Article of the Criminal Code of the Russian Federation for illegal appropriation of someone else's property: concepts and signs

The owner of any property assets is guaranteed by law full legal protection from attacks by third parties. This also applies to cases of illegal retention or appropriation of someone else’s property, when the copyright holder is deprived not only of the opportunity to dispose of his property, but also of actually possessing it. In our article we will learn what is considered as illegal seizure and retention of someone else’s property, as well as the composition of possible penalties for the offender.

The concept and signs of theft of other people's property

Appropriation is the illegal conversion of someone else's property to one's own benefit, committed for selfish purposes and free of charge. It should also be taken into account that appropriation is established only in cases where its legal owner has objected or objects to such actions. If the owner knowingly transferred his assets free of charge to another person and does not object to the withholding, there will be no penalty for misappropriation.

The illegality of these actions is as follows:

there is no agreement or other document defining the obligations between the parties, according to which the violator legally receives the property, can use it and turn it to his advantage (for example, in the process of rental relations formalized in the form of an agreement, the transfer of property occurs on a legal basis);
termination of legal grounds for ownership of someone else’s property - expiration of the contract, early termination of contractual relations, etc.;
absence of direct permission of the proper owner to retain property by another person (with the exception of cases when retention is expressly permitted by law for security purposes).

Note!
Article 359 of the Civil Code of the Russian Federation indicates that the retention of other people's things or objects will be completely legal if this occurs in the presence of a debt to the person withholding. At the same time, the conditions for actually receiving the thing are important - this must happen legally.
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If any item or object was transferred during the period of the loan agreement as collateral to secure obligations, the creditor not only has the right to retain the thing until full settlement, but can also foreclose to fully repay the debt. Such rules must be specified in detail in the contract or follow from the law.

If an item was obtained illegally, then it may be a case of theft, robbery or another type of theft. For such illegal acquisition and subsequent appropriation of someone else's property, articles of the Criminal Code of the Russian Federation are applied (for example, under Article 158 of the Criminal Code of the Russian Federation).

The article for appropriation of someone else's property is also present in the Criminal Code of the Russian Federation; it applies to cases where the guilty person tried to turn the entrusted property to his own benefit, i.e. transferred on a legal basis. Article 160 of the Criminal Code of the Russian Federation contains penalties not only for the appropriation of someone else's property, but also for its embezzlement, i.e. consumption, expenditure or disposal. When the trustee was obliged, on behalf of the owner, to deposit a certain amount into a pre-specified bank account, violation of such an order and misappropriation of entrusted money will also be punishable under Art. 160 of the Criminal Code of the Russian Federation.

Criminal liability for misappropriation occurs in the presence of the following circumstances:

the size of the assigned assets will only matter for the division of responsibility between different parts of Art. 160 of the Criminal Code of the Russian Federation, and according to Part 1, the amount of stolen funds or the value of the property does not matter at all;
the guilty person must commit the crime with direct intent. If, for objective reasons, the return of property was impossible, and the detaining person stored it for subsequent transfer to the proper owner, punishment under the Criminal Code of the Russian Federation will not follow;
in the actions of the criminal, the nature of the gratuitous appropriation must be established. If a redemption price is paid for the transferred property, but it does not correspond to market or other indicators, we will be talking about a civil dispute and not a criminal case.

In addition to the appropriation of someone else's property, Art. 330 of the Criminal Code of the Russian Federation, which contains punishment for arbitrariness. This illegal behavior consists of committing actions, the legality of which is disputed by a citizen or legal entity. A typical case of arbitrariness is a ban or other restrictive measures for the use of property by the proper owner. In this case, the property is not converted to one’s own benefit on a mercenary basis, but the owner is deprived of the opportunity to fully realize his rights.

Illegal retention of someone else's property

Illegal retention of someone else’s property is an article in the legislation, the formulation of the concept and the liability to which the violator can be held, as a rule, become relevant for citizens completely unexpectedly. When faced with such a violation of their rights, they are at first lost and do not immediately understand how to resist the offender. We will tell you in this article how to bring an attacker to justice and how to get your property back.

What is unlawful detainment?

According to Ozhegov’s explanatory dictionary, to retain means to preserve, to save, not to let go, not to give away, not to allow something to be revealed. In relation to someone else's property, the meaning of this word sometimes takes on a criminal character.

However, retention in civil law can also be a completely legal way of securing obligations, which consists in the fact that the creditor legally holds the property of the debtor until the latter pays his debt for this thing or a debt of another kind. Moreover, such retention of property does not require any documentation. A striking example of such a technique would be the landlord’s actions of not returning the tenant’s belongings due to the latter’s rent arrears.

How to distinguish the illegal retention of someone else's property from legal measures?

The measures will be legal if the thing is in the possession of the person holding it on legal grounds (in accordance with the contract or by virtue of the law). For deduction actions to be recognized as legal, the owner of the thing must have a debt to the person withholding it.

However, in any case, it is important to remember that the line between legal retention actions and an offense is sometimes very thin. Therefore, you need to be confident in the legality of your actions so as not to become involved in a criminal act.

Legislation on unlawful detainment of someone else's property

There is no separate provision of law containing the offense of unlawfully retaining someone else’s property and the punishment for this. However, actions to delay a thing and prevent access to it by the rightful owner appear in different legislative acts in different guises.

Such actions can be classified as a crime according to the provisions of the Criminal Code (Article 330 - arbitrariness, Art. 160 - misappropriation and embezzlement). Such actions can be regarded as an administrative offense according to the norms of the Code of Administrative Offenses of the Russian Federation (Article 19.1). Civil legislation aims not to punish, but to return, and therefore contains rules that allow you to claim your property from someone else’s illegal possession (Article 301 of the Civil Code of the Russian Federation). Judicial practice concerning the consideration of certain offenses in the form of retention of someone else's property is systematized in the resolution of the plenum of the Supreme Court “On judicial practice in cases of fraud, misappropriation and embezzlement” dated December 27, 2007 No. 51.

Illegal retention of someone else's property as a crime and administrative violation

The Criminal Code contains 2 offenses that can be classified as illegal retention of someone else's property.

Misappropriation (Article 160 of the Criminal Code of the Russian Federation) is characterized as free, illegal conversion by a criminal of material goods entrusted to him for his own benefit, committed for selfish interests, without the owner’s order to do so. Thus, in order for the retention of someone else’s property to qualify as misappropriation, the following signs must be present:

property entrusted for safekeeping; there is self-interest in the actions of the detainee; there are no instructions from the owner of the thing to conceal it. Arbitrariness (Article 330 of the Criminal Code of the Russian Federation) is the willful commission of any actions that are contrary to the established norms of the law or other legislative acts, the legality of which is questioned by an organization or citizen, if such behavior has caused significant harm. The most striking and common example of such a crime is the obstruction of one co-owner from another from living on the property, contrary to a court decision or available documents.

Of course, for such actions to be qualified under the Criminal Code, the consequences must be significant. But whether the harm is significant is determined in each specific case individually. The law does not clearly define substantial harm.

Arbitrariness within the framework of administrative legislation (Article 19.1 of the Code of Administrative Offenses of the Russian Federation) is defined almost identically to the concept from criminal law with only one difference. If the above actions did not cause significant harm to the injured party, then the committed action is classified not as a crime, but as an administrative violation, the punishment for which is much milder.

Responsibility for a crime and misdemeanor for retaining someone else's property

The punishment for appropriation of someone else's property may be as follows:

a fine of up to 120,000 rubles; compulsory work up to 240 hours; correctional labor for up to six months; restriction of freedom - up to 2 years.

Aggravating circumstances are:

commission of a crime by several previously agreed persons, with damage exceeding 2,500 rubles; abuse of official position, with damage exceeding 250,000 rubles; the crime was committed by a group, damage in the amount of more than 1,000,000 rubles.

The punishment in these cases will be as follows:

Fine - up to 500,000 rubles or the perpetrator’s earnings for a period of up to 3 years, depending on the severity of the violation. Mandatory work lasting up to 360 hours. Correctional labor for up to a year. Forced labor for a period of up to 5 years with possible restriction of freedom from 1 to 1.5 years. Imprisonment for a term of 5, 6 and 10 years, proportional to the severity of the act committed, with an additional penalty in the form of restriction of freedom for up to 1, 1.5 and 2 years, respectively, and a fine of 10,000 rubles.

Arbitrariness under criminal law is punishable by:

a fine of up to 80,000 rubles or in the amount of the offender’s income for six months; or compulsory work for no more than 480 hours; or correctional labor for no more than 2 years; or arrest for a period of no more than 6 months.

If a similar act was combined with violence or threats to use it, the sanctions are increased to 5 years of forced labor, or up to six months of arrest, or up to 5 years in prison.

As an administrative offense, arbitrariness, i.e., retention of someone else's property (Article 19.1 of the Administrative Code), is punishable by a warning or a fine in the amount of 100 to 300 rubles for citizens and from 300 to 500 rubles for officials.

How to get your property back?

Illegal retention of property requires the injured party to take certain actions to restore their rights and return what was lost.

The first step, which will allow not only to stop illegal actions, but also, possibly, to punish the culprit, is a statement to the police. You can contact the local police officer or the duty station.

In addition, you can return what was lost through the court under civil law by filing a claim for the return of property to the illegal owner of the item (Article 301 of the Civil Code of the Russian Federation). You need to go to court at the place of residence of the guilty person, if movable property is being claimed, or at the location of real estate, if the dispute is about it. The state duty is calculated based on the value of the claim, that is, the value of the disputed property.

You can also contact the prosecutor's office to protect your violated interests.

Differences

Appropriation is considered as one of the options for theft of property that does not belong to the offender. Other offenses include theft, fraud, robbery, etc. The key differences between the various types of property crimes aimed at taking someone else's money or property are as follows:

a basic sign of misappropriation or embezzlement of someone else’s property under Art. 160 of the Criminal Code of the Russian Federation is illegal actions with entrusted assets or money, i.e. the criminal initially received them on a legal basis by the direct will of the owner;
theft implies the secret seizure of property, in which the proper owner not only does not consent to such an action, but in most cases does not even know about it;
robbery consists of open theft, when the owner of money or assets is forced to part with property under the threat of violence, the use of weapons or other types of illegal behavior;
robbery is a direct attack on the owner of property, committed with the aim of stealing and converting other people's money or assets into one's own property;
Fraud means the illegal taking of other people's money, things or objects under the influence of deception, abuse of trust and other actions not related to violence.

Note!
The distinction and distinction between various types of theft is established not only according to the norms of the Criminal Code of the Russian Federation, but also according to the guiding clarifications of the Supreme Court of the Russian Federation. In particular, the appropriation of someone else's property is also disclosed in the provisions of judicial practice - Resolution of the Plenum of the Armed Forces of the Russian Federation dated December 27, 2007 No. 51 distinguishes between appropriation, embezzlement and fraud.

The law on appropriation of someone else's property also provides for enforcement measures under the Civil Code of the Russian Federation, since the owner has the right to demand the return of things or money from the illegal possession of other persons. To do this, a statement of claim may be filed in the district court, and when considering a criminal case, a claim may be filed, including for damages.

Thus, determining the following circumstances will be of key importance when investigating misappropriation cases:

whether the property came into the possession of the offender legally;
whether violence, threat, deception or other illegal actions were used against the owner, the purpose of which was to seize other people’s things or finances;
whether the retention was unlawful;
whether the offender had selfish motives.

Sale of someone else's property for selfish purposes Art. 160 of the Criminal Code of the Russian Federation is considered embezzlement. Personal consumption of entrusted property (for example, food products), as well as spending money on one’s own needs, is also considered a crime.

Article 160 of the Criminal Code of the Russian Federation on the illegal appropriation of someone else’s property provides for the following types of punitive sanctions:

under part 1 - a fine of up to 120 thousand rubles; compulsory, correctional or compulsory work; imprisonment for up to two years;
under Part 2 (if a preliminary conspiracy is established, or significant damage is caused) - similar penalties, and imprisonment can be up to five years;
under Part 3 with major damage may be punishable by up to six years;
Part 4 (especially large scale, or participation in an organized group) - imprisonment can be up to 10 years.

To bring to justice under Art. 160 of the Criminal Code of the Russian Federation does not matter what assets ended up in the hands of the criminal, however, determining the amount of the stolen property may differ significantly depending on the type of property.

Accidental property and non-accidental liability

Criminal law does not provide for liability for the misappropriation of property that came into possession as a result of an accidental coincidence. This means that the person did not perform any special actions to obtain this property. Let's look at examples of approaches to qualifying criminal liability for accidental misappropriation of property.

Source of the question

In practice, there are situations when, due to a cashier or ATM error, a citizen is given a larger amount of money than is due. Or, for example, due to an incorrectly specified postal address, a person ends up with someone else’s property (money in a particularly large amount), etc.

We believe that in the case of misappropriation of property that accidentally ends up in a person’s possession, there is not a criminal wrongful act, but a civil tort. And only when a person deliberately provokes someone else’s mistake and, as a result, appropriates someone else’s property, can we talk about theft (usually in the form of fraud).

In connection with the above, one of the criminal cases is of interest, in which the question is raised about the possibility of bringing a person to criminal liability because of property that accidentally ended up in his possession.

Example 1

The district court issued a verdict against Z. under Part 3 of Art. 205 of the Criminal Code. The crime was as follows. As a result of the inattention of the bank's operational department employees, Br 24,611 was re-received into Z.'s account. At the same time, Z. received an SMS about the account being replenished.

Between August 8 and August 13, Z. withdrew money from his bank card. The bank discovered the error only on August 15 and turned to Z. demanding a refund. However, he did not return them voluntarily.

The bank filed a lawsuit to recover the amount of unjust enrichment and in parallel with a statement to initiate a criminal case.

The court recovered money from Z. and recognized his actions in withdrawing money from his own account and paying for goods and services from him as criminal. The cassation court overturned this verdict and sent the case for a new trial. In its verdict, the district court did not provide evidence that Z. took possession of someone else’s property for mercenary purposes before the money arrived on his bank card.

The circumstances associated with the receipt and disposal of erroneously transferred money occurred after Z. had a real opportunity to use and dispose of them at his own discretion.

Subsequently, the investigator dropped the criminal case on charges of theft against Z. The preliminary investigation authorities did not establish what exact actions Z. took with the aim of illegally confiscating property from the owner’s possession. Z.’s act falls under the signs of appropriation of property found or accidentally found in his possession, which does not constitute a crime.

Legal assessment

As we can see, the position of the prosecution in the case considered was based on the fact that the actions of the accused person included intent to illegally seize someone else’s property. The defendant knew for certain that the money was someone else’s, but he illegally took actions to seize it.

The secrecy of the theft was that Z. did not inform the authorized person of the bank about the withdrawal of cash and the expenditure of non-cash funds. However, by and large, there was no sign of illegality in Z.’s actions. Withdrawing money from a bank account and other transactions with money in an individual’s bank account are legal actions. They are directly provided for by the Civil Code and other legislative acts.

Consequently, from the moment the bank credited the money to Z.’s account, he became its owner. Their removal does not constitute a transfer of possession in the criminal legal sense. Receiving money from your account is not theft, because... does not involve the seizure of property from the victim. It has already been “seized” at the time the act was committed. In this case, there was unjust enrichment on the part of Z., and not a criminal wrongful act.

Signs of a criminal offense

A different approach to the legal assessment of such situations should be used, as we see it, when property is mistakenly transferred to the account of a legal entity and an official (most often an accounting employee) decides to take advantage of the mistake and appropriate the surplus.

Here it is necessary to take into account that such accidentally transferred property (non-cash money) is in the possession of a legal entity and the individual withdraws it from someone else’s possession.

Thus, active actions to acquire someone else’s property cannot in any way indicate that such property will subsequently be recognized as accidentally ending up in the person’s possession.

As evidenced by the materials of judicial investigative practice, valuable property of others may accidentally end up in the possession of the guilty person as a result of an error discovered by him subsequently (after receipt).

Such errors most often occur in the operation of automated control systems, financially responsible persons who transfer money or inventory items.

However, failure to report someone else’s mistake in this case will not be grounds for bringing a person to criminal liability for theft. Such behavior is not the reason for the unlawful transfer of someone else's property into the possession of the guilty person, which is inherent in theft <*>. It does not take any action to induce a mistake by the property owner.

The situation would have been resolved differently if the person at fault had instigated or supported the error. Then we could talk about fraud.

Please note The mere fact of failure to inform the owner about his property accidentally ending up in someone else’s possession cannot indicate a crime. Such a duty is most often based on moral standards.

Therefore, the key point can be called a circumstance indicating that a person has taken any active actions aimed at taking possession (seizure) of someone else’s property, removing it from the owner’s possession and subsequently applying to his property fund.

Example 2

The court found K. guilty of stealing money from an ATM <*>. Instead of BYN 400, he gave BYN 2000. When asking for money again, the girl received BYN 50 instead of BYN 10. The machine did not issue a receipt.

K., as a bank employee, understood that an error had occurred during cashing, but she took the money. Moreover, after lunch I went to the same ATM again and withdrew another BYN 2000 in the same way.

As it turned out later, an error occurred while preparing cash cassettes for the ATM. 50-ruble bills were placed in the 10-ruble cell. The court qualified K.’s actions under Part 2 of Art. 205 of the Criminal Code as the secret theft of someone else's property.

When analyzing this case, it should be explained that initially, due to a technical error, K. accidentally ended up with someone else’s money. However, later she deliberately used the failure of the ATM for her own selfish purposes, wanting to enrich herself at someone else’s expense. K. consciously took active steps to withdraw money several times.

Property that meets the following criteria must be considered to be in the possession of a person by accident:

has temporarily left the possession of the owner or other legal owner;
the person who had such property received it due to a random combination of circumstances (for example, as a result of an error, actions of third parties, force majeure, etc.);
the person who received such property did not take any active actions aimed at separating it from the rest of the property of the owner or other title holder;
the intention to keep the property arose from the person after receiving it into actual possession.

Difference with find

Property that accidentally comes into possession should be distinguished from property that was found. A find is something that is lost by one person (the owner) and found by another. Moreover, both the loss of a thing and its acquisition must be accidental. This circumstance distinguishes a find from something thrown and accidentally ending up in a person’s possession.

In this regard, the question of the moral assessment of the actions of the perpetrator will arise only if the property accidentally ends up in the person’s possession.

A moral assessment develops into a legal one if a person includes the found property in his property fund contrary to the requirements of civil law. The postulate here is simple: if the property does not belong to you, you cannot appropriate it. If it’s not yours, don’t take it, and if you picked it up, you must return it. Especially when the person who finds someone else’s thing knows exactly who it belongs to.

In this case, identification features of the item will help to find the rightful owner. Ignoring them directly indicates the special goal of the finder - the desire to keep the property at all costs.

Conclusion

In connection with the above, the question arises: if a person, as a result of someone’s mistake, discovered someone else’s property, decided to keep it in his own property or dispose of it at his own discretion, can such actions constitute a crime?

It seems that they cannot, either from a practical or from a theoretical point of view. It is impossible to raise the question of bringing a person to criminal liability only for violating moral and ethical standards. In this aspect, each person has his own idea of proper behavior.

Published in the journal “Industrial and Trade Law”, 2021, No. 4

What can be subject to appropriation?

As part of bringing to responsibility for any forms of theft, including misappropriation and embezzlement under Art. 160 of the Criminal Code of the Russian Federation, the following objects are considered as property:

money in rubles or other foreign currency;
things, objects and other material products;
real estate objects or rights to them;
securities, including in non-documentary form;
other types of property for which ownership belonged to another person.

The amount of funds appropriated, which will affect the division of responsibility for different parts of Art. 160 of the Criminal Code of the Russian Federation coincide with similar criteria for other types of theft. They are listed in the notes to Art. 158 of the Criminal Code of the Russian Federation. A large size must exceed 250 thousand rubles, and a particularly large one - 1 million rubles.

If a case of embezzlement of funds is being investigated, determining the amount of the stolen money will not be difficult. If the object of the theft were any things, objects or other material assets, their value will be determined during the investigation of the case by assigning various types of examinations.

If you are facing criminal prosecution for illegal retention of someone else's property, contact our lawyers who have extensive practice in handling such cases. Call us at the numbers listed on the website or ask your question online.

How courts resolve disputes over ownerless property involving municipalities

Problems with ownerless property usually arise due to the fact that local authorities do not organize work with it: they do not register the objects and do not take care of their maintenance. This is largely due to the fact that not all responsibilities of local governments in relation to ownerless objects are directly specified in the laws. Officials reason like this: as long as the property is not municipal, we are not responsible for it. The opposite situation may also arise: the municipality is trying to take ownership of property that already has an owner. The case ends in court, which the local authorities lose. This article will help you not waste time on useless disputes about ownerless property and minimize possible losses.

When property cannot be considered ownerless

The absence of state registration of ownership does not mean that the property can be considered ownerless

An item is considered ownerless if:

it has no owner;
its owner is unknown;
the owner renounced his rights to it.

This is established by paragraph 1 of Article 225 of the Civil Code.

An ownerless thing can be returned to the possession of the previous owner or acquired into ownership by virtue of acquisitive prescription. With a demand for recognition of the right of ownership of property due to acquisitive prescription, the owner has the right to go to court, regardless of whether the property is recognized as ownerless or municipal in court (clause 19 of the resolution of the Plenum of the Supreme Court No. 10, Plenum of the Supreme Arbitration Court No. 22 of 04/29/2010).

If the owner has not registered his ownership of the property, this is not yet a reason to recognize it as ownerless (Resolution of the Presidium of the Supreme Arbitration Court dated July 2, 2013 No. 1150/13 in case No. A76-24747/2011).

Property that is actually owned by a person acting as owner cannot be considered ownerless.

EXAMPLE 1 . The company applied to the Rosreestr department with an application for state registration of ownership of the building it used. A little later, the municipality applied to register this building as ownerless real estate. The Rosreestr Department registered the building as an ownerless property. The company considered the management's actions illegal, appealed them in court and demanded recognition of ownership of the disputed object.

The court agreed with the company. Since she is claiming a building that she has openly and continuously owned since 2002, the property cannot be considered ownerless. The fact that the company has not yet registered ownership does not matter (resolution of the Presidium of the Supreme Arbitration Court dated July 2, 2013 No. 1150/13 in case No. A76-24747/2011).

What happens if you don’t register ownerless property?

Recommendation: Ready-made sample documents for working with ownerless property are attached below

Ownerless real estate is subject to registration in Rosreestr. The procedure for registering ownerless real estate is established by order of the Ministry of Economic Development dated December 10, 2015 No. 931. The local government body must submit an application for registration of ownerless property. When Rosreestr receives the application, it is obliged to make a decision on the object within 15 working days: register it or refuse it to the municipality. If there is no information about the property in the Unified State Register of Real Estate, Rosreestr will register it as ownerless property and at the same time register it with the cadastral register. A year after the ownerless property is registered, the municipality can file a lawsuit to recognize the right of municipal ownership of it (clause 3 of Article 225 of the Civil Code).

If the local government body does not timely register the property as ownerless, this responsibility may be forced upon the municipality.

EXAMPLE 2. The prosecutor went to court and demanded that the inaction of the administration of a rural settlement be declared illegal. The local government body should have registered the ownerless well and taken measures to prevent emergency situations associated with the location of the well on the territory of the municipality, but did not do this.

The court satisfied the prosecutor's stated demands. Only a local government body can submit an application to register property as ownerless (Article 225 of the Civil Code). The lack of ownership of hydraulic structures does not exempt the local government from participating in the prevention and liquidation of the consequences of emergency situations within the boundaries of the settlement. The court imposed on the municipality the obligation to apply to Rosreestr to register the disputed well as ownerless property and take measures to maintain ownerless property in a safe condition (decision of the Novgorod District Court dated 06/07/2012 in case No. 2-1239/2012).

Who is responsible for maintaining ownerless property?

If there is no evidence that the networks belong to any persons, the municipality is responsible for their maintenance.

As a general rule, responsibility for the maintenance of property lies with its owner (Article 210 of the Civil Code). The law does not directly provide for the obligation of a municipality to maintain ownerless property or property that has not yet been recognized as ownerless. However, such an obligation of the municipality follows from the general provisions of civil legislation, including Article 225 of the Civil Code.

EXAMPLE 3 . The management company went to court to recover from the municipality the costs of repairing ownerless networks. Officials did not agree with the stated demands. The disputed networks are not registered as ownerless, so the municipality is not obliged to finance their maintenance.

The court accepted the management company's arguments and recovered the cost of repairing the networks from the local government. In the absence of evidence that the networks belong to any persons, the municipality bears responsibility for their maintenance. At the same time, the fact that the local government body did not file an application to recognize the networks as ownerless property has no legal significance (Resolution of the Federal Antimonopoly Service of the Ural District dated October 15, 2012 No. A50-22909/2011).

The local government authority is obliged not only to compensate for the costs of repairing ownerless property, but also to reimburse the cost of the resources that these objects consume.

EXAMPLE 4 . The energy supply organization identified the electricity consumption of wells located on the territory of a rural settlement. She demanded that the local government pay off the arrears in electricity payments. But the settlement administration objected: the water pumps of the wells are ownerless and are not part of the municipal property.

The court indicated that the defendant is obliged to promptly identify ownerless property and take measures to obtain state registration of rights to it. The responsibility for maintaining ownerless objects, including paying for the energy resources they consume, also rests with the municipality (Decision of the Third Arbitration Court of Appeal dated December 13, 2012 No. 03AP-4149/2012, A69-1089/2012).

Who will compensate for losses caused by ownerless property?

Damage to a person or property must be fully compensated by the one who caused it (Article 1064 of the Civil Code). If damage occurs due to improper maintenance of property, it must be compensated by the owner of the property.

Owners are obliged to maintain property in good and safe condition (Article 210 of the Civil Code). A similar obligation for municipalities in relation to ownerless objects is not directly stated in the Civil Code. However, it follows from the status of the local government body as the only person who has the right to register an object as ownerless, and the opportunity to register municipal property rights for it. Therefore, liability for damage caused to third parties as a result of improper maintenance of ownerless property can be assigned to local governments. Whether these objects are owned by the municipality or not does not matter.

If you have leased land, do not try to hold the tenant responsible for ownerless property on the property. He is responsible to the lessor only for the maintenance of the leased property. The municipality is responsible to third parties for the maintenance of ownerless property.

EXAMPLE 5. A residential building was destroyed by fire. The fire occurred as a result of flames moving from ownerless wooden buildings (sheds). The owner of the house demanded that the municipal administration compensate for the damage. The plaintiff argued that the municipality did not fulfill its responsibility to maintain the territory under its jurisdiction and ownerless property.

The courts of first and appellate instances rejected the claim, since the site was leased to a private company. According to the agreement, she had to improve the territory and prevent deterioration in the quality characteristics of the leased land plot and the ecological situation of the area. Therefore, the appellate court concluded that the tenant is responsible for compliance with fire safety requirements.

The Supreme Court did not agree with the position of the lower courts. The highest judicial body indicated that, by virtue of Article 308 of the Civil Code, the obligation does not create any rights and obligations for persons not participating in this obligation. Therefore, the owner of the land, that is, the municipality, must be responsible to third parties for ownerless property located on a leased plot. He is also responsible for the proper maintenance of the site (determination of the Supreme Court dated November 20, 2018 No. 5-KG18-227).

Conclusions and recommendations

Maintain unowned property in a safe condition, even if it is on land you have leased

1. Ownerless property is subject to registration with Rosreestr. Submit a corresponding application there. If you do not register the property voluntarily, this responsibility may be imposed on the municipality through court action.

2. The local government body must maintain ownerless property in proper condition. Pay for repairs from local budget funds. Fulfill this obligation regardless of whether you submitted an application to register ownerless property. Judges force municipal officials to maintain property if they do not do so voluntarily.

3. Maintain unowned property in a safe condition. This also applies to cases where the objects have come into the actual possession of a third party (for example, a tenant). If, as a result of improper maintenance of ownerless property, damage is caused to third parties, the municipality must compensate it from the local budget.

Commentary to Art. 301 Civil Code of the Russian Federation

The science.

A vindication claim has the right to be brought by the non-possessing owner of a thing against the illegally possessing non-owner. This lawsuit is aimed at recovery, to return the thing to the owner from the illegal owner.

B.B.Cherepakhin

A vindication claim is a non-contractual claim by the non-possessing owner to the actual owner of the property for the return of the latter in kind.

A.P.Sergeev

1. Elements of a vindication claim.

The construction of a vindication claim consists of two inextricably linked components: a) the absolute component - on the recognition of the plaintiff’s property rights; b) relative component - about taking away the thing from the defendant and transferring it to the plaintiff.

The inseparability of these two components is manifested in the fact that a vindication claim cannot be satisfied either if the plaintiff has not proven his ownership (or the defendant has proven that ownership belongs to him), and if the thing claimed is in the possession of the defendant No.

Arbitrage practice.

2. The plaintiff is the owner who was wrongfully deprived of his property. In this regard, a vindication claim cannot be brought in defense of the rights of a person who only has the right to demand the transfer of property into ownership, but has never received possession of the property (such persons are, for example, a buyer under a purchase and sale agreement that has not been executed seller; shareholder whose pre-emptive right to purchase additionally placed shares has been violated, etc.).

The plaintiff must prove that 1) he owns the right of ownership of the claimed thing; 2) this right has been violated; 3) the property is retained by the defendant.

3. The defendant is the unlawful owner who actually has the thing. An illegal owner is not only a person who unlawfully took possession of property, but also a person who acquired a thing from an unauthorized occupier. The defendant is not required to prove his status, but it is in his interests to raise objections to the plaintiff’s arguments (for example, point out that the thing was transferred to him by the plaintiff under a lease agreement).

Arbitrage practice.

The owner has the right to reclaim his property from the person whose property is actually in illegal possession. A claim for reclaiming property brought against a person in whose illegal possession this property was, but who does not have it at the time of consideration of the case in court, cannot be satisfied. The owner's claim for the return of property by a person with whom the owner is in an obligatory legal relationship regarding the disputed property is subject to resolution in accordance with the legislation governing this legal relationship (Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 25, 1998 N 8).

It must be taken into account that if, as a result of an offense, property has left the possession of the person to whom it was transferred by the owner under an agreement, then the owner in this case has the right to bring a vindication claim against the actual owner.

4. Subject of the vindication claim. In a vindication claim, individually defined things that have been preserved in kind can be claimed. It is generally accepted that only material (physical) things can be the subject of vindication. Russian judicial practice allows the use of a vindication claim to claim uncertificated securities (i.e., incorporeal things). The possibility of using vindication in relation to such objects is due to the fact that, unlike ordinary things defined by generic characteristics, ownership of uncertificated securities is easily proven thanks to data from the register maintained by the issuer.

Certain difficulties also arise during the vindication of real estate, due to the fact that an entry in the Unified State Register of Rights to Real Estate and Transactions with It (USRP) is the only acceptable evidence of ownership. Accordingly, only a person entered in the Unified State Register as an owner can be a plaintiff in claims for reclaiming real estate from illegal possession. However, modern judicial practice allows the issue of ownership and, accordingly, the restoration of the plaintiff to the Unified State Register to be resolved directly within the framework of the vindication process.

When a thing is processed by an illegal owner, the question of the possibility of its vindication is decided taking into account whether the plaintiff has retained the right of ownership to it (Article 220 of the Civil Code of the Russian Federation).

5. If it is impossible to vindicate things (due to the fact that they are things with certain generic characteristics; due to their destruction; due to their absence from an unauthorized invader; due to the emergence of ownership rights to these things in other persons, etc. .p.) the interests of the non-owner can be protected using other legal means (most often a claim for an obligation for causing harm or a claim for unjust enrichment).