Bona fide buyer: why the fate of a real estate transaction depends on this status

In a situation where a purchased apartment suddenly becomes the subject of a legal dispute, and the new owner may lose it, a complex but vital legal structure comes to the rescue — the status of a bona fide buyer. It depends on how careful the buyer was, whether he will remain with a roof over his head or face years of litigation and loss of money. About who a "bona fide acquirer" is and how to get this status is in the Izvestia article.

Who is a bona fide buyer?

The concept of a bona fide acquirer is enshrined in article 302 of the Civil Code. We are talking about a person or organization who bought property from a seller who did not have the right to sell it, but did so without knowing or being able to find out about violations.

— Most often we are talking about individuals — ordinary buyers who have fulfilled all reasonable requirements of the law and checked the property and its owner, — explained lawyer, member of the Guild of Realtors of Moscow Alla Georgieva.

It is the ignorance and inability to identify violations on the part of the seller that makes the buyer conscientious. But to do this, you need to exercise maximum caution: check the documents, the history of the facility, make sure that there are no arrests, debts or legal disputes.

According to the expert, it is especially important to carefully check the transaction today: the courts are increasingly siding with sellers if they consider that the buyer has shown "insufficient prudence." In other words, it is not enough just not to have malicious intent — you need to act actively, collect information, analyze documents and not ignore the warning signs.

In other words, conscientiousness is not only honesty, but also vigilance. Anyone who has checked everything that is possible will be able to count on the protection of the law even if the seller did not have the right to dispose of the property.

How to minimize risks and prove your integrity

It is extremely difficult to prove your good faith after the fact, when the transaction has already been challenged. Therefore, all the work should be carried out at the stage of preparation for the purchase. Lawyers and realtors create entire checklists of necessary actions that serve as insurance for the buyer.

The first and basic rule is a thorough inspection of the property. Before buying, you must request a fresh extract from the Unified State Register of Legal Entities to make sure that the object really belongs to the declared seller and is not burdened with collateral, arrest or a ban on registration. It is also necessary to study the title documents: on the basis of which a person became the owner — a contract of sale, donation, certificate of inheritance or privatization.

Experts pay special attention to the need to check the history of an object, especially if it was purchased less than three years ago.

— If, for example, the couple bought an apartment two years ago, and they still have a mortgage during the divorce process, then the issue of property division has not been resolved. Buying such an apartment is a big risk," the lawyer explains.

It is important to check whether the object has been resold several times in a short period of time, which may indicate fraudulent schemes.

The second critical block is checking the seller himself. It is necessary to verify all his passport data with the information in the extract from the Unified State Register of Legal Entities. Experts also strongly recommend checking the seller (and his spouse, if any) on open databases.:

— on the FSSP website — for the presence of enforcement proceedings;

— in the bankruptcy registry;

— on the websites of courts of general jurisdiction and arbitration courts.

Special attention should be paid to checking the seller's legal capacity. As lawyer Georgieva points out, it is not enough to simply request a certificate from a neuropsychiatric dispensary.

— Such a certificate only says that the person is not registered, but he may not understand the significance of his actions. Therefore, especially when it comes to older sellers, it is advisable to involve a specialist in the transaction who can give an opinion on the ability to bargain," she said.

According to her, not only pensioners are now at risk, but also so-called "slave" people who may fall under the influence of fraudsters.

The third aspect is the purity of the transaction itself. The payment should be non—cash, and the price in the contract should correspond to the market, without schemes with underestimation of the cost or prescribing part of the payment as "inseparable improvements".

— If the transaction is disputed, the buyer claims a refund in the amount specified in the contract. The remaining amount will be questionable," the lawyer warns.

Experts also advise checking the persons registered in the apartment, including with archival certificates, and it is mandatory to certify the transaction with a notary if there are shares, and ideally to videotape the procedure for signing documents.

What ways do bona fide purchasers have to protect their rights?

Even if the buyer has checked the transaction and exercised all possible caution, the risk of challenging his rights remains. In this case, the court becomes the main instrument of protection.

A bona fide buyer has the right to go to court and prove that he acted honestly and reasonably. This principle is enshrined in article 10 of the Civil Code — participants in civil law relations must act in good faith and reasonably.

According to lawyers, protection can be both active and passive. In the first case, the buyer files a claim himself, for example, to confirm his ownership. In the second case, he is already responding to a claim from the former owner or another person who demands the return of the property. Then the main task is to prove that the buyer did not know and could not have known about the illegality of the transaction. To do this, it is important to provide the court with documents confirming the inspection of the facility and the seller.

Kristina Zhavoronkova, a lawyer and member of the Union of Blogging Lawyers, emphasized in a conversation with Izvestia: it is worth paying attention to the statute of limitations - three years from the moment when the plaintiff learned or should have learned about the violation of his rights. If this deadline is missed, the claims may be rejected.

In which cases will the court oblige the buyer to return the home

Even if the court found the buyer to be in good faith, this does not always mean that the apartment will remain with him. The law allows for the seizure of real estate if the property has been removed from the owner's possession against his will, the transaction has been declared invalid or the rights of third parties have been violated.

In practice, this most often happens when the owner has become a victim of fraud or the imprudent actions of trusted persons. It happens that the seller himself disputes the transaction — for example, referring to the fact that he acted under pressure, was deluded or did not realize the consequences of his actions.

— If the court invalidates the transaction, the buyer is obliged to return the apartment, regardless of whether it is mortgaged. At the same time, the obligations to the bank remain," the lawyers explain.

What kind of money can a bona fide buyer expect and from whom

If the court nevertheless decided to withdraw the housing, the bona fide buyer has the right to compensation. First of all, he may require the seller to refund the amount specified in the purchase agreement. You can also claim additional expenses for repairs, relocation, legal fees, and legal services.

However, as experts admit, it is not always possible to return this money in practice: sellers often turn out to be bankrupt, and the funds received have already been spent or transferred to fraudsters.

At the same time, the new judicial practice is gradually strengthening the protection of buyers. In some cases, the courts oblige the defendants to deposit the disputed amount into the court's deposit before the completion of the process. This creates a financial cushion and increases the chances of bona fide parties to receive compensation in case of loss of property.

What rights does a bona fide buyer have?

The rights of a bona fide acquirer appear at the moment when his status is officially recognized. Such a person has the opportunity to retain his property if it is expressly provided for by law — for example, when he honestly bought an apartment from a person who did not have the right to sell it, and the owner himself lost it of his own free will.

Even if the property still has to be returned, the bona fide buyer remains entitled to full compensation for all losses.

The main rights of a bona fide buyer are the right to housing (to live in the purchased premises), property rights (the apartment is his property, and the money paid is his legitimate property, which he can demand back) and the right to judicial protection. These guarantees help him not to find himself in a desperate situation if the deal is under threat, and give him the opportunity to defend his interests legally.