Possession, use and disposal of common joint property. Disposal of property in common ownership

1. Participants in joint ownership, unless otherwise provided by agreement between them, jointly own and use common property.

2. The disposal of jointly owned property is carried out by the consent of all participants, which is assumed regardless of which of the participants makes the transaction to dispose of the property.

3. Each of the participants in joint ownership has the right to enter into transactions for the disposal of common property, unless otherwise follows from the agreement of all participants. A transaction related to the disposal of common property made by one of the participants in joint ownership may be declared invalid at the request of the remaining participants on the grounds that the participant who made the transaction did not have the necessary powers only if it is proven that the other party to the transaction knew or obviously should have know about it.

4. The rules of this article apply to the extent that this Code or other laws do not establish otherwise for certain types of joint ownership.

Commentary on Article 253 of the Civil Code of the Russian Federation

1. Possession, use and disposal of jointly owned property is carried out with the consent of all its participants, which is assumed. They jointly own and use common property, unless otherwise provided by agreement between them. The consent of the co-owners is also assumed in a transaction for the disposal of common property, no matter which of them makes it.

2. Each of the participants in joint ownership may enter into transactions for the disposal of common property, unless otherwise follows from the agreement of all participants. For example, such a right can be granted to only one of the participants, for which the others issue him a power of attorney.

If one of the participants in common joint ownership (for example, in a privatized apartment) is incapacitated, partially or partially capable, then when making transactions with his participation, in order to protect his rights and interests, special requirements established by law must be observed. Thus, for transactions in relation to privatized residential premises in which minors live (regardless of whether they are owners, co-owners or family members of the owners, including former ones) who have the right to use this residential premises, prior permission from the guardianship and trusteeship authorities is required . This rule also applies to residential premises in which a minor does not live, if at the time of privatization he had equal rights to this premises with the owner (see Part 2 of Article 3 of the Law on Privatization of Housing Stock).

If one of the participants in joint ownership has made a transaction to dispose of the common property in the absence of the necessary powers, then at the request of the other participants it can be declared invalid only if it is proven that the other party knew about the transaction or should have known about it.

Such a transaction is considered voidable; the burden of proof rests with the party that requires the transaction to be declared invalid; the other party to the transaction must act intentionally or, in any case, show gross negligence when completing the transaction. If a transaction is declared invalid, the rules of paragraph 2 of Art. 167 Civil Code, i.e. both sides return to their original position (see commentary to Article 167 of the Civil Code). However, the wording of paragraph 3 of Art. 253 Civil Code is imperfect. A transaction for the disposal of common property, concluded by a participant in joint ownership in the absence of the necessary powers, may be qualified as invalid, regardless of the subjective attitude of the other party to the completion of this transaction. But if there was no intent or gross negligence in the behavior of the other party, then everything received by it under the transaction cannot be returned, and the one of them who made the transaction without having the authority to do so will be liable to the participants in the joint property.

3. The rules set out above regarding the ownership, use and disposal of jointly owned property apply insofar as the Civil Code or other laws do not establish otherwise for certain types of joint ownership. Thus, in development of the provisions enshrined in paragraph 3 of Art. 253 of the Civil Code and essentially reproduced in paragraphs 2, 3 of Art. 35 of the Family Code provides that in order for one of the spouses to complete a transaction to dispose of real estate and a transaction requiring notarization and (or) registration in the manner prescribed by law, it is necessary to obtain the notarized consent of the other spouse. In the absence of such consent, the other spouse has the right to demand that the court declare the transaction invalid within a year from the day when he learned or should have learned about the completion of this transaction (for other features of ownership, use and disposal of certain types of joint property, see the commentary to subsequent articles of this chapter).

By Art. 253 of the Civil Code of the Russian Federation, possession, use and disposal of jointly owned property, is carried out by persons jointly, unless otherwise established by law. All actions with material assets are carried out by agreement between persons. This provision is established by clause 2 of Art. 253 Civil Code of the Russian Federation. Consent is necessary regardless of which entity makes a particular transaction. Let us next consider the main provisions contained Article 253 of the Civil Code of the Russian Federation (with comments).

Specifics of transactions

It is described in Part 3 of Art. 253 Civil Code of the Russian Federation.

In accordance with the provisions of the norm, each participant can enter into transactions, unless otherwise established by agreement between them. Actions taken to dispose of property may be challenged. at the request of other persons due to the lack of authority of the subject, if the other party knew or should have known about it. Rules Art. 253 of the Civil Code of the Russian Federation are subject to application to the extent that for those determined by the Code or other law, it is not otherwise provided for specific cases related to general material assets.

The key concept in Art. 253 of the Civil Code of the Russian Federation is the term “together”. It follows from the essence of the relationships that develop between subjects. At the same time, the legislation allows individuals to enter into an agreement on the conditions and procedure for owning and using property. They are achieved both during the existence of the relevant relationship and before its emergence. For example, spouses may agree that a VAZ car will be used by the husband, and a Toyota by the wife. The legislation does not impose any special requirements on the form of the agreement. Accordingly, the general rules of norms 158-165 of the Code will apply.

Nuances

In practice, agreements usually exist orally. For example, a subject can express tacit consent, an order can develop over time, etc. However, the relationship still concerns the participants. At the same time, participants enter into specific connections. If disagreements arise, they will be resolved in any case in court, regardless of whether there is an agreement or not. If it was, then the form in which it was contained will be established. It follows from this that the agreements provided for in part one of Art. 253 of the Civil Code of the Russian Federation will be valid until the relationship between the persons proceeds normally. If a conflict arises, the conditions and procedure for the exploitation of material assets are determined within the framework

Rules Art. 253 Civil Code of the Russian Federation with comments

The provisions of the norm in question are reproduced in Art. 35 SK. The difference, however, lies, firstly, in a different verbal form. In particular, the norm in question states that use and possession are carried out jointly, and disposal is carried out by agreement of the participants. The norm 35 SK says the following. The use, disposal, and ownership of the property of the spouses is carried out by mutual consent. In addition, the IC has made a link between civil norms and the family law category. In Art. 253 of the Civil Code of the Russian Federation and 35 of the IC speaks about various material matters. In the latter case, we are talking about the common values ​​of the spouses. The commented article talks about property that is joint property. Meanwhile, Art. 35 should be considered within the framework of a systemic connection with the commented norm. This is indicated by Supreme Court.

Art. 253 Civil Code of the Russian Federation: presumption of consent

It does not depend on the category of property, and so on. Before the entry into force of the insurance company, the spouse, guided by the norm in question, could independently sell any valuables, including real estate. Today, in accordance with paragraph three of Art. 35, the consent of the husband/wife, certified by a notary, is required for transactions:

Examples

The rules established by paragraphs 1 and 3 of the above list, at first glance, are similar. However, in reality, transactions involving the disposal of real estate and those requiring state registration differ in practice. Let's say a spouse decides to sell a residential building. It belongs to him and his wife by right of joint ownership. Accordingly, to complete the transaction, he will need his wife’s consent, certified by a notary, both because the actions are related to real estate and because they require registration. If a garage is for sale, the situation is somewhat different. Consent in this case is necessary, since real estate is disposed of without registration. In the case of purchasing residential premises, paper is required from a notary, in accordance with paragraph 3 of the list. This is due to the fact that this transaction must be registered. If the purchase and sale agreement is certified by a notary, the consent of the spouse must also be certified. In this case, all three points of the above list apply. If there is a sale of a car jointly owned by a wife and husband, or a vehicle is purchased and, in accordance with the agreement, the transaction must be certified by a notary, consent from the spouse must be provided in the same form.

Breaking the rules

The legislation provides that a spouse whose notarial consent has not been obtained may demand that the transaction be declared invalid. To do this, he is given a year from the date when he learned or could have learned about its commission. This provision serves to protect the interests of the family from the unlawful actions of the wife/husband. At the same time, as experts note, it does not contradict civil norms. This, in particular, is confirmed by the fact that, according to paragraph 4 of Art. 253 of the Civil Code, it is permissible to establish a different regime for the disposal, use and ownership of joint property.

Ensuring rights

One of the participants can dispose of joint property. For this purpose, other persons give him a power of attorney. If one of the participants in the ownership (for example, of privatized housing) is completely or partially incapacitated, when making transactions the legal requirements provided for such cases must be met. They are aimed at preventing infringement of the interests and rights of such persons. For transactions related to privatized objects where minors who have the right to use live, it is necessary to first obtain consent from the guardianship and guardianship authority. It does not matter whether these entities are the legal owners of part of the premises. This rule also applies to cases where transactions are made with a privatized object in which the minor does not live. In this case, the latter must have equal rights to the premises with the owner. This provision is enshrined in part two of Article 3 of the Federal Law, which regulates the procedure for the privatization of housing stock.

Voidable transactions

If the subject has taken actions to dispose of joint material assets without having the appropriate authority to do so, then they can be appealed in court. The applicants in this case will be the remaining participants whose interests and rights were affected by the transaction. At the same time, Art. 253 of the Civil Code of the Russian Federation establishes the requirement for the need to have evidence that the second party to the contract should have known or was aware that the participant did not have the appropriate powers. As a general rule, such a transaction is classified as voidable. The entity that demands that the contract be declared invalid will prove the illegality of the participant’s actions. The second party to the transaction must have intent to commit illegal acts or there must be gross negligence. When the provisions of Art. 167 (clause 2) of the Civil Code. The rules of this norm establish the obligation to make a mutual return of what was received under the contract.

Important point

A number of experts note certain gaps in the presentation of Art. 253. According to the authors, a transaction related to the alienation of material assets, carried out by one of the participants in the absence of proper authority, can be declared invalid regardless of the subjective attitude of its other party to the process of its conclusion. Meanwhile, if there was no gross negligence or intent in the actions, then what was received under the contract cannot be returned. The one who entered into a transaction without proper authority will be liable to the other participants in the property.

Article 253. Possession, use and disposal of jointly owned property

Commentary to Art. 253 Civil Code of the Russian Federation:

1. The second type of common property is common joint property, which does not imply the presence of shares, i.e. is of a shareless nature: participants in common joint ownership have rights to common property, but they do not have shares in the right to this property, which is due to the existence of personal trust relationships between co-owners. The personal-trust nature of the relationship between the participants means their indispensability: the participants can leave the specified relationship and receive a certain share in the property by way of division or allotment, but they do not have the right to replace themselves with other persons, as a participant in shared ownership can do by disposing of his share ( see: Ioffe O.S. Soviet civil law, M., 1967. P. 343).

Participants in joint ownership jointly own and use common property, unless otherwise provided by agreement between them. For example, spouses can agree that only the husband or wife uses some specific property (computer, car, etc.). Joint ownership and use also presupposes joint incurrence of expenses associated with the maintenance of the property. Each co-owner is obliged to jointly participate in the payment of taxes, fees, and various costs associated with their property.

2. The disposal of jointly owned property is carried out by the consent of all its participants, which is assumed in this case, regardless of which of the participants makes the transaction to dispose of the property. Since the consent of other co-owners is presumed, no special formalization is required.

3. The general rule that each of the participants in joint ownership has the right to enter into transactions for the disposal of property can be changed by an agreement of the co-owners, which can provide for the rules for formalizing such consent, the criteria for transactions for which consent should be obtained, etc. However, the terms of this agreement apply only to relations between the co-owners themselves and do not apply to third parties with whom one of the co-owners enters into a transaction, i.e. counterparties to transactions should not check the consent of the co-owner to carry out transactions related to the disposal of property.

A transaction for the disposal of common property made by one of the participants in joint ownership may be declared invalid at the request of the remaining participants on the grounds that the participant who made the transaction lacked the necessary powers only if it is proven that the other party to the transaction knew or should have known about this, i.e. acted in bad faith. Such a transaction is voidable, therefore the party that demands that the transaction be declared invalid must prove the bad faith of the counterparty.

4. This general procedure for making and challenging transactions, arising from the principle of “presumption of consent,” always applies, except for cases where the Civil Code or other laws do not establish otherwise for certain types of joint property. In particular, the Insurance Code provides that in order for one of the spouses to complete a transaction to dispose of real estate and a transaction requiring notarization and (or) registration in the manner prescribed by law, it is necessary to obtain the notarized consent of the other spouse.

The Civil Code of the Russian Federation, along with the federal laws adopted in accordance with it, is the main source of civil legislation in the Russian Federation. Civil law norms contained in other normative legal acts cannot contradict the Civil Code. The Civil Code of the Russian Federation, work on which began at the end of 1992, and initially proceeded in parallel with work on the Russian Constitution of 1993, is a consolidated law consisting of four parts. Due to the huge volume of material that required inclusion in the Civil Code, it was decided to adopt it in parts.

The first part of the Civil Code of the Russian Federation, entered into force on January 1, 1995, (with the exception of certain provisions), includes three of the seven sections of the code (Section I “General Provisions”, Section II “Property Rights and Other Property Rights”, Section III “General part of the law of obligations”). This part of the Civil Code of the Russian Federation contains the fundamental norms of civil law and its terminology (about the subject and general principles of civil law, the status of its subjects (individuals and legal entities)), objects of civil law (various types of property and property rights), transactions, representation , limitation of actions, property rights, as well as the general principles of the law of obligations.

The second part of the Civil Code of the Russian Federation, which is a continuation and addition to part one, came into force on March 1, 1996. It is entirely devoted to Section IV of the code “Certain types of obligations”. Based on the general principles of the new civil law of Russia, enshrined in the 1993 Constitution and part one of the Civil Code, part two establishes a detailed system of rules on individual obligations and contracts, obligations resulting from causing harm (torts) and unjust enrichment. In terms of its content and significance, part two of the Civil Code of the Russian Federation is a major stage in the creation of new civil legislation of the Russian Federation.

The third part of the Civil Code of the Russian Federation includes section V “Inheritance Law” and section VI “Private International Law”. Compared to the legislation in force before the entry into force of Part Three of the Civil Code of the Russian Federation on March 1, 2002, the rules on inheritance have undergone major changes: new forms of wills have been added, the circle of heirs has been expanded, as well as the range of objects that can be transferred in the order of hereditary succession; Detailed rules have been introduced regarding the protection and management of inheritance. Section VI of the Civil Code, dedicated to the regulation of civil law relations complicated by a foreign element, is a codification of the norms of private international law. This section, in particular, contains rules on the qualification of legal concepts when determining the applicable law, on the application of the law of a country with a plurality of legal systems, on reciprocity, retroactive reference, and establishing the content of norms of foreign law.

The fourth part of the Civil Code (entered into force on January 1, 2008) consists entirely of Section VII “Rights to the results of intellectual activity and means of individualization.” Its structure includes general provisions - norms that apply to all types of results of intellectual activity and means of individualization or to a significant number of their types. The inclusion of norms on intellectual property rights in the Civil Code of the Russian Federation made it possible to better coordinate these norms with the general norms of civil law, as well as to unify the terminology used in the field of intellectual property. The adoption of the fourth part of the Civil Code of the Russian Federation completed the codification of domestic civil legislation.

The Civil Code of the Russian Federation has passed the test of time and extensive application practice, however, economic offenses, often committed under the guise of civil law, have revealed the lack of completeness in the law of a number of classical civil law institutions, such as the invalidity of transactions, the creation, reorganization and liquidation of legal entities, assignment claims and transfer of debt, pledge, etc., which necessitated the need to introduce a number of systemic changes to the Civil Code of the Russian Federation. As noted by one of the initiators of making such changes, President of the Russian Federation D.A. Medvedev, “The existing system does not need to be restructured, fundamentally changed... but to be improved, to reveal its potential and to develop implementation mechanisms. The Civil Code has already become and should remain the basis for the formation and development of civilized market relations in the state, an effective mechanism for protecting all forms of property, as well as the rights and legitimate interests of citizens and legal entities. The Code does not require fundamental changes, but further improvement of civil legislation is necessary..."<1>.

On July 18, 2008, Decree of the President of the Russian Federation No. 1108 “On improving the Civil Code of the Russian Federation” was issued, which set the task of developing a concept for the development of civil legislation of the Russian Federation. On October 7, 2009, the Concept was approved by the decision of the Council for the Codification and Improvement of Russian Legislation and signed by the President of the Russian Federation.

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<1>See: Medvedev D.A. Civil Code of Russia - its role in the development of a market economy and the creation of a rule of law // Bulletin of Civil Law. 2007. N 2. T.7.

Just like shared property, common joint property is characterized by the fact that in this case the same property belongs simultaneously and jointly to several persons. But there are significant differences between common shared and common joint property - both from the point of view of the content of the powers of the owners, and from the point of view of the grounds for the emergence of relations under common property.

The difference in the content of powers is manifested in the fact that participants in common shared ownership have a share in the right to common property, while participants in common joint ownership have equal rights to common property as a whole, but none of them has a share in the right to the same property . The corresponding shares are allocated last only when partitioning or allocating. But, firstly, a real share in the property is allocated, and not in the right of ownership to it, and, secondly, as a result of the division or allotment, relations under common joint property are terminated either entirely or for a given participant. As long as joint ownership exists, it does not know shares. The main legal feature of joint property is that it is shareless.

Possession, use and disposal of jointly owned property is carried out by all its participants. They jointly own and use common property, unless otherwise provided by agreement between them. When making a transaction to dispose of common property, the mandatory consent of the co-owners is required. The law's reference to possession and use “in common” and to disposal “by consent” is important. Due to the fact that the participants in joint ownership constitute a family or family-labor community that has common goals and interests, agreements between them are not concluded, but can be concluded. An order “by agreement of all participants” presupposes the existence of an agreement or is presumed to have one.

Each of the participants in joint ownership can enter into transactions for the disposal of common property, unless otherwise follows from the agreement of all participants. For example, such a right can be granted to only one of the participants, for which the others issue him a power of attorney.

If one of the participants in the common joint property is incapacitated, partially or partially incapacitated, then when making transactions with his participation, in order to protect his rights and interests, the special requirements established by law must be observed. Thus, for transactions in relation to privatized housing in which minors live (regardless of whether they are owners, co-owners or family members of the owners, including former ones) who have the right to use this residential premises, prior permission from the guardianship and trusteeship authorities is required. This rule also applies to residential premises in which a minor does not live, if at the time of privatization he had equal rights to this premises with the owner.

If one of the participants in joint ownership has made a transaction to dispose of the common property in the absence of the necessary powers, then it, at the request of the other participants, can be declared invalid only if it is proven that the other party to the transaction knew or should have known about it. This transaction is contestable, where the burden of proof rests on the party that requires the transaction to be declared invalid.

The legal regime of common joint property is applied insofar as the Civil Code or other laws do not establish otherwise for certain types of joint property. Thus, the development of the provisions enshrined in paragraph 3 of Art. 253 of the Civil Code of the Russian Federation and essentially reproduced in paragraphs 2 and 3 of Art. 35 of the RF IC, provides that in order for one of the spouses to complete a transaction to dispose of real estate and a transaction requiring notarization and (or) registration in the manner prescribed by law, it is necessary to obtain the notarized consent of the other spouse. In the absence of such consent, the other spouse has the right to demand that the court declare the transaction invalid within a year from the day when he learned or should have learned about the completion of this transaction.

Common joint property of spouses

Joint property of spouses arises only upon registration. Actual family life, even long-term, but without appropriate registration of marriage, does not create joint ownership of property. In such cases, common shared ownership may arise between persons who acquired some property through common labor or funds. Property relations in these cases will be regulated only by civil law.

Movable and immovable things acquired from the common income of the spouses are recognized as joint property. These things become joint property from the moment they are transferred to one spouse. Consequently, when one spouse acquires property from a third party, the other spouse also acquires ownership of this thing.

The right to the common property of the spouses also belongs to the spouse who, during the marriage, managed the household, cared for children, or for other valid reasons did not have independent income. Other valid reasons include illness, military service and other circumstances.

All property that washed up before marriage, as well as received by inheritance or under a gift agreement or other free transactions, And personal items, excluding jewelry and luxury items, is the property of each spouse. On the other hand, the property of each spouse can be classified as joint property if, during the marriage, investments were made into said property at the expense of the common property of the other spouse, which significantly increased the value of the property. However, this rule applies only when the agreement between spouses does not provide otherwise (Chapters 7 and 8 of the RF IC).

The issue of foreclosure on the common property of the spouses is resolved depending on whether only one of the spouses or both of them is a party to the obligation. If we are talking about the obligation of one of the spouses, then recovery can only be applied to property that is in his separate ownership, as well as to his share in the common property. But if both spouses can be recognized as a party to the obligation, then recovery can be applied both to property that is separately owned by each of them, and to common property (Chapter 9 of the RF IC).

Common joint property of members of a peasant (farm) enterprise. In accordance with current legislation, the property of a peasant (farm) enterprise is classified as common joint property. However, this rule is dispositive: an agreement between members of a farm may establish a different regime of ownership of the property of the farm.

The Civil Code of the Russian Federation does not establish who can be a member of a peasant farm.

In paragraph 2 of Art. 257 of the Civil Code of the Russian Federation determines what kind of property is jointly owned by a peasant farm. But the formulations given here also raise a number of questions. What, for example, does the phrase “a plot of land provided for the ownership of this farm” mean? According to the previously in force legislation, a plot of land was provided, although taking into account the number of members of the farm, but still to its head, a state land act (certificate), etc., was issued for it. Can we proceed from the fact that this plot was provided specifically to the farm as family-labor association, but the property was registered to the head? Probably, such an interpretation is in principle acceptable, especially for those peasant farms that were created by former collective farmers and state farm workers, i.e., persons who entered the farm with their own land shares. The previous legislation, in our opinion, unjustifiably deprived these persons of their land rights upon entering the peasant economy. If we recognize them as participants in joint (or shared) ownership of the land, then justice would be restored.