Grounds for refusal of state registration

Refusal to register rights

As you know, from January 1, 2021, in the Russian Federation, rights to real estate are registered according to new rules - according to the law “On State Registration of Real Estate” dated July 13, 2015. No. 218-FZ.

According to the new law, refusal to register rights can occur at the time of submitting documents for state registration of rights or during the process of legal examination of the submitted documents. So, according to paragraph 15 of Article 18 of the law, when submitting documents on paper (personal application), they may not be accepted if the identity of the applicant is not established.

Considering that documents for state registration of the rights of individuals are accepted by multifunctional centers for the provision of public services (MFC), individuals receive an actual refusal to accept documents at the MFC.

The MFC and the state body registering rights to real estate conclude that the identity of the applicant has not been established if, at the time of filing an application for state registration of rights, an identification document of the applicant is not presented, or the applicant refuses to present a document proving his identity. At the same time, applicants must take into account that the provisions of the law allow it to be interpreted broadly, since the grounds for refusing to accept documents for state registration of rights are formed in the form of an open list.

The concept of “identification” is not disclosed in the law itself, and registrars interpret the concept of “identification” for state registration of rights taking into account the Regulations on the passport of a citizen of the Russian Federation, approved by Decree of the Government of the Russian Federation of July 8, 1997 N 828, and the identification of foreigners citizens - according to the rules of the Law of the Russian Federation of July 25, 2002 N 115-FZ “On the legal status of foreign citizens in the Russian Federation.

So, according to paragraph 1 of the Regulations on the passport of a citizen of the Russian Federation, the only document proving the identity of a citizen of the Russian Federation from the age of 14 is a passport of a citizen of the Russian Federation.

What practical significance does this have for state registration of rights? — It is not necessary to provide a driver’s license or SNI, or a military ID to register a license. Using such documents, your application for state registration will simply not be accepted.

With a passport of a citizen of the Russian Federation, not everything is simple. According to the Regulations on the Passport of a Citizen of the Russian Federation, a passport may be invalid, for example, if it contains marks not provided for by this regulation (clause 6 of the regulations). For example, when crossing the border with Ukraine and presenting a Russian passport, Ukrainian border guards put a stamp on it about crossing the border, which immediately makes the passport of a Russian citizen invalid.

In addition, Russian passports obviously have a validity period depending on the age of its owner (clause 7 of the regulation):

from 14 years - until the age of 20;

from 20 years to 45 years of age;

from 45 years old - indefinitely.

Therefore, already when preparing for a real estate transaction, check your Russian passport, and when you reach the appropriate age, replace it. State registration authorities carefully monitor the validity of documents submitted for registration, and the validity of a passport is a frequent reason for refusal to accept documents.

Unlike many countries, Russia has internal passports and foreign passports, and the rules for issuing them, the requirements for these passports and their validity period do not coincide. It is important that on the territory of the Russian Federation, a foreign passport of a citizen of the Russian Federation is not used for identification, and when registering rights to real estate in Russia, your foreign passport will not be accepted.

The situation with the identity cards of foreigners is more complicated. According to the law of the Russian Federation of July 25, 2002 N 115-FZ “On the legal status of foreign citizens in the Russian Federation,” the identity of a foreigner on the territory of the Russian Federation is certified by a passport of a foreign citizen as well as international treaties. Therefore, the MFC and the registration authority have additional discretion at the stage of submitting documents.

Accordingly, in fact, the first stage of receiving a refusal to state registration of rights to real estate can be obtained by submitting an application and documents for state registration of rights to the MFC or directly to Rosreestr.

Grounds for refusal of state registration of rights

The grounds for refusal of state registration of rights in the law on state registration are formulated in the most general form and are related to the failure to eliminate the reasons preventing state registration (Article 27). However, the law does not contain a list of such obstacles.

At the same time, Part 1 of Article 26 of the law provides a list of reasons of 55 points, which are grounds for suspension of state registration of rights. Obviously, it is precisely these circumstances that Rosreestr registrars indicate as grounds for refusals of state registration of rights.

Among the 55 grounds for suspension of state registration, the following are indicated in particular:

1) the person indicated in the application as the copyright holder does not have the right to such a piece of real estate and (or) is not authorized to dispose of the right to such a piece of real estate;

2) an inappropriate person applied for state cadastral registration and (or) state registration of rights;

3) there are contradictions between the declared rights and already registered rights;

4) the right, restriction of the right or encumbrance of the real estate object, the registration of which is requested by the applicant, is not subject to state registration in accordance with the Civil Code of the Russian Federation or other federal law;

5) documents necessary for state cadastral registration and (or) state registration of rights have not been submitted;

6) the submitted documents are not authentic or the information contained in them is unreliable;

7) the form and (or) content of the document submitted for the implementation of state cadastral registration and (or) state registration of rights do not comply with the requirements of the legislation of the Russian Federation;

the submitted documents were signed (certified) by unauthorized persons;

9) documents (information contained in them) requested by the rights registration authority upon interdepartmental requests have not been submitted (not received);

10) information has been submitted (received) about the absence of documents (information contained in them) requested by the rights registration authority upon interdepartmental requests;

etc.

As you can see, the list is quite broad and contains evaluation criteria, which allows each of the items in the list of grounds for suspension of state registration to be interpreted quite broadly. That is, the new law on state registration of rights provides the registrar with a wide field of discretion.

The interests of the applicant for state registration of rights are guaranteed by a two-stage procedure for refusal of state registration, which must necessarily contain: 1) suspension at the initiative of the registering authority, and 2) a decision on refusal. Each of the decisions and the decision on suspension and refusal of state registration of rights, in accordance with Article 28 of the law, is drawn up in the form of a separate document.

What to do if you are denied registration?

Get a decision from the state registrar - this is what you will appeal in court if it comes to it.
Re-apply to Rosreestr, but having already eliminated the registrar’s comments - this may include adding documents or making changes to title documents.
Apply to the court to declare the refusal invalid and, if the decision is satisfactory, the procedure will be repeated.

Important! When applying for registration with a court order, you cannot be refused (according to Article 28 1 of the Registration Law). Therefore, if you suspect that Rosreestr’s actions are illegal, the most reliable and easiest way is to go to court.

Registration of property rights		Prices in rubles
Registration of property rights		Moscow	New Moscow	Moscow region
Purchase and sale	apartment, room, share	8 000	12 000	10 000
	plot	12 000	13 000
	plot with house	21 000	21 000
	parking space	12 000	12 000	15 000
Donation	apartment, room, share	7 000	7 000	14 000
	plot	12 000	13 000
	plot with house	21 000	21 000
	parking space	12 000	12 000	15 000
Mortgage	apartment, room, share	9 000	9 000	14 000
	plot	12 000	13 000
	plot with house	21 000	21 000
	parking space	12 000	12 000	15 000
	removal of collateral	8 000	8 000	10 000
Registration of a long-term lease agreement		100 000	100 000	90 000
Register ownership of a new building		10 000	10 000	10 000
State duty is paid separately

Where to appeal a refusal to register rights

The applicant’s actions to appeal are not a dogma, since when receiving a refusal, the applicant’s actions are individual each time and depend on the specific situation - the motives for the refusal. Where to appeal the refusal to register rights and whether it is worth appealing the refusal is determined each time by the situation. As shown above, refusal of state registration of rights to real estate is possible only after suspension of registration, and suspension is allowed only on the grounds expressly established in Article 26 of the Law on Real Estate Registration No. 218-FZ. The further actions of the applicants depend on the grounds for suspension and refusal of state registration of rights. The reasons for suspension and refusal of state registration of rights must be set out in the relevant decision of the registering authority. The court for registration of rights to real estate, in fact, evaluates the motives of the decision taken by the state body to refuse and suspend state registration of rights.

For example, if the suspension and refusal is not motivated by the submission of documents necessary for state registration of rights (clause 5, part 1, article 26 of the law on state registration of real estate), then such a refusal may also be associated with a technical error of the applicant (forgot to provide a document or did not knew that they needed to provide a document). In such a situation, even in case of refusal, the applicant has the right to re-submit documents for state registration in full and there is no point in appealing such a refusal.

In another situation, if one of the parties to the real estate purchase and sale agreement avoids filing an application for state registration of the transfer of ownership, Rosreestr, as in the first case, will refuse state registration of the right. When refusing, Rosreestr will also justify the refusal by not presenting the documents necessary for state registration of the right and the same clause 5, part 1, article 26 of the law.

But in the second case, it is useless to challenge the refusal, since the applicant really did not submit the necessary documents, at least a statement signed by the seller, moreover, the applicant will not be able to eliminate the second party’s deviation on his own. This situation can be overcome by filing a claim in court to recognize the right of ownership of real estate in accordance with Part 3 of Article 551 of the Civil Code of the Russian Federation.

In the third case, for example, during state registration of newly created real estate, Rosreestr may also refuse, citing clause 5, part 1, article 26 of the law, motivating the refusal by not providing documents, for example, the consent of a third party to a land plot. In this case, the applicant has the right to challenge the refusal of the state body precisely on the basis of Article 8.1 of the Civil Code of the Russian Federation and Part 12 of Article 29 of Law 218-FZ, demanding that the decision of Rosreestr to refuse state registration be declared illegal and therefore invalid.

Where to appeal a refusal to register rights

The law on real estate registration directly establishes the possibility of appealing refusals or suspensions of state registration to the court. As you know, in Russia there are magistrates, district courts and arbitration courts. The functions of Rosreestr for state registration of rights to real estate and real estate transactions are so-called administrative public functions, and disputes arising between Rosreestr and applicants when performing registration functions are administrative.

And depending on the category of the applicant, the method of challenging decisions to refuse state registration of rights will be different:

If the applicant is an organization or entrepreneur and the created real estate is used in business or other economic activities, the applicant submits an application to the arbitration court in accordance with Chapter 24 of the Arbitration Procedural Code of the Russian Federation, challenging the non-normative act of the state body (Rosreestr).

Such statements have a number of features in their preparation and consideration. For example, the application must be submitted within 3 months from the date of the decision on the suspension or refusal of state registration of the right, respectively. A significant difference between an application in accordance with Chapter 24 of the Arbitration Procedure Code of the Russian Federation and claims in litigation proceedings is that the plaintiff must prove only two circumstances: 1) Non-compliance of the decision of a state body with the law, and 2) Violation of the applicant’s rights by such a decision, or the creation of obstacles to the applicant in carrying out business activities, or imposed on the applicant, violation of the law, any duties (part 1 of article 198 of the Arbitration Procedure Code of the Russian Federation).

The preparation of the application, its execution and the attached documents generally comply with the rules for preparing and filing claims. At the same time, according to Article 199 of the Arbitration Procedure Code of the Russian Federation, the disputed decision must be attached to the application.

A significant difference in the consideration of an application in accordance with Chapter 24 of the Arbitration Procedure Code of the Russian Federation is the distribution of the burden of proof: according to Part 5 of Article 200 of the Arbitration Procedure Code of the Russian Federation, it is the relevant state body that is charged with the responsibility of proving the compliance of the contested non-normative legal act with the law or other normative legal act, the legality of the adoption of the contested decision, the commission contested actions (inaction).

2. If the applicant is an individual (not an entrepreneur), from September 15, 2015. cases of this category - arising from administrative and other public legal relations in connection with the refusal of state registration of rights are considered in accordance with Chapter 22 of the Code of Administrative Proceedings of the Russian Federation (CAC RF) by courts of general jurisdiction - in accordance with Article 19 of the CAS RF by district courts.

The applicant’s requirements in cases of refusal of state registration of rights are usually two:

Main: On declaring illegal refusal of state registration of property rights.

Additional: On the obligation of Rosreestr to carry out state registration of property rights.

Proceedings in administrative cases are carried out in accordance with the procedure of Chapter 22 of the Code of Administrative Proceedings, which has significant differences from the procedure established in the Arbitration Procedural Code of the Russian Federation. Thus, an appeal to the court in accordance with Chapter 22 of the CAS of the Russian Federation is formalized as an administrative statement of claim , and the applicant is called an administrative plaintiff.

According to Article 219 of the Code of Arbitration Code of the Russian Federation, an administrative claim can be filed within 3 months from the date of violation of the applicant’s rights, or from the date when the applicant became aware of the violation of his rights. At the same time, in accordance with Part 3 of this article, an application to invalidate a decision or action of a state body can be filed within 10 days from the date when the applicant became aware of the suspension or refusal of state registration of the right to the property, respectively.

Unlike Chapter 28 of the Arbitration Procedural Code of the Russian Federation, the court cannot refuse to accept an administrative claim only because the deadline for filing it has been missed. By virtue of the direct instructions of parts 5 and 7 of Article 219 of the CAS of the Russian Federation, an administrative claim must be accepted by the court in any case, and the reasons for omission are subject to consideration at a preliminary court hearing. In this case, if the deadline is missed for valid reasons, the deadline for filing an administrative claim is restored by the court.

A court decision on an administrative claim for suspension or refusal of state registration of rights to real estate can be of two types (Part 2, Article 227 of the CAS RF):

on satisfaction in full or in part of the stated requirements for declaring the decision illegal, if the court finds them to be inconsistent with regulatory legal acts and violating the rights, freedoms and legitimate interests of the administrative plaintiff,

and on the obligation of the administrative defendant to eliminate violations of the rights, freedoms and legitimate interests of the administrative plaintiff.

on the refusal to satisfy the stated demands to recognize the contested decision as illegal.

When considering an administrative case challenging a decision to suspend or refuse state registration of a right, the court finds out (Article 227 CAS RF):

1) whether the rights, freedoms and legitimate interests of the administrative plaintiff have been violated;

2) whether the deadlines for going to court have been met;

3) whether the requirements of regulatory legal acts establishing:

a) the powers of a body, organization, person vested with state or other public powers to make a contested decision or perform a contested action (inaction);

b) the procedure for making a contested decision, performing a contested action (inaction) if such a procedure has been established;

c) the grounds for making a contested decision, performing a contested action (inaction), if such grounds are provided for by regulatory legal acts;

4) whether the content of the contested decision, the contested action (inaction) committed corresponds to the normative legal acts governing the disputed relationship.

Rosreestr's refusal to register a land plot: reasons and possible actions

Refusal to register rights

What to do if you are denied registration?

Where to appeal a refusal to register rights

Where to appeal a refusal to register rights

Real Estate Lawyer