RusBankrot
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27/12/2024
Friday
THIS DAY IN HISTORY:
27 December 
1970 Franco's dictatorship ended in Spain.
1970 The Netherlands recognized the independence of Indonesia.
1970 The introduction of the passport system in the USSR and the formation of the passport and visa service.
1970 the introduction of the passport system in the USSR and the formation of the passport and visa service.
27 December
1970 Franco's dictatorship ended in Spain.
1970 The Netherlands recognized the independence of Indonesia.
1970 The introduction of the passport system in the USSR and the formation of the passport and visa service.
1970 the introduction of the passport system in the USSR and the formation of the passport and visa service.
THE SALE PRICE OF THE DEBTOR'S PROPERTY MUST BE REASONABLE
The manager applied to the court for approval of the regulations on the sale of the debtor's property (case no. A07-19376/20).
The court of first instance satisfied the application, based, inter alia, on the fact that in any case, the real market value of the property will be determined by the market and potential, as well as real buyers.
The appeal partially satisfied the application and approved the regulation in the editorial office of the manager, taking into account the change in the cut-off price at public auction and the auction step, and based on the fact that the real market value of the property will be determined by the market, potential and real buyers. At the same time, the Court of Appeal rejected the assessment report with reference to the fact that the assessment was carried out in order to proportionately divide the property of the debtor and his spouse during consideration by the court of general jurisdiction of the relevant judicial dispute.
The Court of Appeal also did not accept the assessment report, indicating that it does not fully take into account such price-forming factors as permitted use, location, availability of communications, type of right to land, the report does not contain adjustments for these parameters and the functional purpose of land plots, the area of analogues, and also did not accept information about the assessment according to the contracts, since the land plot is located on a mountain slope, in close proximity to the river, in a picturesque natural place, which does not indicate a low cost of the land plot.
The cassation sent the dispute for reconsideration, noting the following:
• Rejecting the assessment report from the district court case with reference to the fact that this assessment was carried out during the consideration by the court of general jurisdiction of a dispute over the division of marital property, the Court of Appeal did not motivate this position in any way, did not indicate how this circumstance affects the determination of the market price of property and discredits the relevant assessment report, while that this report was previously accepted by the court of general jurisdiction as proper evidence, as well as with respect to other property of the debtor (another land plot and another building belonging to the debtor), the manager determined the initial cost precisely on the basis of the relevant decision of the district court, while the court of appeal did not actually examine and evaluate the said report, rejecting it on formal grounds, without motivating his position.
• At the same time, having accepted the appraiser's report as proper evidence, the Court of Appeal did not specify specific reasons for its adoption, despite the fact that in preparing this report, the appraiser used only a single cost-based approach and refused to use a comparative approach that best meets market conditions, indicating that the expert does not have information about prices and the characteristics of the analogous objects, but the appraiser did not specify the named circumstances in any way, did not explain the reasons for the lack of relevant information and the impossibility of obtaining it.
• The courts also did not motivate their position in any way that the above–mentioned assessment report was prepared back in August 2022, but was used as the basis for the initial price of real estate, the regulation on the procedure for the sale of which was approved after six months from the date of drawing up the said report (in the court of first instance - a year later, in the court of appeal instances – almost two years later).
• It should also be noted that in all the above-mentioned appraisers' reports, the price of the disputed land plot was determined in its entirety, but the value of 1/2 of the share of this land plot was not determined by the appraisers, while the value of 1/2 of the share in the ownership of the land plot is not automatically identical to 1/2 of the price of the entire land plot as a whole.
The court of first instance satisfied the application, based, inter alia, on the fact that in any case, the real market value of the property will be determined by the market and potential, as well as real buyers.
The appeal partially satisfied the application and approved the regulation in the editorial office of the manager, taking into account the change in the cut-off price at public auction and the auction step, and based on the fact that the real market value of the property will be determined by the market, potential and real buyers. At the same time, the Court of Appeal rejected the assessment report with reference to the fact that the assessment was carried out in order to proportionately divide the property of the debtor and his spouse during consideration by the court of general jurisdiction of the relevant judicial dispute.
The Court of Appeal also did not accept the assessment report, indicating that it does not fully take into account such price-forming factors as permitted use, location, availability of communications, type of right to land, the report does not contain adjustments for these parameters and the functional purpose of land plots, the area of analogues, and also did not accept information about the assessment according to the contracts, since the land plot is located on a mountain slope, in close proximity to the river, in a picturesque natural place, which does not indicate a low cost of the land plot.
The cassation sent the dispute for reconsideration, noting the following:
• Rejecting the assessment report from the district court case with reference to the fact that this assessment was carried out during the consideration by the court of general jurisdiction of a dispute over the division of marital property, the Court of Appeal did not motivate this position in any way, did not indicate how this circumstance affects the determination of the market price of property and discredits the relevant assessment report, while that this report was previously accepted by the court of general jurisdiction as proper evidence, as well as with respect to other property of the debtor (another land plot and another building belonging to the debtor), the manager determined the initial cost precisely on the basis of the relevant decision of the district court, while the court of appeal did not actually examine and evaluate the said report, rejecting it on formal grounds, without motivating his position.
• At the same time, having accepted the appraiser's report as proper evidence, the Court of Appeal did not specify specific reasons for its adoption, despite the fact that in preparing this report, the appraiser used only a single cost-based approach and refused to use a comparative approach that best meets market conditions, indicating that the expert does not have information about prices and the characteristics of the analogous objects, but the appraiser did not specify the named circumstances in any way, did not explain the reasons for the lack of relevant information and the impossibility of obtaining it.
• The courts also did not motivate their position in any way that the above–mentioned assessment report was prepared back in August 2022, but was used as the basis for the initial price of real estate, the regulation on the procedure for the sale of which was approved after six months from the date of drawing up the said report (in the court of first instance - a year later, in the court of appeal instances – almost two years later).
• It should also be noted that in all the above-mentioned appraisers' reports, the price of the disputed land plot was determined in its entirety, but the value of 1/2 of the share of this land plot was not determined by the appraisers, while the value of 1/2 of the share in the ownership of the land plot is not automatically identical to 1/2 of the price of the entire land plot as a whole.
30.10.2024
