En
Submit your application

On “saving” confiscated housing by donating it to relatives

One of the “working” options for “saving” real estate from confiscation / foreclosure to pay off debts, the people have always considered the option of donating it to relatives through drawing up a donation agreement, the fictitiousness of which is quite difficult to dispute.

Difficult, but possible!

The Supreme Court of Ukraine published another legal opinion establishing the unlawful fictitiousness of a legal transaction of donating property to relatives in order to conceal it from “foreclosure-confiscation”.

The conclusion of the GC-SCU in case No. 369/11268/16-c of 07/03/19 details aspects of a fictitious donation transaction, subject to invalidation in court, if it is not really transferring property free of charge in favour of another person.

The court proceedings in the case of the collection in favor of the plaintiff (bank) of the debt from the defendant (the debtor natural person) ended with the issuance of a writ of execution to recover from the last property belonging to him.

The defendant, trying to save half of the house and half of the land plot, gave them to his children, knowing that his gift actually almost does not belong to him, since the bank to which he owes claims demand to him.

“The deal was done! For the restoration of justice, the bank appealed to the local court, which, together with the appellate instance of the defendant-debtor and his children, “upset” by declaring the donation agreement invalid and canceling the state registration of rights in the State Register ”.

The deal was declared bogus, but …

Due to some controversial issues, the case was referred to the Grand Chamber of the Supreme Court of Ukraine, which sorted it out, further explaining to the courts the nuances of the legal assessment of such agreements – the aspects of distinguishing between “fictitious” and “invalid”.

So, GC-SCU in its decision indicated the following points:

  1. The Civil Code of Ukraine states that any legal transaction must be carried out with the aim of the occurrence of real legal consequences, and a fictitious transaction can be considered made without the intention to create the consequences specified by it.
  2. A fictitious transaction is subject to annulment – invalidation in court. The recognition procedure should be carried out after the court has established that the parties to the transaction have intent.
  3. A fictitious contract is always concluded deliberately, that is, the parties know that it will not be executed and conclude it with a hidden purpose, not the one stated in the document.
  4. A fictitious transaction is characterized by clear signs: it misleads a third party, it is deliberately not executed, it has hidden intentions.
  5. Each contract cannot be considered fictitious if it contradicts the requirements of the law, since it is not aimed at the actual occurrence of the legal consequences caused by it, it is simply recognized as invalid.
  6. The conclusions of the SVU on cases No. 6-1873cc16 of 19.10.16 and No. 306/2952/14-c of 23.08.17 also regulate such situations with relatives-donors of the disputed property, and they are mandatory for use by the courts when considering similar incidents.
  7. By itself, the fact of non-execution of the transaction by the parties does not automatically classify the transaction as fictitious. Failure to act in this case makes the agreement invalid without any consequences.

16.09.2019

244

YOU MAY BE INTERESTED IN
Forge a document and not go to jail? Is it real?

Interestingly the judges are judging! There is no other way to say after analyzing case No. 750/5469 / 18, which reached the Supreme Court and ended with the publication of a legal conclusion on it on 03.03.2021. In the beginning there was an acquittal … The District Court concluded that the citizen was innocent of […]

Ukrainian courts are cutting lawyer fees to the maximum

Every self-respecting judge considers it his duty to reduce the lawyer’s fee as much as possible. This “phenomenon” is especially painful for lawyers working on an hourly basis. Why is that? God only knows! God knows, but for human rights defenders – absolutely incomprehensible, because the law and practice of the Armed Forces of Ukraine […]

The case was considered by the Supreme Court of Ukraine

The Supreme Court of Ukraine did not allow the bank to prohibit its debtors from leaving Ukraine, since the CPCU does not have such a measure to secure claims as a temporary restriction of the right to travel abroad, even if a foreclosure procedure has been started with respect to mortgage property. Brief overview of […]

CEC-Supreme Court of Ukraine: what should the economic court find out before rejecting the claim?

The Joint Chamber of the CEC of the Supreme Court of Ukraine spoke out on the motivation for refusals to consider claims. In the ruling in case No. 910/6642/18 of 06/14/19, the courts were explained what exactly they should find out before deciding to dismiss the claim when considering economic disputes in the context of […]

Utility debts do not automatically transfer to new owners

In case of a shortage of funds for the purchase of housing, some citizens deliberately go to the purchase of an apartment or house “with debts.” If there is a significant debt for utilities, the owner is ready to sell his residential property at a good discount. The amount of such a discount usually covers […]

Personal mortgage property of a bankrupt entrepreneur: is it subject to collection?

Cassation economic court of the Supreme Court “stood up” for the mortgage apartment of the borrower of the bank, delimiting the personal and business rights and obligations of individual entrepreneurs, as well as limiting the rights of claimants to this property. So, with the conclusion in case No. 922/4404/15, promulgated on 06/04/19, the Supreme Court […]

lacomics.org