Sometimes, in practice there are situations where the same premises is sold to several buyers. These transactions can take place both in new buildings under construction and the sale of real estate on the secondary market. To learn how to protect themselves in case of double sale says lawyer Oleg Sukhov, a leading lawyer of the First Metropolitan Legal Center.
First, depending on what kind of contract was entered into with the buyer, and on what property, the grounds for pre-emptive rights to such property will be different.
For example, if we are talking about the primary real estate market, where there was a deal on the implementation of an object by any contract (investment, co-investment, pre, a treaty cession, treaty), except the contract of share participation in construction is subject to compulsory state registration Rosreestra , the preferential right to property will be the person who previously signed or paid for the contract.
If we are talking about a contract to build equity in the house of a new building, which is subject to compulsory state registration, in this example, it does not matter who is first signed, or pay contract, and has a value, to whom the contract was first registered in Rosreestra. All other applicants who were not lucky enough to get an apartment or a parking place or office in the property due to the presence of a buyer who has the right of the object in question can only go to court with claims for incurred losses and penalties for the illegal use of funds . (Treaty of participatory construction shall be in writing, subject to state registration and is concluded with a moment of such registration, unless otherwise provided by federal law (Section 3, Article. 4 of the joint construction). This rule corresponds to the norm of Paragraph 3, Article. 433 of the Civil Code, which established that the treaty, subject to state registration shall be deemed concluded upon its registration, unless otherwise stipulated by law).
As for the secondary real estate market, again depending on whom was registered contract of sale in Rosreestra, he is the purchaser of the property, other buyers to qualify for this object can not. Where there are several deals contract of sale did not pass the mandatory state registration of any of the buyers, the advantage for the ownership of the property is the person who is first signed, or pay for the contract.
Second, the above rules about pre-emptive right to the acquired property on double sale apply to those traders, who went to court with the relevant requirements and which is known as the court and other participants in the transaction. If the presence of double sales the buyer has no information that against him carried a double sale and asked the court to the requirements for recognition of a property right to the acquired property, it loses its status of a potential owner in connection with the occurrence of such status for the person which the court asked. Ie in this case a preferential right to property is the person that the court first recognized the right of ownership to the disputed object.
Third. Protect the rights of a buyer who can not qualify for a property because of double sale, you can claim against the seller for damages. In accordance with Art. 15 of the Civil Code a person whose rights were violated may demand full compensation of losses, unless a statute or contract provides for compensation for damages to a smaller size. If the person has violated law, was because of this income, the person whose right is violated, the right to demand compensation, along with other damages for lost profits in an amount not less than such revenues.
This way of protecting civil rights provided for Section 4 of Art. 165 Civil Code, stating that the party unjustifiably refused state registration of the transaction (in this case - the seller) must compensate the other party for losses caused by the delay in or registering the transaction.
In addition, in this case by analogy to apply Section 3, Article. 551 Civil Code. In accordance with this rule the party unjustifiably refused state registration of transfer of ownership must compensate the other party for losses caused by the delay of registration. In paragraph 61 Joint Resolution of the Plenum Forces N 10, the RF N 22 from 29.04.2010 "On some issues arising in judicial practice in resolving disputes relating to the protection of property rights and other rights" indicated that if the seller has concluded Several contracts of sale for the same real estate and made the state registration of transfer of ownership of one of the buyers, another buyer may require the seller to claim damages caused by breach of contract of sale.
Fourth and most importantly, that every reader of this article, and buyers who have been, unfortunately, the party transactions on a double sale, should know and understand - the court is an organ of state power, which has the legal obligation to resolve the dispute, whatever. Based on the evidence presented and formed, including the legal position. The court was not intended and will not protect buyers if the double sales if they do not prove that they were deceived and did not prove guilt of the seller. The Court does not protect the offended and insulted the court as an arbitrator tries to reach a conclusion about who is wrong, and in accordance with what, what punishment should be held. Therefore, one should not expect that the court will protect you, the court does not protect. The law prohibits the court to defend. Only a lawyer can protect and wisely and properly build a line to your requirements in court and the court, if there is reasonable substantive law requirements, may agree with them and make a solution that protects your rights, and the only way and no different.
Lawyer Oleg Sukhov, a leading lawyer of the First Metropolitan Law Center "