When banks have no right to seize property?

23.04.2012 09:15
Articles about real estate | When banks have no right to seize property? The only case of an anti-alienation Bank apartment, passed out a mortgage, is the fact of residence or registration in this apartment for minor children (the laws of Ukraine "On Protection of Childhood", "On the basis of social protection of homeless people and street children").

This is related by Natalia Dotsenko-Belous, attorney law firm "Vasil Kisil and Partners."

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Eviction of minor children can be achieved only with the consent of the guardianship authority subject to the provision of other accommodation with similar or better living conditions. Provided area must be suitable and intended for habitation (eg, building an orphanage, etc.).

Article 71 of the Housing Code of the USSR provides for the preservation of rights to housing for the temporarily absent tenants, including their family members (eg, persons residing in prison, the recruits). However, this rule applies only to the relationship of employment premises of state and public (municipal) housing (Article 4, Chapter 2 of the Housing Code of the USSR), respectively, the rate can not prevent a bank foreclosure in the apartment. At the same time for the purity of the transaction to the bank first to make the eviction of such persons in accordance with Article 109 of the HCS.

On January 14, 2009, in connection with the performance of the Law № 800 of 25 December 2008, the mortgagor (bank) has received an unprecedented right to sell the mortgaged property on their behalf on the basis of the mortgage contract without the consent of the mortgagee. This rule allows the mortgagee, not only to foreclose on the mortgaged property, but also make it a seamless implementation of the mortgagor without the eviction, which is possible only by the court under article 109 of the Housing Code of Ukraine. The only duty of a mortgagee against the mortgagor is notified of the latter and all persons registered in the disputed site, thirty days before the proposed transaction.

Since late in exactly one month the Ministry of Justice responds to changes made by the Law № 800 on December 25, 2008, the Law of Ukraine "On Mortgage" and cancels an explanation of the impossibility of non-judicial foreclosure of the mortgaged flat (clarification from February 19, 2009).

These changes simplify and accelerate the solution of issues with the banks of the pledged property, as these rules allow you to dispose of the mortgaged property without the eviction of citizens, which requires a decision of the court.

For borrowers these changes - this is the worst kind of corporate raid which could make the legislator under the slogan "stabilization of the construction and implementation of housing rights." As citizens in a single day, not only will lose the right to property, but will not be able to defend their rights in court if the apartments will be bona fide purchaser (the third or fourth owner), reclamation of the property in whose nature is possible in exceptional cases under Article 388 of the Civil Code of Ukraine .

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