The Nesvitskaya estate in the center of Moscow may return to state ownership
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The Federal Property Management Agency and the Prosecutor General’s Office are seeking the return to federal ownership of the historical Nesvitskaya estate, which was transferred to third-party structures more than ten years ago, near the Foreign Ministry building in the center of Moscow. Lawyers highly value the authorities’ chances: in such disputes, courts rarely take into account the statute of limitations, which defendants usually rely on. Experts call the massive return to federal ownership of property previously transferred to investors a “new trend.” Until now, we have mainly been talking about significant industrial assets, but now lawyers note “a trend in the real estate market.”
On November 13, the Prosecutor General’s Office and the Federal Property Management Agency filed a claim with the Moscow Arbitration Court to recover from illegal possession and return to federal ownership the complex at 30 Smolenskaya-Sennaya Square, which includes two buildings with an area of 3 thousand square meters. m and a plot of 0.4 hectares, follows from the case file. Interim measures have already been imposed on the real estate in the form of a ban on Rosreestr to register the transfer of ownership rights. The defendants in the case are JSC Directorate of International Photo Exhibitions (DMF), LLC Business Life and JSC NRK Stock Market. It was not possible to contact the DMF; the other Kommersant defendants did not respond. The Federal Property Management Agency advised to contact the Prosecutor General’s Office, which did not provide a comment.
Real estate on Smolenskaya-Sennaya Square is a cultural heritage site, the Nesvitskaya estate, whose cadastral value is 622.1 million rubles. The object appeared in a criminal case against the former general director of the Federal State Unitary Enterprise DMF Vitaly Strashnov. He was one of the defendants in the investigation into the transfer of real estate from an enterprise controlled by the authorities to third-party structures, which then resold them. Thus, the mansion on Smolenskaya-Sennaya Square came under the control of Business Life in 2012. The criminal case was dismissed due to the expiration of the statute of limitations (see Kommersant of January 31).
The owner of “Business Life” in the Unified State Register of Legal Entities is listed as a closed mutual fund “Strategic Investments” under the management of “NRK Stock Market”. DMF is owned by the Russian Federation and is included in the privatization plan. On its balance sheet there remain warehouse and office premises on Lyublinskaya Street (3.5 thousand sq. m) and plots adjacent to the disputed asset on Smolenskaya-Sennaya Square, it follows from the explanations to the DMF reporting.
Advisor to AB BVMP Dmitry Palin explains that the current lawsuit against DMF and Business Life is aimed at targeted deprivatization of individual assets. According to him, the basis is usually violations identified during prosecutorial checks during the transfer of objects to investors.
Such claims were initially common in relation to large enterprises, such as Bashneft, Bashkir Soda Company, Metafrax, notes Olga Zhukova, senior lawyer at ProLegals. But now, according to Rustam Kurmaev and Partners lawyer Yaroslav Shitsle, they are “becoming a trend in the real estate market.” Over the past year, at least 15 similar disputes initiated by the prosecutor’s office have become known, he notes. The requirements, the lawyer clarifies, usually apply to companies with assets significant for defense and security, energy, and transport infrastructure.
As an example, Ms. Zhukova recalls the arrest of sections of the Port of Perm. A more recent case is the transfer into federal ownership of seven buildings on Petrovskaya Spit in St. Petersburg, as reported by Delovoy Peterburg. According to the publication, it was planned to develop a yacht club here from the structure of the owner of Baltinvest Management Company Alexander Vinnik.
Dmitry Palin recalls several cases of deprivatization of the assets of the former machine tool plant named after G. M. Sedin in the Krasnodar Territory. In the Perm Territory, the privatization of the Gubakhinsky Chemical Plant was contested, in the Volgograd Region – JSC Volzhsky Orgsintez, in the Rostov Region – the Rostov Optical-Mechanical Plant, in St. Petersburg – JSC Commercial Center. Transport and forest”.
Mr. Palin considers such cases “part of a general trend aimed at the partial return of property to state ownership.” “The approach allows you to obtain an asset with improvements already made by private investors, ready to bring profit to the state,” notes Olga Zhukova.
According to Ms. Zhukova, the court usually upholds deprivatization claims. There is a special procedure for calculating the statute of limitations for prosecutors, and this is the main argument of the defendant when defending against a filed claim, she explains. Maxim Kuznechenkov, a partner in the real estate and construction practice of Melling, Voitishkin and Partners, says that as a general rule, the period for void transactions is limited to three years.
But in such proceedings, according to him, it is often not applied due to the vague wording: for a person who is not a party to the transaction, the period is calculated from the moment when the person “learned or should have known” about the violation of rights. Mr. Schitzle adds that the courts are now quickly considering deprivatization claims initiated by the prosecutor’s office. “Defendants are often denied requests to obtain evidence and order a forensic examination,” he adds.
Although the leading lawyer of KIAP, Rostislav Kats, is not inclined to consider such claims for the deprivatization of real estate as a new trend. “Government agencies in Russia have historically been quite attentive to the legality of private individuals acquiring ownership of real estate that previously belonged to the state,” he points out. Previously, according to the lawyer, claims were usually filed by the Federal Property Management Agency, which is now often supported by the Prosecutor General’s Office. Yaroslav Shitsle adds that after the transfer of property into state ownership, the fate of the asset depends on the will of government agencies. According to Dmitry Palin, the Federal Property Management Agency can transfer the complex to the economic management or management of any federal state unitary enterprise, which will lease the building to a person who will operate it.
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