On November 28, 2018 Grigory Galkin, associate at Marks&Sokolov Moscow office, spoke at VIII Moscow Law Week on the role of part 1 of article 40 of the Constitution in the regulation of temporary suspension of enforcement against residential property mortgaged by citizens.
One of the pillars of the balance of constitutional values in the process of residential mortgage enforcement is the provision of part 3 of article 54 of the Federal law “On Hypothec (Mortgage of Immovable Property)”. It empowers the court, subject to certain conditions provided for in the law, to grant suspension of mortgage enforcement at the application of mortgagor. But the conditions to grant suspension do not meet specifics of residential mortgage credit, and hence in practice many residential mortgagors, that need suspension, are unable to get it. This results in eviction from the only residence in a situation where it could be avoided without infringement of lawful interest of the mortgagee. Eviction in such situation is not justified by the necessity to protect constitutionally significant interests of creditors, and, therefore, is an arbitrary eviction, that is forbidden by part 1 of article 40 of the Constitution.
Moscow Law Week is an international academic and practical conference held annually by the Law School of Moscow University in conjunction with the O.E. Kutafin Moscow State Law University.