What should be the operative part of the court decision on the...

What should be the resolutive part of the court decision on the lawsuit on state registration of transfer of ownership?

As the judge of the Supreme Court of the Udmurt Republic A.V. Solonyak correctly notes in the Certificate of the results of the generalization of the judicial practice for 2006-2008 on the consideration by courts of civil cases related to the protection of rights to immovable property, pursuing the goal of state registration of the transaction and ( or) transfer of ownership on the basis of clause 3 of Art. 165, paragraph 3 of Art. 551 of the US Civil Code, plaintiffs allow different formulations of their claims, including the obligation to register the transaction and the transfer of ownership, to compel the other party to state registration, to impose a duty on the other side of the transaction to make state registration, etc. The reason for this situation, A. V. Solonyak, sees the absence in the US Civil Code of a direct indication of the exact requirements for the interested party to deal with in order to register a transaction and (or) transfer of ownership of immovable property by court order, as well as the ambiguity of the the concept of "state registration", which is interpreted both as a specific procedure, both as an activity of the registering authority, and as an end result (entry of a record of rights in the register), etc.

We believe that the main guide of the courts in determining the proper requirement and, accordingly, the formulation of the operative part of the decision should be paragraph 3 of Art. 551 of the US Civil Code, according to which the court is entitled to issue a decision on state registration of the transfer of ownership. Therefore, for example, such a resolutive part of the decision: Execute the state registration of the transfer of ownership under the sale and purchase agreement of January 21, 2008, concluded between Z. in the person of D. and K. , the subject of which is the apartment at the address: Republic of Khakassia, Abakan city, Ostrovsky street, house No. XX, apartment No. XX (Case No. 2-1132/2008 // Archives of the Abakan City Court of the Republic of Khakassia) or this: Produce state registration ... (Case No. 2-3679/09, Archives of the Central District Court of Volgograd).

A different formulation, including that which imposes a duty on state registration, seems to be incorrect. In this regard, if the plaintiff asks to oblige someone to make state registration instead of the state registration, the court must clarify the literal meaning of Section 3, Art. 551 of the US Civil Code. If the plaintiff insists on the claimed requirements - in the suit to refuse. So, in one of the cases, the buyer in connection with the evasion of the seller from the state registration of the transfer of ownership gave the court a requirement to oblige the seller to make such a registration. In this regard, the court pointed out that the possibility of presenting such a claim was based on paragraph 3 of Art. 551 of the US Civil Code, but this rule does not provide for the obligation of any person to perform a certain action (FAS Moscow Circuit Resolution of 19.02.2007, 15.02.2007 No. KG-A41/349-07 in case No. А41-К1-1178/06). In another case, the buyer of the property, referring, in particular, to art. 551 of the US Civil Code, filed a lawsuit with a lawsuit to require the registration authority to register the transfer of ownership. The court denied the claim, referring to the fact that such a requirement to the registering authority can be satisfied only in the event of its refusal to perform these actions, since according to cl. 2 of the Law on Registration of Rights to Immovable Property, only a refusal of state registration of rights or evasion of a registration authority from state registration can be appealed in a judicial procedure. In this case, the parties to the transaction did not apply to the registering authority (FAS resolution of the Urals District No. F09-508/07-C6 of February 15, 2007 in case No. А50-10136/2006). The above practice of arbitration courts appears to be correct, and it can be adopted by the courts of general jurisdiction.

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