the plaintiff’s organization, place of residence and location, respectively;
- contact information;
- statement of circumstances;
- references to regulatory documents;
- statement of court requirements;
- list of attached documents;
- signature and filing date.
A lawsuit shall be filed with the district court at the place of residence of the defendant. In the case of arbitration courts, the case is also considered at the place of residence or location of the defendant. There is another opinion about the jurisdiction of cases at the location of the objects, due to which a dispute arose.
Submission of the application is possible after receiving a response from the second party or the expiration of the term for its direction.
Limitation of actions
It limits the term of appeal to the court to 12 months from the date of violation of the rights of the plaintiff or when he became aware of this. If it is missed for a good reason, an application for reinstatement is submitted along with the application to the court.
Claim for notarization
If the application is based on paragraph 1. Art. 165 of the Civil Code, the court is asked to declare the transaction valid. Indicate the date of conclusion, parties and subject. In support of his position, the plaintiff may attach a draft contract to the lawsuit (in the case of real estate, it is usually drawn up in advance).
A court decision in favor of the plaintiff leads to the fact that no certification from a notary is required.
Registration lawsuit
The algorithm of the parties is the same. The difference in the wording of the claims.
What to write in a lawsuit, if it is based on paragraph 2 of Art. 165 of the Civil Code? Make a decision on state registration, then indicate the contract number, date of signing, subject of the party.
A court decision after its entry into force gives the right to appeal to the Federal Register without the participation of a second party.
Features of the consideration of cases
What is the peculiarity of the application of Article 165 of the Civil Code? Judicial practice has the following nuances:
- there is no clear position regarding jurisdiction; disputes still arise;
- in arbitration courts, the notary and Rosreestr are involved as third parties, otherwise the court will not accept the claim for consideration, leaving it motionless;
- in district courts, as a rule, the list of participants in the process is limited only to the parties to the contract;
- It is required to prove the fact of payment or acceptance of property according to the terms of the contract