we Know that housing on the so-called secondary market are often cheaper than new buildings. But the risk of losing newly acquired apartment, and money in this purchase – more. Especially if the seller is a family with young children.
Impossible to invalidate the transaction based on article 167 of the Civil code
Few people know that the provisions in such transactions the consent of the guardianship still about what does not speak. More precisely, does not insure against potential problems.
the fact that guardianship only authorizes the transaction, provided that the small owners will have bought the equivalent of sold homes. But if this condition does not comply, then the transaction of sale is easy to recognize illegal.
Our story began in the Chelyabinsk region. There is some citizen decided to sell the apartment, which was prescribed to her two minor children. Each of them owned 1/3 share.
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For sale mother received the written consent of the guardianship. Giving consent, guardianship put forward a condition – the apartment can be sold if both will be acquired other housing where children will receive 1/3 share. To report the purchase of the government had during the month after the sale of property.
And then the events developed as follows. The transaction took place. The new landlady has fully paid for the purchase and celebrated the housewarming. But to live quietly in the new apartment she failed.
the Reason was that the previous owner, contrary to the agreement, has not acquired a children a new apartment, which was mentioned in the consent of the guardianship. That is, the citizen has violated the written permission of usthe provision. DCFS is required to recognize the transaction invalid under article 168 of the Civil code of the Russian Federation. This article talks about the deal contrary to the law.
Upset the new owner tried to defend himself and appealed to the court. She claimed that the permit of custody to the deal actually is illegal, because it doesn’t say how to pay off minor sellers, and does not specify to which account to transfer money to the name of a minor after the sale of their shares.
And yet she found such an argument – if the permit has not found out the opinion of the children’s father, and her as a customer was not informed that the seller had at the same time to buy a home to minors.
a Local city court with the arguments of custody agreed entirely. And he satisfied the claim of Department of guardianship, recognizing invalid the agreement of sale of the apartment. Housing returned to the property the former owner and her children. Well, the plaintiff, and not become a full owner of a new apartment, awarded compensation in the amount of the cost of housing.
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In its decision, the municipal court referred to article 167 of the Civil code, which talks about the consequences of an invalid transaction. But the Chelyabinsk regional court has cancelled the decision of city colleagues and adopted a new decision, denying care, and along with the plaintiff.
According to the appeal, that the previous owner did not buy their children housing and violated the agreement with the guardianship, does not make the contract of purchase and sale of apartments illegal. According to the appeal, the deal made with observance of all procedures actually performed it and the reason for invalidity no. In this position, the court explained the provisions of article 168 of the Civil code, on which the firstI instance referred to.
Care with the same refusal did not agree and went to the Supreme court. There the matter studied and the conclusions of the regional court did not agree. In this case the Supreme court referred to two articles of the Civil code, article 168 “the Transaction is contrary to the law” and article 173.1 “Transaction without required by law, the consent of the Agency”.
the Supreme court indicated that the first-instance court could not invalidate the transaction based on article 167 of the Civil code. This article does not set forth the grounds on which invalidity is recognised. But these grounds are provided for in other articles of the same code – 168 “a Transaction that is contrary to law” and article 173.1 “Transaction without required by law, the consent of the Agency”.
the Guardianship deal with the flat if the kids buy equivalent housing. Otherwise, the deal cancels
the Supreme court has stressed – in the first instance did not cite any of these articles, and the appeal not only has not fixed this bug, but misread the rules, referred to. That’s what drew the attention of the Supreme court – the court based its decision on a repealed version of article 168 of the Civil code of the Russian Federation.
the Appeal was to clarify the grounds on which the plaintiff challenged the transaction, and depending on it to determine what circumstances are relevant to the dispute and affect the validity of the transaction or show its nullity, stated the Judicial Board on civil cases of the Supreme court.
And the regional court did not take into consideration that according to article 173.1 of the Civil code, there are special grounds for invalidation of transactions made without the required consent of a third party, on a legal entity or state body or body of local self-government. According to the plaintiff, there was no reason to conclude that the deal made with the consent of the guardianship, because the defendant had not received consent to alienation of property without ensuring children other housing, and this argument in the Supreme the court has considered important. The high court also noted that there is no evidence of children’s rights, – that the proceeds from the sale of the apartment got on their Bank account or was spent in their interests. So ordered the dispute to be reviewed.