According to paragraph 1 of Article 302 of the Civil Code of the Russian Federation, if the property was purchased for compensation from a person who did not have the right to alienate it, about which the acquirer did not know and could not know (a bona fide acquirer), then the owner has the right to demand this property from the acquirer in the event that the property lost by the owner or a person to whom the property was transferred by the owner into possession, or stolen from one or the other, or dropped out of their possession in any other way against their will.
The legislator in the norm under consideration stipulates that it is possible to reclaim property from a "bona fide person" (that is, the acquirer of the property who did not know and could not know that the seller does not have the right to alienate the property) in the following cases:
- the property is lost by the owner or the person to whom the property was transferred by the owner;
- property was stolen from the owner or the person to whom the property was transferred by the owner;
- the property left the possession of the owner or a person to whom the property was transferred by the owner against their will.
It is noteworthy that the norm in question was already checked for compliance with the Constitution of the Russian Federation relatively recently - in 2017.
In the Resolution of June 22, 2017 No. 16-P "In the case of checking the constitutionality of the provisions of paragraph 1 of Article 302 of the Civil Code of the Russian Federation in connection with the complaint of citizen A.N. Dubovets ", the Constitutional Court noted that a bona fide acquirer in relation to real estate in the context of paragraph 1 of Article 302 of the Civil Code of the Russian Federation in its constitutional and legal sense in the legal system of the Russian Federation is the acquirer of real estate, the right to which is subject to state registration in the manner prescribed by law, unless it clearly follows from the circumstances of the case established by the court that this person knew that the alienator had no right to dispose of this property or, based on the specific circumstances of the case, did not exercise due reasonable caution and discretion, under which he could learn about the alienator's lack of such right.
According to the plot of the case, according to the forged documents submitted by a group of persons by a notary of the city of Moscow on June 21, 2007 addressed to V.A. Sokolova was issued a certificate of the right to inheritance in respect of the residential premises, the owner of which B.V. Sokolov died in 1994, having no heirs either by will or by law; this residential premises, the ownership of which, on the basis of this certificate, was registered in the Unified State Register of Rights to Real Estate and Transactions with It, became the subject of sales contracts dated July 23, 2007 and August 15, 2007, and April 28, 2008 it was acquired by A.N. Dubovets; at the same time, in the contract of purchase and sale, the price of the dwelling was indicated in the amount of 999,000 rubles, however, according to the copies of receipts available in the case, the seller received from A.N. Dubovets, in addition to the amount specified in the contract, another 6,001,000 rubles.
The claims, with which, in connection with the completion of the criminal case, the city of Moscow, represented by the Department of City Property on November 5, 2014, turned to A.N. Dubovets, N.A. Dubovets and the notary who issued a certificate of the right to inheritance in relation to the acquired A.N. Dubovets residential premises, by the decision of the Nikulinsky District Court of the city of Moscow dated May 26, 2015, upheld by the appeal ruling of the Judicial Collegium for Civil Cases of the Moscow City Court dated December 18, 2015, partially satisfied: the disputed residential premises were reclaimed from the possession of A.N. Dubovets, it was decided to evict A.N. Dubovets and N.A. Dubovets, the right of ownership of the city of Moscow to this dwelling is recognized; in the rest (on invalidation of certificates of the right to inheritance and certificates of state registration of rights to real estate), the claims were refused. The transfer of cassation complaints against these court decisions for consideration in the court session of the courts of the cassation instance was also refused (ruling of a judge of the Moscow City Court of March 10, 2016 and ruling of a judge of the Supreme Court of the Russian Federation of May 18, 2016).
Satisfying the claims of the city of Moscow, the court of first instance referred to the fact that the disputed residential premise was escheat property, left the possession of the city of Moscow against the will of the owner as a result of unlawful actions of third parties and, on the basis of Articles 301 and 302 of the Civil Code of the Russian Federation, must be reclaimed from the possession of A. .N. Dubovets, who did not provide evidence that he is a bona fide purchaser of the disputed residential premises. In the opinion of the court of appeal, arguments about the good faith of the purchaser of the residential premises have no legal value, since the property was removed from the possession of the owner against his will.
According to citizen A.N. Dubovets, paragraph 1 of Article 302 of the Civil Code of the Russian Federation does not comply with Articles 1, 2, 17 (part 1), 18, 19 (part 1), 35 (parts 1, 2 and 3), 40 (part 1), 46 (part 1) ) and 55 (parts 2 and 3) of the Constitution of the Russian Federation to the extent that it allows law enforcers to arbitrarily interpret the concept of "bona fide acquirer" and, accordingly, to seize, at claims of public law entities represented by authorized bodies, immovable property that was eschewed from citizens - its last acquirers, whose ownership and the legality of all transactions preceding the acquisition of this right were recognized by the state within the framework of state registration of rights to real estate and transactions with it.
These objections of the citizen Dubovets A.N. seem logical - if the state authorities recognized the transactions that preceded the acquisition of property and the transfer of ownership of the acquired property was registered in accordance with the procedure established by law, why should he be deprived of property, acquiring which he did not even know that it violates someone's rights, in particular the Russian Federation represented by the Moscow City Property Department?
So the Constitutional Court noted: according to the Constitution of the Russian Federation, the right of ownership and other property rights are guaranteed through the right to judicial protection (Article 46, Part 1), which, by virtue of its Articles 17 (Part 3), 19 (Parts 1 and 2) and 55 (part 3) must be complete and effective, meet the criteria of proportionality and proportionality in order to ensure a balance of rights and legitimate interests of all participants in civil circulation - owners, creditors, debtors; possible restrictions by federal law on the rights to own, use and dispose of property and the freedom of contracts must also meet the requirements of justice, be adequate, proportionate, proportionate, not retroactive and not affect the essence, the main content of these constitutional rights; the very possibility of restrictions and their nature should be conditioned by the need to protect constitutionally significant values.
Also in the Resolution of June 22, 2017 No. 16-P "In the case of checking the constitutionality of the provisions of paragraph 1 of Article 302 of the Civil Code of the Russian Federation in connection with the complaint of citizen A.N. Dubovets ", it is noted that securing the right of everyone to housing, the Constitution of the Russian Federation - taking into account the fact that in a market economy, citizens exercise this right mainly independently, using various legal means - imposes on public authorities the obligation to create the necessary conditions for this. Therefore, when regulating the rights to residential premises, including the transfer of ownership of residential premises, it is necessary to observe, on the one hand, the principle of freedom and inviolability of property, and on the other, the balance of rights and legally protected interests of all participants in relations in specific life situations in order to avoid unreasonable restriction of constitutional rights and freedoms.
As a result, in the Resolution of 22.06.2017 No. 16-P "In the case of checking the constitutionality of the provisions of paragraph 1 of Article 302 of the Civil Code of the Russian Federation in connection with the complaint of citizen A.N. Dubovets ", the Constitutional Court of the Russian Federation ruled to recognize the provision of paragraph 1 of Article 302 of the Civil Code of the Russian Federation as inconsistent with the Constitution of the Russian Federation, its Articles 8 (part 2), 19 (parts 1 and 2), 35 (parts 1 and 2) and 55 (part 3 ), to the extent that it allows reclaiming both from someone else's illegal possession of a dwelling, which was escheat property, from its bona fide acquirer, who relied on the data of the Unified State Register of Real Estate for a paid purchase of this dwelling and registered the ownership right against him, at the suit of the relevant public law entity in the case when the given public law entity did not undertake - in accordance with the requirements of reasonableness and prudence in control over escheat property - timely measures to establish it and properly formalize its ownership of this property.
And also the Constitutional Court of the Russian Federation decided to recognize the provision of paragraph 1 of Article 302 of the Civil Code of the Russian Federation as consistent with the Constitution of the Russian Federation to the extent that it provides for the owner's right to claim the property belonging to him from a bona fide purchaser in the event that this property has left the possession of the owner against his will.
Address by A.N. Dubtsov to the Constitutional Court of the Russian Federation served as the basis for reviewing all law enforcement decisions made in his case on the basis of paragraph 1 of Article 302 of the Civil Code of the Russian Federation.
In the case of E. Mokeev, the property was removed from the possession of the original seller's former wife without her consent and against her will. Since such property is jointly acquired property of the spouses, the woman has the right to a share in it, which was proved to her in the process against E. Mokeev. And despite E. Mokeev's references to his good faith as an acquirer, the courts sided with his wife.
By virtue of clause 39 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 10, Plenum of the Supreme Arbitration Court of the Russian Federation No. 22 dated April 29, 2010 "On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights" to reclaim his property from someone else's illegal possession, regardless of the objection of the defendant that he is a bona fide acquirer, if he proves the fact of disposal of the property from his possession or the possession of the person to whom it was transferred by the owner, against their will.
Perhaps the appeal of citizen E. Mokeev to the Constitutional Court of the Russian Federation and the Resolution adopted as a result of consideration of his complaint will also lead to the emergence of interesting conclusions affecting further law enforcement practice under paragraph 1 of Article 302 of the Civil Code of the Russian Federation.