THE DISTRICT COURT OPPOSED THE TRANSFER OF REAL ESTATE TO GRANDCHILDREN OF DEBTOR BY GIFT

The Arbitration Court of the Moscow District resolved the dispute between the creditor and the debtor. The issue concerned the alienation of real estate in favor of the grandchildren of the debtor. It included not only the housing, but also a land plot, a garage and outbuildings.

The creditor considered this behavior unacceptable and challenged the agreement of property transfer.

However, the courts of two instances rejected the application, stating that the housing was the only one, and the decision to alienate it was made due to the aggravation of the chronic illness of the debtor and the lack of sufficient funds to maintain the property.

In addition, as indicated by the judges, at the time of the transaction, the debtor had not have signs of insolvency.

But the district court did not agree with this position, indicating the following.

First of all, in the opinion of the Board, the courts did not sufficiently investigate the question of whether the housing presented by the debtor was the only one. A letter of attorney which was presented in the case materials indicated an object different from the address of the gifted real estate, which indicates the likely presence of another place of residence.

In addition, the appeal was suspicious of the assignment of a land plot, a garage, and an outbuilding to the only housing.

According to the Board, even if the house is the only housing, this is not a reason to exclude the entire property complex from the bankruptcy estate, including land, the area of ​​which significantly exceeds the size of the building.

As for the signs of insolvency, at the time of a transfer of real estate, according to the district court, there still were some. The creditor challenging the transaction was the bank with which the debtor entered into a surety agreement. At the same time, the main borrower was a company, in which the debtor was the only participant. At a time when the borrower has already begun to admit delays in fulfilling obligations and accumulate debts, its participant transferred expensive real estate to grandchildren by gift.

As a result of the consideration of the complaint, both judicial acts were cancelled, and the issue will be reconsidered (judgment in case No. А40-311937 / 18 of February 26, 2021).