THE COURT: THE DEBTOR HAS THE RIGHT TO THE ONLY HOUSING, EVEN IF HE DOES NOT LIVE THERE

In the framework of the insolvency case of an individual, the arbitration court considered an application for exclusion of a residential building and a land plot as the only housing of a bankrupt citizen from the bankruptcy estate. At the same time, the courts of first and appellate instances rejected the claim, citing the lack of proof that the housing was the only one, as well as the debtor's attempt to withdraw this property from the bankruptcy estate. The deal was declared invalid, and the house and plot were returned to bankrupt.

Considering the complaint filed by the debtor, the arbitration court of the Moscow District pointed out the groundlessness of the conclusions made by its colleagues and canceled the decisions made.

In substantiating its position, the judicial board indicated that the debtor's attempt to withdraw the property from the bankruptcy estate was in no way interconnected with his right to this property, as the only housing. It means that the existence of the fact of alienation of the house and land does not deprive the debtor of the right to subsequently refer to the fact that the real estate objects are subject to exclusion from the bankruptcy estate.

In addition, according to the three judges, the fact that the debtor does not live at the address indicated by him as the only dwelling cannot serve as an unequivocal ground for refusing to satisfy the claims. The owner of other real estate in which the debtor can live is not deprived of the right to evict such a tenant at any time, which might lead to a situation where the latter has no place of residence, and this is unacceptable.

The result of the consideration of the complaint was the cancellation of the court decisions and the referral of the case for reconsideration (decision in case No. А40-252296 / 2017 of April 29, 2021).