Penthouse overlooking the street – Newspaper Kommersant No. 191 (7392) dated 10/14/2022

With the growing number of bankrupt citizens, more and more attention of creditors is attracted by the housing of debtors, often acting as the only property available for sale. In April 2021, creditors received a serious trump card – the decision of the Constitutional Court of the Russian Federation, which allows foreclosure on the only, but luxurious housing. For a year and a half, the courts began to actively apply this position and develop approaches to determining the signs of luxury. Fears about the mass seizure of small apartments have not yet materialized, but against the background of the lack of legislative regulation, problems arise. Legal opinion is divided on the future of the practice. Some believe that it will become more humane, others believe that, on the contrary, it will become tougher.

The issue of the possibility of collecting luxurious housing from debtors has long occupied creditors and became especially acute with the advent of the bankruptcy mechanism for individuals in October 2015. The number of insolvent citizens is growing. According to Fedresurs estimates, in January-September alone, 194,000 people were declared bankrupt, and in just seven years, 669,300 Russians went through the procedure.

The average level of debt repayment by bankrupts remains in the range of 4-6%. Moreover, according to the results of the inventory in 2022, bankrupt citizens did not find any property in 89.9% of cases. If it is, then often this is the only apartment where the debtor lives, and according to the law it is impossible to take it away (Article 446 of the Code of Civil Procedure). Moreover, this asset can turn out to be very valuable, especially if a businessman or a top manager of a large company, who often own elite housing, goes bankrupt.

Lenders do not stop trying to foreclose on the only housing, and if they have not yet succeeded in changing the law, then judicial practice is already changing.

Gift for creditors

As part of the Ivan Revkov case, on April 26, 2021, the Constitutional Court (CC) of the Russian Federation issued a revolutionary decision for practice and allowed foreclosure on a citizen’s only housing for the purpose of selling it to pay off debts, subject to a number of conditions.

“Removal of protection” from housing is possible if it was acquired with abuse. Also, the courts may take into account the time of awarding the debt, initiating enforcement proceedings, the terms of transactions for the alienation of other property for the acquisition of housing protected by immunity. There must be an adequate ratio of the market value of housing to the amount of debt, so that foreclosure on the apartment is not a “punitive sanction” or “a means of intimidating the debtor.”

It is impossible to leave a citizen on the street, the Constitutional Court emphasized, he must be provided with replacement housing with an area not less than the social norm (in Moscow – 18 sq. m per person) within the same settlement or in another region with the consent of the debtor.

“The decision of the Constitutional Court turned out to be a gift for creditors, becoming the first and so far the only basis for foreclosure on housing,” emphasizes Yulia Litovtseva, partner at Pepeliaev Group. This served as an impetus for the active development of the practice of including a single dwelling in the bankruptcy estate. Already in August 2021, the Supreme Court of the Russian Federation (SC) in the case of Vladimir Balykov consolidated this position, essentially approving its widespread use.

Possibility of normal living

For a year and a half, judicial practice has not yet come to uniformity, but some criteria have already begun to be clarified. “Kommersant” analyzed several dozen court decisions in cases of bankruptcy of citizens relating to luxury housing.

The main reason for the seizure of housing in them was the abuse of the bankrupt himself. Such actions most often include the donation or sale by a citizen of all his apartments, except for one, or the alienation of the only housing before bankruptcy. For example, in August, the Moscow Arbitration Court left a Moscow apartment on Leninsky Prospekt with an area of ​​142.2 sq. The court explained that Olga Goncharova sold the apartment before bankruptcy, and before going to court she lived at a different address. “The alienation of the disputed apartment was part of a general plan to withdraw assets in order to make it impossible to foreclose on them,” the court decided.

Also, in order to collect the only housing, it must have signs of luxury, on which the courts have no consensus yet. Assessing the area of ​​housing, some judges are guided by the social norm and its excess by two or three times, others may consider even a house with an area of ​​​​more than 1 thousand square meters not luxurious. m for three family members. The position of the courts is affected not only by the area, but also by the cost of housing – the more expensive it is, the more likely it is to be seized. For example, courts usually classify as luxury apartments in premium segment houses costing from several tens of millions of rubles.

The presence in the same city of cheaper apartments does not necessarily entail the recognition of the disputed housing as luxurious. This conclusion was made by the Arbitration Court of the West Siberian District on April 13 in the bankruptcy case of Andrei Gorbunov, refusing the request of creditors to replace the Novosibirsk apartment with an area of ​​80 square meters. m worth 8 million rubles. for smaller housing for 2.25 million rubles without seeing signs of luxury.

The ratio of the price of the apartment to the size of the debt of the bankrupt is also taken into account, so that the sale of housing makes economic sense. On April 21, the Arbitration Court of the East Siberian District refused to leave Sergei Fedorchuk a house in Irkutsk (925 sq. m.) worth 5.7 million rubles. with debts of 6.3 million rubles. Replacement housing will cost 2.6 million rubles, and the remaining part of the funds will allow you to pay off “40-50% of the registry debt, which is significant,” the court concluded.

At the same time, with a large amount of debt, repayment of even a few percent may be considered reasonable. This conclusion was reached by the Arbitration Court of the Ural District in the case of Anatoly Pavlov regarding a house in the Chelyabinsk region with an area of ​​1273.5 sq. m. Although the sale will make it possible to repay only 1.1% of the registered debt (14.1 million rubles out of 1.38 billion rubles), this “is not a basis for giving this residential premises absolute executive immunity.”

Owning only a share in an apartment does not allow avoiding recovery: On August 1, the Arbitration Court of the Samara Region included half of the apartment belonging to him into the bankruptcy estate of bankrupt Sergei Artsybasov. At the same time, some courts leave the debtor a spacious living space, far beyond the limits of the social norm, if other family members live there with him. The Arbitration Court of the Ural District in March refused to include a house of 139.4 sq. m in the Sverdlovsk region, recognizing it as the only housing of Andrey Shulepin. The decision states that “underage children of different sexes” are also registered in the house, there are “separate living rooms that allow the debtor and his family members to live separately and provide the opportunity for normal living and development, taking into account the psychophysical characteristics of each tenant.” In August 2021, the Arbitration Court of the North-Western District did not seize a residential building with an area of ​​172.7 square meters from Alexander Kokoyanin. m in the Vologda region, where he lived with his wife.

Finally, you can take away housing from a bankrupt if it turns out that it is not the only one, and the location of the second is unimportant. So, Merabi Ben-El failed to defend an apartment in Moscow with an area of ​​423.3 square meters. m, despite the registration there of six relatives. The court found that the bankrupt and his wife bought an apartment in Israel with an area of ​​280.2 square meters. m, “that is, the disputed apartment is not the only suitable housing for the debtor and his family.” Similarly, by decision of the Moscow Arbitration Court in July 2021, Marina Savina lost her Moscow apartment, as creditors proved that she lives in Spain and owns real estate there.

Good faith watershed

In 2021, lawyers expressed concerns that the new approach could lead to mass seizures of housing, the area of ​​\u200b\u200bwhich exceeds the social norm, but so far such cases are rare. Alexander Steshentsev, a partner at Arbitrazh.ru law firm, notes that “arbitration courts have to deal with judicial lawmaking”, but in general he considers the new practice adequate due to the “balanced position of the Constitutional Court”. According to Pen & Paper partner Valery Zinchenko, “in most cases, the practice has become more fair.” However, Case by Case lawyer Yulia Mikhalchuk sees “a strong bias towards creditors.”

According to Valery Gerasimenko, General Director of the Union of Autonomous Organization SRO Severnaya Stolitsa, Valery Gerasimenko, the main problem is related to the absence in the law of criteria for the luxury of housing and a mechanism for its replacement. In the absence of clear rules, all participants in the bankruptcy process will defend their position to the end, as a result, “each time the dispute can go to a permanent appeal, up to the Supreme Court,” she adds. At the same time, the blurring of the concepts of “luxurious” and “sufficient” leaves “space for a wide judicial discretion, which is not always positive,” Mr. Zinchenko emphasizes.

MEF Legal Commercial Litigation Practice Partner Rimma Malinska notes that questions remain about the procedure for acquiring and providing replacement housing, what characteristics should be taken into account when choosing it, and which ones can be neglected. Julius Tai, Managing Partner at Bartolius, adds that it is still not clear in which cases replacement housing should be purchased at all: but if it is opportunistic and bold, then no.” There is also a problem associated with citizens living in luxurious housing. “When ten people are registered in an apartment, the manager cannot write them out himself, and it is difficult to find a buyer for such housing,” Ms. Gerasimenko explains. “It is also unclear how to find out if these tenants have other options for living.”

In the Ministry of Justice and the Ministry of Economy, Kommersant did not answer at what stage the development of amendments to luxury housing is, but forwarded the request to each other.

Forecasts for the future of lawyers differ. “I hope that a harmonious state will gradually come. But only the professionalism of representatives can help in this court,” Yuliy Tai believes. Mrs. Litovtseva counts on “humanization of approaches to foreclosure on housing.” This, in her opinion, is also evidenced by the draft law submitted to the State Duma in September on protecting the rights of a bona fide citizen who bought housing from a future bankrupt: “It puts the right to housing above the interests of other creditors of the debtor.”

Other lawyers, on the contrary, believe that the approach will be tightened, which will be facilitated by the trend of declining prices for real estate, including luxury. Yulia Mikhalchuk notes that “during a crisis, creditors become more bloodthirsty.” “With the growth of poverty, the level of the norm will fall,” she believes. Arbitration manager Sergei Domnin agrees that “in a crisis year, it’s better to get at least a few million instead of zero, so that the interest of creditors will not decrease.”

Anna Zanina, Ekaterina Volkova