Истребование жилого помещения от добросовестного приобретателя

Российский юридический журнал. 2021. № 5. С. 124–133.

Malbin D.

The Federal Law No. 430-FZ of December 16, 2019 «On Amendments to Part One of the Civil Code of the Russian Federation» amended Article 302 of the Civil Code of the Russian Federation, according to which residential premises cannot be reclaimed from a bona fide purchaser at the claim of a public legal entity if three years have passed since the registration of the property right of a bona fide purchaser. The Federal Law No. 430-FZ of December 16, 2019 was developed and adopted due to the Resolution of the Constitutional Court of the Russian Federation No. 16-p of June 22, 2017. At the same time, this law failed to implement the legal position of the Constitutional Court of the Russian Federation. The innovation has some legal and technical inaccuracies, by virtue of which the new provisions can be qualified both as an addition to the institution of protection of a bona fide purchaser and as an addition to the rules on the acquisition of ownership rights by prescription. Besides that, the new institute is similar to the ancient Roman institute longis temporis praescriptio, since the possibility of reclaiming a thing by the owner is extinguished by the expiration of a three-year period. At the same time, it is incorrect to establish any period of possession of a thing for the acquisition by a bona fide purchaser of the ownership right to a residential premise. Restrictions on reclamation of residential premises from a bona fide purchaser are necessary as they ensure protection of the right of citizens to housing guaranteed by Article 40 of the Constitution of the Russian Federation.

Keywords: собственность, ownership, добросовестность, жилое помещение, Владение, good faith, possession