Negative decisions under Article 304 of the Civil Code of the Russian Federation. Theory of everything

Article 304. Protection of the owner’s rights from violations not related to deprivation of possession

Commentary on Article 304

1. A claim for the termination of actions not related to the deprivation of the owner of possession, but creating obstacles for him in the exercise of economic dominance over a thing, is traditionally called a negatory claim (see paragraph 21 of the letter of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 13). Examples of such actions include restricting or blocking another person's access to property in his or her possession; refusal to grant an easement in a situation where access to the property can only be achieved through someone else’s land; erection on one's property of structures that exclude or limit the access of light to a neighbor's house or garden, or structures, the operation of which threatens the destruction or damage of someone else's property (for example, unauthorized construction swimming pool in an apartment in a multi-apartment residential building), etc.
The question of the possibility of qualifying as a negatory demand for the release of property from arrest (from the inventory) has practical significance in terms of extending the rules of Art. to such requirements. 208 of the Civil Code of the Russian Federation (see paragraph 3 of the commentary to the said article). It seems that in any case, when the law establishes special deadlines to appeal a decision to seize property (for example, Articles 145, 372 of the Code of Civil Procedure; Articles 188, 272 of the APC; Articles 127, 356 of the Criminal Procedure Code; Article 122 of the Law on enforcement proceedings), these terms are subject to priority application.
2. A negatory claim does not have such fierce competition with a contractual claim as a vindication claim. At least how current legislature, so is practice Supreme Court The Russian Federation and the Supreme Arbitration Court of the Russian Federation do not contain provisions that exclude the possibility of filing a negative claim against the owner by a person who owns his property on the basis of an agreement. However, more the right choice in case of violation of possession of property by the counterparty under the contract, protection of the violated right with the help of a contractual claim appears.
3. In accordance with Art. 208 of the Civil Code of the Russian Federation, claims of the owner or another holder to eliminate violations of his rights that are not associated with deprivation of possession are not subject to limitation periods. This is due to the fact that such a violation of possession, firstly, is of a continuing nature, and secondly, is not as intense as in the case of unlawful taking of someone else’s thing, and therefore the lack of an immediate reaction of the owner (other owner) to the identified fact of violation of his rights and interests protected by law cannot be considered as improper diligence of the participant civil turnover about your property. A negative action may be brought at any time while the actions that interfere with the exercise of possession continue. After their termination, the basis for the negatory claim disappears, and the injured party retains the right to demand compensation for losses caused by such actions.

Article 304. Protection of the owner’s rights from violations not related to deprivation of possession

Commentary to Art. 304 Civil Code of the Russian Federation:

1. The claim of the possessing owner against a third party with whom he is not in a relative legal relationship for the elimination of any obstacles in the use and (or) disposal of property not related to deprivation of possession is called negatory (Latin actio negotoria - “denying claim”). Examples of such obstacles include difficulty of access to property, the erection of a building on a land plot that interferes with the insolation of a neighboring plot, the installation of an advertising board on the facade of a building that covers the windows of apartments, the erroneous inclusion in the inventory when seizing property of other people's belongings that are in the possession of the debtor, etc. .P.

2. A negative claim is subject to satisfaction if following conditions. The owner must prove the fact of violation of his rights to use and (or) dispose of property by a third party. In this case, the behavior of the defendant, which creates obstacles in the exercise by the owner of these powers, is presumed to be unlawful. Satisfaction of the claim does not depend on the guilt of the offender, since negative demand is not associated with the application of liability measures.

The Civil Code does not issue resolved on the possibility of filing a negatory claim in conditions where there is only a potential threat of violation of the rights of use and (or) disposal (for example, the property has not yet been built, but has already begun preparatory work). If the threat is real, then a negatory claim is possible. However, it should be taken into account that Art. 1065 of the Civil Code provides for a special claim aimed at preventing harm (the so-called preventive claim, only conditionally classified as a tort claim). Consequently, filing a negatory claim is possible only if it does not cover a claim based on the provisions of Art. 1065 of the Civil Code of the Russian Federation.

3. . This is explained by the fact that such a requirement is aimed at eliminating ongoing violations. Objectively, the period of existence of the right to defense through a negatory claim is determined by the duration of the violation. Consequently, as long as such a violation occurs (regardless of when it began), the owner has the right to resort to proprietary protection your right.

4. A claim for the release of property from seizure (exclusion from the inventory) by its nature can be either vindication, if the property is seized from the owner, or negatory, if the property remains in the possession of the owner. It must be taken into account that the installed procedural legislation the deadlines for appealing the decision to seize (Article 145 of the Code of Civil Procedure, Article 188 of the Arbitration Procedure Code) do not affect the substantive rules on limitation period. This means that a negatory claim for the release of property from seizure can be brought at any time while the property is under arrest.

Article 301. Reclaiming property from someone else’s illegal possession

The owner has the right to reclaim his property from someone else's illegal possession.

Article 302. Claiming property from a bona fide purchaser

1. If property was acquired for compensation from a person who did not have the right to alienate it, about which the acquirer did not know and could not know (a bona fide acquirer), then the owner has the right to claim this property from the acquirer in the event that the property is lost by the owner or the person to whom the property was transferred into possession by the owner, or stolen from one or the other, or left their possession in some other way against their will.

2. If property was acquired free of charge from a person who did not have the right to alienate it, the owner has the right to reclaim the property in all cases.

3. Money as well securities to bearer cannot be demanded from a bona fide purchaser.

Article 303. Calculations when returning property from illegal possession

When reclaiming property from someone else's illegal possession, the owner also has the right to demand from a person who knew or should have known that his possession was illegal (unfair owner), the return or compensation of all income that this person received or should have received during the entire period of ownership; from the bona fide owner the return or reimbursement of all income which he has received or should have received since the time when he knew or should have known about the adverse possession or received a summons in the owner's claim for the return of the property.

The owner, both in good faith and in bad faith, in turn has the right to demand from the owner compensation for the damages he has made. necessary costs on the property from the time from which the owner is due income from the property.

A bona fide owner has the right to retain the improvements he has made if they can be separated without damaging the property. If such separation of improvements is impossible, the bona fide owner has the right to demand compensation for the costs incurred for improvement, but not in excess of the increase in the value of the property.

Article 304. Protection of the owner’s rights from violations not related to deprivation of possession

The owner may demand the elimination of any violations of his rights, even if these violations were not associated with deprivation of possession.

Article 305. Protection of the rights of an owner who is not an owner

The rights provided for by this Code also belong to a person who, although not the owner, owns the property on the right of lifelong inheritable ownership, economic management, operational management or on any other basis provided for by law or contract. This person has the right to defend his possession also against the owner.

Article 306. Consequences of termination of ownership rights by force of law

If the Russian Federation adopts a law terminating the right of ownership, losses caused to the owner as a result of the adoption of this act, including the value of the property, are compensated by the state. Disputes regarding compensation for damages are resolved by the court.

New edition of Art. 304 Civil Code of the Russian Federation

The owner may demand the elimination of any violations of his rights, even if these violations were not associated with deprivation of possession.

Commentary to Art. 304 Civil Code of the Russian Federation

The rights of the owner may be violated as a result of creating obstacles in the exercise of his powers to use his property. For example, modern judicial and arbitration practice considers as a basis for filing a negative claim the refusal of the legal owner to enter the building belonging to him by posting security guards; unauthorized construction on the owner's land plot; power outage, etc.

The basis for a negative claim is also an illegal restriction of the owner’s powers to dispose of property (for example, when making an inventory of property or making an arrest).

Another comment on Art. 304 of the Civil Code of the Russian Federation

1. The commented article is devoted to such a means of protecting property rights as a negative claim. Unlike vindication claim, the conditions for presentation of which are set out in Art. 301 of the Civil Code, a negatory claim allows the owner to achieve protection of his right in the case when he is not deprived of possession.

It should be noted that the wording of the law “even if the violations were not associated with deprivation of possession” remained unchanged from the corresponding norm of the Civil Code of 1922, when both vindication and negatory claims were regulated in one article of the Code. Then the grammatical opposition of the two claims, which was achieved by the expression “even if not related to deprivation of possession,” had no other meaning than emphasizing the fact that the second means of protecting the right of property - a negatory claim - is different from a vindication claim precisely on the basis of deprivation of possession.

The placement of the formula for a negatory claim in a separate article of the Civil Code creates the impression that this claim can be applied both in cases where the possession remains with the owner (plaintiff), and in cases where the owner of the property is the defendant. In reality this is, of course, not the case. We have to talk about this because quite often in judicial practice, and in the legal literature one can find attempts to apply the rules of Art. 304 of the Civil Code to disputes between a non-owning owner and an owning non-owner.

2. Negative action gets its name from a Latin formula that means negation. The plaintiff denied the defendant’s easement, because it is the easement that forces the owner, who owns his property, to endure certain actions another person, constraining the owner and creating inconvenience in the exercise of property rights. Therefore, in the case where the defendant did not have an easement, the plaintiff demanded the termination of such actions, denying the violator any right to create inconveniences in use. IN modern law A negative claim covers not only those cases where there could be an easement between the owner and the violator, but also a wide range of other situations.

3. A negative claim is a remedy in rem, just like a vindication claim. This means that if there is a personal (obligatory) legal relationship between the parties, then it will become the basis for consideration of the relevant dispute. According to the rules of Art. 304, a dispute can be considered only if there is no other connection between the parties and there is only a dispute about the legality of the defendant’s influence on the thing.

By means of a negative claim, obstacles to the use of property are removed. For example, if a neighbor erects a fence that screens off the property from sunlight, or diverts a drain to the wall of someone else’s house, the owner of the land plot or house has the right to take advantage of a negative action to eliminate such interference. The award for a negative claim may be the imposition on the violator of the obligation to eliminate the interference - demolish the fence, drain the drain, remove construction waste, stop driving through the site, remove the security, connect disconnected communications, etc.

Negative action is applicable to resolve disputes arising between neighbors, owners of residential and non-residential premises in buildings, for example, regarding the use of objects common use, in connection with the construction of partitions, etc. construction work creating interference in the use of premises. At the same time, through a negatory claim it is only possible to eliminate the interference, but it is impossible to establish certain order use, providing for the distribution of rights and responsibilities among all users. A negative claim is also inapplicable for the distribution of costs associated with the operation of public facilities, or for imposing any costs on the defendant.

By means of a negatory claim it is impossible to achieve the eviction of the violator from the property owned by the plaintiff. As already mentioned, an eviction claim is a vindication claim and is regulated by Art. 301 Civil Code.

4. On negative claims The statute of limitations does not apply, so the defendant cannot refer to the fact that he has been carrying out those actions, the termination of which the plaintiff demands, for a long time and the plaintiff has lost the right to legal protection due to the expiration of the limitation period. It also does not matter whether the defendant stopped the violations at the time the claim was filed or the case was considered by the court. By a court decision, he may be prohibited from performing those actions that became the subject of the dispute in the future.

5. The defendant in a negative claim cannot refer to his good conscience, i.e. for excusable ignorance of his lack of the corresponding right. The fact is that the positions of the parties in a negative claim exclude a situation where the defendant can be the owner, and even more so the acquirer of the plaintiff’s property, even if it is illegal. Accordingly, the relations of the parties do not in any way affect the interests of civil transactions. Meanwhile, the mechanism of good conscience protects the needs of turnover and other functions in the field property relations does not have.

The owner may demand the elimination of any violations of his rights, even if these violations were not associated with deprivation of possession.

Commentary on Article 304 of the Civil Code of the Russian Federation

1. Unlike Art. 301 of the Civil Code, the commented article provides the owner with protection from actions not related to deprivation of possession. Such a claim is called negatory and is aimed at protecting the rights to use and dispose of property. For example, when considering a specific case, it was established that the premises public property With limited liability on the right of ownership, in contact with the premises rented joint stock company. The latter installed a metal door, which on the day of the dispute was walled up and blocked access to the plaintiff’s premises. Arbitration court in accordance with Art. 304 of the Civil Code, the claim was satisfied, obliging the defendant to remove the obstacle to the use of non-residential premises by its owner (clause 21 newsletter Presidium of the Supreme Arbitration Court of the Russian Federation dated April 28, 1997 N 13).

The plaintiff in such cases is the owner of the property, and the defendant is the person resulting illegal actions which the owner cannot dispose of and use his property.

As in the case of a vindication claim, the presence between the parties obligations excludes the possibility of using proprietary method protection provided for in Art. 304 of the Civil Code (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 1, 1997 in case No. 1205/97 - Bulletin of the Supreme Arbitration Court of the Russian Federation, 1997, No. 10, p. 32).

2. A negative claim serves as almost the only means of defense against the illegal actions of the owner of a neighboring land plot, residential and non-residential premises and so on. If the latter builds, for example, a house in such a way that it completely blocks the light on a neighboring plot, you can defend yourself against his illegal actions with the help of a negative claim.

According to sub. “n”, “o” and “p” clause 1 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated April 22, 1992 N 6 “On some issues that arose among the courts when applying the legislation on land reform"the courts have jurisdiction over disputes between the owners of individual residential buildings located on adjacent (neighboring) plots regarding the elimination of obstacles to use land plot; member disputes gardening partnership and members of the dacha construction cooperative among themselves regarding the use of the land plot; disputes between spouses, incl. and former ones, regarding the determination of the procedure for using a land plot (Bulletin of the Armed Forces of the Russian Federation, 1992, No. 7).

3. Another area of ​​application of claims related to the elimination of obstacles in the disposal (sometimes use) of property is disputes about the release of property from seizure (exclusion from the inventory). Seizure of property is applied only in cases directly provided by law, in order to secure a claim or in order to foreclose on the debtor’s property.

Often the inventory includes property belonging to other persons. Most often, such a person is the second spouse, who does not have the right to dispose of his personal property or share in common property spouses. The procedure for considering such claims is explained in the Resolution of the Plenum of the Armed Forces of the Russian Federation dated April 23, 1985 N 5 “On the procedure for consideration by courts Russian Federation cases on the release of property from seizure (exclusion from the inventory)."

As trade develops, persons whose rights are violated illegal arrest(inclusion in the inventory) of their property are increasingly becoming legal entities. Thus, the customer’s demand to exclude door blocks installed in a residential building from the act of inventory and seizure of property made to secure a claim brought against the contractor by a third party is legal and justified. The plaintiff owns the property of which the door blocks are a part, and the latter do not exist as separate subject, and therefore cannot be included in the property inventory act (Bulletin of the Supreme Arbitration Court of the Russian Federation, 2000, No. 1, p. 14). It is important to keep in mind that the right to demand the release of property from seizure belongs to its owner. In particular, if we're talking about about real estate, then the only proof of ownership of it is state registration in the One state register rights to real estate (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 26, 2003 N 8501/03 - Bulletin of the Supreme Arbitration Court of the Russian Federation, 2004, No. 1, p. 57).

The essence of the requirements in this type of case is to remove obstacles in the disposal of the owner’s property. Therefore, there is every reason to classify the claim for exclusion of property from the inventory (release from seizure) as negative. The defendants are the debtor whose property was seized, and those organizations (most often the corresponding financial authority) and persons in whose interests the arrest is imposed (clause 28 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 8).

Such claims should not be identified with claims for the release of property from seizure, which are filed by owners (owners of other real rights), deprived of the right to actually own this property. Such a claim is qualified as vindication and can be filed according to the rules of Art. 301 and 305 Civil Code.

4. The statute of limitations does not apply to negatory claims (Article 208 of the Civil Code).