Bidding for the sale of property. The implementation of socially significant objects. Significant violations of the bidding procedure.
Real estate of an organization recognized as bankrupt is sold at auction. Bidding is held in the form of an auction. However, not all real estate can be sold in this way: socially significant objects must be implemented in the form of a tender, with certain obligations imposed on the buyer. In each specific case, the court establishes all circumstances, evaluates the evidence and, in the case of a decision on the classification of real estate as property that ensures public interest, may declare the auction void.
The plot of the case:
Bidding for the sale of property of a bankrupt organization was conducted in violation of: an object of social significance, an airport in the Tomsk Region, was transferred to a private person for use.
The airline’s property was transferred from the auction to a limited liability company, the auction was disputed by the municipality of the city district. The courts of two instances upheld the conclusion that the bidding was illegal. The court of first instance indicated that the airport is a socially significant object, recognized a violation of public interest.
The cassation court upheld the findings of the courts of previous instances.
Judicial act: Resolution of the Arbitration Court of the West Siberian District in case No. A67-4289 / 2013
Court findings:
1. Issues relating to the fate of the airport’s property complex, ensuring the functioning and preservation of the purpose of its constituent objects are of a public law nature, since they directly affect the interests of residents of the corresponding part of the Tomsk Region, whose defense was reasonably advocated by the person concerned.
2. The implementation of socially significant objects is carried out through tendering in the form of a tender, a prerequisite is the buyer's obligation to ensure the proper maintenance and use of these objects in accordance with their intended purpose, and the fulfillment of other obligations prescribed by law. The special procedure for disposing of such property is determined by the need to protect public interests and the interests of the population.
3. The relevance of an object to the category of socially important is determined in each particular case, taking into account all the evidence presented to the court.
4. The airport provides communication between residents of several regions of the Tomsk Region, there is no other alternative to air transportation in these areas, the lack of an airport or its improper use will limit transport accessibility, and endanger the safety of residents.
5. Bidding was held in the form of an auction, which is a significant violation of the rules for the sale of this type of property, this is the basis for invalidating the bidding and applying the consequences of the invalidity of the purchase and sale transaction.
6. The circumstances of the execution of the disputed contract of sale are not of legal significance, since the invalidity of tenders entails the invalidity of the contract concluded with the winner of such tenders without establishing the actual circumstances of its conclusion and execution.
Comments:
1) The sale of property of a company recognized as bankrupt is carried out in accordance with a special law - Federal Law “On Insolvency (Bankruptcy)”. The said law contains the term “socially significant object”, recognizes a special implementation procedure for it - similar to the sale of a debtor’s enterprise. Such property is not included in the bankruptcy estate of the company. The same procedure applies to objects of cultural heritage, state (municipal) -private partnership.
2) The bankruptcy law refers to socially significant objects educational, medical, communal facilities, institutions, infrastructure, which are necessary for landscaping, life support of citizens. Airports in Art. 129 bankruptcy laws are not named. However, in this case, the court applied a broader interpretation, assessing the importance of the airport for the residents of the municipality, the lack of an alternative to air transportation, and rightly classified the airport complex as a socially significant property.
3) The essence of the procedure for the sale of such property is to conduct a tender, with mandatory imposition on the winner of the tender of obligations to use in accordance with the intended purpose. During the auction, it is not possible to establish such requirements. If there is no buyer for the property being sold, the property passes under the control of the municipality.
4) Accordingly, a gross violation is the sale of socially significant property through an auction without establishing the buyer's obligation to comply with the intended purpose and provide a wide range of people with the opportunity to use the property for its intended purpose. When a business company acquires an airport complex at an auction, such a company can use it in any way it sees fit, as a result of which there may be a violation of public interest, loss of transport communication by residents of the district.
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