Is it possible to challenge the act of state registration as...

Is it possible to challenge the act of state registration as an action of a public authority?

Under the act of registration, you can understand not only the document, but also the procedure. In this connection, the question arises about the possibility of challenging the act of state registration as an action of the authority.

The contest of actions (inaction) of public authorities, as well as the contestation of non-normative legal acts, is carried out according to the rules of Ch. 25 of the CCP of the United States. Necessary conditions for challenging the action (or non-normative legal act) of the authority of the US CCP calls violation of the rights and freedoms of the person, creation of obstacles to the exercise of rights and freedoms, as well as unlawfulness of the assignment of duty or prosecution. In any of these cases, the applicant must specify the rule of law that the public authority has violated.

What kind of norm was violated by the institution for registration of rights to real estate and transactions with it and how did it violate the rights of the participants in the transaction?

We know of cases when the violated norm courts are called art. 13 of the Law on Registration of Rights to Real Estate. Recall that Art. 13 of this Law regulates the procedure for conducting state registration of rights. It, in particular, specifies the stages of state registration: a) acceptance of documents; b) their legal expertise and verification of the legality of the transaction; c) establishing the absence of contradictions between the claimed rights and already registered rights, as well as other grounds for refusal or suspension of state registration of rights; d) making entries in the Unified State Register of Trade Units in the absence of such contradictions and other grounds for refusing or suspending state registration of rights; e) making inscriptions on title documents and issuing certificates of state registration of rights.

So, in one of the cases, the court concluded that the act of registration is invalid only because it is based on an invalid transaction, by virtue of Section 1, Art. 167 of the US Civil Code has no legal consequences, which indicates a violation of the institution of justice in its conduct Art. 13 of the Law on Registration of Rights to Immovable Property (FAS Resolution of the Far Eastern District No. F03-A73/05-1/3594 of November 22, 2005). It is not known from the description of the case what caused the invalidity of the transaction, at what time the state registration was made: before or after the recognition of the transaction is invalid, so it is difficult to make an unambiguous conclusion. It is possible that the reason for the invalidity of the registration act was the court's existing nullity of the disputable transaction at the time of registration. In this case, the state registration body did violate Art. 13 of the said Law, since he did not verify the legality of the transaction. But it is possible that the invalidity of the disputable transaction was recognized by the court after registration, then violations of art. There is no Law 13, because the registrar, even within the procedure for verifying the legality of the transaction, is not entitled to question a deal falling under the category of disputable. This can only be done by a court.

Another thing is if the registered transaction is invalid due to insignificance. In this case, the state registration body registers the initially invalid transaction, which gives rise to talk about the violation of the law. However, even here a number of questions arise. The fact is that only refusal in state registration of rights or evasion of the relevant body from state registration can be challenged (Clause 5, Article 2 of the Law on Registration of Rights to Real Estate). The law does not provide for the possibility of challenging other actions, including registration actions. But even if we proceed from the general legal situation according to which any action of a state body that violates the rights and freedoms of the subject of law can be appealed to the court, we will face another problem. Its meaning is that when challenging registration actions, in fact, the question of law is raised, since either the law itself or the transaction that is the basis for the emergence of the law is registered. In any of these cases, this issue can not be resolved, since the question of the right is not solved by way of special proceedings.

Valuable in this regard is the thought expressed by the arbitration court in one of the cases on which the registration act was disputed. The court's decision stated that the plaintiff's chosen way of protecting the violated right - the invalidation of the act of registration of rights to real estate on disputed real estate objects - neither the US Civil Code nor other federal laws is provided for. The current legislation does not provide for the possibility of termination of the right of ownership on a complaint against the actions of a public authority. Judicial protection in case of violation of the registered interests of third parties protected by law under the meaning of para. 2 p. 1 of Art. 2 of the Law on Registration of Rights to Immovable Property is possible by challenging the registered right to immovable property (title documents underlying the registered right) (FAS Resolution of the East Siberian District No. А58-1305/04-F02-6495/06- C2 in case No. A58-1305/04).

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