Article 69 of the Law on Enforcement Proceedings No. 229-FZ states that foreclosure of a debtor's land means the seizure and sale or transfer of property to the creditor. The procedure is based on an executive notarial inscription. In this case, collection is carried out in the amount of existing debt. If the debtor does not have money or it is not enough to pay the debt, the recovery is applied to other property. In the presence of common property with other persons not related to debt, it is carried out only in relation to the share owned by the debtor.
Procedure
According to Article 278 of the Civil Code of the Russian Federation, foreclosure on a land plot as well as on other real estate is carried out only after a court order. Any other state authority is not authorized to make an appropriate decision. According to the adopted regulations, the creditor filed a lawsuit in court and received the decision of this body.
The procedure is implemented according to the following algorithm of actions:
- Search for property by bailiffs.
- Obtaining a court decision on the recovery of land by the creditor.
- Arrest put on.
- Sale of land through an open auction.
Start of enforcement proceedings
The debt collection procedure begins with the initiation of the appropriate case. If the bailiff received the bailiffs for the first time, then the debtor should be given the opportunity to execute the court decision on a voluntary basis. For this purpose, a decision on enforcement proceedings is sent to him.
First, the question arises of what property the debtor has. And only after checking the information can the collection be started. True, there are cases when the foreclosure of a land plot is prohibited by law.
When you can not recover
According to Article 79 of Law No. 229-FZ, a certain property share of a debtor may not be recoverable. The list of relevant property is established by the Civil Code of the Russian Federation. It includes the following premises:
- The only housing where the family lives.
- He endowed the land where the only housing is located.
- The premises used for breeding cattle and other animals that are not connected with entrepreneurial activity.
- Used for storage of feed, as well as for the construction of household purposes.
These standards guarantee a person normal functioning and protection of his personality, which is provided for by the Constitution.
Where is the application filed?
In order for the bailiff to sell the land, the plaintiff must foreclose the debtor’s land in the judicial authority. The first thing to know is jurisdiction. The lawsuit is filed at the place of residence of the defendant or the location of the relevant property (in other words, allotment of land, which is considered under the article). Since the claim for recovery does not apply to a dispute over the right to land, the rules on exclusive jurisdiction in this case do not apply.
The main facts that are reflected in the lawsuit
You need to find out the following information, which then needs to be displayed in the statement of claim:
- Certificate of absence of other real estate that belongs to the debtor (except for allotment of land).
- Checking the ownership of the allotment.
- Its proportionality compared to debt.
The evidence of the first fact is the materials that provide the bailiff as an answer to his requests from various authorities. The second fact is confirmed by a document establishing ownership (certificate or extract from the USRN). In addition, you need to submit the paper on the basis of which the property appeared, as well as an extract from the real estate cadastre.
Then, the actual value equivalent to debt is verified. Courts can be guided by cadastral or market value in cases when they are sent to foreclosure on the land. Judicial practice knows cases with the use of both one and the other price. In case of pronounced disproportion of claims with recovery, the court reserves the right to refuse to recover. Proportionality is established by the judiciary on the basis of available data.
If land is used for other purposes, documentation should be provided that confirms this information. If the court makes a positive decision, then the land is withdrawn from the owner. The bailiff sells the property of the debtor at auction or open bidding in order to repay the debt to the creditor.
How is the assessment carried out?
Property prices are set by:
- Sole decision making by the bailiff.
- Specialist appraiser.
- Court on the basis of acts of assessment.
After the location of the plot is established, the bailiff invites the appraiser to determine its market value. Prior to this, the price is set by the bailiff. The court makes a decision taking into account the available data. If the judge has doubts about the value of the property, the bailiff must submit a report to an independent appraiser. After this procedure, the appropriate size is approved. A foreclosure on a share of a land plot or a whole allotment may be challenged by the debtor if he considers that the price is underestimated.
Construction in progress
The objects of construction in progress include real estate, which is at the stage of construction and is not used for its intended purpose. The main symptom of this is the lack of commissioning of the building. Article 219 of the Civil Code states that an object of incomplete construction can be considered an object of civil circulation only if there is state registration of ownership of it.
In order to clarify this information, the bailiff makes a request to Rosreestr about the ownership of the object by the debtor. Even if the buildings on the site are at the stage of construction in progress, the cost of the allotment increases significantly. But the judicial practice has developed in such a way that in the presence of any buildings, a foreclosure on a land plot for obligations often ends in failure.
If the bailiff achieves a positive result, the debtor is facing arrest. For this purpose, an appropriate resolution is issued, and an act is prepared, which confirms the inventory of the property. Further, the specialist evaluates the unfinished building. Based on a preliminary assessment, the bailiff sets the price of the land allotment.
A foreclosure on a land plot as well as the sale of an unfinished building is carried out after the bailiff has registered the rights to the object. To do this, he makes a decision on the state registration of property owned by the debtor.
Separate or joint sale of an allotment with buildings
If there is a building on the site, it is recommended that two objects be filed with a foreclosure on the land. A sample of the relevant condition is not provided by law. Therefore, it is not necessary to demand foreclosure on a building located on the site. She will be alienated along with the allotment of land. However, in order to avoid additional difficulties, it is better to foresee this point initially. The situation in this case can develop as follows:
- Sale of land without a building will be impossible.
- Sale of the plot separately from the building is possible.
The ban will be established if both objects belong to the same person. This is stated in para. 5 h. 4 tbsp. 35 HK RF. In this case, the court may refuse to foreclose if this property is included in the list, according to which the foreclosure cannot be imposed.
The owner may transfer the right to erect a building on his plot to another person. Then the foreclosure on the land of the debtor is also allowed. True, in this case, this right does not apply to the building. If the building is unauthorized, the new owner has the right to demolish it. This can be done, for example, on a garden plot, since only the owner has the right to build a house or other building on this land.
Request for arrest
Before filing a statement of claim and recovering the debt, the creditor is advised to find out information about the property of the debtor. After that, a request is made for the arrest of this property, which is sent to the court. They may refuse to satisfy the application if the property is much higher than the amount of the statement of claim.
Then a statement of claim is filed for foreclosure on the land plot, to which are attached all the documents confirming the legality of the requirements, as well as the right of ownership of the real estate. The seizure of property will prevent its alienation in order to conceal income and avoid liability. However, you need to prepare for the fact that after the judge makes a decision, a real repayment of the debt will have to wait a long period of time.
Arbitrage practice
With regard to the topic under discussion, judicial practice has certain trends. If earlier the collector could easily apply to the court for the purpose of collecting for a plot of land, now the courts react to this differently. Adherents of one point of view consider that the claimant is an improper plaintiff. Others are convinced that he is the proper plaintiff when enforced.
In the first position, foreclosure on the mortgaged land is carried out by the bailiff, who performs these actions to ensure the function assigned to him by the state. The exactor is a creditor, the poet acts on the basis of his own interests. Moreover, he does not have collateral for the real estate on the allotment of land, which means that the claimant is an improper plaintiff. This position is held by more and more vessels.
The second position is exactly the opposite. This was the opinion of the Judicial Board of the Supreme Arbitration Court of the Russian Federation. It consists in the fact that the conviction of the exclusive right to sue the bailiff is not based on civil law norms. A lawsuit can be brought not only by the person who is authorized to take measures to enforce the court act, but also by the person who is interested in obtaining the enforcement of the writ of execution, that is, the recoverer.
Conclusion
The law provides for a specific procedure for foreclosure on a land plot. Despite the regulation of the procedure as a whole, it is possible to act differently in specific cases. In addition to some lender’s freedom of action, the courts also hold different points of view on this score. Therefore, it is problematic to predict a court decision.
One way or another, the lender must understand that this process can take quite a long period of time. A detailed study of all possible risks, as well as a statement of one’s position, taking into account all the circumstances of the case within the framework of the trial, can help to achieve positive results in the case.