Recovery of damages from Rosreestr authorities in connection with illegal actions during the registration of real estate transactions. Recovery of damages from Rosreestr authorities in connection with illegal actions during the registration of real estate transactions Criminal liability

Article 64. State registrar of rights and guarantees in the exercise by him job responsibilities

1. The state registrar of rights is a federal state civil servant, an official of the rights registration body, vested with state powers to carry out state cadastral registration and state registration right

2. A fixed-term service contract is concluded with the state registrar of rights in accordance with Federal law dated July 27, 2004 N 79-FZ “On the State Civil Service Russian Federation".

3. The rights registration body forms an examination commission to take an examination for compliance with the requirements for state registrars of rights (hereinafter referred to as the examination commission). The procedure for forming the examination commission, its powers and the procedure for accepting the examination for compliance with the requirements for state registrars of rights are established by the regulatory body.

4. Information about state registrars of rights is entered by the rights registration authority into the register of state registrars of rights, the procedure for maintaining and composition of information of which is established by the regulatory body.

5. Interference in activities is not allowed state registrar rights of persons who do not have special powers established by federal law. Persons influencing the state registrar of rights when carrying out state cadastral registration and (or) state registration of rights bear responsibility established by federal law.

Article 65. Rights and obligations of the state registrar of rights

The state registrar of rights has the rights and bears the responsibilities for carrying out state cadastral registration and (or) state registration of rights to the extent of the powers established by this Federal Law.

Chapter 10. Responsibility in carrying out state cadastral registration of real estate and state registration of rights to real estate, maintaining the Unified State Register of Real Estate, providing information from the Unified State Register of Real Estate

Article 66. Responsibility of the rights registration authority

1. The rights registration body is responsible for improper execution of powers established by this Federal Law, the rules for maintaining the Unified State Register of Real Estate, and other regulatory legal acts of the Russian Federation, including:

1) for non-compliance of the implementation of state cadastral registration and (or) state registration of rights with the requirements of this Federal Law, the rules for maintaining the Unified State Register of Real Estate, other regulatory legal acts of the Russian Federation governing the implementation of state cadastral registration and (or) state registration of rights;

2) for loss or distortion of information contained in the Unified state register real estate;

3) for the completeness and accuracy of the information provided contained in the Unified State Register of Real Estate;

4) for illegal refusal to carry out state cadastral registration and (or) state registration of rights, established by decision court, which entered into force;

5) for evading state cadastral registration and (or) state registration of rights, including the unjustified return to the applicant of documents submitted for state cadastral registration and (or) state registration of rights without consideration;

6) for failure to enter or untimely entry into the Unified State Register of Real Estate information about rights to real estate objects, right holders and about real estate objects received by the rights registration authority in the manner of interdepartmental information interaction;

7) for entering into the Unified State Register of Real Estate information containing technical errors in records that resulted in a violation of the rights and legitimate interests of copyright holders or third parties who relied on the corresponding entries in the Unified State Register of Real Estate;

8) for discrepancy between the information on public cadastral maps and the information contained in the Unified State Register of Real Estate;

9) for an unjustified refusal to provide information contained in the Unified State Register of Real Estate.

2. Losses caused to a person as a result of improper execution by the rights registration body of the powers established by this Federal Law shall be compensated in full at the expense of the treasury of the Russian Federation.

3. The body for registration of rights shall not be liable for losses caused as a result of state registration of rights on the basis of a certificate of the right to inheritance, a certificate of ownership of a share in the common property of spouses declared invalid by the court, or on the basis of a notarized transaction that was declared invalid by the court or in respect of which the court applied the consequences of the invalidity of a void transaction.

4. When the Russian Federation compensates for damage caused to the person or property of a citizen or the property of a legal entity by lawful actions, with the exception of the case specified in Part 3 of this article, the rights registration authority has the right of recourse in the amount of amounts reimbursed by the Russian Federation:

1) to the organ state power or organ local government if such losses arose as a result of the court declaring an act of a state authority or local government body illegal;

2) to the person who performed the cadastral work, if such losses arose as a result of a registry error and the provision by this person of inaccurate data and documents for making an entry about the property in the Unified State Register of Real Estate. This requirement cannot be addressed to a legal entity or individual who has entered into an agreement to conduct cadastral works with the person who performed the cadastral work;

3) to another individual or legal entity whose illegal actions led to such losses.

Article 67. Responsibility of the state registrar of rights

1. The state registrar of rights, in accordance with the legislation of the Russian Federation, is responsible for the discrepancy between the information entered by him into the Unified State Register of Real Estate and the documents and information submitted for state cadastral registration and (or) state registration of rights, with the exception of information entered into the Unified State Register real estate from other government information resources.

2. The state registrar of rights is obliged to compensate for losses caused to the rights registration body by its illegal actions (inaction). In case of intentional harm, losses are compensated in full.

3. The state registrar of rights bears responsibility, established by federal law, for unjustified (not corresponding to the grounds specified in Article 26 of this Federal Law) suspension of state cadastral registration and (or) state registration of rights and unjustified (not corresponding to the grounds specified in Article 27 of this Federal Law). Federal Law) refusal to carry out state cadastral registration and (or) state registration of rights or evasion of state cadastral registration and state registration of rights.

Article 68. Compensation for loss of the right registered in the Unified State Register of Real Estate

1. An individual - the owner of the only residential premises suitable for permanent residence, who, for reasons beyond his control, does not have the right to claim it from a bona fide purchaser, as well as an individual - a bona fide purchaser from whom the only residential premises suitable for permanent residence was demanded, has the right to payment from the treasury of the Russian Federation of a one-time compensation for the loss of ownership of such residential premises (hereinafter referred to as one-time compensation).

2. A one-time compensation to the persons specified in part 1 of this article is made in the amount established by a court decision that has entered into legal force on compensation to these persons by third parties for damage caused as a result of the loss of the property specified in part 1 of this article, if in accordance with this decision court recovery for executive document terminated in the manner established by the legislation of the Russian Federation on enforcement proceedings, in case:

1) death of a debtor-citizen, declaring him dead or recognizing him as missing, if established by judicial act, by an act of another body or official, claims or obligations cannot be transferred to the legal successor and cannot be implemented by a trustee appointed by the guardianship and trusteeship body;

2) making an entry on the exclusion of a legal entity (debtor-organization) from the unified state register of legal entities.

3. A one-time compensation to the persons specified in Part 1 of this article cannot exceed one million rubles.

4. The Russian Federation, represented by the rights registration authority, has the right of recourse in the amount of amounts reimbursed by the Russian Federation in accordance with this article.

• Article 67. Responsibility of the state registrar of rights
• Article 68. Compensation for loss of the right registered in the Unified State Register of Real Estate

Article 66. Responsibility of the rights registration authority

1. The rights registration body is responsible for improper execution of powers established by this Federal Law, the rules for maintaining the Unified State Register of Real Estate, and other regulatory legal acts of the Russian Federation, including:

1) for non-compliance of the implementation of state cadastral registration and (or) state registration of rights with the requirements of this Federal Law, the rules for maintaining the Unified State Register of Real Estate, other regulatory legal acts of the Russian Federation governing the implementation of state cadastral registration and (or) state registration of rights;

2) for loss or distortion of information contained in the Unified State Register of Real Estate;

3) for the completeness and accuracy of the information provided contained in the Unified State Register of Real Estate;

4) for illegal refusal to carry out state cadastral registration and (or) state registration of rights, established by a court decision that has entered into legal force;

5) for evading state cadastral registration and (or) state registration of rights, including the unjustified return to the applicant of documents submitted for state cadastral registration and (or) state registration of rights without consideration;

6) for failure to enter or untimely entry into the Unified State Register of Real Estate information about rights to real estate objects, right holders and about real estate objects received by the rights registration authority in the manner of interdepartmental information interaction;

7) for entering into the Unified State Register of Real Estate information containing technical errors in records that resulted in a violation of the rights and legitimate interests of copyright holders or third parties who relied on the corresponding entries in the Unified State Register of Real Estate;

8) for discrepancy between the information on public cadastral maps and the information contained in the Unified State Register of Real Estate;

9) for an unjustified refusal to provide information contained in the Unified State Register of Real Estate.

2. Losses caused to a person as a result of improper execution by the rights registration body of the powers established by this Federal Law shall be compensated in full at the expense of the treasury of the Russian Federation.

3. The body for registration of rights shall not be liable for losses caused as a result of state registration of rights on the basis of a certificate of the right to inheritance, a certificate of ownership of a share in the common property of spouses declared invalid by the court, or on the basis of a notarized transaction that was declared invalid by the court or in respect of which the court applied the consequences of the invalidity of a void transaction.

4. When the Russian Federation compensates for damage caused to the person or property of a citizen or the property of a legal entity by lawful actions, with the exception of the case specified in Part 3 of this article, the rights registration authority has the right of recourse in the amount of amounts reimbursed by the Russian Federation:

1) to a state authority or local government body, if such losses arose as a result of the court declaring an act of a state authority or local government body illegal;

2) to the person who performed the cadastral work, if such losses arose as a result of a registry error and the provision by this person of inaccurate data and documents for making an entry about the property in the Unified State Register of Real Estate. This requirement cannot be addressed to a legal entity or individual who has entered into an agreement on carrying out cadastral work with the person who performed the cadastral work;

3) to another individual or legal entity whose illegal actions led to such losses.

Article 67. Responsibility of the state registrar of rights.

1. The state registrar of rights, in accordance with the legislation of the Russian Federation, is responsible for the discrepancy between the information entered by him into the Unified State Register of Real Estate and the documents and information submitted for state cadastral registration and (or) state registration of rights, with the exception of information entered into the Unified State Register real estate from other government information resources.

2. The state registrar of rights is obliged to compensate for losses caused to the rights registration body by its illegal actions (inaction). In case of intentional harm, losses are compensated in full.

3. The state registrar of rights bears responsibility, established by federal law, for unjustified (not corresponding to the grounds specified in Article 26 of this Federal Law) suspension of state cadastral registration and (or) state registration of rights and unjustified (not corresponding to the grounds specified in Article 27 of this Federal Law). Federal Law) refusal to carry out state cadastral registration and (or) state registration of rights or evasion of state cadastral registration and state registration of rights.

Article 68. Compensation for loss of rights registered in the Unified State Register of Real Estate.

1. An individual - the owner of the only residential premises suitable for permanent residence, who, for reasons beyond his control, does not have the right to claim it from a bona fide purchaser, as well as an individual - a bona fide purchaser from whom the only residential premises suitable for permanent residence was demanded, has the right to payment from the treasury of the Russian Federation of a one-time compensation for the loss of ownership of such residential premises (hereinafter referred to as one-time compensation).

2. A one-time compensation to the persons specified in part 1 of this article is made in the amount established by a court decision that has entered into legal force on compensation to these persons by third parties for damage caused as a result of the loss of the property specified in part 1 of this article, if in accordance with this decision court, the recovery under the executive document is terminated in the manner established by the legislation of the Russian Federation on enforcement proceedings, in the case of:

1) the death of a debtor-citizen, declaring him dead or recognizing him as missing, if the requirements or obligations established by a judicial act, an act of another body or official cannot pass to the legal successor and cannot be implemented by a trustee appointed by the guardianship and trusteeship body;

2) making an entry on the exclusion of a legal entity (debtor-organization) from the unified state register of legal entities.

3. A one-time compensation to the persons specified in Part 1 of this article cannot exceed one million rubles.

4. The Russian Federation, represented by the rights registration authority, has the right of recourse in the amount of amounts reimbursed by the Russian Federation in accordance with this article.

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, the information in the Unified State Register electronic form may contain inaccuracies, therefore the information in the extract from the Unified State Register must be verified with paper media before issuing 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 registration of a mortgage, to make corrections to a registration entry, or a delay in state registration of a mortgage in excess of 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, 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 the legal examination of 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 didn't register the mortgage 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 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, a claim for damages is brought not against the state registrar or other official responsible for causing damage, but directly against 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 not making 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).

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 Real Estate Rights (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.