About the compulsion to apply to a notary for the appointment of a trustee of the inherited property in the form of an apartment

No.6001-23-00-6ap/149 dated 08/29/2023

Plaintiff: JSC "F" (hereinafter – the Bank)

Defendant: State Institution "City Akim's Office"

The subject of the dispute: the compulsion to apply to a notary for the appointment of a trustee of the inherited property in the form of an apartment.

Review of the plaintiff's cassation appeal.

PLOT: The claim is motivated by the fact that on March 27, 2007, S.O. was issued a loan in the amount of 56 thousand US dollars for a period of 180 months, which she secured with collateral in the form of an apartment.

The borrower died on July 5, 2007, the heir refused to accept the inheritance, the Bank did not identify any other heirs. The debt has not been repaid at the moment, and the Bank is incurring losses due to the inability to exercise its rights as a mortgagee.

Judicial acts:

1st instance: the claim is satisfied.

Appeal: the court's decision is overturned, the claim is returned.

Cassation: the decision of the appeal was overturned, the case was sent for a new judicial review to the court of appeal.

Conclusions: The Court of Appeal, overturning the court's decision, pointed out that, in violation of the principle of the active role of the court, the mayor of the city was not involved as a defendant, the sister of the deceased S.O. - G.O. was not involved as an interested person, the information provided by the State Institution "Akim's Office of the city" that in the apartment up to 2015 people lived for years and they paid for utilities, they were not checked.

In addition, the appeal pointed out that in this case the court had not verified the correctness of the defendant's administrative procedure in compliance with all successive stages, nor had it clarified whether there had been an administrative act issued as a result of an administrative action, nor had it established the type and form of this act.

Despite the inconsistency of the letter with the form, the court unreasonably accepted the claim for proceedings and considered it on its merits by issuing a decision. The Judicial Board concluded that the above-mentioned arguments of the court of appeal are erroneous and cannot serve as a basis for the cancellation of the judicial act and the return of the administrative claim, as not subject to consideration in administrative proceedings.

In accordance with paragraph 2 of Article 1071 of the Civil Code, the trustee of the inheritance is appointed by a notary at the place of opening of the inheritance at the request of one or more heirs according to the law. According to part 3 of this article, if the heirs are legally absent or unknown, local executive authorities of cities of republican significance, the capital, districts, cities of regional significance must apply to a notary with a request to appoint a trustee of the inheritance.

As can be seen from the disposition of this article, local executive authorities may apply to a notary with a request for the appointment of a trustee, therefore, in case of refusal to do so, their actions or omissions may be appealed in court.

Thus, in accordance with the norms of the APPC, a participant in an administrative procedure has the right to appeal not only an administrative act, but also an administrative action or omission unrelated to the adoption of an administrative act.

It follows from the case file that on April 13, 2022, JSC "F" applied to the State Institution "Akim's Office" to send an application to a notary with a request to appoint a trustee of the estate of the deceased S.O. On April 29, 2022, the Bank received a response in the form of a letter from the State Institution "Akim's Office", where the defendant, referring to the circumstances cited by the plaintiff, he indicated that the appointment of a trustee for the specified collateral is economically impractical.

Thus, the administrative body committed an administrative action (inaction) in public relations against the Bank's appeal, which is not an administrative act, which was appealed to the court. Due to the fact that such a dispute was subject to judicial review, the conclusions of the appeal on the return of the administrative claim of the Bank, as not considered in the order administrative proceedings are illegal and unfounded.

 

 

 

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