Can your only home be seized for debt? What can a bailiff take for debts? Can bailiffs seize property?

Those who have problems repaying loans, non-payment of fines or alimony often wonder whether their only home can be seized for debts? What does the law say and what is the actual judicial practice?

Whose side is the law on?

According to current legislation and judicial practice, the only housing of debtors cannot be seized.

Regardless of whether a judicial or pre-trial decision was made, in addition to the only living space, the list inviolable for collection includes:

household items, personal belongings, clothing, shoes;

more than 50% of salary, social benefits, maternity capital;

property necessary for the professional activities of the debtor;

Food.

On a note! The Civil Code (Article 446) allows the arrest of an apartment if the only housing is mortgaged (Article 54, 78 Federal Law-102 “On Mortgage”).

However, in November 2016, the Ministry of Justice proposed amendments to the law “On Enforcement Proceedings”, and at the same time to the Family Code. The tightening will affect persistent defaulters. The department proposes to consider two options. The first is to allocate a share in the real estate, leaving the defaulter and his family with only the minimum allowable number of square meters, and after selling the “surplus” to pay off the debts. Such a compaction procedure will turn apartments into communal apartments where different families live.

The second is to also seize the only home, sell it, and let the debtor buy cheaper housing with a smaller area. The new norm, if approved, will be a good warning for everyone who decides to take out a loan: a person must assess the risks and understand that he may lose part of even one single apartment.

According to the authors of the bill, innovations should primarily hit those who live in grand style but do not pay, for example, alimony. At the same time, it is important to maintain reasonable boundaries so that situations do not arise in which families with financial difficulties also end up on the street.

According to experts, if the law is adopted, it will not be moneybags who will suffer, but average citizens who would like to pay off their debts, but do not have the opportunity to do so. Skeptics also say that the procedure remains unclear: who will evaluate the “surplus”, what are the criteria for “compaction”?

Let us recall that on the basis of Resolution No. 50 of the plenum of the Supreme Court of the Russian Federation dated November 17, 2015, a seizure of a single living space can be imposed “for the purpose of securing a loan.” The debtor and his family may continue to live in the apartment or house, but will not be able to make a purchase, sale, gift or other disposition in an attempt to remove the property from the list of property that the creditor can claim. In real estate that is under arrest, it is impossible to register a new person, nor to evict those already registered. It is also prohibited to rent it out.

Simplified debt repayment system

In 2017, a new clause may appear in a loan agreement with individuals, which involves the seizure of the debtor’s only home without a trial, but only with a notarized signature. At the same time, the new rules may be extended not only to persons who take out a loan again, but also to those who are already repaying the loan - they will be asked to sign an additional agreement to the previously concluded agreement.

On a note! Collection by notarial execution is an alternative to judicial proceedings, while any pre-trial decision can still be challenged in court.

According to Kommersant, the largest banks are planning to introduce a simplified system, including Sberbank, VTB24, Rosbank, Russian Standard, VTB. As the bankers explained, the “simplification” will not only increase the speed of repayment of borrowed money, but will also make the collection process itself cheaper. Banks will be able to contact bailiffs directly, bypassing the judicial procedure.

But even in the case of debt collection based on a notary signature, the list of what is prohibited from being seized remains unchanged. When answering the question of how to lift a seizure from your only home, you should know that this can only be done through the court.

Enforcement proceedings in the Russian Federation are a tool for the execution of court decisions, opened by the bailiff service, carried out according to a well-established mechanism, which involves opening a case and bringing it to a successful conclusion. If a court case is initiated regarding a citizen’s debts, then a resolution is issued to forcefully collect the debt. Ways to collect funds to pay off debts are the seizure of bank accounts or an inventory and sale of his property at auction.

Can bailiffs describe the property of the debtor’s relatives?

The functions of the bailiff service include the responsibility to monitor the execution of decisions made by the court, therefore, when the court makes a decision on the need to collect a debt at the expense of a citizen’s property, the bailiffs are sent to the place of his registration in order to describe the things belonging to him. The further fate of the property is sale at auction. The proceeds are used to pay off debt.

The law states that the debtor's relatives are not responsible for his debts. Therefore, the visit of representatives of the bailiff service to the debtor’s parents is unauthorized, and they cannot demand that the relatives pay the children’s debts.

Based on the provisions of the Federal Law “On Enforcement Proceedings”, it is obvious that that no one has the right to seize the property of parents if it does not belong to the debtor. Parents can confirm ownership of items of use by presenting documents that indicate their acquisition. First of all, this is a certificate of ownership when it comes to large real estate, as well as checks, receipts, warranty cards, etc.

Thus, in order to avoid negative consequences from accumulated debt, the legislation provides for completely legal schemes of action in order not to bring the situation to the extreme - seizure of property. Despite the size of the debt, the servants of the law will be able to force it to be repaid only at the expense of the debtor’s property.

About the situation when children are registered in their parents' square

The debtor may be registered at the place of residence of the parents. If he lives with them, then some property is subject to seizure. These include things that do not fall under the category of large property and are items of general use.

There is a list of things that are not included in the inventory:

• An apartment or house, if it is their only home.
• Personal items.
• Disabled person's car.
• Funds in the amount of at least one subsistence minimum for all family members.
• Property that the debtor needs to perform professional duties (computer, workbench, machine).
• Awards, incentives, personal memorable gifts.

The duties of the bailiffs include analyzing the items in the apartment. Things that have value are suitable for repaying debt: jewelry, antiques and luxury items.

How the inventory and seizure of property are made

An inventory is a procedure during which things in the apartment that belong to the debtor are taken into account in order to subsequently seize them to pay off the debt. The arrest is made on the basis of a court order. During the inventory, the bailiff draws up an acceptance certificate, which should reflect:

• Full name of the bailiff, debtor.
• Indication of the purpose of the inventory and the basis on which it is carried out.
• A list of items that are subject to seizure with a description of their characteristics and an indication of the approximate cost of each.
• Indicating the date when the property will be sold.

The act must state that all participants in the procedure received explanations about what was happening. If anyone present does not agree with the inventory and seizure of property, then this should be stated in the act. If it turns out that the legal rights to the property belong to the debtor's parents, then this property must be excluded from the list of things described.

Thus, in the apartment where the debtor lives with his parents, a partial inventory of objects and belongings is made. The exceptions are:

• Property from the list of exceptions.
• Objects with parental ownership.

As a result, all present citizens who agree with the inventory procedure sign the act. The act is prepared in 2 copies, one of which remains with the debtor.

What to do if the bailiffs nevertheless described the property of the debtor’s parents?

Bailiffs, going to the procedure for making an inventory of the debtor’s things to his parents, must adhere to legal norms regarding the conditions for their seizure:

• The fact that the debtor lives in the same living space with his parents.
• The presence or absence of ownership rights to property in the parents’ apartment.

By mistake, the bailiffs may describe the property of the parents, which does not belong to the debtor. The Federal Law “On Enforcement Proceedings” states that if disputes arise about the ownership of property that has been confiscated, interested citizens can challenge the procedure in court. The claim must contain a demand for relief from collection in the form of seizure of parental property in payment of the debt of their children.

Parents can write a statement of claim for compensation for moral damage caused by the bailiffs who came to describe things if the property was seized without finding out who it belongs to. Only the bailiff service is authorized to carry out the inventory; bank employees do not have such powers.

In order to avoid an unlawful inventory of property, the debtor's relatives must explain to the bailiffs who is the owner of the things and present documents confirming the ownership of the property. Housing is the private property of citizens, therefore they have the right not to allow even bailiffs into their territory until all the circumstances of the case are fully clarified: whether or not the debtor lives in the same area as his parents and whether he is the owner of any things in the apartment. In addition, when the arrest is made, both the debtor himself and the homeowners must be present in person in the house.

On the peculiarities of the procedure for inventory and seizure of property

The debtor and his close relatives need to know about some features of the description process itself, when servants of the law appear on the threshold of the debtor’s apartment and know exactly whether bailiffs have the right to describe the property of relatives:

• Citizens have the right not to sign an act drawn up by bailiffs if they have doubts about the legality of the documents drawn up. Forcing a signature to be signed by bailiffs is considered a violation of the law.
• The bailiff service transfers the right to use the seized property to a relative of the borrower or a specialized organization.
• Before conducting an inventory, bailiffs must make sure who is the real owner of each item in the apartment.
• The owner has the right not to allow bailiffs into the house without presenting a decree.
• The debtor can file a claim in court for any illegal action.
• It is better for the debtor to prevent the seizure of property than to bring the situation to an extreme. To do this, there are a number of legal actions that must be taken before the commencement of enforcement proceedings: pay part of the debt or come to an agreement with the creditor.

Seizing the property of a citizen who has debts is one of the most effective ways to enforce a court order. This measure is applied by the bailiff service and should be aimed only at the property of the debtor himself as part of enforcement proceedings.

Experience as a lawyer since 2000. Graduated from the Moscow State Open University with honors. Provides consultation and assistance to citizens on all legal issues.

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In this case, the borrower has the right to obtain property belonging to the debtor through the court.

It is important for a person who finds himself in such a situation to know exactly how legal the actions of the bailiffs are and on what grounds he can retain his rights to housing.

Legal regulation

According to the legislation of the Russian Federation, its subsequent withdrawal is not meant.

The main and only purpose of the arrest is to ensure the safety of property until further orders of the court by imposing a ban on registration and re-registration.

Thus, the debtor is deprived of the opportunity to transfer his own property to another person in order to evade taxes.

Moreover, if the debtor is not the sole owner of the property, then it applies only to his share. In this case, it is also not possible to sell or re-register the entire apartment, plot or house.

If an apartment or other residential property has been seized, this does not prevent debtors from continuing to live in it.

In addition, there are conditions under which bailiffs do not have the right to apply.

This is regulated by “On Bailiffs”, Part 1 of Article 446 of the Code of Civil Procedure of the Russian Federation.

According to the law, arrest cannot be imposed on real estate, which is the only home for the person in debt, as well as for his family members.

Grounds

According to the legislation of the Russian Federation, only the court is authorized to seize real estate at the request of the borrower or lender.

Most often, the reasons for requests are as follows:

• non-payment of a loan (including mortgage);
• non-payment of utilities;
• evasion of alimony payments;

Seizure may also be imposed if an apartment or house is the subject of a dispute during the division of property in divorce proceedings.

As a rule, the arrest procedure helps to ensure the safety of property and protect it from unauthorized sale or other transaction.

The process of seizing property is often associated with the presence of a large amount of debt, and therefore has many nuances and pitfalls.

In judicial practice, each case and each debtor are considered individually. At the same time, it is impossible to formalize a purchase and sale transaction for an apartment that has been seized.

Can bailiffs seize the only home?

Practice clearly shows how often people ask for help with the question “whether bailiffs can seize their only home.”

The legislation clearly states that such actions cannot be lawful:

• if housing is the only property, and there are no other options for living for the debtor and his family, no bailiff can make an arrest with subsequent seizure;
• if the debtor has rented housing, the decision to seize may come into force.

Another option: if the plot where the house is located is large enough, there is the possibility of arresting a separate part of it in the amount of the minimum plot of land allocated for construction, with possible further sale.

For debts

Untimely and systematic failure to pay bills (for loans, mortgages, taxes, alimony, etc.) can lead to serious consequences, including the initiation of a criminal case with subsequent real time limits.

First of all, this threatens those whose debt to creditors or organizations exceeds 1.5 million rubles and is considered theft on an especially large scale.

Borrowing organizations, tax authorities and other authorities through the court seek to seize real estate, since this is often the only property that can compensate for the real amount of debt along with accumulated penalties and interest.

Bailiffs also have the ability to withhold up to 50% of the debtor’s salary each month to pay off the principal debt.

The withholding applies only to the employer's monthly payment, and no other funds remaining in the bank account will be garnished.

What cannot be restricted?

If the debtor has a large debt, the bailiffs first of all pay attention to apartments, dachas, houses and land plots.

In order not to lose your property, it is important to understand what the bailiffs cannot apply the restriction to, and whether the bailiff can seize the only residence.

The following property cannot be seized:

• items necessary for work;
• items that are not the property of the debtor;
• the only residential property.

They cannot seize cars from forklifts and taxi drivers, or computers from freelancers if they work on the Internet officially and legally. The tools of painters, engineers, and builders are also not subject to seizure.

However, as practice shows, bailiffs can seize absolutely everything when making an inventory of a premises.

For example, women's fur coats and jewelry may be confiscated from male debtors, recording them in the protocol as a “luxury item.” You can return your belongings only by contacting the police of the rightful owner.

Appeal procedure

If the actions of the bailiffs are unlawful and contradict the legislation of the Russian Federation, the debtor has every reason to appeal the court decision and actions in relation to it.

According to the Code of Administrative Proceedings, a citizen can file a complaint regarding actions that violate his freedom and rights.

Procedure for appealing arrest:

1. Fill out the standard complaint form provided by the FSSP.
2. File a complaint with a higher-ranking FSSP official. The complaint must be submitted within 10 days from the date of the decision.

A citizen can also apply directly to the court with a claim for prosecution if he believes that illegal actions were committed during the seizure of his property.

In this case, he must prove that this housing is the only possible housing for him and his family members.

Arbitrage practice

The property is seized for subsequent sale under the hammer to pay off debts. Since it is prohibited by law to sell the only home and evict the debtor and his family onto the street, it is not possible to seize the home.

However, in some situations, arrest was the only guarantee of protection of property from the fact of sale or gift by the debtor to a third party.