A FAMILY MEMBER'S LOAN APARTMENT DOES NOT CANCEL THE BANKRUPTCY'S EXECUTIVE IMMUNITY

The debtor's son and the debtor filed petitions with the court to exclude three apartments from the debtor's estate (case No. A41-16345/23).

The court of first instance partially satisfied the application, based on the fact that one of the apartments was acquired by the debtor under the privatization agreement in 1993, and taking into account the indication in the agreement on the number of family members of the debtor at the time of privatization — 2 people, who, according to the explanations, were a citizen (son of the debtor) and the debtor, a citizen (son of the debtor) is the rightholder of a share in the right to the specified apartment as a result of privatization.

The appeal changed the definition, since the debtor's son, in the absence of information in the privatization agreement about him as a participant in the privatization, cannot have claims to the disputed apartment, and it was also established that the debtor's son owns an apartment located in Odintsovo.

The cassation sent the dispute for reconsideration in part, noting that the debtor's son could not be deprived of the constitutional right to housing unless it was established that he owned another habitable dwelling.

The court of appeal established that the debtor's son owns an apartment located in Odintsovo. However, according to the extract from the Unified State Register of Real Estate, the apartment has a restriction on the right (encumbrance) in the form of a pledge. 

Based on the above, the courts did not actually establish the circumstances of the encumbrances on the apartment, which could deprive the debtor's son of his constitutional right to housing. The courts need to determine the place of residence and the availability of housing for the debtor's grandson to prevent any potential infringement of the rights of the minor child.