Housing is removed from the bankruptcy estate – Newspaper Kommersant No. 176 (7377) dated 09/23/2022

A government bill has been submitted to the State Duma, allowing citizens to return money out of turn for the only housing purchased at a price below the market average, when it is lost due to the recognition of the transaction as invalid during the bankruptcy of the seller. Lawyers note that the need for such amendments is overdue – they will protect bona fide buyers.

The White House submitted a bill to the State Duma providing for the possibility of returning the buyer of an apartment purchased from a future bankrupt, or money for it, if such housing is the only one. Now, if a person bought a home at a price below the average market price, the transaction may be declared invalid if a bankruptcy case is initiated against the seller (for example, another individual or a bank) within a year. Claims for the return of funds to the buyer are satisfied from the bankruptcy estate in proportion and simultaneously with the claims of other creditors, that is, the new owner of such an apartment is unlikely to receive the full amount. However, such an inability for a citizen to return money for the only housing was recognized by the Constitutional Court as unconstitutional, in connection with which the Ministry of Economy prepared amendments to the bankruptcy law.

The new rules do not apply to housing received free of charge. According to the project, the buyer is invited to be allowed to stay in the disputed apartment until the money is returned to him, which is deposited into a special account, bypassing the bankruptcy estate. To do this, housing is sold at auction with a minimum price, which should be 5% higher than the amount of the transaction for the sale.

If at this price the apartment could not be sold at auction, the arbitration manager must file an application with the court to review the decision to recognize the transaction as invalid due to newly discovered circumstances. Also, a citizen gets a chance to keep an apartment for himself in the case when, according to the results of the auction, a contract of sale is not concluded – it must be redeemed. In this case, actual payment is not required, since the amount and amount of claims against the debtor are set off. However, if the redemption did not occur within a reasonable time or the citizen refused it, then the satisfaction of his requirements goes into the usual mode.

Dmitry Kletochkin, a partner at the law firm Rustam Kurmaev and Partners, notes that the amendments “are ripe and can alleviate the fate of those who had the imprudence to buy housing from a bankrupt person.” As Kirill Stepanov, Senior Partner at Kaminskiy, Stepanov & Partners Law Firm, adds, the mechanism can really protect apartment buyers who were honestly mistaken about the real market value. According to Diana Vardanyan, a lawyer at the RCT law firm, such buyers are not professional market participants and are not required, like a legal entity, for example, to assess the market value.

According to Dmitry Kletochkin, the project protects in cases where at first housing is valued at a high price and the transaction is declared invalid, and then they cannot be sold at this high price. Also, he notes, setting a minimum selling price at auction by 5% above the transaction price “looks like some kind of insurance for the transaction itself in order to maintain the required money supply.” Kirill Stepanov adds that such an approach “allows balancing the rights of both the buyer and the debtor,” and a kind of preferential buyout mechanism saves time and replenishes the bankruptcy estate.

Evgenia Kryuchkova