ASSESSMENT OF EXECUTIVE IMMUNITY IN THE PRESENCE OF SEVERAL REAL ESTATE OBJECTS

The debtor applied to the court for the exclusion from the bankruptcy estate of 1/3 of the share in the ownership of the apartment (case no. A40-257979/20).

In rejecting the application, the courts of the two instances were guided by the fact that there were no grounds for excluding the disputed apartment from the bankruptcy estate, since the debtor owns a second share in the right to a residential building in another region, which excludes the possibility of applying executive immunity to the disputed apartment. 

The cassation left the application without consideration, noting that at the time of consideration of the cassation appeal, the bankruptcy proceedings had been terminated. At the same time, the court drew attention to the fact that the courts' instruction to recognize the transaction with the disputed apartment as invalid as the basis for refusing to apply executive immunity is erroneous, since this circumstance in itself does not indicate that the debtor has waived executive immunity. 

Assuming that the debtor may live in an apartment building in another region, according to the cassation, the courts did not take into account that a change of residence could not serve as a basis for refusing to protect the debtor's rights to a single dwelling. It was not established that the debtor and his family members actually lived in another region. The fact that a citizen has the actual opportunity to live at a different address does not mean that executive immunity cannot be applied unconditionally to the only housing owned by him. 

 

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