In the current edition of Art. 556 of the Civil Code of the Russian Federation defines the rules for the implementation of the terms of the contract for the acquisition / sale of real estate. The norm establishes the obligation of the parties to observe the transfer of property. Consider the content of Art. 556 of the Civil Code of the Russian Federation and comments on it.
General Terms and Conditions
According to paragraph 1 of paragraph 556 of the Civil Code, the transfer of real estate is carried out according to a document signed by the parties. After delivery of the property and execution of the indicated paper, the obligation to transfer the object is recognized as fulfilled. As such a document, as a rule, a deed of transfer is used.
In Art. 556 of the Civil Code of the Russian Federation stipulated that if any party to the transaction evaded signing the document, it would be considered that he refused to fulfill his obligation.
Explanations
In paragraph 1 of the first paragraph of Art. 556 of the Civil Code of the Russian Federation there is a dispositive provision according to which the obligation to provide an object is deemed fulfilled after it has been transferred to the buyer and the participants in the transaction have completed the relevant paper. Moreover, based on the rules of para. 2 p. 1 224 of the Article of the Code, a thing is recognized as delivered at the time of its receipt in the actual possession of the acquirer or the person indicated by him.
Meanwhile, the law or contract may provide for a different condition. For example, if at the time of conclusion of the agreement on the alienation of the property is already in the legal possession of the acquirer, then it is recognized transferred before the signing of the document. This approach is also used by the courts when considering disputes.
Exceptions
Based on the provisions of the Federal Law No. 159, which regulates the particularities of alienation of objects that are state or municipal property and rented by representatives of medium and small businesses, the signing by the parties of a special document on their transfer in accordance with Art. 556 of the Civil Code is not required.
Participants in the transaction can independently establish a different procedure for the provision of real estate. For example, in arbitration practice there are situations when the courts confirm the proper fulfillment of obligations to transfer the object, when in fact it was previously transferred to the acquirer under a lease agreement, and the sales contract contained an indication that it has the power of a deed of transfer.
Specificity of application of the norm
Article 556 of the Civil Code is considered a special norm in relation to the rule enshrined in paragraph 1 of Art. 224. Based on it, a mandatory confirmation of the fact of delivery of the object to the acquirer is not required.
In contrast to the rule established by Art. 224, the obligation under Article 556 of the Civil Code of the Russian Federation is deemed fulfilled if there are two facts. The first is the actual delivery of the property to the party to the transaction, the second is the execution by the participants of a special document confirming the transfer.
According to lawyers, the consolidation of these requirements in article 556 of the Civil Code of the Russian Federation is quite logical and justified, taking into account the peculiarities of regulatory regulation of real estate turnover in the system of civil law relations.
State registration
Based on the provisions of paragraph 1 of paragraph 131 of Article CC, the ownership right, however, like other property rights to real estate, its restriction, occurrence, termination and transfer must be registered. Moreover, in transactions with such objects, the rules of paragraph 2 223 of the norm apply. According to him, if the fact of alienation of property is subject to state registration, the acquirer will receive the right of ownership only after the implementation of this procedure. Confirmation of this is a special document issued by the authorized body.
State registration acts as a legal act of recognition and confirmation of the occurrence, transition, restriction or termination of property rights. Taking into account the specifics of the legal regime of such objects, it seems that it is the document issued by the authorized body that will be a confirmation of the fact of handing the object over to the acquirer.
From this it follows that the proof of the transfer of property and, accordingly, the fulfillment of the obligation under the transaction cannot serve as providing the buyer with the keys to the apartment.
Responsibility of the Parties
As established in article 556 of the Civil Code of the Russian Federation, if one of the participants refuses to complete the transfer document, its actions will be regarded as a refusal to fulfill the terms of the transaction. Accordingly, the onset of adverse effects for him is likely. So, the acquirer may demand the transfer of the object or compensation for losses incurred in connection with improper actions of the seller. If the buyer is the evader, then the owner has the right to oblige him to accept the property or unilaterally withdraw from the transaction.
In addition, the parties to the contract may apply sanctions for each other for non-fulfillment or improper fulfillment of obligations. In particular, one of them is a forfeit.
Important points
It must be taken into account that the design of the transfer document is a confirmation of the fulfillment of obligations regarding the provision of the object to the acquirer. This procedure does not affect the transfer of rights from the previous owner to the new. This is due to the fact that, as mentioned above, the acquisition of real estate rights is associated with state registration of the transaction.
The transfer of the object is not a basis for entering information into the registry. Therefore, it can be made before or after state registration. The basis for inclusion of information in the register is a contract or other document drawn up in the manner prescribed by law.
This approach is also used by the courts. For example, in a decision in one of the cases, it was indicated that the condition of the agreement on the alienation of the building, providing for the execution of the transfer document after state registration of rights, does not contradict para. 2 1 paragraph of article 556 of the Civil Code of the Russian Federation.
Death of property
The execution of the act on the transfer of the object, according to the general rules, is not an essential fact for determining the moment of transfer of risks from the seller to the buyer.
According to the provisions of Article 211 of the Civil Code, the probability of accidental loss (damage) of an object is borne by the owner, unless otherwise provided in the contract. Accordingly, the risks pass to the acquirer at the time of state registration of his rights.
Meanwhile, participants in the transaction are entitled to provide for a different provision. For example, the parties may agree that the risks pass to the acquirer at the time of transfer of the property. And it, as mentioned above, can be carried out regardless of state registration (before or after it).
Finally
The deed of transfer is considered as a document certifying the fact of fulfillment of obligations regarding the provision of property by the seller to the buyer. It can not be regarded as the basis for amendments or additions to the main contract of sale. It is, in particular, about the items relating to the condition of the property.
If the buyer accepts real estate that does not comply with the terms of the transaction, including in the case where the non-compliance was stipulated in the agreement, this fact does not relieve the owner of liability for improper fulfillment of obligations. This rule is enshrined in paragraph 2 of paragraph 556 of the Civil Code.
However, lawyers recommend that as much as possible to stipulate all the nuances of the transfer of the object. Participants in the transaction, using the provisions of the Civil Code on freedom of contract, are entitled to establish any conditions within the framework of the law.