Art. 246, 250 of the Civil Code of the Russian Federation Specifics of the disposition of shared ownership are fixed. In the first rule, in particular, it is said that transactions with such objects should be carried out by agreement of all participants.
However, for a subject who wants to dispose of his part, a restriction is established. It must comply with the ownership of other equity holders right of preemption. Art. 250 Civil Code of the Russian Federation fixes the specifics of the fulfillment of this condition. Let's consider it in more detail.
As the Art. 250 Civil Code of the Russian Federation, in case of alienation (sale, in particular) of a shareto the unauthorized person, the other owners have the right of pre-emption at the price for which it is sold, and on other identical terms. An exception is provided for the conclusion of transactions in the course of public tenders, as well as the sale of the share of the plot by the owner of the part of the building / building or the premises therein located on such an allotment.
Public bidding in the absence of consent to them of all equity owners may be organized in cases specified in Part 2 255 of the article, and in other situations stipulated by law.
Responsibilities of the seller
The entity that alienates its share, as defined in paragraph 2 Art. 250 Civil Code of the Russian Federation, must notify the remaining participants of the proposed transaction in writing. In the notice he is obliged to indicate the value and other material terms of the transaction.
To answer, interest holders are given 30 days atsale of real estate and 10 days with the alienation of a movable object. If, at the end of the specified period, the property owners do not acquire a share, the person has the right to sell it to an outside entity.
According to the provisions Art. 250 Civil Code of the Russian Federation, if the interest holders refuse to purchase, the stake may be sold ahead of schedule (until the end of the statutory period). In this case, the refusal must be made in writing.
The specifics of notification of property owners may be provided for in other federal laws.
Limitations and responsibilities
In case of violation by the person of the right of preferential acquisition of a share, according to paragraph 3 of Art. 250 Civil Code of the Russian Federation, other participants in the property may, within three months, file a claim with the court to transfer the duties and rights of the buyer to them.
Legislation prohibits the assignment of preferential purchase.
The provisions of article 250 apply to cases of alienation of shares under barter contracts.
Art. 250 Civil Code of the Russian Federation with comments
The analyzed norm directly stipulates that the preemptive right extends to movable and immovable objects. In addition, provisions Art. 250 Civil Code of the Russian Federation apply to transactions with documentary securities (CJSC shares), stakes in capital (for example, LLC).
It is worth saying that a special rule,regulating the state registration of transactions with shares, is provided for in Federal Law No. 218. Initially, it established that when registering transactions it was necessary to attach statements on the consent of other owners. In the event of their absence, the authorized employee was required to suspend the procedure for 60 days, send notifications to all participants who did not consent to the transaction, within 3 days.
This formulation significantly limited the rights of the equity owner in comparison with the provisions Art. 250 Civil Code of the Russian Federation. Changes, made in Art. 24 of Federal Law No. 218, allowed to bring it in line with 250 articles.
After the introduction of Part 1 of the Civil Code, the pre-emptive right extends to transactions on the alienation of shares under the barter agreement. In addition, as the judicial practice, art. 250 Civil Code of the Russian Federation It is also used in other cases of disposing of shared ownership.
The participant has the right to bequeath, sell, transfer topledge, donate your part, dispose of the share in a different way at your own discretion with the fulfillment of the rules fixed by 250 articles. For example, with the alienation of part of the property in the form of compensation it is necessary to observe the pre-emptive right to acquire a stake by the other owners.
Meanwhile, the Presidium of the Supreme Arbitration Court, in its information letter No. 2005 from 2005, noted that the qualification of disputed relations not as a sale or purchase can not be considered as an unconditional basis for non-application Art. 250 Civil Code of the Russian Federation.
Features of Succession
Preemptive right is not qualified inlegislation as a non-personal personal. Meanwhile, such an assessment is particularly important in the context of inheritance relations. In judicial practice, the pre-emptive right is not considered non-proprietary and does not apply to those legal possibilities for which, in the sense of 1112 articles, succession is unacceptable.
Explanations on this issue gave the sun. In particular, the Court pointed out that the possibility of a shareholder to demand the transfer of the buyer's powers to him in case of failure by another holder to comply with the provisions of Article 250 of the Civil Code is a derivative of the pre-emptive right. Accordingly, it can not be a personal right, the continuity of which is impossible.
The realization of this right is not in theinseparable connection with a particular person. Consequently, it can be carried out by the heirs of the equity owner without any restrictions within the limits established by law.
Specificity of implementation of provisions
Certain difficulties in practice arise in the consideration of disputes, the subject of which are shares in the right to an apartment building. Explanations in this regard gave the sun.
The court stated the following:
- By virtue of the provisions of Article 252 of the Civil Code, a participantproperty may require the separation of its part from the common property. Accordingly, after this, the equity ownership ceases. This, in turn, means the loss of the person's pre-emptive right to purchase part of the property.
- The provisions of article 250 of the Civil Code are not applied when concluding life-saving contracts with dependents and when alienating shares in public auction in the cases prescribed by law.
- In violation of the provisions of Article 250 of the three-monththe time allotted to another participant of the property for making demands for the transfer of obligations and the rights of the acquirer to him is calculated from the date when the subject became or should become aware of the violation.
The application of the term, suspension, restoration, its interruption are carried out according to the general rules set forth in Articles 199-205 of the Code.
Features of filing a claim
In case of violation of the preemptive rightthe person concerned shall forward the claims to the court within the prescribed time limit. At the same time, he must pay to the p / s of the Judicial Department of the respective region the amount including the purchase price paid for the share, fees and charges provided for by law and other amounts payable to the bona fide purchaser in order to compensate him for costs incurred in connection with the termination of the transaction.
The price of the claim should be determined according to the rules of paragraphs 2 and 9 of part 1 of Article 91 of the Civil Code.
If the requirements are met, the contract,concluded earlier, can not be recognized as invalid. The judge who authorized the case on the merits, in the decision, indicates the replacement of the buyer in the transaction and in the entry in the Unified State Register, as well as the recovery of the amounts paid to them in the transaction. Respondent in such cases, respectively, is a bona fide purchaser.
The legislation does not establish a standard formnotification of property owners about the forthcoming transaction on alienation of a share. It seems that it should contain the essential terms of the transaction, as well as provisions in respect of which the parties have agreed. Among them:
- Subject of the contract.
- The address where the property is located, the share in the ownership of which is alienated.
- The price at which a stake is sold in the right or the name of a particular object to which it is changing.
- If the contract provides for an installment / postponement, its terms and conditions are indicated.
- The period during which participants must respond. However, it can not be less than the deadlines set by the Civil Code.
The notice may contain other provisions that the participants in the transaction consider essential.
If, after notifying the other participants, the terms of the transaction have changed, this must necessarily be reported to the co-owners.