Who should be responsible for the late registration of the transfer of ownership

In the event of a delay in the registration of a transaction for the acquisition of real estate, the responsibility for such a delay lies not only with the seller, but also with the buyer. Earlier, the courts decided that only the seller was to blame, and collected 26 million rubles from him. losses. However, the Supreme Court of the Russian Federation (SC) ruled that both parties to the contract should be responsible for being late. Lawyers believe that the decision will help all participants in the real estate market to better understand the risks of late application to Rosreestr for registration of property rights.

The Supreme Court clarified the responsibility of the parties to the contract for the sale of real estate in case of its untimely registration. In June 2020, Gold Time LLC agreed to purchase premises in Moscow with an area of ​​9.72 thousand square meters from JSC State Design and Research Institute of the Aviation Industry. m for 500 million rubles. The company immediately transferred 96.87 million rubles. deposit, and in September 2020 paid the property in full.

On June 30, 2020, the parties submitted a set of documents to Rosreestr for state registration of the transfer of ownership of real estate. However, already on July 10, 2020, the department suspended the process until October 12 “due to the parties’ failure to provide the basis document”, and also due to “inappropriate use of the land plot on which the object of sale is located”. And on October 7, the parties themselves filed applications to suspend registration.

As a result, the transfer of ownership was registered only on April 7, 2021.

In a rental relationship

LLC came to the conclusion that in the period from July 2020 to April 2021, it suffered losses of 10.66 million rubles. in the form of unreceived rent and sent a claim to the institute. Having received no answer, the company went to court demanding to recover these losses and 15.55 million rubles. interest on borrowed money.

In July 2022, the Moscow Arbitration Court recovered damages in the stated amount, and reduced the amount of interest to 3 million rubles.

The court proceeded from the fact that during the disputed period between the institute and the tenants, lease relations were maintained, as a result of which, having received money for the sold property, it continued to benefit from it by receiving rent payments.

At the same time, the actions of Rosreestr to suspend registration “were not recognized as illegal.” The court found it possible to reduce the amount of the penalty, given the “slight delay in payment for these services.” The appeal satisfied the claim in full, noting that the institute “did not substantiate the disproportion of the penalty in any way.” Cassation agreed to this.

The Institute appealed to the Supreme Court, insisting that “taking into account the reasons for the late registration of the transfer of ownership, its guilt in causing the claimed damage for the full period has not been proven.” In his opinion, the collection of interest simultaneously with the collection of losses is contrary to the Civil Code of the Russian Federation (CC). For these reasons, the case was referred to the Economic Collegium of the Armed Forces, which canceled all decisions.

Every fault is to blame

The Supreme Court recalled that, according to Art. 404 of the Civil Code (the fault of the creditor), even in cases where the debtor (seller) is liable regardless of his fault, the court “has the right to reduce the amount of his liability” if the creditor (buyer) “intentionally or negligently contributed to an increase in the amount of losses or did not take reasonable measures to their reduction. That is, the company is “responsible for the adverse consequences” that the institute experienced during the execution of the transaction, “if, to a certain extent, these consequences are due to its own behavior,” the court specified.

The courts had to assess the behavior of the LLC and take into account that “one of the root causes” of the suspension of registration was “the absence in the package of documents of a sale and purchase agreement, the obligation to submit which was joint”, moreover, later both parties jointly asked Rosreestr for such a suspension, it is said in decision. Therefore, the conclusion about the imposition “exclusively on the institution of property liability” in a situation where the timeliness of the transfer of ownership “at certain stages was in the control of both parties to the contract and depended both on the actions of the buyer and the seller cannot be recognized as corresponding to the norms of substantive law” , said the board. The Supreme Court also clarified that when determining the company’s losses, “there must also be taken into account the counter-benefit” received by it in connection with savings on costs that “would have arisen with the proper performance of the contract.”

Interest had to be accrued “only from the moment when the thing was to be transferred” (Article 487 of the Civil Code), since here they “are a special type of civil liability of the seller for the delay in the transfer of goods,” the decision of the Supreme Court says.

In addition, it was unnecessary to apply two measures of responsibility to the seller – both a penalty (interest) and losses, the board emphasized.

As a result, the Supreme Court sent the dispute for a new consideration, instructing the courts to check the conditions for reducing the liability of the seller, the validity of the calculation of losses and the possibility of offsetting the penalty in their amount.

Percentage of uneasy nature

According to Yulia Battalova, head of the transaction support practice at FTL Advisers, the decision is “essential” for the practice, since the Supreme Court “shares the burden of responsibility of the parties in the presence of joint obligations to fulfill the contract.”

It is also important that the court upheld the approach according to which, in the event of an untimely transfer of real estate, “the income from its use is due to the buyer, despite the fact that the seller remains the formal owner,” adds Rimma Malinska, partner of the MEF Legal commercial dispute practice. The Supreme Court in fact “re-qualified the nature of interest”, allowing the possibility to apply interest here for the delay in the transfer of goods from the moment the obligation was violated, that is, when the property should have been transferred,” explains Ms. Battalova.

Thus, the court differentiated interest under Art. 395 of the Civil Code (for the use of other people’s funds) and interest under Art. 487 of the Civil Code (for non-transfer of prepaid goods), specifies Ms. Malinska.

In other words, the court recognized that interest under Art. 487 of the Civil Code are “a special penalty for violation by the seller of the obligation to transfer the prepaid property to the buyer, which is counted in the total amount of losses from unreceived rent,” explained Maxim Lukhmanov, head of ProLegals projects. However, in his opinion, such a position is “extremely debatable”, since, nevertheless, “two independent types of losses arise on the buyer’s side in terms of their grounds and content.”

In any case, says Rimma Malinska, the decision of the Supreme Court will allow the parties “to more clearly understand the risks of late registration and failure to fulfill obligations to transfer goods.”

Ekaterina Volkova