According to Art. , осуществляется лицами сообща, если другое не устанавливается в законодательстве. 253 of the Civil Code of the Russian Federation, possession, use and disposal of property in joint ownership is carried out by individuals together, unless otherwise provided for by law. All actions with material values are made by agreement between persons. This provision establishes paragraph 2 of Art. . 253 Civil Code of the Russian Federation . Consent is necessary, regardless of who of the subjects is making a particular transaction. ). We will now consider the main provisions that are contained in Article 253 of the Civil Code of the Russian Federation (with comments ).
Specificity of transactions
It is described in part 3 of Art. 253 Civil Code of the Russian Federation. In accordance with the provisions of the rule, each participant can conclude deals, unless another is established by agreement between them. Perfect actions to dispose of property can be challenged. The transaction is considered invalid at the request of other persons due to the lack of authority of the entity, if the other party knew or should have known about it. The rules of art. подлежат применению постольку, поскольку для определенных Кодексом или другим законом не предусматривается иное для конкретных случаев, связанных с общими материальными ценностями. 253 of the Civil Code of the Russian Federation are subject to application insofar as for the purposes specified by the Code or other law it is not otherwise provided for specific cases related to common material values.
The key concept in Art. является термин "сообща". 253 of the Civil Code is the term "together." It follows from the essence of the relations that develop between the subjects. In this case, the law allows the parties to conclude an agreement on the conditions and procedures for owning and using property. They are achieved both during the existence of the relevant relationship, and before they occur. For example, the couple can come to an agreement that the car VAZ will be operated by the husband, and Toyota - the wife. Some legislation does not impose any special requirements on the form of the agreement. Accordingly, the general rules of norms 158-165 of the Code will apply.
In practice, agreements usually exist orally. For example, a subject can express a tacit agreement, the order may evolve over time, etc. However, relations relate to all the same joint ownership. Participants at the same time enter into specific relations. If there is any disagreement, they will be resolved in any case in court regardless of whether there is an agreement or not. If it was, then the form in which it was concluded will be established. It follows from this that the agreements provided for in the first part of Art. , будут действовать до момента, пока отношения лиц протекают нормально. 253 of the Civil Code of the Russian Federation , will remain in force until the relations between individuals proceed normally. In the event of a conflict, the conditions and procedure for the exploitation of material values are determined within the scope of the proceedings.
The rules of art. 253 Civil Code of the Russian Federation with comments
The provisions of the rule in question are reproduced in art. 35 SK. The difference, however, is, first, in a different verbal form. In particular, the rule under consideration states that the use and possession are carried out jointly, and the order is agreed upon by the participants. The norm of 35 SC says the following. The use, disposition, ownership of the property of the spouses is carried out by mutual consent of the spouses. In addition, in the UK, a binding of civil norms and a family-legal category has been made. In Art. и 35 СК говорится о разных вещественных материях. 253 of the Civil Code of the Russian Federation and 35 SC refers to different material matters. In the latter case, we are talking about the common values of the spouses. In the article under discussion it is said about property, which is a joint property. Meanwhile, Art. 35 should be considered within the framework of a system link with the commented norm. This is also indicated by the Supreme Court.
Art. 253 Civil Code: the presumption of consent
It is not dependent on the category of property, the form of the transaction, and so on. Prior to joining the UK, the spouse, guided by the rule in question, could sell any valuables, including immovable objects, independently. Today, in accordance with the third paragraph of Art. 35, the consent of the husband / wife, certified by the notary, is necessary for the transaction:
- Associated with real estate. In particular, we are talking about the disposal of objects. Under it should be understood the definition of the fate of material values (sale, lease, free use , etc.).
- Requiring a notarization. It can be provided directly by legislation or by agreement.
- Requiring state registration. For example, according to clause 2 of Article 558 of the Civil Code, the sale of a dwelling premise must be carried out with the obligatory implementation of this procedure.
At first glance, the rules set out in paragraphs 1 and 3 of the above list are similar. However, in reality, transactions on the disposal of real estate and requiring state registration in practice differ. Let's say a husband decides to sell an apartment house. He belongs to him and his wife by right of joint ownership. Accordingly, to complete the transaction he will need the consent of his wife, certified by a notary and because the actions are related to real estate, and because they require registration. If there is a garage for sale, the situation is somewhat different. Consent in this case is necessary, since there is a disposal of real estate without registration. In the case of purchasing a dwelling, you need paper from a notary, in accordance with clause 3 of the list. This is due to the fact that this transaction must be registered. If the contract of sale is certified by a notary, the consent of the spouse must also be certified. In this case, all three items of the list are valid. If there is a sale of a car that is jointly owned by the wife and husband or the vehicle is purchased and, in accordance with the agreement, the transaction must be certified by a notary, consent from the spouse must be provided in the same form.
Legislation provides that a spouse whose notarial consent has not been received may demand that the transaction be invalid. To do this, he is given a year from the date when he learned or could learn about its commission. This provision serves to protect the interests of the family from unlawful acts of the wife / husband. At the same time, as experts say, it does not contradict civil norms. This, in particular, is confirmed by the fact that according to paragraph 4 of Art. 253 CC, it is allowed to establish a different regime for the disposal, use and possession of joint property.
One of the participants can manage joint property. To do this, other persons give him a power of attorney. If one of the participants in the property (for example, privatized housing) is completely or partially incapacitated, when executing transactions, the requirements of the law provided for such cases should be fulfilled. They are aimed at preventing infringement of interests and rights of such persons. For transactions involving privatized objects, where minors who have the right to use their residence, it is necessary to obtain prior consent from the guardianship authority. It does not matter whether these subjects are legal owners of a part of the premises. This rule applies to cases where transactions are made with a privatized facility in which the minor does not live. In this case, the latter must have equal rights with the owner for the premises. This provision is fixed in part 2 of Article 3 of the Federal Law, which regulates the procedure for privatization of housing stock.
If the subject has acted on the disposal of joint material values, without having the appropriate authority, they can be appealed in a judicial procedure. Applicants in this case will be the remaining participants whose interests and rights were affected by the transaction. However, Art. 253 of the Civil Code establishes the requirement of the need for evidence that the second party to the contract should have been or was aware of the lack of the participant's appropriate authority. As a general rule, such a transaction is classified as contested. Prove the illegality of the actions of the participant will be the entity that requires the agreement to be declared invalid. The second party to the transaction must have intent to commit unlawful acts or gross negligence must occur. When recognizing invalidity to a transaction, the provisions of Art. 167 (item 2) of the Civil Code. The rules of this rule set the obligation to make a reciprocal return received under the contract.
An Important Moment
A number of experts note certain gaps in the presentation of Art. 253. In the opinion of the authors, a transaction involving the alienation of material values carried out by one of the participants in the absence of proper authority can be recognized as invalid, regardless of the subjective attitude of its second party to the process of its conclusion. Meanwhile, if gross negligence or intent in the actions was not, then received under the contract is not subject to refund. Responsibility will be borne by the other participants in the property by the person who concluded the transaction without proper authority.