Art. 246, 250 of the Civil Code of the Russian Federation fix the peculiarities of disposing of shared property. The first norm, in particular, states that transactions with such objects should be carried out by agreement of all participants.
At the same time, a restriction has been established for an entity wishing to dispose of its part. He must observe the right of preemptive purchase owned by other equity owners . Art. 250 of the Civil Code of the Russian Federation sets out the specifics of fulfilling this condition. Let's consider it in more detail.
General information
As established by Art. 250 of the Civil Code of the Russian Federation , in case of alienation (sale, in particular) of a share to an unauthorized person, the remaining owners have the right of preemptive purchase at the price for which it is sold, and on other identical conditions. An exception is provided for the conclusion of transactions during public tenders, as well as for the sale of a portion of a site by the owner of a part of a structure / building or premises located on such an allotment.
Public tenders in the absence of the consent of all equity owners may be organized in the cases specified in paragraph 2 255 of the article, and in other situations provided by law.
Seller Responsibilities
A subject alienating its share, as established in paragraph 2 of Art. 250 of the Civil Code of the Russian Federation , must notify the remaining participants of the proposed transaction in writing. In the notice, he is obliged to indicate the cost and other material terms of the transaction.
For an answer, interest holders are given 30 days for the sale of real estate and 10 days for the alienation of a movable property. If, at the end of the specified period, the participants in the property do not acquire a share, the person has the right to sell it to an outside entity.
According to the provisions of Article 250 of the Civil Code of the Russian Federation , if interest holders refuse to purchase, the share can be sold ahead of schedule (before the expiration of the period established by law). In this case, the refusal must be in writing.
Features of notification of property participants may be provided for in other federal laws.
Limitations and Liability
In case of violation by a person of the right to pre-emptive acquisition of a share, in accordance with paragraph 3 of Article 250 of the Civil Code of the Russian Federation , other property participants can file a claim with the court within three months to transfer the obligations and rights of the buyer to them.
Legislation prohibits the assignment of pre-emptive purchases.
The provisions of Article 250 shall also apply to cases of alienation of shares under exchange agreements.
Art. 250 Civil Code of the Russian Federation with comments
The analyzed norm expressly states that the preemptive right applies to movable and immovable objects. In addition, the provisions of Art. 250 of the Civil Code of the Russian Federation apply to transactions with documentary securities (shares of a closed joint-stock company), shares in capital (for example, in an LLC).
It is worth saying that a special rule governing the state registration of transactions with shares is provided for in Federal Law No. 218. It was initially established in it that when registering transactions it was necessary to enclose statements of consent of other owners. If they were absent, the authorized employee should suspend the procedure for 60 days, send notifications to all participants who did not express their consent to the transaction within 3 days.
This wording significantly limited the rights of the shareholder in comparison with the provisions of Art. 250 Civil Code of the Russian Federation. Changes made to Art. 24 Federal Law No. 218, allowed to bring it into line with 250 articles.
Transaction Categories
After the introduction of Part 1 of the Civil Code into force, the preemptive right also extends to transactions for the alienation of a share under a barter agreement. In addition, as shown by judicial practice, Art. 250 of the Civil Code of the Russian Federation is also applied in other cases of disposition of shared property.
The participant has the right to bequeath, sell, pledge, donate his part, dispose of the share differently at his own discretion with the implementation of the rules enshrined in article 250. For example, when transferring part of property in the form of compensation, it is necessary to observe the preemptive right to acquire a share by the remaining owners.
Meanwhile, the Presidium of the Supreme Arbitration Court in its information letter No. 102 of 2005 noted that the qualification of disputed relations not as a sale cannot be regarded as an unconditional basis for not applying Article 250 Civil Code of the Russian Federation .
Succession Features
Preemptive right does not qualify in the legislation as non-property personal. Meanwhile, such an assessment is of particular importance in the framework of relations related to inheritance. In judicial practice, the preemptive right is not considered non-property and does not apply to those legal opportunities in respect of which, in the sense of article 1112, succession is unacceptable.
Explanations on this issue were given by the Sun. In particular, the Court indicated that the possibility of an equity owner to demand transfer of the buyer's powers to him in case of non-compliance by another shareholder with the provisions of Article 250 of the Civil Code is a derivative of preemptive right. Accordingly, it cannot be a personal right, succession by which is impossible.
The implementation of the right in question is not inextricably linked with a specific person. Therefore, it can be carried out by the heirs of the shareholder without any restrictions within the framework established by law.
The specifics of the implementation of the provisions
Certain difficulties in practice arise when considering disputes, the subject of which are shares in the right to a residential building. Explanations on this issue were given by the Sun.
The court stated the following:
- By virtue of the provisions of Article 252 of the Civil Code, a property participant may demand the allocation of its part from common property. Accordingly, after this, shared ownership ceases. This, in turn, means the loss by a person of his pre-emptive right to acquire part of the property.
- The provisions of Article 250 of the Civil Code are not applied when concluding life-dependent maintenance contracts and when alienating a share in public trading in cases established by law.
- In case of violation of the provisions of Article 250, the three-month period allotted to another participant in the ownership of claims for transfer of duties and rights of the acquirer to him shall be calculated from the date when the subject became or should have become aware of the violation.
The application of the term, suspension, restoration, interruption thereof shall be carried out in accordance with the general rules enshrined in Articles 199-205 of the Code.
Features of filing a lawsuit
In the event of a violation of the pre-emptive right, the person concerned shall send the claims to the court within the prescribed time. At the same time, he is obliged to pay to the judicial department of the relevant region an amount including the purchase price paid for the share, duties and fees prescribed by law and other amounts payable to the bona fide purchaser in order to compensate him for the costs incurred in connection with the termination of the transaction.
The price of the claim should be determined according to the rules of paragraphs 2 and 9 of part 1 of article 91 of the Civil Code.
If the requirements are satisfied, the contract concluded earlier cannot be recognized as invalid. The judge who resolved the case on the merits, in the decision indicates the replacement of the buyer in the transaction and in the entry in the Unified State Register, as well as the recovery in favor of the defendant of the amounts paid by him at the conclusion of the transaction. The defendant in such cases, respectively, is the bona fide acquirer.
Notification Content
The legislation does not establish a standard form for notifying property participants of an upcoming transaction on the alienation of a share. It seems that the material terms of the transaction, as well as the provisions in respect of which the parties have agreed, should be given in it. Among them:
- Subject of the contract.
- The address at which the property is located whose share in the property is alienated.
- The cost at which a share in the right or the name of a specific object for which it is being sold is sold.
- If the contract provides for installment / deferral, its terms and conditions are indicated.
- The period during which participants must send a response. Moreover, it cannot be less than the deadlines established by the Civil Code.
The notice may also contain other provisions that the parties to the transaction consider material.
If, after informing the other participants, the terms of the transaction have changed, this must be reported to the co-owners.