Lawyers explained when debtors can have their only home taken away

The presence of a mortgage agreement may be the reason for putting the only housing up for auction, said Olga Sulim, chair of the Sulim and Partners Bar Association, in a conversation with RBC.

"As a general rule, based on the provisions of Article 44 of the Civil Code of the Russian Federation, the only housing is not subject to inclusion in the bankruptcy estate and has enforcement immunity (in the event of the owner's bankruptcy. - RBC). <...> But in reality, there are many exceptions to this rule," the lawyer said.

In the case of a mortgage, enforcement immunity does not apply to real estate, so it can be seized in favor of the creditor bank or included in the bankruptcy estate as part of the bankruptcy, Sulim explained.

But even if the only home is not mortgaged, the debtor can still lose it, the lawyer says. According to her, the courts by default proceed from the principles of humanity in bankruptcy cases, but they also actively suppress attempts to abuse the law. We are talking about situations in which the status of the only home is given to an apartment or house where neither the debtor nor his family members actually live (the premises are empty or rented out), Sulim explains. "Or when the debtor owns several real estate properties and seeks (logically) to retain the most valuable asset as the only home," she said.

It is also worth remembering that apartments, which in some cases are de facto the only housing for the debtor, are not de jure considered residential premises, which also deprives them of enforcement immunity, the lawyer emphasized.

In practice, all assets are included in the bankruptcy estate at once, and the owner himself must later appeal that his only home was included, Oleg Silkin, a lawyer in the field of real estate and bankruptcy, told RBK. Then, as part of the bankruptcy case, the residential property itself is considered: by area, market value and the ability to cover debts to creditors. The standards for the provision of residential space are also taken into account. The lawyer points out that "there is no direct text on the provision of 1 m2 per person." However, there are standards that are enshrined in Article 7 of the Federal Law of 30.12.2012 N 283-FZ: 33 sq. m - per person, 42 sq. m - for a family of two; 18 sq. m - for each family member, if there are three or more people. "I will say right away that in practice, all assets are included in the bankruptcy estate at once, and only the owner must later appeal that his only home was included," Silkin added.

Sulim recalled that the State Duma is currently considering a bill that proposes new rules for distributing proceeds from the sale of a bankrupt's only home: 90% of the property's value goes to the creditor bank, 5% goes to other creditors (first and second priority), and another 5% goes to providing the debtor with housing, based on the accounting standard. When a debtor's only home is seized, he or she must be provided with alternative housing that meets regional standards (in Moscow, this is 10 square meters per person for individual apartments and 15 square meters for apartments given to different families).

In January 2025, the State Duma adopted in the first reading a bill that leaves a portion of the proceeds from the sale of the housing owned by the debtor . According to the proposed amendments to the Bankruptcy Law, this will happen if the housing is the only one owned by the debtor and his family members. The second condition is that it was purchased with a mortgage, but the loan itself has not yet been repaid.

In early April, deputies from the New People party submitted a bill for consideration that would exclude the presence of debt under a mortgage agreement from the grounds for initiating bankruptcy cases against individuals.