Criminal liability of the state registrar of Rosreestr. On the new law on state registration of real estate

Responsibility for state registration rights to real estate and transactions with it

Bodies carrying out state registration are responsible for the timely, complete and accurate performance of their duties, as well as for the completeness and authenticity of the information provided on registered rights to real estate and transactions with it, unjustified refusal of state registration of rights or evasion of state registration of rights. Damage caused to individuals or legal entities as a result of improper performance by registration authorities of the duties assigned to them is compensated at the expense of the treasury Russian Federation in full.

The entities that are responsible for damage caused by illegal actions (inaction) are: bodies carrying out state registration (state bodies) and state registrars - federal civil servants.

The procedure for state registration of rights to real estate and transactions with it, as well as the content of entries entered into the Unified State Register of Rights, in addition to this Law, are determined by the Rules for maintaining the Unified state register rights to real estate and transactions with it, approved by Decree of the Government of the Russian Federation of February 18, 1998 N 219, as well as approved by the Ministry of Justice of the Russian Federation regulations(rules, instructions, methodological instructions) on the procedure for state registration of rights to certain types of real estate.

The procedure for performing the state function for state registration of rights to real estate and transactions with it is determined by the Administrative Regulations for the execution of the state function for state registration of rights to real estate and transactions with it, approved by Order of the Ministry of Justice of the Russian Federation dated September 14, 2006 N 293.

According to the administrative regulations, applicants have the right to appeal the actions or inactions of officials of Rosreestr, its territorial bodies in pre-trial and judicial procedure. A registered right can only be challenged in court; appeals against refusals of state registration of rights and evasion of state registration of rights are also carried out in court.

Control of the activities of the territorial bodies of Rosreestr is carried out by Rosreestr, control of the activities of Rosreestr is carried out by the Ministry economic development Russian Federation. Applicants may appeal against the actions or inactions of officials:

separate divisions of the territorial bodies of Rosreestr - to the territorial bodies of Rosreestr, the Federal Service for State Registration, Cadastre and Cartography;

territorial bodies of Rosreestr - to the Federal Service for State Registration, Cadastre and Cartography;

Federal service state registration, cadastre and cartography; - the head of the Federal Service for State Registration, Cadastre and Cartography, the Ministry of Economic Development of the Russian Federation;

the head of the Federal Service for State Registration, Cadastre and Cartography, including in connection with the failure to take measures based on the legislation of the Russian Federation regarding the actions or inactions of officials of Rosreestr and its territorial bodies - to the Ministry of Economic Development of the Russian Federation.

Paragraph 2 of the commented article deals with the liability of persons guilty of distortion or loss of information about rights to real estate and transactions with it, already registered in the prescribed manner. The role of persons guilty of these violations may include employees of bodies for state registration of rights, other individuals, as well as legal entities. When it comes to state registrars, the rule applies to compensation for damage caused at the expense of the treasury of the Russian Federation. In cases where other individuals or legal entities are guilty of distortion or loss of information, it is they who are responsible for the damage caused by their actions. general rules civil liability.

In paragraph 2 of the commented article, “any of the parties” is named as persons entitled to compensation for material damage. When applying this clause, it should be borne in mind that damage must be compensated to the copyright holder, any party to the contract, as well as any other person whose rights and legitimate interests are violated by the corresponding unlawful actions.

Damage (losses) means expenses that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property (real damage), as well as lost income that this person would have received under normal conditions of civil circulation , if the right had not been violated (lost profits). The principle of full compensation for damage is general for civil liability for damage and must be observed not only when compensating for damage from the treasury, but also in all other cases.

The registration authority is responsible for the completeness and authenticity of the information issued on rights to real estate and transactions with it.

In accordance with Article 17 Federal law dated July 27, 2006 N 149-FZ “On information, information technology and on the protection of information" and Article 24 of the Federal Law of July 27, 2006 N 152-FZ "On Personal Data", violation of the requirements of these laws entails disciplinary, civil, administrative or criminal liability. Persons whose rights and legitimate interests violated in connection with the disclosure of restricted information or other unlawful use of such information, have the right to apply for judicial protection with claims for damages, compensation for moral damage, protection of honor, dignity and business reputation.

Not only registration bodies and their employees, but also persons who received information in the prescribed manner, including bodies state power And local government, law enforcement agencies, organizations for technical registration of real estate.

Liability for damage caused by bodies carrying out state registration of rights is also provided for by other laws. For example, Art. 28 of the Mortgage Law. This article provides sample list specific illegal actions (inaction) that serve as the basis for liability for damage in relation to state registration of mortgages. This list includes: unjustified refusal in state registration of a mortgage, as well as in making corrections to the registration record, delay in state registration of a mortgage in excess deadline; state registration of a mortgage in violation of the requirements imposed by the legislation of the Russian Federation for the content of the registration record, or with other errors; failure to comply with the requirements relating to the issuance of a mortgage note, as well as evasion of the issuance of a mortgage note (its duplicate); improper cancellation of a registration entry; unjustified refusal to provide information about the existence of a mortgage registration record, as well as an extract from it.

In accordance with the current legislation of the Russian Federation, in cases provided for by law, the rights securing the ownership of an object civil rights to a certain person, restrictions on such rights and encumbrances on property (rights to property) are subject to state registration. State registration of rights to property is carried out by an authorized body in accordance with the law based on the principles of verifying the legality of the grounds for registration, publicity and reliability of the state register. The state register must contain data that allows one to definitely establish the object to which the right is established, the authorized person, the content of the right, and the basis for its origin.

In other words, rights to real estate are subject to state registration, and owners have the right to dispose of their real estate only after its state registration, while the real estate object must be registered in the state real estate cadastre and the description of the object must correspond to its description in the title document. State registration of a real estate property is considered completed from the moment information about such an object is entered into the state register.

Today, the regulatory legal acts on the basis of which cadastral registration and state registration of rights in relation to real estate objects are carried out are two federal laws - Federal Law of July 24, 2007 N 221-FZ “On the State Real Estate Cadastre” (hereinafter referred to as the Cadastre Law real estate) and Federal Law of July 21, 1997 N 122-FZ “On state registration of rights to real estate and transactions with it” (hereinafter referred to as the Registration Law). In accordance with these laws, cadastral registration of real estate is carried out by entering information about real estate objects into the state real estate cadastre (hereinafter referred to as the State Real Estate Cadastre), and state registration of rights and restrictions (encumbrances) in relation to real estate objects is carried out by entering information about rights and restrictions (encumbrances) ) in relation to real estate objects in the Unified State Register of Rights to Real Estate and Transactions with It (hereinafter referred to as the Unified State Register of Real Estate).

However, in the near future there will be significant changes in the field of real estate registration.

Thus, from January 1, 2017, Federal Law No. 218-FZ of July 13, 2015 “On State Registration of Real Estate” (hereinafter referred to as the Law) comes into force, with the exception of certain provisions for which other deadlines are provided. Cadastral registration of real estate and state registration of rights to it will be combined into a unified accounting and registration system.

Here we will pay attention to the main points of the Law in question in comparison with the current Law on the Real Estate Cadastre and the Law on Registration.

About the Unified State Register of Real Estate

The new Law does not contain provisions for repealing the above laws or introducing amendments to them. It is possible to assume that this issue will be resolved additionally before the Law comes into force.

So, in accordance with the new Law, the Unified State Register of Real Estate (hereinafter referred to as the Unified State Register of Real Estate) will be formed, which will combine the information currently contained in the State Property Register and the Unified State Register.

The Unified State Register of Real Estate will include, in particular, a register of real estate (real estate cadastre), a register of rights, their restrictions and encumbrances on real estate (register of real estate rights), as well as a register of boundaries. Information about the boundaries is currently contained in the real estate cadastre.

The Unified State Register will be maintained in electronic form. The exception will be registry cases. They will store on paper applications drawn up in simple written form and presented in paper form, as well as documents the originals of which are not available in other government bodies, local governments and archives.

Currently, KGN and Unified State Register are maintained on electronic and paper media, and the latter have priority.

Information about a single real estate complex

According to the new Law, information about a single real estate complex and an enterprise as a property complex will be entered into the real estate cadastre.

In accordance with the Law on the Real Estate Cadastre, information about such complexes is not entered into the cadastre. At the same time, the rights to them must be registered (which is impossible without registration in the cadastre), so they are recorded as structures. In addition, when accounting for a single real estate complex, all real estate objects that are part of it can be taken into account.

Registration of a single real estate complex and state registration of rights to it will be carried out in the following cases:

Completion of construction of real estate objects, the design documentation of which provides for their operation as such a complex;

Association, at the request of the owner, of registered and registered real estate objects that have a single purpose and are inextricably linked physically or technologically or are located on the same land plot.

It will be possible to register ownership of an enterprise as a property complex only after registration and state registration of rights to each object that is part of it.

As for subsoil plots, according to the Law on the Real Estate Cadastre, they are not taken into account in the cadastre. The new Law excluded them from the list of real estate objects, the rights to which are currently subject to state registration.

Obligation of cadastral registration

and registration of rights is entrusted to Rosreestr

According to the new Law, only Rosreestr and its territorial bodies (hereinafter referred to as Rosreestr) must carry out cadastral registration of real estate and register rights to it. These powers cannot be transferred to subordinate institutions. Currently, state registration of rights to real estate and transactions with it is carried out by Rosreestr, and cadastral registration is carried out by the Federal Cadastral Chamber of Rosreestr, which is subordinate to it.

As now, it will be impossible to register rights to real estate if they are not included in the real estate cadastre.

According to the new Law, if information about a property is not available in the Unified State Register of Real Estate, its registration in the cadastre and state registration of rights will be carried out simultaneously. Exceptions will be situations when cadastral registration can be carried out without simultaneous state registration and vice versa. Currently, the simultaneous implementation of accounting and state registration is not provided.

Accounting and state registration will be carried out simultaneously in the following cases:

Creation of a real estate property (except for situations where cadastral registration can be carried out without simultaneous state registration of rights);

Formation of a real estate object (except in case of seizure land plot or real estate located on it for state and municipal needs);

Termination of the existence of a real estate property, the rights to which are registered in the Unified State Register of Real Estate;

Formation or termination of the existence of a part of an object that is subject to restrictions on the rights and encumbrances of the object, subject to state registration.

The law establishes cases when rights to real estate, information about which is available in the Unified State Register of Real Estate, will be registered without carrying out simultaneous cadastral registration. These include, for example, state registration of the transfer of ownership, confirmation of previously arisen rights.

The Law also defines exceptional situations in which cadastral registration is carried out without simultaneous state registration of rights to real estate. Such accounting is possible, in particular, in the following cases:

Creation of a real estate facility on the basis of a permit to put a capital construction facility into operation, which is presented by a state authority, local government or the Rosatom corporation in the manner of interdepartmental interaction;

Termination of the existence of an object, the rights to which are not registered in the Unified State Register of Real Estate;

Changing the main characteristics of an object.

The new Law establishes a list of persons, according to whose applications real estate objects will be taken into account and rights to them will be registered. Who exactly can submit documents depends on how accounting and state registration are carried out - simultaneously or separately.

Thus, according to the provisions of the Law, an application in relation to a created (i.e. constructed) property can be submitted by:

The owner or other legal holder of the land plot on which such a property is located - while simultaneously carrying out accounting and state registration;

State authority, local government or Rosatom corporation that issued permission to commission the facility capital construction into operation - when registered in the cadastre without simultaneous state registration.

Currently, any person can submit an application to register such a property.

Application for cadastral registration or state registration and necessary documents, as now, it will be possible to imagine:

In paper form - in person (to Rosreestr, through the MFC, at an on-site reception) or by mail (to Rosreestr);

In shape electronic documents- through a single portal public services or the official website of Rosreestr.

A novelty in the Law is that when applying in person (except for cases of on-site reception), the place where the application and documents are submitted will not depend on the location of the property. In other words, you can contact (send documents by mail) to any department of Rosreestr or submit documents in person through any MFC. The list of these divisions and MFCs will be provided on the Rosreestr website.

According to the new Law, Rosreestr independently requests the constituent documents of a legal entity that has applied for registration of an object and state registration of rights to it. The organization has the right to submit such documents on its own initiative.

Today, a legal entity is required to present the organization’s constituent documents (copies thereof) when conducting state registration of rights. Their provision is not required only if they were submitted earlier and no changes were made to them.

Acceptance of documents will be refused if the identity of the applicant who directly applied for the documents is not established (for example, a passport is not presented).

Refusal to accept documents is not provided for in the current Real Estate Cadastre Law, and in accordance with the Registration Law is prohibited.

The Law clarifies the list of grounds for returning an application and documents without consideration. These include, in particular:

Inconsistency between the format of the application and documents submitted electronically and the established format;

The presence in the application and documents presented in paper form of erasures, additions, strikeouts and other unspecified corrections, including those made in pencil, as well as the presence of damage that does not allow an unambiguous interpretation of their contents;

Absence of the applicant’s signature in the application for cadastral registration of the property or state registration of rights.

Currently, an application for state registration of rights can be returned, including:

If in the State information system about government and municipal payments there is no information about the payment of the state duty and no document confirming its payment has been submitted;

The Unified State Register contains an entry about the impossibility of registering a transfer, restriction of rights and encumbrances of real estate without the personal participation of the owner or his legal representative.

These grounds are also included in new Law, at the same time, the period for lack of information on payment of state duty has been clarified - five days from the date of filing the application.

According to the new Law total term registration of real estate in the cadastre and state registration of rights has been reduced.

When submitting documents to Rosreestr, it will be:

5 working days - for cadastral registration;

10 working days - in case of simultaneous registration and state registration;

7 working days - for state registration of rights.

If documents are submitted through the MFC, then the deadlines for cadastral registration and state registration of rights are increased by two working days.

Currently, the total period for both registration of a property in the cadastre and state registration of rights to it is 10 working days for each procedure. When submitting documents simultaneously for cadastral registration and state registration, the period for state registration of rights is calculated from the day the information is entered into the real estate cadastre, i.e. the maximum period is 20 working days.

The new Law retains only the period (5 working days) established for state registration of residential mortgages.

Consequently, state registration of mortgage land plots, buildings, structures, non-residential premises will be carried out within a general period of time (7 working days), subject to the submission of documents to Rosreestr. However, it will be reduced to five working days if state registration is carried out on the basis of a notarized mortgage agreement or a notarized agreement that gives rise to a mortgage by force of law (for example, an agreement for the purchase and sale of real estate using bank credit funds).

Today, the period for state registration of mortgages of land plots, buildings, structures, non-residential premises is 15 working days, and mortgages of residential premises - 5 working days.

The new Law contains a detailed list of grounds on which cadastral registration and state registration can be suspended. Compared to the current bases, this list is significantly increased (51 bases are listed).

According to current Law of registration, the reasons for suspension, in particular, are doubts of the state registrar about the existence of grounds for state registration of rights, about the authenticity of documents or the reliability of the information contained in them.

The grounds for suspension listed in the new Law determined the limits of the legal examination, which is carried out only to determine the presence or absence of grounds for suspension or refusal of cadastral registration or state registration of rights. Consequently, if the specified grounds are absent, cadastral registration and (or) state registration of rights cannot be suspended.

If during the suspension period the reasons that served as the basis for the suspension are not eliminated, cadastral registration and state registration will be denied.

The new Law established longer periods for the suspension of state registration. The period for suspending cadastral registration has not changed. At the same time, a period for its suspension is provided in a declarative manner. Thus, the terms for suspending the registration of objects and state registration will be:

Three months - by decision of the state registrar (with the exception of certain grounds for which other suspension periods are provided);

Six months - at the initiative of the applicant. At the same time, the Law clarifies that, upon application, suspension is possible only once.

Currently, state registration of rights by decision of the state registrar can be suspended for one month, and at the initiative of the applicant for three months.

According to the new Law, cadastral registration, state registration of the emergence and transfer of rights will be confirmed by an extract from the Unified State Register of Real Estate, and state registration of an agreement or other transaction will be confirmed by a special registration inscription on the document expressing the content of the transaction. The new Law does not provide for certification of completed accounting and state registration of rights with a certificate.

On at the moment State registration of rights is certified, among other things, by a certificate of state registration of rights, which is issued in the form of a paper document.

The law provides that information will be entered into the Unified State Register, including through interdepartmental cooperation. The obligation to send documents necessary for accounting and state registration in this manner is established for state authorities, local governments, courts and notaries when they make decisions (acts). For example:

State authorities and local governments must send documents if they have made a decision to approve the results of the state cadastral valuation real estate objects, establishing or changing the permitted use of a land plot, assigning it to a certain category of land or transferring a land plot from one category of land to another;

Federal migration service Russian Federation - information about changes in information about an individual (citizen);

Federal Tax Service of the Russian Federation - information on changes in information about organizations and individual entrepreneurs;

Courts or authorized bodies that imposed the seizure - a certified copy of such an act;

Notaries - information about issuing a certificate of inheritance.

Upon receipt of documents (the information contained in them), in the manner of interdepartmental interaction, Rosreestr enters information on their basis into the Unified State Register of Real Estate (except for cases where it is impossible to enter them) and notifies the copyright holder of the entry.

According to the Law, responsibility for actions (inaction) during cadastral registration and state registration is distributed between Rosreestr, the state registrar and other persons. Thus, the state registrar is responsible for the discrepancy between the information entered into the Unified State Register of Real Estate and the information contained in the submitted documents (with the exception of data entered from other information resources), for unjustified suspension and refusal of cadastral registration or state registration of rights or evasion of their implementation .

Rosreestr is responsible for the improper execution of its powers, including the loss and distortion of information contained in the Unified State Register of Real Estate, the completeness and accuracy of the information provided, illegal refusal of cadastral registration or state registration of rights established by a court decision that has entered into legal force. At the same time, there are cases when Rosreestr has the right of recourse against bodies and persons through whose fault violations were committed.

Compensation for residential premises - the only one suitable for permanent residence - is paid once to the owner, who, for reasons beyond his control, does not have the right to claim it from a bona fide purchaser, as well as to the bona fide purchaser from whom it was claimed. According to the Law, the condition for its payment is the impossibility of receiving compensation from third parties established by a court decision that has entered into legal force, due to the termination of collection under an executive document, for example, in connection with making an entry on the exclusion of the debtor organization from the Unified State Register of Legal Entities (USRLE) .

The provision of the Law on compensation for loss of rights registered in the Unified State Register comes into force on 01/01/2020.

Alexander Knyazev,

chief expert

rights registration department

Rosreestr Office

in the Omsk region,

state registrar.

also, the owner of the residential premises, who does not have the right to claim it from a bona fide purchaser, must file a claim for compensation for damage caused as a result of the loss of the residential premises. After the claim is satisfied, they must receive writ of execution, collection for which was not carried out for reasons beyond the control of these persons (the most common reason is the inability to find a seller of residential premises) within one year from the date of calculation of the period for presenting this document for execution.
From the text of the article it is clear that not only the citizen - the owner of the residential premises, but also a legal entity has the right to compensation. The procedure for payment by the Russian Federation of the said compensation is established by the Government of the Russian Federation. Currently, there is no such procedure, and therefore the Ministry of Finance of the Russian Federation is deprived of the opportunity to resolve issues regarding the calculation and payment of compensation in connection with the loss of property rights and deprivation of real estate due to its reclaiming by the court from bona fide possession.
Administrative and legal criminal liability for offenses committed during state registration of rights
Conditions for liability. In accordance with Art. 5.39 of the Code of Administrative Offenses of the Russian Federation, unlawful refusal to provide a citizen with documents and materials collected in the prescribed manner that directly affect the rights and freedoms of a citizen, or untimely provision of such documents and materials, failure to provide other information in cases provided for by law, or provision of incomplete or deliberately unreliable information to a citizen entails imposition administrative fine on officials in the amount of from shall entail the imposition of an administrative fine on officials in the amount from five hundred to one thousand rubles. Thus, for example, untimely provision of information from the Unified State Register may result in prosecution administrative responsibility.
Despite the fact that Art. 7 of the Law on State Registration establishes that state registration is open in nature, however, the applicant who is not the copyright holder (or

his representative), the heir of the copyright holder, or a law enforcement, judicial or tax authority, the requested information is issued to a limited extent. An extract from the Unified State Register contains a description of the object, data on the registered and existing rights to this object at the time of issuance of the extract, including data on the copyright holder of the object; data on existing restrictions (encumbrances) and legal claims. Providing any other information, such as, for example, information about previous copyright holders, information about the cost at which the object was purchased, is not allowed. Thus, despite the principle of openness of state registration of rights, access to information is limited by federal law. Consequently, officials of Rosreestr and its territorial bodies may be held liable under Art. 13.14 of the Code of Administrative Offenses of the Russian Federation, according to which the disclosure of information, access to which is limited by federal law (except for cases where the disclosure of such information entails criminal liability), by a person who has gained access to such information in connection with the performance of official or professional duties, entails penalties imposition of an administrative fine on citizens in the amount of 500 to 1000 rubles; for officials - from 4,000 to 5,000 rubles. ?
Violation of the rules of storage, acquisition, accounting or use archival documents(Article 13.20 of the Code of Administrative Offenses of the Russian Federation) is also qualified as an administrative offense. Violation of the rules for storage, acquisition, recording or use of archival documents entails a warning or the imposition of an administrative fine on citizens in the amount of 100 to 300 rubles; for officials - from 300 to 500 rubles.
Failure by an official to submit state registration of property and transactions with it within the established 10-day period (Article 85 of the Tax Code of the Russian Federation) in tax authorities information necessary for tax control, as well as the provision of such information incompletely or in a distorted form shall entail the imposition of an administrative fine in the amount of 500 to 1000 rubles. (Article 15.6 of the Code of Administrative Offenses of the Russian Federation).
In accordance with Art. 17.8 of the Code of Administrative Offenses of the Russian Federation, obstructing the lawful activities of a bailiff is also an administrative offense. Obstruction of the lawful activities of a bailiff on duty official duties, entails the imposition of administrative
a fine for citizens in the amount of 1000 to 1500 rubles; for officials - from 2000 to 3000 rubles.
The Criminal Code of the Russian Federation provides for liability for abuse of official powers (Article 285); only officials are the subjects of liability. The use by an official of his official powers contrary to the interests of the service, if this act was committed out of selfish or other personal interest and entailed a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state, is punishable by a fine of up to 80 thousand rubles. or in size wages or other income of the convicted person for a period of up to six months, or deprivation of the right to occupy certain positions or engage in certain activities for a term of up to five years, or arrest for a term of four to six months, or imprisonment for a term of up to four years. The same act committed by a person holding a public position in the Russian Federation or a public position in a constituent entity of the Russian Federation, as well as the head of a local government body, is punishable by a fine in the amount of 100 thousand to 300 thousand rubles. or in the amount of wages or other income of the convicted person for a period of one to two years, or by imprisonment for a term of up to seven years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years. In the event that such acts entailed
If there are grave consequences, they are punishable by imprisonment for up to 10 years with deprivation of the right to hold certain positions or engage in certain activities for up to three years.
A criminal offense is not only abuse of official powers, but also abuse of official powers (Article 286 of the Criminal Code of the Russian Federation). The commission by an official of actions that clearly go beyond the scope of his powers and entail a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state is punishable by a fine of up to 80 thousand rubles. or in the amount of wages or other income of the convicted person for a period of up to six months, or by deprivation of the right to hold certain positions or engage in certain activities for a term of up to five years, or by arrest for a term of four to six months, or by imprisonment for a term of up to four years. The same act committed by a person holding a public position in the Russian Federation or a public position in a constituent entity of the Russian Federation, as well as the head of a local government body, is punishable by a fine in the amount of 100 thousand to 300 thousand rubles. or in the amount of wages or other income of the convicted person for a period of one to two years, or by imprisonment for a term of up to seven years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years. If the above acts were committed:
a) with the use of violence or the threat of its use;
b) using weapons or special means;
c) causing grave consequences, -
are punishable by imprisonment for a term of 3 to 10 years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to 3 years (Part 3 of Article 286 of the Criminal Code of the Russian Federation).
An official - a state civil servant may be brought to criminal liability for illegal participation in business activities (Article 289 of the Criminal Code of the Russian Federation). Establishment by an official of an organization carrying out entrepreneurial activity, or participation in the management of such an organization personally or through a proxy contrary to the prohibition established by law, if these acts are related to the provision of benefits and advantages to such an organization or with patronage in another form, is punishable by deprivation of the right to hold certain positions or engage in certain activities for a period of up to five years with a fine of up to 80 thousand rubles. or in the amount of earnings
payment or other income of the convicted person for a period of up to six months, or compulsory work for a period of 180 to 240 hours, or arrest for a period of three to six months, or imprisonment for a term of up to two years. Unfortunately, the facts of the provision by officials of justice institutions of advantages and patronage to real estate and law firms, established by relatives and other trusted representatives, in the process of submitting documents for state registration and its implementation were not uncommon. I would like to hope that this is a thing of the past.
Among mercenary crimes, taking a bribe by an official (Article 290 of the Criminal Code of the Russian Federation) is a very common act, which the classics of Russian literature even rank among the ineradicable Russian evils. Receipt by an official personally or through an intermediary of a bribe in the form of money, securities, other property or benefits of a property nature for actions (inaction) in favor of the bribe-giver or persons represented by him, if such actions (inaction) are within the official powers of the official or he, by virtue of his official position, can contribute to such actions (inaction), as well as for general patronage or connivance in service is punishable by a fine in the amount of 100 thousand to 500 thousand rubles. or in the amount of wages or other income of the convicted person for a period of one to three years, or imprisonment for a term of up to five years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years. Receiving a bribe by an official for illegal actions (inaction) is punishable by imprisonment for a term of three to seven years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years. If the above-described acts are committed by a person holding a public position in the Russian Federation or a public position in a subject of the Russian Federation, as well as the head of a local government body, then they are punishable by imprisonment for a term of 5 to 10 years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years. . Receiving a bribe, if committed:
a) by a group of persons by prior conspiracy or an organized group;
b) with extortion of a bribe;
c) on a large scale - is punishable by imprisonment for a term of 7 to 12 years with a fine of up to 1 million rubles. or in the amount of zara

wages or other income of the convicted person for a period of up to five years or without it.
A large bribe is considered to be an amount of money, the value of securities, other property or property benefits exceeding 150 thousand rubles.
The state registrar, as well as other officials, may be subject to criminal liability for committing official forgery (Article 292 of the Criminal Code of the Russian Federation). Official forgery is understood as the introduction by an official, as well as a civil servant who is not an official, into official documents of knowingly false information, as well as the introduction of corrections into these documents that distort their actual content, if these acts were committed out of selfish or other personal interest. These acts are punishable by a fine of up to 80 thousand rubles. or in the amount of wages or other income of the convicted person for a period of up to six months, or compulsory work for a period of 180 to 240 hours, or correctional labor for a period of one to two years, or arrest for a period of three to six months, or imprisonment for a term of up to two years. The same acts that entailed a significant violation of the rights and legitimate interests of citizens or organizations or legally protected interests of society or the state are punishable by a fine in the amount of 100 thousand to 500 thousand rubles. or in the amount of wages or other income of the convicted person for a period of one to three years, or by imprisonment for a term of up to four years with or without deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.
Article 170 of the Criminal Code of the Russian Federation provides for criminal liability for registration illegal transactions with the ground. Registration of obviously illegal transactions with land, distortion of information from the state real estate cadastre, as well as deliberate understatement of payments for land, if these acts were committed out of selfish or other personal interest by an official using his official position, are punishable by a fine of up to 80 thousand rubles. or in the amount of wages or other income of the convicted person for a period of up to six months, or by deprivation of the right to hold certain positions or engage in certain activities for a period of up to three years, or by compulsory work for a period of 120 to 180 hours.

According to the new law, the registrar will be personally responsible for the correctness of the specified data and will be obliged to compensate the applicant for losses. Moreover, if it is proven that this was done intentionally, the registrar will be obliged to compensate not only for losses in full, but also for lost profits. This is the first time such a requirement has been introduced. These changes are provided for by Federal Law of the Russian Federation of July 13, 2015 N 218-FZ "On State Registration of Real Estate", which will come into force on January 1, 2017.

There is also responsibility for returning documents without consideration if there is no reason for this, said the head of the department legal support Office of Rosreestr in Moscow Ekaterina Filippova.

Starting next year, state cadastral registration of real estate and state registration of rights to real estate will become a single procedure. All this will take place centrally through a single government agency - the rights registration authority.

Starting next year, an apartment can be simultaneously registered and cadastrally registered in the Unified State Register of Real Estate

The document provides for the creation of a unified system for registering rights to real estate and its cadastral registration, which will be dealt with by all government departments, legal and individuals. The main innovation is the creation of the Unified State Register of Real Estate (USRN), which will unite the existing Unified State Register of Rights to Real Estate (USRE) and the State Real Estate Cadastre (GKN). The unified database should eliminate duplication of information, and most importantly, eliminate errors that still often occur. For example, in the Unified State Register the area of ​​a residential building can be 50 square meters. m, and in the State Property Committee - 150. And when the owner decides to do something with this house, for example, transfer it to his children, he will have to go through many unpleasant minutes, eliminating the formal error.

“Starting next year, it will be possible to simultaneously register cadastral records and register real estate rights; the entire procedure will take 10 working days, and 12 days when submitting documents through the MFC,” Igor Maidanov, head of the Rosreestr Moscow Office, told reporters.

The new law provides for a reduction in the list of documents required for state registration of rights. For example, you will not need to provide constituent documents. The new law will make it easier for developers, as well as other legal entities. If real estate is built, it will be possible to register it using a one-stop system, that is, submit one application once and receive one supporting document as a result. Some of these innovations are already working via the Internet - electronic services are posted on the Rosreestr website and are quite easy to use. But in most cases, legal entities resort to them, since sending electronic applications and other documents requires an electronic digital signature. To carry out cadastral registration and state registration of rights, you will need following documents: statement; documents confirming the authority of the applicant’s representative (if a representative submitted the application). As well as documents that are the basis for cadastral registration and registration of rights.

Chapter V. RESPONSIBILITY FOR STATE REGISTRATION OF RIGHTS TO REAL PROPERTY

Article 31. Responsibility for state registration of rights to real estate and transactions with it

Commentary on Article 31 of the Federal Law – On state registration of rights to real estate and transactions with it

1. The Law under comment, as well as other laws, in particular the Federal Law “On Mortgage (Pledge of Real Estate”), and by-laws in the field of state registration of rights to real estate establish mandatory requirements for the timing and procedure for state registration. Liability is provided for violation of these requirements.

Article 31 of the Law establishes a specific area of ​​responsibility of the bodies carrying out state registration of rights and the federal body in the field of state registration - responsibility for the timely, complete and accurate fulfillment of their duties provided for by the Law, the completeness and authenticity of the information provided about registered rights, unjustified refusal of state registration rights or evasion of state registration of rights.

Timely fulfillment of duties implies compliance with the deadlines for suspension of state registration, refusal of state registration, and making a decision to conduct state registration. Full and accurate performance of duties presupposes compliance with the requirements of the Law and the by-laws adopted in accordance with it. For example, entering information in accordance with the Rules for maintaining the Unified State Register, sending notifications, decisions on suspension, refusal of state registration, when necessary. The completeness of the information provided about registered rights lies in the fact that extracts from the Unified State Register must reflect all the information provided for in Art. 7 of the Law. Currently, extracts from the Unified State Register are generated automatically. However, information in the Unified State Register in electronic form may contain inaccuracies, therefore the information in the extract from the Unified State Register must be verified with paper media before issuing it to the applicant.

Authenticity of information involves the provision of information without falsification. If there is guilt and negative consequences in providing distorted information, criminal cases for forgery and negligence may be brought against the persons responsible for entering information into the Unified State Register and (or) for providing information.

Unreasonable refusal of state registration of rights implies the absence in the decision to refuse state registration of references to the articles of the Law on the basis of which the decision to refuse was made, incorrect interpretation and application of the norm of the Law providing for refusal of state registration (Article 20), refusal on grounds not provided for by the Law, inconsistency of the grounds for refusal of state registration with the actual circumstances of the case.

What should be considered an evasion of state registration of rights on the part of the bodies carrying out state registration of rights is not provided for by the Law. The body carrying out state registration cannot fail to make a decision on the documents received for state registration of rights within the time limits established by the Law. Thus, unjustified suspension of state registration should be considered a type of evasion from state registration of rights. Also, cases of repeated demands for documents, the provision of which is not required in accordance with the Law, can be considered as evasion of state registration. Unreasonable refusal or evasion of state registration may be appealed in court, arbitration court.

Article 28 of the Federal Law “On Mortgage (Pledge of Real Estate)” provides for the specific responsibility of the body carrying out state registration of rights during state registration of mortgages. Thus, this article orders the body carrying out state registration of rights to compensate interested person losses caused by your illegal actions (inaction). In particular, losses are compensated if they are a direct consequence of an unjustified refusal to state register a mortgage, to make corrections to a registration record, a delay in state registration of a mortgage beyond the established period, state registration of a mortgage in violation of the requirements imposed by the legislation of the Russian Federation on the contents of a registration record, with other errors, on other grounds specified in the article.

The legislator separately provided for the responsibility of the Federal body in the field of state registration. Federal body in the field of state registration is responsible along with other bodies carrying out state registration of rights, but only in a certain segment in accordance with its powers: state registration of rights to an enterprise as a property complex, as well as to real estate located on the territory of more than one registration district, as well as providing information on such real estate objects.

The law provides for the responsibility of a notary certifying a mortgage agreement, other agreements giving rise to a mortgage by force of law, for legal expertise documents, the legality of the transaction, as well as for the validity of other documents provided by him for state registration of the mortgage.

This provision does not provide for liability for other documents that are also certified by a notary, for example, a purchase and sale agreement, which does not give rise to a mortgage by force of law.

The legislator’s logic here is not clear or we are talking about a gap in the legislation. However, in any case, the notary is also responsible for all documents drawn up and certified by him by virtue of another regulatory legal act - the Fundamentals of the legislation of the Russian Federation on notaries.

From February 1, 2014, changes come into force in which this issue has been resolved. The legislator exempts the bodies carrying out state registration of rights from responsibility for the legality of a notarized transaction, regardless of whether it gives rise to a mortgage or not.

The introduction of this rule means that in the event of a court hearing a case related to challenging a transaction certified by a notary, or recognizing as illegal the decision of the body carrying out state registration of rights to carry out state registration of a notarized transaction, not only the body carrying out the state registration of rights will be involved in the process. state registration of rights, but also a notary who certified the relevant transaction.

The current legislation provides for several types of liability: criminal, administrative, civil, disciplinary.

The Criminal Code of the Russian Federation, in particular, establishes liability for abuse of powers by private notaries (Article 202 of the Criminal Code of the Russian Federation). The state registrar can be prosecuted for fraud (Article 159 of the Criminal Code of the Russian Federation), taking a bribe (Article 290 of the Criminal Code of the Russian Federation), abuse of official powers (Article 285 of the Criminal Code of the Russian Federation), as well as forgery of official duties (Article 292 of the Criminal Code of the Russian Federation) and negligence (Article 293 of the Criminal Code of the Russian Federation).

Administrative proceedings may also be initiated against the state registrar and notary under Art. 7.27.1 Code of Administrative Offenses of the Russian Federation “Causing property damage by deception or abuse of trust.”

Disciplinary liability presupposes responsibility for committing a disciplinary offense, that is, failure to perform or improper performance by an employee through his fault of his labor duties. State registrars have the status of civil servants and are responsible disciplinary liability not in accordance with the Labor Code of the Russian Federation, but in accordance with the Federal Law “On the State Civil Service of the Russian Federation”.

Civil liability arises as a result of damage to property and personal non-property rights, in cases provided for by civil law.

The losses referred to in Art. 28 Federal Law “On Mortgage (Pledge of Real Estate”) - these are expenses that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property (real damage), as well as lost income that this person has received would have been under normal conditions of civil circulation, if his right had not been violated (lost profit). state fee, paid for filing an application in court, arbitration court, paying for a lawyer, conducting an examination.

If, as a result of an unjustified suspension or refusal of state registration of the transfer of the right to an apartment, the seller failed to purchase another apartment for which he had already made a deposit, then we will be talking about lost income in the form of money from the sale of the apartment.

At the same time, it is necessary to take into account that in practice it is extremely difficult to prove in court a causal connection between the actions (inaction) of the body carrying out state registration of rights and the occurrence of losses.

Firstly, in order to recover damages, it is necessary to establish the fact of illegal action (inaction) of the body carrying out state registration of rights. To do this, it is necessary to apply to the court to declare illegal the actions (inaction) of the body carrying out state registration of rights.

Secondly, if you receive a decision recognizing the actions (inaction) of the body carrying out state registration of rights as illegal, you must go to court again, but with a claim for damages.

Example from judicial practice. A legal entity filed a lawsuit against the body carrying out state registration of rights for damages due to the fact that the plaintiff was unable to foreclose on the mortgaged non-residential premises and land plot, but only on the non-residential premises. The plaintiff explains this by the fact that the body carrying out state registration of rights, during state registration of the mortgage agreement non-residential premises did not register the mortgage of the land plot. As the court pointed out, the condition for tortious liability is the presence of an offense, including: the occurrence of harm; illegality of the behavior of the harm-doer; the causal relationship between the first two elements; guilt of the harm-doer; the amount of damage caused. The court came to the conclusion that the plaintiff, in violation of the provisions Article 65 The Arbitration Procedure Code of the Russian Federation has not provided adequate evidence confirming the wrongfulness and guilt of the defendants’ actions and the presence of a set of conditions for tortious liability (see more details: ResolutionFederal Antimonopoly Service of the West Siberian District dated October 28, 2008 N F04-5983/2008 (14800-A27-39) in case N A27-4264/2008).

In addition, in the above example, there is not and cannot be the fault of the body carrying out state registration of rights, since the current legislation does not provide that the transfer of non-residential premises as collateral involves the imposition of a mortgage on the land plot. Article 69 of the Federal Law “On Mortgage (Pledge of Real Estate)” provides that a mortgage of a building or structure is allowed only with a simultaneous mortgage under the same agreement of the land plot on which this building or structure is located, but says nothing about non-residential premises.

2. Persons guilty of intentional or careless distortion or loss of information about rights to real estate and transactions with it, registered in the prescribed manner, and responsible for material damage caused in connection with this by any of the parties are state registrars, other officials of bodies carrying out state registration of rights, as well as officials of other bodies, on the basis of whose documents false information was entered into the Unified State Register.

The phrase “other officials of bodies carrying out state registration of rights” is absent in the commented article. However, the term “state registrar” in this context should be interpreted broadly, since not only employees with the status of a state registrar, but also other employees who are not state registrars can distort or lose information.

The logic of the legislator is not entirely clear: from the meaning of paragraph 2 of the commented article it follows that material damage can only be caused to the parties. The article does not specify which parties. Apparently, this means the parties to the contract. But material damage can be caused as a result of state registration not only of contracts, but also during state registration of rights arising on the basis of other documents (court decisions, certificates of inheritance, etc.).

Thus, “parties” should be understood as all persons who suffered material damage during the state registration of their rights, transactions, encumbrance (limitation) of rights.

3. Paragraph 3 of the commented article echoes Art. 16 of the Civil Code of the Russian Federation, according to which losses caused to a citizen or legal entity as a result of illegal actions (inaction) of state bodies, local governments or officials of these bodies are subject to compensation by the Russian Federation, the relevant constituent entity of the Russian Federation or municipal entity.

Paragraph 3 of the commented article clarifies that compensation is carried out at the expense of the treasury of the Russian Federation. Thus, the claim for damages is not brought against the state registrar or other official, guilty of causing damage, but directly to the body carrying out state registration of rights. However, the legislation does not provide for a mechanism for how losses will be compensated if the claim is satisfied. Therefore, when filing a claim in court for damages, you should, as a person who does not make independent claims for the subject of the claim, involve the relevant territorial body of the Federal Treasury.

A claim can be filed not only for compensation of material, but also moral damage.

Moral harm is understood as moral or physical suffering caused by actions (inaction) that infringe on intangible benefits belonging to a citizen from birth or by force of law, or that violate his personal non-property rights, or that violate the property rights of a citizen (Article 151 of the Civil Code of the Russian Federation).

In relation to the commented article, we are talking about a violation of the property rights of citizens.

The amount of compensation for moral damage is determined by the court depending on the nature of the physical and moral suffering caused to the victim, as well as the degree of guilt of the harm-doer in cases where guilt is the basis for compensation for harm (Article 1101 of the Civil Code of the Russian Federation).

An example from judicial practice. An individual entrepreneur filed a lawsuit against the body carrying out state registration of rights for compensation, including moral damages, for refusal of state registration. The court came to the conclusion that the applicant should not provide evidence to substantiate the moral damage that was caused to him and satisfied the claim in this part in full (see more details ResolutionFederal Antimonopoly Service of the West Siberian District dated September 23, 2011 in case No. A46-10260/2010).