Federal law on mortgage pledges. Federal law on mortgages and real estate pledges
"On mortgage (mortgage of real estate)"
(as amended on November 9, 2001, February 11, December 24, 2002, February 5, June 29, November 2, December 30, 2004,
4, 18 December 2006, 26 June, 4 December 2007, 13 May, 22, 30 December 2008, 17 July 2009)
1. Under a pledge agreement real estate(to the mortgage agreement) one party - the pledgee, who is the creditor for the obligation secured by the mortgage, has the right to receive the satisfaction of his monetary claims to the debtor under this obligation from the value of the pledged immovable property of the other party - the pledger, mainly to other creditors of the pledger, with the exceptions established by federal law.
The pledger may be the debtor himself under the obligation secured by the mortgage, or a person who does not participate in this obligation (a third party).
The property on which the mortgage is established remains with the mortgagor in his possession and use.
2. The pledge of immovable property arising on the basis of a federal law upon the occurrence of the circumstances specified therein (hereinafter referred to as a mortgage by force of law), respectively, shall be governed by the rules on a pledge arising by virtue of a mortgage agreement, unless otherwise provided by federal law.
3. General rules on pledges contained in Civil Code Russian Federation, apply to relations under a mortgage agreement in cases where other rules are not established by the said Code or this Federal Law.
4. Pledge land plots, enterprises, buildings, structures, apartments and other real estate may arise only insofar as their turnover is permitted by federal laws.
Article 2. Obligation secured by mortgage
A mortgage can be established as security for an obligation credit agreement, under a loan agreement or other obligation, including an obligation based on the sale and purchase, lease, contract, other agreement, causing harm, unless otherwise provided by federal law.
Obligations secured by a mortgage are subject to accounting the creditor and the debtor, if they are legal entities, in the manner prescribed by the legislation of the Russian Federation on accounting.
Article 3. Claims secured by a mortgage
1. A mortgage ensures payment to the mortgagee of the principal amount of the debt under a loan agreement or other obligation secured by a mortgage in full or in part provided for by the mortgage agreement.
A mortgage established to secure the performance of a loan agreement or a loan agreement subject to the payment of interest also ensures payment to the creditor (lender) of the interest due to him for the use of the loan (borrowed funds).
Unless otherwise provided by the agreement, the mortgage also ensures the payment to the pledgee of the amounts due to him:
1) in compensation for losses and / or as a forfeit (fine, penalty) due to non-performance, delay in performance or other improper performance of the obligation secured by the mortgage;
2) in the form of interest for the unlawful use of other people's money, provided for by an obligation secured by a mortgage or by federal law;
3) in compensation legal costs and other expenses caused by foreclosure on the pledged property;
4) to reimburse the expenses for the sale of the pledged property.
2. Unless otherwise provided by the contract, the mortgage secures the claims of the pledgee to the extent that they have at the time of their satisfaction at the expense of the pledged property.
3. If the mortgage agreement specifies the total firm amount of the mortgagee's claims secured by the mortgage, the debtor's obligations to the mortgagee in the part exceeding this amount are not considered secured by the mortgage, with the exception of claims based on subparagraphs 3 and 4 of paragraph 1 of this article or on Article 4 of this Federal Law.
Article 4. Security with a mortgage additional costs mortgagee
In cases where the pledgee, in accordance with the terms of the mortgage agreement or due to the need to ensure the preservation of the property pledged under this agreement, is forced to bear the costs of its maintenance and / or protection or to pay off the debt of the pledgor for taxes, fees or utilities related to this property payments, reimbursement of such necessary expenses to the pledgee is provided at the expense of the pledged property.
Article 5. Property that can be the subject of a mortgage
1. Under a mortgage agreement, immovable property specified in paragraph 1 of Article 130 of the Civil Code of the Russian Federation may be mortgaged, the rights to which are registered in the manner prescribed for state registration rights to real estate and transactions with it, including:
1) land plots, with the exception of land plots specified in Article 63 of this Federal Law;
2) enterprises, as well as buildings, structures and other immovable property used in entrepreneurial activity;
3) residential buildings, apartments and parts of residential buildings and apartments, consisting of one or more isolated rooms;
4) summer cottages, garden houses, garages and other buildings for consumer use;
5) air and sea vessels, inland navigation vessels and space objects.
Buildings, including residential buildings and other structures, and structures directly related to land may be subject to mortgage, subject to the rules of Article 69 of this Federal Law.
The lack of state registration of ownership of land plots, the state ownership of which is not delimited, is not an obstacle to the mortgage of such land plots in accordance with Article 62.1 of this Federal Law.
2. The rules of this Federal Law shall apply to the pledge of immovable property under construction being erected on a land plot in accordance with the requirements of the legislation of the Russian Federation, including buildings and structures, subject to the rules of Article 69 of this Federal Law.
3. Unless otherwise provided by the contract, the thing that is the subject of the mortgage is considered to be pledged together with the accessories (Article 135 of the Civil Code of the Russian Federation) as a whole.
4. Part of the property, the division of which is impossible in kind without changing its purpose (indivisible thing), cannot be an independent subject of mortgage.
5. The rules on the mortgage of immovable property are accordingly applied to the pledge of the rights of the lessee under the lease agreement for such property (the right to lease), since otherwise is not established by federal law and does not contradict the essence of the lease relationship.
The rules on the mortgage of immovable property also apply to the pledge of the rights of claim of a participant in shared construction arising from a contract of participation in shared construction meeting the requirements of the Federal Law "On participation in shared construction apartment buildings and other real estate objects and amendments to some legislative acts Russian Federation".
Article 6. The right to pledge property under a mortgage agreement
1. A mortgage may be established on the property specified in Article 5 of this Federal Law, which belongs to the mortgagor by right of ownership or by right of economic management.
2. Mortgages of property withdrawn from circulation, property that cannot be foreclosed in accordance with federal law, as well as property for which mandatory privatization or privatization is prohibited in accordance with the procedure established by federal law, is not allowed.
3. If the subject of the mortgage is property, the alienation of which requires the consent or permission of another person or body, the same consent or permission is required for the mortgage of this property.
Decisions on the mortgage of real estate owned by the state and not enshrined in the right of economic management are made by the Government of the Russian Federation or the government (administration) of a constituent entity of the Russian Federation.
4. The right to lease may be the subject of a mortgage with the consent of the lessor, unless otherwise provided by federal law or the lease agreement. In the cases stipulated by paragraph 3 of Article 335 of the Civil Code of the Russian Federation, the consent of the owner of the leased property or a person who has the right of economic management is also required.
5. The pledge of immovable property is not a basis for the release of the person who acted as the pledger under the mortgage agreement from fulfilling the conditions on which he participated in an investment (commercial) competition, auction or otherwise in the process of privatizing the property that is the subject of this pledge.
6. The mortgage applies to all inseparable improvements to the subject of the mortgage, unless otherwise provided by the agreement or this Federal Law.
Article 7. Mortgage of property in common ownership
1. For property in common joint ownership (without determining the share of each of the owners in ownership), a mortgage can be established with the consent of all owners. Consent must be given in writing unless otherwise provided by federal law.
2. A participant in common shared ownership may pledge his share in the right to common property without the consent of other owners.
In the event of a claim on the demand of the pledgee of execution on this share during its sale, the rules of Articles 250 and 255 of the Civil Code of the Russian Federation on the preemptive right to purchase belonging to other owners and on the foreclosure of a share in common property, except for cases of foreclosure on a share in the ownership of the common property of a residential building (Article 290 of the Civil Code of the Russian Federation) in connection with the foreclosure on an apartment in this building.
Chapter II. Conclusion of a mortgage agreement
Article 8. General rules for concluding a mortgage agreement
The mortgage agreement is concluded in compliance with general rules Of the Civil Code of the Russian Federation on the conclusion of contracts, as well as the provisions of this Federal Law.
1. The mortgage agreement must indicate the subject of the mortgage, its assessment, the nature, the amount and the term for the fulfillment of the obligation secured by the mortgage.
2. The subject of the mortgage is determined in the agreement by indicating its name, location and a description sufficient to identify this subject.
The mortgage agreement must indicate the right by virtue of which the property that is the subject of the mortgage belongs to the mortgagor, and the name of the body that carries out state registration of rights to real estate and transactions with it (hereinafter - the body that carries out state registration of rights), which registered this right the pledger.
If the subject of the mortgage is a lease right belonging to the mortgagor, the leased property must be defined in the mortgage agreement in the same way as if it was itself the subject of the mortgage, and the lease term must be indicated.
3. The assessment of the subject of the mortgage is determined in accordance with the legislation of the Russian Federation by agreement of the pledgor with the pledgee in compliance with the requirements of Article 67 of this Federal Law in the case of a mortgage of a land plot and is indicated in the mortgage agreement in monetary terms.
When mortgaging state and municipal property, its assessment is carried out in accordance with the requirements established by federal law, or in the manner determined by it.
In the case of a pledge of immovable property that is not completed by construction and is in state or municipal ownership, the market value of this property is assessed.
4. The obligation secured by the mortgage must be named in the mortgage agreement with an indication of its amount, the basis for its occurrence and the term of performance. In cases where this obligation is based on any agreement, the parties to this agreement, the date and place of its conclusion must be indicated. If the amount of the obligation secured by the mortgage is to be determined in the future, the mortgage agreement must specify the procedure and other the necessary conditions its definition.
5. If the obligation secured by the mortgage is subject to performance in parts, the mortgage agreement must indicate the terms (frequency) of the corresponding payments and their amounts or conditions that allow determining these amounts.
6. If the rights of the pledgee in accordance with Article 13 of this Federal Law are certified by a mortgage, this is indicated in the mortgage agreement, except for the cases of issuing a mortgage in case of a mortgage by virtue of law.
Article 10. State registration of a mortgage agreement
1. The mortgage agreement is concluded in writing and is subject to state registration.
An agreement that lacks any of the data specified in Article 9 of this Federal Law, or violates the rules of Clause 4 of Article 13 of this Federal Law, is not subject to state registration as a mortgage agreement.
Failure to comply with the rules on state registration of a mortgage agreement entails its invalidity. Such an agreement is considered null and void.
2. The mortgage agreement is considered concluded and enters into force from the moment of its state registration.
3. When a mortgage agreement is included in a credit or other agreement containing an obligation secured by a mortgage, the form and state registration of this agreement must comply with the requirements established for the mortgage agreement.
4. If the mortgage agreement indicates that the rights of the pledgee in accordance with Article 13 of this Federal Law are certified by a mortgage, together with such an agreement, a mortgage is submitted to the body that carries out state registration of rights. If the conclusion of the relevant agreement entails the emergence of a mortgage by virtue of the law, in the case of drawing up a mortgage, the corresponding agreement and the mortgage bond shall be presented. The body carrying out state registration of rights makes a mark on the mortgage on the date and place of state registration of such an agreement, numbers and seals the sheets of the mortgage in accordance with paragraph two of Clause 3 of Article 14 of this Federal Law.
If the agreement on the basis of which the mortgage was drawn up and issued states that from the date of issue to the mortgagee by the authority that carries out state registration of rights, the mortgage agreement and the agreement, the obligation from which is secured by the mortgage, cease to be valid, all relations between the mortgagor, the debtor and the mortgagee is governed by this mortgage.
5. State registration of a mortgage agreement concluded to ensure the return of a loan or loan provided to repay a previously granted loan or loan for the purchase or construction of a residential building or apartment, and the issuance of a mortgage, if its issuance is provided for by this mortgage agreement, may be carried out simultaneously with repayment of a mortgage and cancellation of a mortgage that was issued as security for a previously granted credit or loan, subject to the submission of such a mortgage to the body that carries out state registration of rights.
Article 11. Occurrence of a mortgage as an encumbrance
1. State registration of the mortgage agreement is the basis for entering into the Unified State Register rights to real estate and transactions with it, mortgage records.
State registration of an agreement entailing the emergence of a mortgage by virtue of law is the basis for making an entry in the Unified State Register of Rights to Real Estate and Transactions with it about the emergence of a mortgage by virtue of law.
2. Mortgage as an encumbrance on property pledged under a mortgage agreement arises from the moment this agreement is concluded.
In case of a mortgage, by virtue of the law, the mortgage as an encumbrance of property arises from the moment of state registration of ownership of this property, unless otherwise provided by the contract.
3. The rights of the pledgee (right of pledge) to property provided for by this Federal Law and the mortgage agreement shall be deemed to have arisen from the moment the mortgage is entered into the Unified State Register of Rights to Real Estate and Transactions with It, unless otherwise provided by federal law. If the obligation secured by the mortgage arose after the entry of the mortgage into the Unified State Register of Rights to Real Estate and Transactions with it, the rights of the mortgagee arise from the moment this obligation arises.
The rights of the pledgee (right of pledge) to the pledged property are not subject to state registration.
Article 12. Warning of the pledgee about the rights of third parties to the subject of the mortgage
When concluding a mortgage agreement, the mortgagor is obliged to warn the mortgagee in writing about all rights of third parties known to him at the time of state registration of the agreement to the subject of the mortgage (mortgage rights, lifetime use, lease, easements and other rights). Failure to fulfill this obligation gives the pledgee the right to demand early performance of the obligation secured by the mortgage or change the terms of the mortgage agreement.
Chapter III. Mortgage
Article 13. Basic provisions on mortgage
1. The rights of the mortgagee under the obligation secured by the mortgage and under the mortgage agreement may be certified by the mortgage, since otherwise is not established by this Federal Law.
The mortgage bond may be certified by the rights of the mortgagee under the law and under the obligation secured by this mortgage, unless otherwise provided by this Federal Law.
The provisions provided for a mortgage by virtue of an agreement shall apply to a mortgage that certifies the rights of a mortgagee under a mortgage by virtue of law and under an obligation secured by this mortgage, unless otherwise provided by this Federal Law.
2. A mortgage bond is a registered security certifying the following rights of its legal owner:
the right to receive performance on monetary obligations secured by a mortgage, without providing other evidence of the existence of these obligations;
the right of pledge over property encumbered with a mortgage.
3. The persons liable under the mortgage are the debtor under the obligation secured by the mortgage and the pledger.
4. Drawing up and issuing a mortgage is not allowed if:
1) the subject of the mortgage is:
enterprise as a property complex;
Paragraph 4 was declared invalid.
the right to lease the property listed in this subparagraph;
2) the mortgage is secured pecuniary obligation, the amount of debt for which at the time of the conclusion of the contract is not determined and which does not contain conditions that allow you to determine this amount at the appropriate time.
In the cases provided for by this paragraph, the terms of the mortgage in the mortgage agreement are invalid.
5. The mortgage bond is drawn up by the mortgagor, and if he is a third party, also the debtor under the obligation secured by the mortgage.
The mortgage bond is issued to the original mortgagee by the state registration authority after the state registration of the mortgage. The mortgage bond can be drawn up and issued to the mortgagee at any time before the termination of the obligation secured by the mortgage. If the mortgage is drawn up after the state registration of the mortgage, a joint application of the mortgagee and the mortgagor, as well as the mortgage, which is issued to the mortgagee within one day from the moment the applicant applies to the authority that carries out state registration of rights, is submitted to the body that carries out the state registration of rights.
The transfer of rights under a mortgage bond and a pledge of a mortgage bond shall be carried out in accordance with the procedure established by Articles 48 and 49 of this Federal Law.
6. The debtor under the obligation secured by the mortgage, the mortgagor and the legal owner of the mortgage, by agreement, may change the previously established conditions of the mortgage.
7. When concluding an agreement specified in clause 6 of this article and clause 3 of article 36 of this Federal Law, and the transfer of debt under an obligation secured by a mortgage, such an agreement provides for either amending the content of the mortgage by attaching the original of such an agreement to it and indicating by an official of the body , carrying out state registration of rights, in the text of the mortgage on the agreement itself as a document that is an integral part of the mortgage, in accordance with the rules of part two of Article 15 of this Federal Law, or cancellation of the mortgage and at the same time issuance of a new mortgage, drawn up taking into account the relevant changes.
The state registration of an agreement on changing the content of a mortgage bond with an indication in the text of the mortgage bond itself on the agreement as a document that is an integral part of the mortgage bond must be carried out as registration of the transaction within one day from the moment the applicant applies to the body that carries out state registration of rights, with the presentation of the original of the mortgage bond and agreements to change the content of the mortgage bond.
An entry in a mortgage on a registered agreement on changing the content of a mortgage, indicating the date and number of its state registration, must be made by the state registrar, certified by his signature and sealed by the seal of the body that carries out state registration of rights. These actions are carried out free of charge.
In case of cancellation of a mortgage bond and, at the same time, issuance of a new mortgage bond, together with an application for amending the entries of the Unified State Register of Rights to Real Estate and Transactions with It, the pledger and the pledgee shall transfer to the body carrying out state registration of rights the mortgage to be canceled and the new mortgage, which handed over to the mortgagee instead of the canceled mortgage.
The canceled mortgage bond is kept in the archives of the body that carries out state registration of rights until the moment the registration record on the mortgage is canceled.
In the event that depository accounting (storage of mortgages, accounting and transfer of rights to mortgages) of the canceled mortgage was carried out, the new mortgage must contain a note on its depository accounting indicating the name and location of the depository in which the rights to the canceled mortgage were taken into account.
8. The mortgage bond can be transferred to the depository for its depository accounting. Depository accounting of mortgages is carried out in depositories - professional participants the securities market, which have issued in the manner prescribed by the Federal Law of April 22, 1996 No. 39-FZ "On the Securities Market", the corresponding license.
In the event that depository accounting of a mortgage bond is carried out, a note on depository accounting must be made on it, containing the name and location of the depository in which such accounting will be carried out. A note on depository accounting, in appropriate cases, may be made by the compiler of the mortgage bond when it is drawn up or by the owner of the mortgage bond after its issuance by the body that carries out state registration of rights. After a note is made about the custody of the mortgage, at any time, on the basis of an agreement with the depository, the owner of the mortgage can transfer the mortgage to the depository for its depository accounting. When replacing the depository, the owner of the mortgage bond makes a note on it about the new depository, indicating its name and location.
9. The note on the depository registration of the mortgage bond must indicate that such registration is temporary or mandatory. In the event of temporary depository accounting of the mortgage bond, its owner at any time has the right to demand from the depository the termination of storage and accounting of the mortgage bond. In the event that mandatory depository accounting of a mortgage is carried out, it can be issued by the depository to the owner of the mortgage only for transferring it to another depository, providing it to the courts, law enforcement agencies, bailiffs-executors who have cases related to real estate and (or) by their rightholders, as well as for transferring it to the body that carries out state registration of rights.
10. In the event that depository accounting of a mortgage bond is carried out, the rights of its owner are confirmed by an entry in the custody account in the depository accounting system (hereinafter referred to as an entry in the custody account).
11. In the event that depository accounting of a mortgage bond is carried out, the depository, on the basis of the relevant instructions of the owner of the mortgage bond, is obliged to enter into the depository accounting system an entry on the custody account on the transfer of the mortgage bond to trust, as a pledge or on the conclusion of another transaction with the mortgage bond, as well as at the request of the owner a mortgage a special entry that gives the mortgagee the right to sell the mortgage after a certain period of time in order to withhold from the proceeds the amount of the obligation secured by its pledge. In the event of termination of depository accounting, the mortgage depository makes notes on it about encumbrances and about transactions that, according to the entries made in the depository accounting system on custody accounts, are valid in relation to this mortgage at the time of termination of its depository accounting with this depository.
12. In the event that depository accounting of a mortgage bond is carried out, the transfer of rights to the mortgage bond, as well as the conclusion of other transactions with the mortgage bond may be carried out only by making appropriate entries on the securities account.
13. The depositary shall have the right to involve another depository in the performance of its obligations for keeping and (or) accounting for mortgages, if this is provided for by the depositary agreement. In this case, no additional marks are made on the mortgage. The depositary is responsible for the actions of the other depositary designated by it as for its own.
Article 14. Content of the mortgage
1. The mortgage bond at the time of its issuance to the initial pledgee by the body carrying out state registration of rights must contain:
1) the word "mortgage" included in the title of the document;
2) the name of the pledger and information about the identity document, or its name and location, if the pledger is a legal entity;
3) the name of the original pledgee and information about the identity document, or its name and location, if the pledgee is a legal entity;
4) the name of the loan agreement or other monetary obligation, the performance of which is secured by the mortgage, indicating the date and place of the conclusion of such an agreement or the basis for the occurrence of the obligation secured by the mortgage;
5) the name of the debtor under the obligation secured by the mortgage, if the debtor is not the pledger, and information about the identity document of the debtor, or his name and location, if the debtor is a legal entity;
6) an indication of the amount of the obligation secured by the mortgage, and the amount of interest, if they are payable under this obligation, or the conditions that allow at the appropriate time to determine this amount and interest;
7) an indication of the due date for the payment of the amount of the obligation secured by the mortgage, and if this amount is to be paid in installments - the timing (frequency) of the corresponding payments and the amount of each of them or the conditions that make it possible to determine these terms and amounts of payments (debt repayment plan);
8) the name and description sufficient for identification of the property on which the mortgage is established, and an indication of the location of such property;
9) the monetary value of the property for which the mortgage is established, confirmed by the opinion of the appraiser;
10) the name of the right by virtue of which the property that is the subject of the mortgage belongs to the pledger, and the authority that registered this right, indicating the number, date and place of state registration, and if the subject of the mortgage is the lease right belonging to the pledger - the exact name of the property that is the subject lease, in accordance with subparagraph 8 of this paragraph and the duration of this right;
11) an indication that the property that is the subject of a mortgage is encumbered with the right of lifetime use, lease, servitude, other right, or is not encumbered by any of the rights of third parties subject to state registration at the time of state registration of the mortgage;
12) the signature of the pledgor and, if he is not a debtor, also the signature of the debtor under the obligation secured by the mortgage;
13) information on the state registration of mortgages provided for by paragraph 2 of Article 22 of this Federal Law;
14) an indication of the date of issue of the mortgage to the mortgagee and the date of the issuance of the mortgage to its owner, if the mortgage was canceled and a new mortgage was drawn up, indicating the date of cancellation of the previous mortgage.
A document called a "mortgage", which nevertheless lacks any of the data specified in subparagraphs 1-14 of this paragraph, is not a mortgage and is not subject to issuance to the original pledgee. In the event that a mortgage bond is issued by virtue of the law, the inclusion in the mortgage bond of the data specified in subparagraph 10 of this paragraph shall be ensured by the body that carries out state registration of rights. The procedure for including this data in a mortgage is determined by Article 22 of this Federal Law.
2. When drawing up a mortgage, it may also include data and conditions not provided for by paragraph 1 of this article.
Separate terms of a mortgage may be determined by the model conditions developed for mortgages, posted on the website in the Internet and published in a periodical printed edition, distributed with a circulation of at least ten thousand copies. In this case, when drawing up a mortgage, instead of such conditions, an indication of the source in which such conditions are published is included in it.
3. If there is insufficient space on the mortgage bond itself, including for marks about new owners and (or) partial performance of the obligation secured by the mortgage, or an entry both when drawing up the mortgage bond and after issuing other necessary information, an additional sheet is attached to it.
All sheets of the mortgage are a single whole. They must be numbered, attached to one another, certified by the signature of an official and sealed with the seal of the body that carries out state registration of rights. Separate sheets of the mortgage bond cannot be the subject of transactions.
4. If the mortgage agreement does not comply with the mortgage agreement or the agreement, the obligation from which is secured by the mortgage, the content of the mortgage bond is considered correct, unless the acquirer knew or should have known about such discrepancy at the time of the transaction.
The legal owner of the mortgage deed has the right to demand the elimination of the specified discrepancy by canceling the mortgage in his possession and, at the same time, issuing a new mortgage, if the claim was made immediately after the legal owner of the mortgage became aware of such discrepancy.
The compiler of the mortgage bond is responsible for losses incurred in connection with the specified discrepancy and its elimination.
Article 15. Attachments to a mortgage
The mortgage bond may be accompanied by documents defining the terms of the mortgage or necessary for the pledgee to exercise his rights under the mortgage bond.
If the documents attached to the mortgage deed are not named in it with such a degree of accuracy that is sufficient for their identification, and the mortgage deed does not say that such documents are its integral part, such documents are not mandatory for persons to whom the rights under the mortgage were transferred as a result its sale, pledge or otherwise.
Article 16. Registration of owners of a mortgage
1. Any legal owner of a mortgage has the right to demand from the body that carries out state registration of rights to register it in the Unified State Register of Rights to Real Estate and Transactions with it as a mortgagee indicating his name and identity document, and if the owner of the mortgage is a legal entity - its name and location.
2. A debtor under an obligation secured by a mortgage who has received from the legal owner of the mortgage a written notification of the registration of the latter in the Unified State Register of Rights to Real Estate and Transactions with It with a duly certified extract from this register, as well as a written notification of the acquisition by such owner of the mortgage transferred to a depository for depository accounting, with a properly certified statement of the custody account, is obliged to make intermediate payments on the specified obligation, without requiring each time the presentation of a mortgage to him. Such obligation of the debtor terminates upon receipt of written notice from this or another legal owner of the mortgage bond of the assignment of rights under the mortgage bond.
3. The registration entry on the legal owner of the mortgage deed must be made within one day from the moment the applicant applies to the authority that carries out state registration of rights, upon presentation of the mortgage deed on the basis of:
transfer of rights under a mortgage committed in accordance with this Federal Law and made on a mortgage mark, if the person who made such an inscription was legal owner a mortgage or a mortgagee of a mortgage, in whose name a special mortgage deed was made and who sold the mortgage after the expiration of the period specified in it (paragraph 4 of Article 49);
documents confirming the transfer of rights under a mortgage to other persons as a result of reorganization of a legal entity or by way of inheritance;
a court decision on the recognition of the rights to the mortgage bond for the applicant.
In the event that depository accounting of a mortgage bond is carried out, the registration record of the owner of the mortgage bond is made on the basis of an extract from the custody account. This extract is certified by the signature of an authorized person acting as the sole executive body of the depositary, or another person entitled to act on behalf of the depositary by power of attorney, and by the seal of the depositary specified in the mortgage bond, without presenting the corresponding mortgage bond. This extract must contain the information necessary to make an entry about the owner of the mortgage in the Unified State Register of Rights to Real Estate and Transactions with It.
Article 17. Exercise of rights under a mortgage and performance of an obligation secured by a mortgage
1. When exercising his rights, the owner of the mortgage bond shall be obliged to present the mortgage bond to the obligated person (the debtor or the mortgagor), in respect of whom the corresponding right is exercised, at his request. The owner of the mortgage does not present his mortgage if:
when pledging a mortgage, it is transferred to the notary's deposit;
the mortgage is pledged with its transfer to the mortgagee;
a note was made on the mortgage bond before or after its issuance about its depository accounting, the obliged person was notified of this, and a notification of termination of such accounting was not received.
In the event that depository accounting of a mortgage bond is carried out, the debtor has the right to demand from the owner of the mortgage bond, in support of his rights, an extract on the securities account, certified by the signature of an authorized person acting as the sole executive body of the depository, or another person who has the right to act on behalf of the depositary by proxy, and with the seal of the depositary indicated in the mortgage.
2. The pledgee for the performance of the obligation secured by the mortgage is fully obliged to immediately transfer the mortgage to the pledger with a mark on the performance of the obligation in full, and in cases where the obligation is fulfilled in parts, to certify its partial performance in a manner sufficient for the pledgor and obvious for possible subsequent owners of the mortgage , including the application of the relevant financial documents or by making an entry on the mortgage on the partial performance of the obligation.
3. The presence of the mortgage bond with the pledgee or the absence on it of a mark or certification in any other way of the partial fulfillment of the obligation secured by the mortgage indicates, unless otherwise proved, that this obligation or, accordingly, part of it has not been fulfilled, except for the case specified in clause 2 of Article 48 of this Federal Law ...
The mortgage bond may indicate that the partial performance of the obligation under the mortgage bond is not certified. In such a case, the obligation to prove the debtor's failure to fulfill the obligation rests with the creditor in accordance with civil law.
4. The debtor under the obligation secured by the mortgage pays off his debt in full or in part by properly fulfilling his obligations under the mortgage in accordance with the plan for repaying the debt to its legal owner or to a person authorized in writing by the legal owner of the mortgage to exercise rights under it.
5. In case of transfer of the mortgage bond to the notary's deposit when the mortgage bond is pledged, the debtor under the obligation secured by the mortgage shall fulfill his obligation by paying the debt to the notary's deposit.
6. A person obligated under a mortgage has the right to refuse the bearer of a mortgage bond in the exercise of his rights under a mortgage bond in cases where:
the court accepted for consideration a claim to invalidate the transfer of rights to this mortgage or to apply the consequences of the invalidity of this transaction;
the presented mortgage bond is invalid in connection with its loss by the legal owner and the issuance of a duplicate of the mortgage bond (Article 18) or in connection with a violation of the procedure for issuing a mortgage bond or its duplicate, for which the persons obliged under them are not responsible;
the debtor, on the grounds specified in Clause 2 of Article 48 of this Federal Law, shall be deemed to have partially fulfilled the obligation.
The person obligated under the mortgage bond shall not have the right to bring any objections not based on the mortgage bond against the claims of the legal owner of the mortgage bond for the exercise of rights thereon.
7. The presence of a mortgage bond with any of the persons obliged under it or in the body carrying out state registration of rights testifies, unless otherwise proved or established by this Federal Law, that the obligation secured by the mortgage has been fulfilled. The person in whose possession the mortgage will be is obliged to immediately notify other persons from among the abovementioned.
In cases where, in accordance with this Federal Law, the mortgage deed is canceled, the body carrying out state registration of rights, immediately upon receipt of the mortgage by it, cancels it by placing the stamp "canceled" on the face side or in any other way that does not allow its circulation, with the exception of physical destruction mortgage.
Article 18. Restoration of rights to lost mortgage
1. The restoration of the rights to the lost mortgage bond is made by the pledgor, and if he is a third party, also the debtor under the obligation secured by the mortgage on the basis of:
applications addressed to them by a person designated in the Unified State Register of Rights to Real Estate and Transactions with it as a mortgagee, if, according to the data entered in the said register in accordance with Article 16 of this Federal Law, it is possible to establish the legality of the restored rights to a lost mortgage bond, or if the depository accounting of the mortgage is carried out, the person who, according to the records on the securities accounts, is the owner of this mortgage.
applications addressed to them by a person who has lost a mortgage and is not indicated in the Unified State Register of Rights to Real Estate and Transactions with it as a mortgagee, if it is possible to establish the legality of the rights of this person;
a court decision made following the results of a special proceeding of a case on establishing facts of legal significance in accordance with the procedural legislation of the Russian Federation.
1.1. The restoration of rights to a lost mortgage bond, the depository accounting of which is carried out, is carried out on the basis of a certificate issued by the relevant depositary about the last owner of the mortgage bond, indicating the fact of loss of this mortgage bond.
2. The pledgor, and if he is a third party, also the debtor under the obligation secured by the mortgage must, as soon as possible, draw up a duplicate of the mortgage with a "duplicate" mark on it and transfer it to the body that carries out state registration of rights.
3. A duplicate of a mortgage is issued by the body that carries out state registration of rights by handing it over to the person who has lost the mortgage.
In the event that depository accounting for a mortgage bond is carried out, the person who has lost the mortgage bond is the person who is the owner of the mortgage bond according to the records on the securities accounts.
4. The duplicate of the mortgage must fully correspond to the lost mortgage.
The originator of the duplicate of the mortgage bond shall be liable for losses incurred in connection with the non-compliance of the duplicate of the mortgage bond with the lost mortgage bond. The persons liable under the mortgage bond shall not have the right to deny the legal owner of the duplicate mortgage bond in the exercise of rights under it in connection with the specified discrepancy, if they are responsible for it.
Chapter IV. State registration of mortgage
Article 19. Basic provisions on state registration of mortgage
1. Mortgages are subject to state registration in the Unified State Register of Rights to Real Estate and Transactions with It in the manner prescribed by the federal law on state registration of rights to real estate and transactions with it.
2. State registration of a mortgage is carried out at the location of the property that is the subject of the mortgage.
Article 20. Procedure for state registration of mortgage
1. State registration of a mortgage arising by virtue of a mortgage agreement is carried out on the basis of a joint application of the pledger and the pledgee. State registration of a mortgage arising from a notarized mortgage agreement is carried out on the basis of an application from the pledger or pledgee.
For state registration of a mortgage arising by virtue of a mortgage agreement, the following must be submitted:
mortgage agreement and its copy;
documents specified in the mortgage agreement as attachments;
other documents required for state registration of a mortgage in accordance with the legislation of the Russian Federation on state registration of rights to real estate and transactions with it.
2. A mortgage, by virtue of the law, is subject to state registration. State registration of a mortgage by virtue of law is carried out without submitting a separate application and without paying state duty.
State registration of a mortgage by virtue of the law is carried out simultaneously with the state registration of the ownership of the person whose rights are encumbered by the mortgage, unless otherwise provided by federal law. The rights of the mortgagee under the mortgage, by virtue of the law, can be certified by the mortgage.
When state registration of a mortgage, by virtue of the law, the entry into the Unified State Register of Rights to Real Estate and Transactions with it information about the pledgee is carried out on the basis of the agreement from which the obligation secured by the mortgage arose. In this case, demanding from the applicant other documents and information concerning the pledgee is not allowed.
2.1. State registration of mortgages by virtue of law in relation to residential premises acquired using savings for housing military personnel in accordance with Federal Law of August 20, 2004 No. 117-FZ "On the accumulative mortgage system of housing for military personnel" (hereinafter - the federal law"On the accumulative mortgage system of housing for military personnel"), carried out with registration as a mortgagee federal body executive power, ensuring the functioning of the savings and mortgage system of housing for military personnel.
3. If the rights of the pledgee are certified by a mortgage, the following shall also be submitted to the body carrying out state registration of rights, along with the documents specified in paragraph 1 of this article:
a mortgage, the content of which must meet the requirements of Clause 1 of Article 14 of this Federal Law, with the exception of the requirement regarding the date of issue of a mortgage bond, information on state registration of a mortgage and information provided for by Subclause 10 of Clause 1 of Article 14 of this Federal Law in the event that a mortgage bond is issued in force law, and its copy;
documents named in the mortgage as attachments, and their copies.
4. State registration of an agreement on the assignment of rights under a basic obligation or under a mortgage agreement is carried out upon a joint application of the former and new pledgees. For state registration of a contract of assignment of rights, the following must be submitted:
assignment agreement;
document confirming the payment of the state fee;
a previously registered mortgage agreement.
4.1. Application for state registration of a pledge of immovable property that secures the claims that constitute the mortgage coverage, the share in the right of common ownership of which is certified mortgage certificate participation appears to the mortgage cover manager.
For the state registration of a pledge of immovable property that secures the requirements that constitute such mortgage coverage, in addition to others required in accordance with Federal Law No. 152-FZ of November 11, 2003 " Mortgage-backed securities"and Federal Law No. 122-FZ of July 21, 1997" "documents are submitted:
license to manage mortgage coverage, provided for in Article 17 of the Federal Law of November 11, 2003 No. 152-FZ " Mortgage-backed securities"(original or notarized copy);
rules of trust management of mortgage coverage.
4.2. The entry into the Unified State Register of Rights to Immovable Property and Transactions with it of information about the new mortgagee as a result of the transfer of the mortgage is carried out in compliance with the requirements of Article 16 of this Federal Law upon the application of the new owner of the mortgage. To enter such information, a mortgage bond must be submitted with a note on the transfer of rights to the mortgage bond to the new owner of the mortgage bond and a document confirming the payment of the state duty.
5. The mortgage must be registered within one month from the date of receipt of the documents necessary for its registration in the body that carries out state registration of rights, and the mortgage of residential premises - within five working days from the specified day.
6. State registration of a mortgage is carried out by making a registration record on a mortgage in the Unified State Register of Rights to Real Estate and Transactions with It.
The date of the state registration of a mortgage is the day of the registration of the mortgage in the Unified State Register of Rights to Real Estate and Transactions with It. Registration records in the Unified State Register of Rights to Real Estate and Transactions with It are made in the order determined on the basis of the dates of receipt of all the necessary documents in the body that carries out state registration of rights.
7. For third parties, the mortgage is considered to have arisen from the moment of its state registration.
Article 21. Refusal in state registration of a mortgage and postponement of state registration of a mortgage
1. State registration of a mortgage may be refused in the cases provided for by the federal law on state registration of rights to real estate and transactions with it, unless otherwise provided by this Federal Law.
Suspension and (or) termination of state registration of a mortgage at the request of one of the parties to the transaction for the acquisition of residential premises is not allowed.
2. State registration of a mortgage may be postponed for no more than one month if:
failure to submit to the body carrying out state registration of rights of any of the documents specified in clauses 2 and 3 of Article 20 of this Federal Law;
inconsistency of the mortgage agreement, mortgage bond and the documents attached thereto to the requirements provided for by the legislation of the Russian Federation;
the need to verify the authenticity of the submitted documents.
3. When deciding to postpone the state registration of a mortgage, the body carrying out state registration of rights requests Required documents or requires elimination of identified non-conformities.
If the requirements of the specified body are not met within the time period established by it, the state registration of the mortgage must be refused.
4. In the event of a legal dispute over the rights to property that is the subject of a mortgage, or over the levy on it, the state registration of the mortgage is postponed until the dispute is resolved by the court.
5. A motivated refusal in state registration of a mortgage must be sent to the mortgagor within the period established for its state registration.
Article 22. Registration record on mortgage and certificate of state registration of mortgage
1. The registration record on the mortgage in the Unified State Register of Rights to Real Estate and Transactions with it must contain information about the initial pledgee, the subject of the mortgage and the amount of the obligation secured by it. If the mortgage agreement stipulates that the rights of the mortgagee are certified by the mortgage, this is also indicated in the mortgage registration record.
These data are entered into the mortgage registration record on the basis of a mortgage agreement or an agreement entailing the emergence of a mortgage by virtue of law.
1.1. During the state registration of a pledge of immovable property that secures the requirements that constitute a mortgage cover, a share in the right of common ownership of which is certified by a mortgage certificate of participation, it is indicated in the Unified State Register of Rights to Real Estate and Transactions with it that the mortgagees of the said immovable property are the owners of mortgage participation certificates , the data on which are established on the basis of the data of personal accounts in the register of holders of mortgage participation certificates and depo accounts of holders of mortgage participation certificates, as well as an individual designation that identifies mortgage participation certificates, in the interests of the owners of which such mortgage coverage is managed.
If it is included in the mortgage coverage, the share in the common ownership of which is certified by the mortgage certificate of participation, the claim certified by the mortgage, the state registration of the real estate pledge that secures this requirement is carried out at the request of the manager of the mortgage coverage.
2. The state registration of a mortgage is certified by an inscription on the mortgage agreement, and in the case of state registration of a mortgage by virtue of law, on a document that is the basis for the emergence of the mortgagor's right of ownership to the property encumbered by the mortgage. The inscription must contain the full name of the body that carries out state registration of rights, the date, place of state registration of the mortgage and the number under which it is registered. These data are certified by the signature of an official and sealed by the seal of the body that carries out state registration of rights.
In the case of purchasing real estate using credit funds bank or other credit institution or funds of a target loan provided by another legal entity, in the agreement that is the basis for the emergence of the mortgagor's ownership of the property encumbered by the mortgage, it is enough to indicate the name of the agreement or the basis from which the monetary obligation secured by the mortgage arose, the date and place of the conclusion of such an agreement or the date of occurrence of the basis a monetary obligation secured by a mortgage.
3. If the rights of the pledgee are certified by a mortgage bond, the body carrying out state registration of rights is obliged to ensure by the time the mortgage bond is issued that it contains the information provided for in clause 2 of this article, as well as in subclauses 10 and 13 of clause 1 of article 14 of this Federal Law.
4. The body carrying out the state registration of rights leaves in its archives a copy of the mortgage agreement, and during state registration of a mortgage by virtue of law - a copy of the document that is the basis for the origin of the mortgagor's ownership of the property encumbered by the mortgage. If the rights of the pledgee are certified by the mortgage, the body carrying out the state registration of rights also leaves in its archives a copy of the mortgage with attachments.
Article 23. Correction, amendment and addition of the mortgage registration record
1. Correction of technical errors in the mortgage registration record is allowed on the basis of an application by the mortgagor or mortgagee with the notification of the other party about the correction made and provided that the indicated correction cannot cause damage to third parties or violate their legitimate interests.
2. Changes and additions to the mortgage registration record are made on the basis of an agreement between the mortgagor and the mortgagee to amend or supplement the terms of the mortgage agreement.
Changes and additions to the registration record on the mortgage are not allowed if the rights of the pledgee are certified by the mortgage, except for the case provided for in Clause 6 of Article 13 of this Federal Law.
In cases where, after the state registration of a mortgage, by virtue of the law, the pledger and the pledgee entered into a mortgage agreement, the corresponding changes are made to the previously completed registration record on the mortgage.
3. Changes and additions to the mortgage registration record in connection with the approval of the amicable agreement by the court on the obligation secured by the mortgage are made on the basis of the relevant judicial act, which approved the amicable agreement, and the application of the pledger or pledgee.
Article 24. State fee
For the state registration of a mortgage and mortgage agreement as a restriction (encumbrance) of rights to real estate, including making appropriate entries in the Unified State Register of Rights to Real Estate and Transactions with It and the issuance of documents on state registration, the state fee is paid once for all these actions in the amount and in the manner established by the legislation of the Russian Federation on taxes and fees.
Article 25. Cancellation of mortgage registration record
1. Unless otherwise provided by federal law, the mortgage registration record shall be canceled within three working days from the date of receipt by the state registration authority of the statement of the owner of the mortgage bond, the joint statement of the mortgagor and the mortgagee, the statement of the mortgagor with the simultaneous submission of the mortgage bond containing the owner's mark a mortgage on the fulfillment of an obligation secured by a mortgage in full, or a decision of a court, an arbitration court or an arbitration tribunal to terminate the mortgage.
No other documents are required to repay the mortgage registration record.
2. The mark on the mortgage bond on the fulfillment of the obligation secured by the mortgage in full must include the words about such fulfillment of the obligation and the date of its fulfillment, and must also be certified by the signature of the owner of the mortgage bond and certified by his seal, if the owner of the mortgage bond is a legal entity.
3. Upon redemption of the registration record on the mortgage in connection with the termination of the mortgage, the mortgage bond shall be canceled in the manner established by this Federal Law. The canceled mortgage bond is transferred to the previously obligated person at his request.
Article 25.1. Repayment of the mortgage registration record in the event of liquidation of the pledgee who is a legal entity
In the event of the liquidation of the pledgee who is a legal entity, the registration record on the mortgage is canceled on the basis of the application of the pledger and an extract from the unified state register legal entities, confirming the entry in the specified register of an entry on the liquidation of this legal entity.
Article 26. Public nature of state registration of mortgage
State registration of mortgages is public. Any person has the right to receive from the body that carries out state registration of rights, information about whether there is a registration record on the mortgage of the relevant property, and a certified extract from the registration record on the mortgage.
A copy of the mortgage, which is in the archives of the body that carries out state registration of rights, does not apply to documents of a public nature.
Article 27. Appealing actions related to state registration of a mortgage
Refusal of state registration of a mortgage or evasion of the relevant authority from its registration or from issuing a mortgage to the original mortgagee, refusal to make corrections in the mortgage registration record, cancellation of the mortgage registration record in violation of the established rules, registration of a non-existent mortgage, refusal to exercise the rights provided for in Article 26 of this Federal Law, as well as other actions of the body carrying out state registration of rights that do not comply with the federal law, may be appealed by an interested person in a court, an arbitration court in accordance with the procedural legislation of the Russian Federation.
Article 28. Responsibility of the authority registering the mortgage
The body carrying out state registration of rights, which registered or should have registered a mortgage, is obliged in accordance with the Civil Code of the Russian Federation and Article 31 of the Federal Law of July 21, 1997 No. 122-FZ " On state registration of rights to real estate and transactions with it"to compensate the interested person for losses caused by their illegal actions (inaction), including:
unjustified refusal of state registration of a mortgage;
unjustified refusal to make corrections to the registration record;
delay in state registration of mortgage over the established period;
state registration of a mortgage in violation of the requirements of the legislation of the Russian Federation to the content of the registration record, or with other errors;
non-compliance with the requirements of Clause 3 of Article 22 of this Federal Law;
evasion from issuance of a mortgage bond (duplicate of a mortgage bond);
unlawful cancellation of the registration record;
unjustified refusal to perform the actions provided for in Article 26 of this Federal Law.
Chapter V. Ensuring the safety of property pledged under a mortgage agreement
Article 29. Use of the mortgaged property by the mortgagor
1. The pledgor retains the right to use the property pledged under the mortgage agreement. The pledgor has the right to use this property in accordance with its purpose.
The terms of the mortgage agreement limiting this right of the pledgor are null and void.
Unless otherwise provided by the contract, when using the pledged property, the pledger must not allow the property to deteriorate and its value to decrease in excess of what is caused by normal wear and tear.
2. The pledgor shall have the right to extract fruits and income from the property pledged under the mortgage agreement. The mortgagee does not acquire rights to these fruits and income, unless otherwise provided by the mortgage agreement.
Article 30. Maintenance and repair of mortgaged property
1. Unless otherwise provided by the mortgage agreement, the pledger shall be obliged to maintain the property pledged under the mortgage agreement in good condition and bear the costs of maintaining this property until the termination of the mortgage.
2. Unless otherwise provided by the mortgage agreement, the pledger is obliged to make current and overhaul property pledged under a mortgage agreement, within the terms established by federal law, other legal acts of the Russian Federation (paragraphs 3 and 4 of Article 3 of the Civil Code of the Russian Federation), or in the manner prescribed by them, and if such terms have not been established - within a reasonable time.
Article 31. Insurance of mortgaged property and liability of the borrower for non-repayment of the loan
1. Insurance of property pledged under a mortgage agreement is carried out in accordance with the terms of this agreement. An insurance contract for property pledged under a mortgage agreement must be concluded in favor of the mortgagee (beneficiary), unless otherwise stipulated in the mortgage agreement or in an agreement entailing the emergence of a mortgage by virtue of law, or in a mortgage.
2. In the absence of other conditions on insurance of the pledged property in the mortgage agreement, the pledger is obliged to insure at its own expense this property in full value against the risks of loss and damage, and if the total value of the property exceeds the amount of the obligation secured by the mortgage - in an amount not less than the amount of this obligation.
3. The pledgee has the right to satisfy his claim under the obligation secured by the mortgage directly from insurance compensation for the loss or damage of the pledged property, regardless of whose benefit it is insured. This requirement is subject to satisfaction primarily in front of the claims of other creditors of the pledger and persons in whose favor the insurance was carried out, with the exceptions established by federal law.
The pledgee is deprived of the right to satisfy his claim from the insurance indemnity if the loss or damage to property has occurred for reasons for which he is responsible.
4. The borrower, who is the pledger under the mortgage agreement, has the right to insure the risk of his liability to the lender for non-performance or improper performance of the obligation to repay the loan.
The borrower's liability insurance contract must be concluded in favor of the pledgee creditor (beneficiary). When the rights of the creditor in the obligation secured by the pledge of immovable property are transferred, the rights of the beneficiary under the insurance contract are transferred to the new creditor in full.
The insured amount under the borrower's liability insurance contract must not exceed 20 percent of the value of the pledged property. The insurance premium is paid in a lump sum within the period established by the insurance contract. If the policyholder withdraws from the insurance contract, paid to the insurer insurance premium non-refundable.
An insured event under a borrower's liability insurance contract is the fact that the lender has made a claim against him to repay the loan if the lender is insufficient Money proceeds from the sale of pledged property and distributed in the manner prescribed by the legislation on mortgages.
Article 32. Measures to protect pledged property from loss and damage
To ensure the safety of the pledged property, including to protect it from the encroachments of third parties, fire, natural disasters, the pledger is obliged to take measures established by federal law, other legal acts of the Russian Federation (paragraphs 3 and 4 of Article 3 of the Civil Code of the Russian Federation) and an agreement on the mortgage, and if they are not established - the necessary measures that meet the usual requirements.
In the event of a real threat of loss or damage to the pledged property, the pledger is obliged to notify the pledgee about it, if he knows it.
Article 33. Protection of mortgaged property from claims of third parties
1. In cases where other persons present claims to the pledger for the recognition of their ownership or other rights to the pledged property, for its seizure (reclaiming) or encumbrance of the specified property or other claims, the satisfaction of which may entail a decrease in the value or deterioration of this property, the pledger is obliged to immediately notify the pledgee about this, if he is aware of it. Upon filing an appropriate claim against the pledger in court, arbitration court or an arbitration court (hereinafter referred to as the court), it must attract such a pledgee to participate in the case.
2. In the cases specified in paragraph 1 of this article, the pledger must use the appropriate ways to protect his rights to the pledged property, provided for in article 12 of the Civil Code of the Russian Federation. If the pledgor has refused to protect his rights to the pledged property or does not exercise it, the pledgee has the right to use these methods of protection on behalf of the pledger without a special power of attorney and demand from the pledger to reimburse the necessary expenses incurred in this connection.
3. If the property pledged under the mortgage agreement turned out to be in the illegal possession of third parties, the pledgee has the right, acting on his own behalf, to reclaim this property from someone else's illegal possession in accordance with Articles 301-303 of the Civil Code of the Russian Federation for transferring it into the possession of the pledger ...
Article 34. The right of the pledgee to check the pledged property
The mortgagee has the right to check the documents and actually the presence, condition and conditions of the maintenance of the property pledged under the mortgage agreement. This right belongs to the pledgee even if the pledged property is transferred by the pledger for a time into the possession of third parties.
The verification carried out by the pledgee should not create unjustified obstacles to the use of the pledged property by the pledger or other persons in whose possession it is.
Article 35. Rights of the pledgee in case of improper security of the pledged property
In case of gross violation by the pledgor of the rules for the use of pledged property (paragraph 1 of Article 29), the rules for the maintenance or repair of pledged property (Article 30), the obligation to take measures to preserve this property (Article 32), if such a violation creates a threat of loss or damage to the pledged property, and also in case of violation of obligations on insurance of the pledged property (paragraphs 1 and 2 of Article 31) or in case of an unjustified refusal to the pledgee to check the pledged property (Article 34), the pledgee has the right to demand the early fulfillment of the obligation secured by the mortgage.
If the satisfaction of such a claim is denied or it is not satisfied within the period stipulated by the agreement, and if such a period is not provided, within one month, the pledgee has the right to foreclose on the property pledged under the mortgage agreement.
Article 36. Consequences of loss or damage to pledged property
1. The pledgor bears the risk of accidental loss and accidental damage to property pledged under a mortgage agreement, unless otherwise provided for by such an agreement.
2. If, due to circumstances for which the pledgee is not responsible, the pledged property is lost or damaged to such an extent that, as a result, the security of the obligation with the mortgage has significantly deteriorated, the pledgee has the right to demand early performance of the obligation secured by the mortgage, including through insurance compensation in accordance with paragraph 3 of Article 31 of this Federal Law.
3. The pledgee cannot exercise the rights provided for by paragraph 2 of this article if an agreement has been concluded between him and the pledger in writing on the restoration or replacement of the lost or damaged property and the pledger duly fulfills the terms of this agreement.
Chapter VI. Transfer of rights to property pledged under a mortgage agreement to other persons and encumbrance of this property with the rights of other persons
Article 37. Alienation of pledged property
1. Property pledged under a mortgage agreement may be alienated by the pledgor to another person by sale, donation, exchange, making it as a contribution to the property of a business partnership or company, or a share contribution to the property of a production cooperative, or in any other way only with the consent of the pledgee, if otherwise is not provided by the mortgage agreement.
2. In the event that a mortgage bond is issued, the alienation of the pledged property is allowed if the mortgagor's right to this is provided for in the mortgage bond, subject to the conditions established therein.
3. The pledgor has the right to bequeath the pledged property. The terms of the mortgage agreement or other agreement limiting this right of the pledger are null and void.
Article 38. Retention of mortgage upon transfer of rights to mortgaged property to another person
1. A person who has acquired the property pledged under a mortgage agreement as a result of its alienation or in the order of universal succession, including as a result of the reorganization of a legal entity or by way of inheritance, takes the place of the pledger and bears all the obligations of the latter under the mortgage agreement, including and those that were not duly fulfilled by the original pledger.
The new pledgor can be released from any of these obligations only by agreement with the pledgee. Such an agreement is optional for subsequent purchasers of the mortgage bond, if its state registration has not been carried out and the rules of Article 15 of this Federal Law have not been observed.
2. If the property pledged under the mortgage agreement has been transferred to several persons on the grounds specified in paragraph 1 of this article, each of the legal successors of the original pledger shall bear the consequences arising from the mortgage relationship of failure to fulfill the obligation secured by the mortgage in proportion to the part of the pledged property transferred to him. If the subject of the mortgage is indivisible or, for other reasons, becomes the common property of the legal successors of the pledger, the successors become joint and several pledgers.
3. The pledge of property under a mortgage agreement remains in effect regardless of whether the transfer of this property to other persons violated any rules established for such transfer.
Article 39. Consequences of violation of the rules on alienation of pledged property
In case of alienation of property pledged under a mortgage agreement in violation of the rules of paragraphs 1 and 2 of Article 37 of this Federal Law, the pledgee has the right, at his choice, to demand:
recognition of the transaction on the alienation of pledged property invalid and the application of the consequences provided for by Article 167 of the Civil Code of the Russian Federation;
early fulfillment of the obligation secured by the mortgage and foreclosure on the pledged property, regardless of who owns it.
In the latter case, if it is proved that the acquirer of the property pledged under the mortgage agreement at the time of its acquisition knew or should have known that the property is being alienated in violation of the rules of Article 37 of this Federal Law, such acquirer shall be liable within the value of the said property for failure to fulfill the obligation secured by the mortgage in solidarity with the debtor under this obligation. If the pledged property is alienated in violation of the specified rules by the pledgor who is not a debtor under the obligation secured by the mortgage, both the acquirer of the property and the previous pledger shall be jointly and severally liable with this debtor.
Article 40. Encumbrance of the pledged property with the rights of other persons
1. Unless otherwise provided by federal law or the mortgage agreement, the pledger shall have the right, without the consent of the pledgee, to lease the pledged property, transfer it for temporary free use and, by agreement with another person, grant the latter the right to limited use of this property (easement) under the conditions that :
the term for which the property is provided for use does not exceed the term of the obligation secured by the mortgage;
property is provided for use for purposes corresponding to the purpose of the property.
2. In the event that the pledgee levies foreclosure on the pledged property on the grounds provided for by federal law or the mortgage agreement, all lease rights and other rights of use in relation to this property, granted by the pledger to third parties without the consent of the pledgee after the conclusion of the mortgage agreement, terminate from the moment of entry into legal force of a court decision on the foreclosure of the property, and if the claims of the pledgee are satisfied without going to court (outside judicial procedure), from the moment the person who won the auction concludes a sale and purchase agreement with the auction organizer, provided that the pledged property is sold at the auction, or from the moment of state registration of the mortgagee's property rights in terms of the mortgage, provided that the mortgaged property is acquired into the ownership of the mortgagee.
3. The pledged property may be provided by the pledgor for use by third parties for a period exceeding the term of the obligation secured by the mortgage, or for purposes that do not correspond to the purpose of the property, only with the consent of the pledgee. In the event that a mortgage bond is issued, the granting of the right to use the pledged property to third parties on these conditions is allowed if the mortgagor's right to this is provided for in the mortgage bond.
4. The provision by the pledgor of the pledged property for use to another person does not relieve the pledger from fulfilling his obligations under the mortgage agreement, unless otherwise provided by this agreement.
5. The encumbrance of property pledged under a mortgage agreement with other pledges shall be governed by the rules of Chapter VII of this Federal Law.
Article 41. Consequences of compulsory seizure of mortgaged property by the state
1. If the mortgagor's ownership right to the property that is the subject of the mortgage is terminated on the grounds and in the manner established by federal law, as a result of the seizure (redemption) of the property for state or municipal needs, its requisition or nationalization, and the mortgagor is provided with other property or appropriate compensation, the mortgage extends to the property provided in exchange, or the pledgee acquires the right of priority satisfaction of his claims from the amount of compensation due to the pledger.
The pledgee, whose interests cannot be fully protected by the rights provided for in part one of this clause, has the right to demand the early fulfillment of the obligation secured by the mortgage and foreclosure on the property provided to the pledger in exchange for the withdrawn one.
2. In cases where the property that is the subject of a mortgage is withdrawn from the mortgagor by the state in the form of a sanction for committing a crime or other offense (confiscation), the mortgage remains in force and the rules of Article 38 of this Federal Law apply. However, the pledgee, whose interests cannot be fully protected by the application of these rules, has the right to demand the early fulfillment of the obligation secured by the mortgage and the foreclosure of the confiscated property.
Article 42. Consequences of vindication of pledged property
In cases where the property that is the subject of a mortgage is seized from the pledgor in the manner prescribed by federal law on the basis that in reality the owner of this property is another person (vindication), the mortgage in respect of this property is terminated. The pledgee, after the entry into force of the relevant court decision, has the right to demand early performance of the obligation that was secured by the mortgage.
Chapter VII. Subsequent mortgage
Article 43. The concept of a subsequent mortgage and the conditions under which it is allowed
1. Property pledged under a mortgage agreement to secure the performance of one obligation (previous mortgage) may be pledged to secure the performance of another obligation of the same or another debtor to the same or another pledgee (subsequent mortgage).
The order of the mortgagees is established on the basis of data from the Unified State Register of Rights to Real Estate and Transactions with it about the moment of occurrence of the mortgage, determined in accordance with the rules of Clauses 5 and 6 of Article 20 of this Federal Law.
2. Subsequent mortgage is allowed if it is not prohibited by previous agreements on the mortgage of the same property, the effect of which has not ceased by the time of the conclusion of the subsequent agreement on mortgage.
If a prior mortgage agreement provides for the conditions on which a subsequent mortgage agreement may be concluded, the latter must be concluded in compliance with these conditions.
3. A subsequent mortgage agreement concluded in spite of the prohibition established by the previous mortgage agreement may be declared invalid by the court at the claim of the pledgee under the previous agreement, regardless of whether the pledgee knew about such prohibition under the subsequent agreement.
If the subsequent mortgage is not prohibited, but the subsequent agreement was concluded in violation of the conditions provided for by the previous agreement, the claims of the pledgee under the subsequent agreement are satisfied to the extent that their satisfaction is possible in accordance with the terms of the previous mortgage agreement.
4. The rules of paragraphs 2 and 3 of this article shall not apply if the parties to the previous and subsequent mortgage agreements are the same persons.
5. The conclusion of a subsequent mortgage agreement providing for the drafting and issuance of a mortgage is not allowed.
Article 44. Warning pledgees about previous and subsequent mortgages. Modification of the previous mortgage agreement
1. The pledger shall be obliged to inform each subsequent pledgee, prior to concluding an agreement on the subsequent mortgage with him, information about all existing mortgages of this property, provided for by paragraph 1 of Article 9 of this Federal Law.
Failure by the pledgor to fulfill this obligation gives the pledgee, under a subsequent agreement, the right to demand termination of the agreement and compensation for damages caused, if it is not proved that he could receive necessary information on previous mortgages on the basis of Article 26 of this Federal Law from the data on their state registration.
2. The mortgagor who has entered into a subsequent mortgage agreement must immediately notify the mortgagees of the previous mortgage and, upon their request, inform them of the information on the subsequent mortgage provided for in Clause 1 of Article 9 of this Federal Law.
3. After the conclusion of a subsequent mortgage agreement, a change in the previous agreement entailing the provision of new claims of the previous pledgee or an increase in the volume of claims already secured under this agreement (Article 3) is allowed only with the consent of the pledgee under the subsequent agreement, unless otherwise provided by the previous agreement on mortgage.
4. The rules of this article shall not apply if the parties to the previous and subsequent mortgage agreements are the same persons.
Article 45. State registration of the subsequent mortgage
State registration of the subsequent mortgage is carried out in compliance with the rules of Chapter IV of this Federal Law.
In the subsequent mortgage agreement, notes are made about all registration records of previous mortgages on the same property.
Subsequent mortgages are recorded on all previous mortgages for the same property.
Article 46. Satisfaction of claims of pledgees for previous and subsequent mortgages
1. The claims of the pledgee under the subsequent mortgage agreement shall be satisfied from the value of the pledged property in compliance with the requirements that the mortgagee under the previous mortgage agreement has the right of priority satisfaction of his claims.
2. In the case of foreclosure on the pledged property on claims secured by a subsequent mortgage, the early fulfillment of the obligation secured by the mortgage may be required at the same time and foreclosure on this property may be levied on claims secured by the previous mortgage, the due date of which for collection has not yet come. If the mortgagee under the previous mortgage agreement did not exercise this right, the property on which the claim was levied under the claims secured by the subsequent mortgage goes to its acquirer encumbered with the previous mortgage.
3. In the case of foreclosure on the pledged property on claims secured by a previous mortgage, it is allowed to simultaneously foreclose on this property and on claims secured by a subsequent mortgage, the deadline for which has not yet arrived for collection. Claims secured by a subsequent mortgage shall not be subject to early satisfaction if, in order to satisfy the claims secured by the previous mortgage, it is sufficient to foreclose on a part of the pledged property.
4. Prior to foreclosure on property, the pledge of which secured the claims for the previous and subsequent mortgages, the pledgee intending to present his claims for collection is obliged to notify the pledgee in writing about this under another mortgage agreement for the same property.
5. The rules contained in this article shall not apply if the mortgagee for the previous and subsequent mortgages is the same person. In this case, the claims secured by each of the mortgages are satisfied in the order of priority corresponding to the timing of the fulfillment of the corresponding obligations, unless otherwise provided by federal law or agreement of the parties.
Chapter VIII. Assignment of rights under a mortgage agreement. Transfer and pledge of a mortgage
Article 47. Assignment of rights under a mortgage agreement or an obligation secured by a mortgage
1. The pledgee has the right, unless otherwise provided by the contract, to transfer his rights to another person:
under a mortgage agreement;
on the obligation secured by the mortgage (main obligation).
2. The person to whom the rights were transferred under the mortgage agreement takes the place of the previous pledgee under this agreement.
Unless proven otherwise, the assignment of rights under a mortgage agreement also means the assignment of rights under the obligation secured by the mortgage (main obligation).
3. Unless otherwise provided by the contract, the rights ensuring the fulfillment of the obligation also pass to the person to whom the rights under the obligation (main obligation) have been transferred.
Such a person takes the place of the previous mortgagee under the mortgage agreement.
The assignment of rights under the obligation secured by the mortgage (main obligation) in accordance with paragraph 1 of Article 389 of the Civil Code of the Russian Federation must be made in the form in which the obligation secured by the mortgage (main obligation) was concluded.
4. The provisions of Articles 382, 384 - 386, 388 and 390 of the Civil Code of the Russian Federation on the transfer of creditor rights by assignment of a claim shall apply to the relationship between the person to whom the rights are assigned and the pledgee.
5. Assignment of rights under a mortgage agreement or an obligation secured by a mortgage, the rights of which are certified by a mortgage, is not allowed. When such a transaction is made, it shall be deemed null and void.
Article 48. Transfer of rights to mortgage
1. Upon the transfer of rights to a mortgage, a transaction is made in a simple written form.
When transferring rights to a mortgage, the transferor makes a mark on the mortgage about the new owner, unless otherwise provided by this Federal Law.
The mark must clearly and fully indicate the name (title) of the person to whom the rights to the mortgage were transferred.
The mark must be signed by the mortgagee indicated in the mortgage bond or, if this inscription is not the first, by the owner of the mortgage bond indicated in the previous mark. If the mark is made by a person acting under a power of attorney, information on the date of issue, the number of the power of attorney and, if the power of attorney is notarized, the notary who certified the power of attorney shall be indicated.
In the event that depository accounting of a mortgage is carried out, the transfer of rights is carried out by making an appropriate entry on the custody account. The rights to the mortgage bond are transferred to the acquirer from the moment an entry is made on the acquirer's securities account, which is sufficient evidence that the acquirer has rights to the mortgage bond. In this case, the mark on the mortgage on its new owner is not made.
2. Transfer of rights to a mortgage bond to another person means the transfer to this person of all the rights certified by it in the aggregate.
The mortgagee owns all the rights certified by it, including the rights of the mortgagee and the rights of the creditor under the obligation secured by the mortgage, regardless of the rights of the original mortgagee and previous owners of the mortgage.
Unless otherwise specified in the transaction specified in clause 1 of this article, upon transfer of rights to a mortgage bond with partial performance of an obligation secured by a mortgage (principal obligation), obligations that should have been performed prior to the transfer of rights to the mortgage bond shall be deemed fulfilled.
3. The owner of the mortgage bond shall be considered legal if his rights to the mortgage bond are based on the last mark on the mortgage bond made by the previous owner, unless otherwise provided by this clause. He is not considered the legal owner of the mortgage, if it is proved that the mortgage was out of possession of one of the persons who made the transfer notices, against their will, as a result of theft or in any other criminal way, about which new owner the mortgage, acquiring it, knew or should have known.
In the event that depository accounting of a mortgage is carried out, the owner of the mortgage is considered legal if his rights to the mortgage are certified by an entry on the securities account. In the event of termination of depository accounting, the mortgage depository makes a mark on the mortgage bond owner, which is such according to the entry in the custody account at the time the depository receives the instructions of the mortgage bond owner regarding the termination of the registration of the mortgage bond in this depository.
4. Inscriptions on the mortgage, prohibiting its subsequent transfer to other persons, are void.
5. If a third party, in accordance with clause 2 of Article 313 of the Civil Code of the Russian Federation, has fulfilled the obligation secured by the mortgage for the debtor in full, it has the right to demand that the mortgage be transferred to him. If the pledgee refuses to transfer the mortgage bond, the third party may demand that the mortgage bond be transferred to him in court.
Article 49. Pledge of mortgage
1. A mortgage bond can be pledged under an agreement on pledge of a mortgage bond without transferring or with its transfer to another person (the mortgagee) as security for an obligation under a loan agreement or other obligation that has arisen between this person and the mortgagee, originally named in the mortgage bond, or its other legal owner (by the mortgagee).
2. When a mortgage is pledged without transferring it to the mortgagee, the order of foreclosure on the mortgaged mortgage is governed by Article 349 of the Civil Code of the Russian Federation.
3. When concluding an agreement on pledge of a mortgage bond with its transfer to the pledgee of the mortgage bond, the parties shall have the right to provide:
1) foreclosure on pledged property in accordance with the procedure established by Article 349 of the Civil Code of the Russian Federation;
2) the transfer of rights under a mortgage in the manner, on conditions and with the consequences provided for by Article 48 of this Federal Law;
3) implementation by the mortgagee on the mortgage of a special mortgage notation, which gives the mortgagee the right to sell the mortgage after a certain period of time in order to withhold from the proceeds the amount of the obligation secured by its pledge.
4. The mortgagee can make a special pledge transfer note on the mortgage, which gives the mortgagee the right to sell the mortgage after a certain period of time in order to withhold from the proceeds the amount of the obligation secured by its pledge.
In the event that depository accounting of a mortgage bond is carried out, a special mortgage transfer note is reflected by the depository in the form of a special entry on the custody account on the basis of instructions from the owner of the mortgage bond.
When the mortgage obligation secured by the pledge is fulfilled in full, the special pledge endorsement is extinguished by the mortgagee making the mortgage mark on the redemption of such an inscription or, if the depository accounting of the mortgage bond is carried out, by the depositary, on the basis of the order of the mortgagee, making a corresponding entry on the repayment of the depot account.
Chapter IX. Foreclosure on property pledged under a mortgage agreement
Article 50. Grounds for foreclosure on pledged property
1. The mortgagee has the right to foreclose on the property pledged under the mortgage agreement in order to satisfy, at the expense of this property, the requirements named in Articles 3 and 4 of this Federal Law caused by non-fulfillment or improper fulfillment of the obligation secured by the mortgage, in particular, non-payment or untimely payment of the debt in full or in part, if the contract does not provide otherwise.
If there is a discrepancy between the terms of the mortgage agreement and the terms of the obligation secured by the mortgage in relation to claims that can be satisfied by foreclosure on the pledged property, preference is given to the terms of the mortgage agreement.
2. Clause was declared invalidated in accordance with Federal Law No. 306-FZ dated December 30, 2008.
3. For claims caused by non-fulfillment or improper fulfillment of an obligation secured by a mortgage, foreclosure on the mortgaged property cannot be levied if, in accordance with the terms of this obligation and applicable federal laws and other legal acts of the Russian Federation (paragraphs 3 and 4 of Article 3 of the Civil Code of the Russian Federation), the debtor is released from liability for such non-performance or improper performance.
4. In the cases provided for by this article, Articles 12, 35, 39, 41, 46 and 72 of this Federal Law or other federal law, the pledgee has the right to demand the early fulfillment of the obligation secured by the mortgage, and if this requirement is not met, the foreclosure on the pledged property from the proper or improper performance of the obligation secured by the mortgage.
5. Peculiarities of foreclosure on property that is in a mortgage by virtue of the law in accordance with the Federal Law of December 30, 2004 No. 214-FZ "On participation in shared construction of apartment buildings and other real estate and on amendments to some legislative acts of the Russian Federation "(hereinafter referred to as the Federal Law" On Participation in Shared Construction of Apartment Buildings and Other Real Estate Objects and on Amendments to Certain Legislative Acts of the Russian Federation ") are determined by the said Federal Law.
Article 51. Judicial procedure for foreclosure on pledged property
Recovery according to the claims of the pledgee shall be applied to the property pledged under the mortgage agreement, by a court decision, except for cases when, in accordance with Article 55 of this Federal Law, it is allowed to satisfy such claims without going to court.
Article 52. Jurisdiction and jurisdiction of cases of foreclosure on pledged property
A claim for foreclosure on property pledged under a mortgage agreement shall be filed in accordance with the rules of jurisdiction and jurisdiction of cases established by the procedural legislation of the Russian Federation.
Article 53. Measures to protect the interests of other pledgees, absent pledger and other persons
1. When foreclosure is levied on property pledged under two or more mortgage agreements, the pledgee must submit to the court in which the relevant claim is filed evidence of the fulfillment of the obligation provided for in paragraph 4 of Article 46 of this Federal Law.
2. If from the materials of the case on foreclosure on pledged property it is clear that the mortgage was or should have been carried out with the consent of another person or body, the court in which the claim for foreclosure is brought shall notify the relevant person or body about this and give him the opportunity participate in this case.
3. Persons who have a right to use pledged property based on a law or a contract (tenants, tenants, family members of the owner of a dwelling and other persons) or a property right to this property (easement, the right to life-long use and other rights) have the right to participate in the consideration of the case on foreclosure on pledged property.
Article 54. Issues resolved by the court when considering a case on foreclosure on pledged property
1. The foreclosure on property pledged under a mortgage agreement may be refused in the cases provided for in Article 54.1 of this Federal Law.
2. When deciding on foreclosure on property pledged under a mortgage agreement, the court must determine and indicate in it:
1) the amounts payable to the pledgee from the value of the pledged property, with the exception of the amounts of expenses for the protection and sale of property, which are determined upon completion of its sale. For amounts calculated as a percentage, the amount on which the interest is calculated, the amount of interest and the period for which they are to be calculated must be indicated;
2) the property being the subject of the mortgage, from the value of which the claims of the pledgee are satisfied;
3) the method of selling the property on which the claim is being levied;
4) the initial sale price of the pledged property upon its sale. The initial sale price of the property at a public auction is determined on the basis of an agreement between the mortgagor and the mortgagee, and in the event of a dispute, by the court itself;
5) measures to ensure the safety of property prior to its sale, if necessary;
6) special conditions for holding public trades established by Clause 3 of Article 62.1 of this Federal Law, if the subject of the mortgage is the land plots specified in Clause 1 of Article 62.1 of this Federal Law.
3. At the request of the pledger, the court, if there are valid reasons, has the right to postpone its implementation for a period of up to one year in the decision on the foreclosure of the pledged property in cases where:
the pledger is a citizen, regardless of what property is pledged by him under a mortgage agreement, provided that the pledge is not related to the entrepreneurial activity of this citizen;
the subject of the mortgage is land plot from the composition of agricultural land.
When determining the period for which the deferral of the sale of the pledged property is granted, the court takes into account, among other things, that the amount of the pledgee's claims to be satisfied from the value of the pledged property at the time of the expiration of the deferral must not exceed the value of the pledged property according to the assessment specified in the report of an independent appraiser or in the decision court at the time of sale of such property.
The postponement of the sale of the pledged property does not affect the rights and obligations of the parties under the obligation secured by the mortgage of this property, and does not exempt the debtor from reimbursing the creditor's losses that have increased during the postponement, interest and penalties due to the creditor.
If the debtor satisfies the creditor's claims secured by the mortgage within the time period granted to him, to the extent that they have at the time the claim is satisfied, the court, upon the application of the pledger, shall cancel the decision on foreclosure.
4. The postponement of the sale of the pledged property is not allowed if:
it can lead to significant deterioration financial situation the mortgagee;
a case has been initiated against the pledger or pledgee to declare him insolvent (bankrupt).
Article 54.1. Grounds for refusal to foreclose on mortgaged property
1. Levy of execution on the pledged property in court is not allowed if the violation of the obligation secured by the pledge committed by the debtor is extremely insignificant and the size of the pledgee's claims is clearly disproportionate to the value of the pledged property.
Unless proven otherwise, it is assumed that the violation of the obligation secured by the pledge is extremely insignificant and the amount of the pledgee's claims is clearly disproportionate to the value of the pledged property, provided that the following conditions are met at the same time:
the amount of the unfulfilled obligation is less than five percent of the size of the assessment of the subject of the mortgage under the mortgage agreement;
the period of delay in the performance of the obligation secured by the pledge is less than three months.
Unless otherwise provided by the mortgage agreement, foreclosure on property pledged to secure an obligation fulfilled by periodic payments is allowed in the event of a systematic violation of the deadlines for making payments, that is, in violation of the deadlines for making payments more than three times within 12 months, even if each delay is insignificant.
2. Refusal to foreclose on the grounds specified in paragraph 1 of this article is not a ground for termination of the mortgage and an obstacle for a new appeal to the court with a claim for foreclosure on the pledged property, if such treatment eliminates the circumstances that served as the basis for refusal in foreclosure.
3. Levy of execution on pledged property without going to court (out of court) is not allowed if the following conditions are present simultaneously:
the amount of the unfulfilled obligation secured by the mortgage is less than five percent of the size of the assessment of the subject of the mortgage under the mortgage agreement;
the period of delay in the performance of the obligation secured by the pledge is less than three months.
In this case, the mortgage does not stop and the collection on the subject of the pledge can be levied out of court after the change in these circumstances.
4. Levy of execution on residential premises belonging to individuals by right of ownership is not allowed out of court.
Article 55. Extrajudicial levying of execution on pledged property
1. Satisfaction of the pledgee's claims at the expense of property pledged under a mortgage agreement without going to court (out of court) is allowed on the basis of an agreement between the pledgee and the pledger, which can be included in the mortgage agreement or concluded as a separate agreement. The agreement is concluded subject to the availability of a notarized consent of the pledger to an out-of-court procedure for foreclosure on the pledged property. Such consent can be given before the conclusion of the mortgage agreement.
An agreement on satisfying the claims of the pledgee under a subsequent mortgage agreement is valid if it was concluded with the participation of the pledgees under previous mortgage agreements.
2. Satisfaction of the claims of the pledgee in the manner prescribed by paragraph 1 of this article is not allowed if:
1) for the mortgage of the property of an individual, the consent or permission of another person or body was required;
2) the subject of the mortgage is an enterprise as a property complex;
2.1) the subject of the mortgage is a land plot from the composition of agricultural land;
2.2) the subject of the mortgage is the land plots specified in Clause 1 of Article 62.1 of this Federal Law;
3) the subject of the mortgage is property that has significant historical, artistic or other cultural value for society;
4) the subject of the mortgage is property that is in common ownership, and one of its owners does not give consent in writing or in another form established by federal law to satisfy the claims of the pledgee out of court.
In these cases, the foreclosure on the pledged property is applied by a court decision.
5) the subject of the mortgage is residential premises owned by individuals;
6) the subject of the mortgage is property that is in state or municipal ownership.
3. In the agreement on satisfying the claims of the pledgee concluded in accordance with paragraph 1 of this article, the parties may provide for:
1) the sale of the pledged property in accordance with the procedure established in Article 56 of this Federal Law;
2) the acquisition of the pledged property by the pledgee for himself or for third parties with an offset against the purchase price of the pledgee's claims against the debtor secured by a mortgage. The said agreement cannot provide for the acquisition of the pledged property by the mortgagee if the subject of the mortgage is a land plot.
The rules of the civil legislation of the Russian Federation on the sale and purchase agreement are applied to the agreement on the acquisition of the pledged property by the pledgee, and in the case of the acquisition of property by the pledgee for third parties - also on the commission agreement.
3.1. When foreclosure is levied on property pledged in accordance with subparagraph 2 of paragraph 3 of this article, it is acquired by the pledgee for himself or for third parties with a set-off against the purchase price of the pledgee's claims against the debtor secured by a mortgage at a price equal to the market value of such property specified in the procedure established by the legislation of the Russian Federation on appraisal activities. The results of the assessment of the pledged property may be appealed by interested parties in the manner prescribed by the legislation of the Russian Federation.
4. When concluding an agreement on satisfying the claims of the pledgee in accordance with paragraph 1 of this article, the parties must indicate in it:
1) the name of the property pledged under the mortgage agreement, at the expense of which the claims of the pledgee are satisfied, the initial sale price or the procedure for determining it;
2) the amounts payable to the pledgee by the debtor on the basis of the obligation secured by the mortgage and the mortgage agreement, and if the pledger is a third party, also the pledger;
3) the method of selling the pledged property or the condition for its acquisition by the pledgee;
4) the previous and subsequent mortgages of this property known to the parties at the time of the conclusion of the agreement and the property rights and rights of use held by third parties in relation to this property.
5. An agreement on satisfying the claims of the pledgee out of court, concluded on the basis of paragraph 1 of this article, may be recognized by the court as invalid at the suit of a person whose rights have been violated by this agreement.
6. In case of non-execution by the pledger of the agreement on foreclosure on the pledged property out of court, extrajudicial foreclosure on the pledged property is allowed, unless otherwise provided by federal law, on the basis of a notary's executive note in the manner established by the legislation on enforcement proceedings.
Article 55.1. Realization of mortgaged property
Settlement agreement on an obligation secured by a mortgage when foreclosure on the subject of a mortgage
1. The conclusion of an amicable agreement in the manner prescribed by procedural legislation on an obligation secured by a mortgage does not entail the termination of the mortgage, unless otherwise provided by the amicable agreement. From the moment the court approves the amicable agreement, the mortgage secures the obligation of the debtor, amended by the approved amicable agreement.
2. Changes and additions to the mortgage registration record in connection with the approval of the amicable agreement by the court shall be made in accordance with the procedure established by Clause 3 of Article 23 of this Federal Law.
Chapter X. Sale of the mortgaged property on which the execution is levied
Article 56. Sale of pledged property
1. Property pledged under a mortgage agreement, which has been foreclosed by a court decision in accordance with this Federal Law, shall be sold through public auction, with the exception of cases provided for by this Federal Law.
The procedure for holding public auctions for the sale of property pledged under a mortgage agreement is determined by the procedural legislation of the Russian Federation, since this Federal Law does not establish other rules.
2. When deciding on the foreclosure of the pledged property, the court may, with the consent of the pledger and the pledgee, establish in the decision that the property is subject to sale in the manner prescribed by Article 59 of this Federal Law. The same method of selling the pledged property may be provided by the pledger and the pledgee in an agreement on the satisfaction of the pledgee's claims out of court, concluded in accordance with Clause 1 of Article 55 of this Federal Law.
The sale of pledged property in the manner provided for in Article 59 of this Federal Law is not allowed in cases where the collection on this property in accordance with Clause 2 of Article 55 of this Federal Law cannot be levied out of court.
The procedure for the sale of property pledged under a mortgage agreement at an auction is determined by the rules of Articles 447 - 449 of the Civil Code of the Russian Federation and this Federal Law, and what is not provided for by them is determined by an agreement on meeting the claims of the pledgee out of court.
3. In cases of foreclosure on the pledged right to lease immovable property, it is realized in accordance with the rules of this Federal Law with the subsequent registration of the assignment of this right.
4. When making a decision on the foreclosure of a land plot that is the subject of a mortgage in accordance with Clause 1 of Article 62.1 of this Federal Law, the court, with the consent of the pledger and the pledgee, may establish that such a land plot is to be sold at an auction in the manner prescribed by Clause 4 of Article 62.1 of this Federal Law.
Article 57. Procedure for holding public auctions in the course of enforcement proceedings
1. Public auctions for the sale of pledged property are organized and conducted by bodies that, in accordance with the procedural legislation of the Russian Federation, are entrusted with the execution of court decisions, unless otherwise provided by federal law.
2. Public auctions for the sale of pledged property are held at the location of this property.
3. The organizer of the public auction notifies of the upcoming public auction no later than 10 days, but no earlier than 30 days before their holding in the periodical, which is the official information body of the executive authority of the constituent entity of the Russian Federation, at the location of the real estate, as well as sends the relevant information for posting on the Internet in the manner prescribed by the Government of the Russian Federation. The notice shall indicate the date, time and place of the public auction, the nature of the property being sold and its initial sale price.
4. Persons wishing to take part in a public auction make a deposit in the amount, time and procedure that must be indicated in the notice of public auction. The amount of the deposit may not exceed 5 percent of the initial sale price of the pledged property.
Persons who participated in the public auction, but did not win it, the deposit is returned immediately after the end of the public auction. The deposit is also subject to return if the public auction did not take place.
5. The presence at public auctions for the sale of pledged property of persons who do not participate in them may be limited only by the authorities local government in the interests of maintaining public order. At the public auction, in any case, persons who have the rights to use the property being sold or property rights to this property, as well as mortgagees for subsequent mortgages, have the right to be present.
6. The winner of the public auction is the person who offered the highest price for the property being sold at the public auction. This person and the organizer of the public auction shall sign the protocol on the results of the public auction on the day of the auction. Evasion of any of them from signing the protocol entails the consequences provided for by paragraph 5 of Article 448 of the Civil Code of the Russian Federation.
7. The person who won the public auction must, within five days after its end, deposit the amount for which he bought the pledged property (purchase price), minus the previously paid deposit, to the account specified by the organizer of the public auction. If this amount is not paid, the deposit will not be returned.
8. Within five days from the date of entry of the purchase price by the person who won the public auction, the organizer of the public auction shall conclude a purchase and sale agreement with him. This agreement and the protocol on the results of public auctions are the basis for making the necessary entries in the Unified State Register of Rights to Real Estate and Transactions with It.
Article 58. Announcement of public auction void
1. The organizer of a public auction declares them invalid in cases when:
1) less than two buyers appeared at the public auction;
2) no mark-up was made at a public auction against the initial sale price of the pledged property;
3) the person who won the public auction did not pay the purchase price within the specified period.
The public auction must be declared invalid not later than the next day after any of the specified circumstances took place.
2. Within 10 days after the announcement of the public auction as invalid, the pledgee has the right, by agreement with the pledger, to acquire the pledged property at its initial selling price at a public auction and set off its claims secured by the mortgage of this property against the purchase price.
The rules of the civil legislation of the Russian Federation on the purchase and sale agreement shall apply to such an agreement. In this case, the mortgage is terminated.
3. If the agreement on the acquisition of property by the pledgee, provided for in paragraph 2 of this article, did not take place, a repeated public auction shall be held no later than a month after the first public auction. The initial selling price of the pledged property at the repeated public auction, if they are caused by the reasons specified in subparagraphs 1 and 2 of paragraph 1 of this article, shall be reduced by 15 percent. Public trades are held in the manner prescribed by Article 57 of this Federal Law.
4. In the event that repeated public auctions are declared invalid for the reasons specified in paragraph 1 of this article, the pledgee shall have the right to acquire (retain) the pledged property at a price not more than 25 percent lower than its initial sale price at the first public auction, with the exception of land plots specified in paragraph 1 of Article 62.1 of this Federal Law, and set off against the purchase price their claims secured by the property mortgage.
If the mortgagee has retained the pledged property, which by its nature and purpose cannot belong to him, including property that has significant historical, artistic or other cultural value for society, a land plot, he is obliged to alienate this property within a year in accordance with with article 238 of the Civil Code of the Russian Federation.
5. If the pledgee does not exercise the right to retain the subject of the mortgage within a month after the announcement of the repeated public auctions invalid, the mortgage shall be terminated.
The pledgee shall be deemed to have exercised this right if, within a month from the date of the announcement of the repeated public auctions as invalid, he sends to the organizer of the auctions or, if the foreclosure was carried out in court, to the organizer of the auctions and the bailiff-executor a statement (in writing) about leaving the subject of the mortgage to himself. The protocol on the recognition of repeated public auctions invalid, the statement of the pledgee to keep the subject of the mortgage and a document confirming the submission of the application to the organizer of the auction are sufficient grounds for registering the right of ownership of the pledgee to the subject of the mortgage.
6. Special conditions for holding public auctions for the sale of land plots that are the subject of a mortgage in accordance with Clause 1 of Article 62.1 of this Federal Law are established by Clause 3 of Article 62.1 of this Federal Law.
Article 59. Sale of pledged property by agreement of the parties
1. The sale of the subject of the mortgage by agreement of the parties in an out-of-court procedure for foreclosure on the pledged property is carried out through an open auction by the organizer of the auction, which acts on the basis of an agreement with the mortgagee and acts on his or her behalf.
The amount of remuneration to the organizer of the auction is withheld by him from the amount received from the sale of the subject of the mortgage. If the remuneration of the organizer of the auction exceeds three percent of the amount received upon the sale of the subject of the mortgage, the difference between the remuneration provided for by the agreement with the organizer of the auction and three percent of the amount received upon the sale of the subject of the mortgage is not subject to reimbursement at the expense of the value of the subject of the mortgage and is paid at the expense of the mortgagee.
2. The sale of pledged property at a closed auction is allowed only in cases provided for by federal law.
3. Prior to the auction, the organizer of the auction or the pledgee shall send a notification to the pledger of the need to fulfill the obligation secured by the mortgage. The notice shall be sent to the pledger by registered mail at the address indicated in the mortgage agreement, or at another known place of residence or location of the pledger. The notification on the need to fulfill the obligation secured by the mortgage must contain the following information:
1) the amount of the unfulfilled obligation as of the date of sending the notification;
2) a proposal to fulfill the obligation secured by the mortgage;
3) a warning that if the obligation is not fulfilled within the period specified in the notification, the pledgee has the right to foreclose on the pledged property.
4. If the requirements contained in the notification of the auction are not met, within 10 days from the date of receipt of the notification by the pledger or, if this period expires earlier, 45 days from the day the pledgee or the organizer of the auction sends such notification to the pledger, the organizer of the auction shall send the pledger, the pledgee a notice of bidding and publishes a notice of bidding.
5. The notice of the bidding must contain the following information:
1) name, place of residence or denomination, location of the pledger;
2) name, place of residence or denomination, location of the pledgee;
3) the name of the obligation secured by the mortgage. In cases where this obligation is based on an agreement, the parties to this agreement, the date and place of its conclusion must be indicated;
4) the name, description and characteristics of the immovable property that is the subject of the mortgage;
5) the time and place of the auction;
6) name, location, telephone number of the organizer of the auction.
1) the name, location, description and characteristics of the immovable property that is the subject of the mortgage;
2) the amount, term and procedure for making a deposit by persons participating in the auction. The amount of the deposit may not exceed five percent of the initial sale price of the pledged property;
3) the procedure and terms for payment of the purchase price based on the results of the auction;
4) the time and place of the auction;
5) name, location, contact number of the organizer of the auction and its payment details.
7. The notice of the bidding must be published in the periodical, which is the official information body of the executive authority of the constituent entity of the Russian Federation, at the location of the real estate.
8.From the date of the first publication of the notice of the auction, the pledger is not entitled to conclude transactions in relation to the subject of the mortgage (with the exception of transactions with the pledgee aimed at terminating the obligation secured by the mortgage), and if such transactions were made, they may be recognized at the suit of the interested person invalid.
9. From the date of the first publication of the notice of bidding until the date of bidding, at least ten days must elapse.
10. If, when selling pledged immovable property without going to court (out of court), this Federal Law provides for the mandatory involvement of an appraiser, the initial selling price of the subject of the mortgage shall be set equal to eighty percent of the value of immovable property determined in the appraiser's report, provided that nothing else is specified. by agreement of the parties on extrajudicial foreclosure on the mortgaged real estate. Unless otherwise provided by federal law, the involvement of an appraiser to determine the initial selling price of the pledged real estate is mandatory when levying execution on:
1) the right to lease immovable property;
2) the rights of claim of a participant in shared construction arising from an agreement for participation in shared construction that meets the requirements of the Federal Law "On Participation in Shared Construction of Apartment Buildings and Other Real Estate Objects and on Amendments to Certain Legislative Acts of the Russian Federation";
3) real estate, the appraisal of which under the mortgage agreement is more than five hundred thousand rubles.
11. The pledgor, upon the request of the pledgee in writing, no later than three working days after the submission of such a request, is obliged to transfer to the pledgee the documents necessary for holding the auction and transferring the mortgage subject to the ownership of the person who won the auction.
If, before the sale of the subject of the mortgage, the debtor, the pledger or a third party have fully satisfied all the claims of the pledgee secured by the mortgage in the amount available at the time of payment of the corresponding amounts, the pledgee is obliged to return to the pledger all documents previously transferred to him by the pledger.
12. The provisions established by Clauses 2, 4 - 8 of Article 57 of this Federal Law also apply to the sale of property by agreement of the parties.
13. The grounds, procedure and consequences of declaring the auction invalid are governed by Article 58 of this Federal Law.
14. In order to sell the pledged property in the manner prescribed by this article, the pledgee has the right to conclude on his own behalf all transactions necessary for this and corresponding to his legal capacity (including agreements with the organizer of the auction and the appraiser), as well as sign all the necessary for the sale of the pledged property documents, including acts of acceptance and transfer.
Article 60. Termination of foreclosure on pledged property and its sale
1. The debtor under the obligation secured by the mortgage and the pledger who is a third party shall have the right to terminate the foreclosure on the pledged property, having satisfied all the claims of the mortgagee secured by the mortgage, to the extent that these claims have at the time of payment of the corresponding amounts. This right can be exercised at any time before the sale of the pledged property at a public auction, auction or competition, or the acquisition of the right to this property in the prescribed manner by the pledgee.
2. A person demanding the termination of foreclosure on the pledged property or its sale shall be obliged to reimburse the mortgagee for the expenses incurred in connection with the foreclosure on this property and its sale.
Article 61. Distribution of the amount received from the sale of pledged property
The amount received from the sale of property pledged under a mortgage agreement, after withholding from it the amounts necessary to cover the costs in connection with foreclosure on this property and its sale, is distributed between the pledgees who have declared their claims for collection, other creditors of the pledger and the pledger himself ... Distribution is carried out by the body carrying out the execution of court decisions, and if the foreclosure on the pledged property was levied out of court, by the auction organizer in compliance with the rules of Article 319, paragraph 1 of Article 334 and paragraphs 3 and 4 of Article 350 of the Civil Code of the Russian Federation, as well as Article 46 of this Federal law.
If the subject of the mortgage, which is being foreclosed, is a state or municipal property, the amounts to be transferred to the pledger in the order and sequence, which are determined by this article, are credited to the corresponding budget.
Chapter XI. Features of the mortgage of land plots
Article 62. Land plots that can be the subject of mortgage
1. Under a mortgage agreement, land plots may be mortgaged insofar as the corresponding land on the basis of federal law is not excluded from circulation or is not limited in circulation.
1.1. If a land plot is transferred under a lease agreement to a citizen or a legal entity, the lessee of the land plot has the right to pledge the lease rights of the land plot within the term of the land plot lease agreement with the consent of the owner of the land plot.
The pledge of the lease rights to a land plot in state or municipal ownership is allowed by the lessee of such a land plot within the term of the lease agreement with the consent of the owner of the land plot. When leasing a land plot in state or municipal ownership for a period of more than five years, the pledge of the lease right is allowed without the consent of the owner of the land plot, subject to his notification.
2. In case of common share or joint ownership of land plots specified in paragraph 1 of this article, a mortgage may be established only on a land plot belonging to a citizen or legal entity, allocated in kind from lands that are in common shared or joint ownership.
Article 62.1. Mortgage of land plots in municipal ownership and land plots, state ownership of which is not delimited
1. The subject of a pledge under a mortgage agreement may be land plots that are in municipal ownership and land plots for which state ownership is not delimited, if such land plots are intended for housing construction or for integrated development for housing construction and are transferred to ensure return a loan provided by a credit institution for the arrangement of these land plots through the construction of engineering infrastructure facilities.
2. Decisions on the mortgage of land plots in municipal ownership and specified in paragraph 1 of this article shall be made by local authorities.
Decisions on the mortgage of land plots, state ownership of which is not delimited and which are specified in paragraph 1 of this article, are made by state authorities of the constituent entities of the Russian Federation or local self-government bodies empowered to dispose of the indicated land plots in accordance with the legislation of the Russian Federation.
3. Organization and conduct of public auctions for the sale of land plots specified in paragraph 1 of this article shall be carried out in accordance with Articles 57 and 58 of this Federal Law, taking into account the special conditions on the maximum number of repeated public auctions and the amount of reduction of the initial sale price for them.
After the announcement of all public auctions for the sale of a land plot specified in paragraph 1 of this article, the failed mortgage of such a land plot shall be terminated.
4. In the event that the land plot specified in paragraph 1 of this article is subject to sale on the basis of paragraph 4 of article 56 of this Federal Law, such a land plot shall be sold in the manner established by article 38.1 Land Code Russian Federation, taking into account the following features:
the initial sale price is established by a court decision on the foreclosure of a land plot pledged under a mortgage agreement;
the organizer of the auction is a specialized organization chosen by the pledgee with the consent of the pledger;
The maximum number of repeated auctions and the amount of reduction of the initial sale price for them are determined by the pledgee with the consent of the pledger, and in the event of a dispute, by the organizer of the auction.
After the announcement of all auctions invalid or after the conclusion of the contract for the sale and purchase of the land plot specified in paragraph 1 of this article, with the only participant in the auction, the mortgage of this land plot shall be terminated.
Article 63. Land plots not subject to mortgage
1. Mortgage of land plots in state or municipal ownership shall not be allowed in accordance with this Federal Law, with the exception of land plots specified in Clause 1 of Article 62.1 of this Federal Law.
2. It is not allowed to mortgage a part of the land plot, the area of which is less minimum size established regulations constituent entities of the Russian Federation and regulatory acts of local governments for lands of various intended purpose and permitted use.
Article 64. Mortgage of a land plot on which there are buildings or structures belonging to the mortgagor
1. Unless otherwise provided by a mortgage agreement or an agreement entailing the emergence of a mortgage by force of law, in the case of a mortgage of a land plot, the right of pledge also extends to the building or structure of the pledger located or under construction on the land plot.
The pledger's right to dispose of such a building or structure, the conditions and consequences of the transfer of rights to such a building or structure to other persons are determined by the rules of Chapter VI of this Federal Law.
If there is a condition in the agreement stipulating that the building or structure located or under construction on the land plot and belonging to the mortgagor is not mortgaged to the same mortgagee, the mortgagor, when levying execution on the land plot, retains the right to such building or structure and acquires the right of limited use (easement) of that part of the land plot, which is necessary for the use of such a building or structure in accordance with their purpose. The conditions for the use of this part of the land plot are determined by an agreement between the mortgagor and the mortgagee, and in the event of a dispute, by the court.
2. The pledger of a land plot shall have the right, without the consent of the pledgee, to dispose of the buildings and structures belonging to him on this plot, to which, in accordance with paragraph 1 of this article, the right of pledge does not apply.
When such a building or structure is alienated to another person and there is no agreement with the pledgee on other rights that this person may acquire on the mortgaged land plot, they are limited by the conditions provided for in part three of paragraph 1 of this article.
3. Abolished
4. If on the pledged land plot from the composition of agricultural land there are buildings, structures, structures, including those erected on such a land plot, or other real estate objects firmly connected with the land plot, belonging to the same right to the owner of such a land plot, the mortgage of such a land plot is allowed only with a simultaneous mortgage of real estate objects firmly connected with it.
Article 64.1. Mortgage of a land plot acquired using credit funds of a bank or other credit institution or funds of a target loan
1. Unless otherwise provided by federal law or agreement, a land plot acquired using credit funds of a bank or other credit institution or funds of a target loan provided by another legal entity for the acquisition of this land plot is considered to be pledged from the moment of state registration of the borrower's ownership right on this land plot.
If the relevant land plot is leased, a mortgage arises by virtue of the law for the right to lease, unless otherwise provided by federal law or the lease agreement.
The pledge holder for this pledge is a bank or other credit organization or other legal entity that has provided a loan or target loan for the purchase of a land plot or the right to lease a land plot.
2. To the pledge of a land plot or the right to lease a land plot arising on the basis of paragraph 1 of this Article, the rules on the pledge of immovable property arising by virtue of the contract and the right to lease immovable property shall be applied accordingly.
Article 64.2. Mortgage of a land plot on which buildings or structures are located, acquired or built with the use of credit funds of a bank or other credit institution or funds of a target loan
1. Unless otherwise provided by federal law or agreement, a land plot on which, using the credit funds of a bank or other credit organization or funds of a target loan provided by another legal entity, a building or structure is acquired, built or under construction, or the right to lease such a land plot is considered to be pledged from the moment of state registration of ownership of a building or structure acquired, constructed or under construction, or from the moment the body carrying out state registration of rights receives notification of the pledger and the pledgee of the conclusion of a loan agreement (loan agreement with the condition of the intended use) with the specified contract.
2. The pledgee for the pledge specified in paragraph 1 of this article is a bank or other credit organization or other legal entity that has provided a loan or a targeted loan for the construction or purchase of a building or structure.
Article 65. Construction by the mortgagor of buildings or structures on the mortgaged land plot
1. On a land plot pledged under a mortgage agreement, the mortgagor shall have the right, without the consent of the mortgagee, to erect buildings or structures in accordance with the established procedure, unless otherwise provided by the mortgage agreement. Unless otherwise provided by the mortgage agreement, the mortgage applies to these buildings and structures.
If the construction of a building or structure by the mortgagor on the mortgaged land plot entails or may result in deterioration of the security provided to the mortgagee by the mortgage of this land plot, the mortgagee has the right, in accordance with paragraph 2 of Article 450 of the Civil Code of the Russian Federation, to demand amendments to the mortgage agreement, including, if necessary, by extending the mortgage to the erected building or structure.
2. The erection of buildings or structures on the mortgaged land plot, if the rights of the mortgagee are certified by the mortgage, is allowed only if the mortgagor's right to this is provided for in the mortgage, subject to the conditions that are reflected in it.
Article 66. Mortgage of a land plot on which there are buildings or structures belonging to third parties
If the mortgage is installed on a land plot on which a building or structure is located, which does not belong to the pledger, but to another person, when the pledgee levies execution on this plot and its sale, the rights and obligations that the pledgor had as the owner of the plot are transferred to the acquirer of the plot. ...
Article 67. Valuation of a land plot in case of its mortgage
1. The appraisal of the land plot is carried out in accordance with the legislation governing appraisal activities in the Russian Federation.
2. The pledge value of a land plot pledged under a mortgage agreement is established by agreement between the pledger and the pledgee.
3. Clause was declared invalidated in accordance with Federal Law No. 66-FZ dated May 13, 2008.
Article 68. Peculiarities of foreclosure on mortgaged land plots and their sale
1. Requirements for permitted use shall apply to a land plot acquired through a sale at a public auction, auction or competition.
A person who has acquired a land plot when it is sold at a public auction, auction or competition has the right to change the purpose of the plot only in cases provided for by the land legislation of the Russian Federation, or in the manner established by this legislation.
2. The sale and purchase of mortgaged land plots at a public auction, auction or competition shall be carried out in compliance with the restrictions established by federal law with respect to the circle of persons who can acquire such plots.
3. It is not allowed to foreclose on a mortgaged land plot from the composition of agricultural land before the expiration of the corresponding period of agricultural work, taking into account the time required for the sale of produced or produced and processed agricultural products.
This requirement is valid until November 1 of the year, which provides for the fulfillment of the obligation secured by the mortgage, or part of it, unless another date is stipulated by the mortgage agreement.
4. The appeal by the pledgee of execution on the pledged land plot and its sale are the grounds for the termination of the right to use it by the pledger and any other persons who own such a land plot.
Chapter XII. Features of the mortgage of an enterprise, building, structure and non-residential premises
Article 69. Mortgage of enterprises, buildings or structures with a land plot on which they are located
In case of a mortgage of an enterprise as a property complex (hereinafter referred to as an enterprise), the right of pledge applies to all property included in it (paragraph 2 of Article 340 of the Civil Code of the Russian Federation). The mortgage of a building or structure is allowed only with a simultaneous mortgage under the same agreement of the land plot on which this building or structure is located, or the right to lease this plot belonging to the mortgagor.
The right of mortgage does not apply to the right of permanent use of a land plot belonging to the mortgagor, on which an enterprise, building or structure is located. When foreclosure is levied on such an enterprise, building or structure, the person who acquires this property in ownership acquires the right to use the land plot on the same conditions and in the same amount as the previous owner (pledger) of immovable property.
Article 69.1. Mortgage of buildings, structures and non-residential premises acquired with the use of credit funds of a bank or other credit institution or funds of a target loan
Unless otherwise provided by federal law or agreement, a building or structure and a land plot on which this building or structure is located, not living quarters acquired in whole or in part with the use of credit funds of a bank or other credit institution or funds of a target loan provided for their acquisition by another legal entity are considered pledged from the moment of state registration of the borrower's ownership of this building or structure, ownership or lease rights to land plot on which this building or structure is located, ownership of this non-residential premises.
The pledgees for this pledge are the bank or other credit organization or other legal entity specified in the first part of this article.
Article 70. Mortgage of an enterprise as a property complex
1. Transfer of an enterprise to a mortgage is allowed with the consent of the owner of the property belonging to the enterprise, or an authorized body. An enterprise mortgage agreement entered into in violation of this requirement is null and void.
2. If the subject of the mortgage is an enterprise and otherwise is not provided for by the contract, the mortgaged property includes material and intangible assets, including buildings, structures, equipment, inventory, raw materials, finished products, rights of claim, exclusive rights.
3. The composition of the property belonging to the enterprise transferred to the mortgage and the assessment of its value are determined on the basis of a complete inventory of this property. Inventory act, balance sheet and the opinion of an independent auditor on the composition and value of property related to the enterprise are mandatory annexes to the mortgage agreement.
In cases where the appraisal is mandatory by law, the report on the appraisal of property related to the enterprise is also a mandatory annex to the contract.
Article 71. Obligations that may be secured by a mortgage of an enterprise
1. The mortgage of an enterprise may secure an obligation, the amount of which is at least half of the value of the property belonging to the enterprise.
2. The mortgage of an enterprise secures a monetary obligation to be fulfilled no earlier than one year after the conclusion of the mortgage agreement. In the case when the contract provides that the mortgage of the enterprise secures an obligation with a shorter period of performance, the right to foreclose on the subject of the mortgage on an unfulfilled or improperly fulfilled obligation arises from the pledgee after a year from the date of the conclusion of the mortgage contract.
Article 72. Rights of the pledgor in relation to the pledged enterprise
1. The pledger has the right to sell, exchange, lease, lend out property related to the enterprise transferred to the mortgage, and otherwise dispose of the said property, as well as make changes to the composition of this property, if this does not entail a decrease in the amount specified in the agreement on the mortgage of the total value of the property belonging to the enterprise, and also does not violate other terms of the mortgage agreement.
Without the permission of the pledgee, the pledger is not entitled to transfer property related to the enterprise as a pledge, to conclude transactions aimed at alienating immovable property related to the enterprise, unless otherwise provided by the mortgage agreement.
2. If the pledger of the enterprise does not take measures to ensure the safety of the pledged property, ineffective use of this property, which can lead to a decrease in the value of the enterprise, the pledgee has the right to apply to the court with a demand for the early fulfillment of the obligation secured by the mortgage or the introduction of mortgage control over the activities of the pledger.
By a court decision, the mortgagee may be authorized by way of mortgage control:
to require the pledger to regularly submit accounting and other accounting documents, to preliminarily agree on issues related to the conclusion of transactions with the property related to the enterprise;
apply to the owner of the property related to the enterprise, or to the body authorized by him, with a request to terminate the contract with the head of the enterprise;
file claims in court for the recognition of transactions concluded by the pledger as invalid;
exercise other rights provided for by mortgage control over the activities of the pledger.
Article 73. Levy of execution on the mortgaged enterprise
1. In the event that the pledgor fails to fulfill the obligation secured by the mortgage of the enterprise, the foreclosure on the pledged property may be levied only by a court decision.
2. The buyer who has acquired an enterprise at a public auction shall transfer the rights and obligations of the owner of the enterprise related to the latter from the moment of state registration of ownership of the acquired property.
Chapter XIII. Features of the mortgage of residential buildings and apartments
Article 74. Application of rules on mortgage of residential buildings and apartments
1. The rules of this chapter apply to mortgages intended for permanent residence individual and multi-apartment residential buildings and apartments owned by citizens or legal entities.
2. Mortgages of individual and multi-apartment residential buildings and apartments that are in state or municipal ownership are not allowed.
3. Hotels, holiday homes, summer cottages, garden houses and other structures and premises not intended for permanent residence may be subject to a mortgage for general grounds... The rules established for the mortgage of residential buildings and apartments do not apply to them.
4. In the event that the subject of a mortgage is a part of a residential building or a part of an apartment consisting of one or several isolated rooms, the rules of this Federal Law on the mortgage of a residential building and an apartment are applied to such a mortgage accordingly.
5. The mortgage of a residential house or apartment owned by minor citizens, persons with limited legal capacity or incapacitated persons, over whom guardianship or guardianship is established, shall be carried out in the manner established by the legislation of the Russian Federation for transactions with the property of the wards.
6. Excluded.
Article 75. Mortgage of apartments in an apartment building
In case of a mortgage of an apartment in an apartment building, parts of which, in accordance with paragraph 1 of Article 290 of the Civil Code of the Russian Federation, are in the common shared ownership of the mortgagor and other persons, the mortgage is considered along with the dwelling, the corresponding share in the common ownership of the dwelling house.
Article 76. Mortgage of residential buildings under construction
When granting a loan or a targeted loan for the construction of a residential building, the mortgage agreement may provide for securing the obligation with unfinished construction and materials and equipment belonging to the pledger that are prepared for construction. Upon completion of the construction of a residential building, the mortgage on it does not stop.
Article 77. Mortgage of residential houses and apartments purchased with a loan from a bank or other credit organization
1. Unless otherwise provided by federal law or an agreement, a residential house or apartment acquired or built in whole or in part with the use of credit funds of a bank or other credit institution or funds of a target loan provided by another legal entity for the purchase or construction of a residential house or apartment are considered pledged from the moment of state registration of the borrower's ownership of a residential house or apartment.
The pledgee under this pledge is a bank or other credit organization or a legal entity that has provided a loan or target loan for the purchase or construction of a residential building or apartment.
2. The pledge of a residential house or apartment arising on the basis of paragraph 1 of this article shall be subject to the rules on pledge of immovable property arising by virtue of an agreement.
3. The guardianship and trusteeship authorities have the right to consent to the alienation and (or) mortgage of the residential premises in which the family members of the owner of this residential premises who are under guardianship or guardianship or the minor family members of the owner who are left without parental care (which is known to the guardianship authority and guardianship), if this does not affect the rights or legally protected interests of these persons.
The decision of the guardianship and trusteeship authorities to give consent to the alienation and (or) mortgage of the residential premises in which the indicated persons live, or a reasoned decision to refuse such consent must be submitted to the applicant in writing no later than 30 days after the date of filing statements requesting such consent.
The decision of the guardianship and guardianship authorities can be challenged in court.
4. Residential premises (living quarters) acquired or built in whole or in part with the use of savings for housing provision of military personnel provided under a targeted housing loan agreement in accordance with the Federal Law "On the Savings and Mortgage System of Housing Support for Military Servicemen" is considered to be pledged with the moment of state registration of ownership of a residential building or apartment. In the case of the use of credit (borrowed) funds of a bank or other organization, it is considered as being pledged (mortgaged) by the relevant lender and by the Russian Federation represented by the federal executive body that ensures the functioning of the accumulative mortgage system of housing provision for military personnel, which provided the target housing loan for the acquisition or the construction of living quarters (living quarters).
At the same time, a mortgage bond for the purpose of certifying the rights of the Russian Federation under an obligation secured by a mortgage is not issued. In the event that residential premises (residential premises) are pledged simultaneously with the respective creditor and with the Russian Federation, the claims of the Russian Federation shall be satisfied after the claims of the said creditor are satisfied.
Article 78. Levy of execution on mortgaged residential house or apartment
1. The pledgee's foreclosure on a mortgaged residential house or apartment and the sale of this property are grounds for terminating the right to use them by the mortgagor and any other persons living in such a residential building or apartment, provided that such a residential house or apartment was mortgaged under an agreement a mortgage or a mortgage by virtue of law to secure the return of a loan or target loan provided by a bank or other credit institution or other legal entity for the acquisition or construction of such or other residential buildings or apartments, their overhaul or other inseparable improvement, as well as for repayment earlier provided a loan or loan for the purchase or construction of a residential building or apartment.
The release of such a residential building or apartment is carried out in accordance with the procedure established by federal law.
2. Levy of execution on a mortgaged residential building or apartment is possible both in a judicial and extrajudicial procedure in compliance with the rules established by Chapter IX of this Federal Law.
A dwelling house or apartment, which is mortgaged under a mortgage agreement and which has been foreclosed, is sold by auction held in the form of an open auction or competition.
3. A lease agreement or a lease agreement for a dwelling concluded before the mortgage or with the consent of the mortgagee after the mortgage has arisen, shall remain in effect upon the sale of the dwelling. The terms of its termination are determined by the Civil Code of the Russian Federation and the housing legislation of the Russian Federation.
Chapter XIV. Final provisions
Article 79. Entry into force of this Federal Law
1. Enact this Federal Law from the date of its official publication.
2. The norms of the Law of the Russian Federation "On Pledge" from the date of entry into force of this Federal Law shall be applied to the pledge of immovable property (mortgage) only insofar as they do not contradict this Federal Law.
Until the federal laws and other legal acts of the Russian Federation (clauses 3 and 4 of Article 3 of the Civil Code of the Russian Federation) are brought into conformity with this Federal Law, these federal laws and other legal acts of the Russian Federation shall be applied to the extent that they do not contradict this Federal Law.
3. The rules of this Federal Law shall apply to relations arising in connection with the pledge of immovable property (mortgage) after its entry into force.
In relation to relations that arose before the entry into force of this Federal Law, this Federal Law shall apply to those rights and obligations that arise after its entry into force.
4. To propose to the President of the Russian Federation to bring the legal acts issued by him into conformity with this Federal Law.
5. Instruct the Government of the Russian Federation:
to bring the legal acts issued by him in accordance with this Federal Law;
adopt legal acts ensuring the implementation of this Federal Law.
Hello! In this post, we will take a look at the federal law on mortgages and pledges of real estate. You can download the current version of the law for 2020, find out last changes, document history, and expert commentary on major articles.
For 84 years of the 20th century, there was no mortgage in Russia. From the very beginning of their regime, the authorities of the USSR deprived the population of the country of the right to private property. Mortgages under the new rules in Russia appeared only at the end of the 20th century. For its development to the present state, it took fundamental changes in the attitude of the state to property relations and housing construction. In addition, major legislative changes were required.
Only on the eve of 1991 did the first prerequisites for the revival of the institution of mortgage in Russia appear. This was the Law on Property, passed in December 1990. Then, until 1993, laws on mortgages and on the fundamentals of housing policy were successively adopted. The main provisions were also enshrined in the Civil Code. Mortgages for real estate have begun to be remembered more and more often.
These laws allowed dozens of banks by the end of 1994 to establish a system for issuing mortgage loans. At the same time, this business was poorly controlled by a meager recruitment regulatory framework in this area, which did not allow mortgages to reach a high level of development and transparency. A fundamentally new and powerful federal law was required.
It was adopted on July 16, 1998, a month before the worst crisis. Russian economy... 102 FZ for mortgages has become a kind of bible, which, together with the Civil Code, made it what it is now.
Recent changes and current version of the law
V mortgage law for almost 20 years, numerous adjustments have been made related to the development of mortgages and changes in other normative documents... Now the revision of July 03, 2016 is relevant, as amended on 07/01/2017.
The most important events mortgage market 2016, which influenced the mortgage legislation, became:
- Legislative limitation of the amount of forfeit for late loan repayment (should not exceed the key rate of the Central Bank on the date of the loan agreement).
A few words about key rate The central bank. In simple words- This is the interest rate at which banks take out short-term loans (1 week) and open deposits of the same maturity with the Central Bank. From May 2, 2017, the rate is 9.25%.
- Obligatory notarization of transactions with real estate, which is in shared ownership.
That is, now, in order to sell an apartment divided by shares, it is not enough to conclude a purchase agreement in a simple written form. It is necessary to visit a notary and draw up a transaction according to his form. Accordingly, the cost of registration has increased greatly.
- Changing the procedure for calculating the tax on the sale of an apartment. Since 01.01.2016, the period of ownership of real estate has increased, after which the owner is exempted from paying sales tax, from 3 to 5 years. In addition, now the tax amount is calculated from cadastral value or on the value specified in the sales contract, whichever is greater. That is, transactions with an underestimation of the value in the contract have lost their meaning, since the cadastral value is approximately equal to the market value.
There is good news... If the ownership right is registered before 01.01.2016, the term remains the same - 3 years.
Example. Citizen Ivanov bought an apartment worth 3,000,000 rubles. in April 2016. In May 2017, he sold it. Cadastral value - 3,000,000 rubles, under a purchase / sale agreement - 1,000,000 rubles. The tax will be calculated based on the cadastral value in the amount of 2,000,000 rubles. (minus tax deduction 1 million) and will be equal to 260,000 rubles.
- Another good news for borrowers under the Military Mortgage program. Now information on such contracts will not be taken into account in credit history soldier. In fact, he himself does not pay the loan. The state does it for him.
- Since July 2016, the law stipulates the right to mortgage parking spaces.
General Provisions
The main provisions of the law on mortgages fix the definition of a mortgage, the basis for its occurrence, a description of the requirements for pledge and property that can be pledged.
The pledge must necessarily be secured by an agreement in which there are two parties: the pledger (owner of the object) and the pledgee (creditor). Moreover, the owner may not have anything to do with the loan, but only provide it with his property.
The mortgage itself is established not only under the loan agreement. This could be:
- loan agreement,
- lease contract,
- work agreement,
- obligation based on a sales contract and others.
That is, any obligations, if they are not subject to the order of security determined by another law, can be the subject of a mortgage.
The agreement establishes a complete list of obligations that are covered by the pledge. If something goes against the agreements, the pledgee also has the right to receive compensation for losses, interest for the misuse of his funds, as well as legal costs and expenses for the sale of the pledged property, provided that nothing else is specified in the contract. That is why it is so important to write this document correctly.
The following property can be pledged:
- land plots, but not all (exceptions are described in article 63 of the law);
- property used for business;
- residential buildings (including parts consisting of isolated rooms);
- summer cottages, garden houses, baths, garages and other consumer buildings;
- ships (air, sea, river) and even space objects;
- parking place.
The main principle that applies to collateral is indivisibility. That is, a part of the property, which independently, after being divided in kind, cannot be used for its intended purpose, is not accepted as a pledge. Simply put, you cannot lay just the engines of the plane, or just the roof of the house.
Also an important point is that a residential building on a land plot can only be accepted as collateral together with the land. If the site is leased, then the lease right is laid. At the same time, if the term of the contract with the lessor is more than 5 years, the permission of the owner is not even required.
Mortgage agreement
The general rules for concluding all civil law contracts in Russia are enshrined in the Civil Code. The Mortgage Law introduces additional requirements that must be met.
V mandatory the following information must be specified in the contract:
- the subject of the mortgage and its assessment;
- essence, volume and deadline for the fulfillment of obligations.
The subject of the pledge must be described in detail so that it can be accurately identified. The contract records the name of the object, description and location. In this case, the same rules apply to the leased property, additionally indicate the lease term.
If necessary, the parties can include in the agreement the procedure for the sale of the pledge in case of debt collection in court, or describe options for settlement in the pre-trial period.
When it comes to a mortgage loan agreement with an individual who purchases real estate that is not intended for entrepreneurial activity, the rules described in the law "On consumer credit". That is, the following conditions must be met without fail:
- The full cost of the loan is indicated in the agreement, and it is obligatory on the first page.
- The lender is prohibited from charging the borrower for actions that are assigned to him by law, and which he does in his own interests (all kinds of commissions for issuing a loan and other payments not related to a mortgage).
- The conditions and procedure for issuing a loan must be freely available for review (including on the Internet).
- The borrower must be given a payment schedule.
Mortgage
The mortgage bond is a registered security, in which the right of the pledgee's claim against the pledgor to fulfill the obligations and the right to pledge the property are enshrined. There is no mandatory requirement in the law for its availability for concluding a mortgage agreement. It may not be there.
The document is drawn up either by the pledger or, if the property belongs to a third party, by both of them.
The law clearly describes the list of information that must be reflected in the mortgage, as well as the obligation to register paper with a state body (for example, Rosreestre). If at least one of the points listed below is not met, the mortgage cannot be called as such:
- The title of the document must contain the word "Mortgage".
- For individuals- the name of the pledger, details of the identity document. For legal entities - the name of the organization and the location.
- For the pledgee, the same details as in clause 2.
- The same details of the debtor, if he is not the pledger.
- Date and place of the conclusion of the agreement, as well as the grounds for the occurrence of obligations (for example, the number of the loan agreement).
- The amount of obligations and interest, as well as the term for their performance.
- Name, description and location of the pledged item.
- The assessed value of the property.
- State registration of a mortgage deed.
- Indication of the presence / absence of encumbrance of property with the rights of third parties.
- Signature of the pledger and the debtor (if they are not the same person).
- Indicating the date of transfer of the mortgage to the lender.
The mortgage can be assigned to a third party. Then the claims of the new pledgee will be based only on the information reflected in the paper.
A lost mortgage can be restored by making a duplicate, about which a corresponding mark is made on it.
When paying off obligations to the creditor, the mortgage is returned to the mortgagor, who then removes the encumbrance from the property in the state body.
Mortgage registration
The mortgage, by virtue of the law, must be registered with Rosreestr. In addition to the law "On Mortgage", this process is regulated by Law No. 218-FZ "On State Registration of Real Estate".
State registration formally consists in a record of the transaction in the Unified State Register of Real Estate.
The basis for registering a transaction is a joint application of the pledger and the pledgee, or on the basis of an application by a notary who certified the agreement.
Registration of a mortgage by virtue of the law is carried out with the simultaneous registration of the ownership of the person on whose rights the encumbrance is imposed. If available, a mortgage is registered.
Safety of mortgage property
The fundamental point is that the pledge of property does not give the creditor the opportunity to restrict the right of the pledger to use this property for its intended purpose. He is also entitled to benefit from the collateral, while the creditor cannot claim this income.
At the same time, the pledger is obliged to keep the property in good condition and, if necessary, carry out repairs on own funds unless otherwise stated in the contract.
Disputes often arise regarding the legality of the creditor's claim to insure mortgaged property from damage, deterioration or loss. The law states that such insurance can be provided for by the terms of the loan agreement. As a rule, the property is insured at the expense of the mortgagor.
In addition, the owner is obliged to take all available measures to preserve the property intact and safe and inform the pledgee if there is a real threat of loss of the pledge.
Subsequent mortgage
Subsequent mortgage consists in re-pledging already mortgaged property. It can be a pledge to the same creditor (for other obligations), or to others.
It is important to follow the terms of the original mortgage agreement. If it contains an explicit prohibition on subsequent mortgages (and in most contracts residential mortgage indeed), then such a transaction will be invalidated regardless of whether the potential pledgee knew about it or not.
There are also cases when the contract specifies the requirements for the registration of a subsequent mortgage. In this case, a new contract must be concluded in compliance with these conditions.
Otherwise, the subsequent mortgage differs little from the current one. Special attention should be paid only to the collection procedure. Here one should be guided by the rule of priority rights of claim, in accordance with which the repayment of obligations is carried out in turn, starting with the first creditor. So the last creditor may not have enough money from the sale of property.
Assignment
The pledgee has the right, at his discretion, to transfer the right to claim the fulfillment of obligations under the mortgage to any third party. For example, if a bank wants to assign a collateral to a third party, it does not have to be licensed to carry out mortgage lending.
In this case, the person to whom the right to the mortgage has passed also receives the rights under the obligation secured by the pledge. That is, this person takes the place of the original creditor.
The transfer of a mortgage is made by concluding an agreement in a simple written form. On the valuable paper a corresponding entry must be made about the new pledgee.
Interestingly, the law expressly prohibits making notes on a mortgage, prohibiting its transfer to third parties. Such a record is a priori null and void.
Collection
If the debtor untimely and does not pay off his obligations in full, thereby violating the terms of the concluded agreement, the creditor has the right to start enforcement debt.
There are two ways of development of events:
- trial;
- extrajudicial collection.
If the mortgage agreement does not provide for the possibility of out-of-court settlement of the debt (introduced by Article 55 of the Law) by collecting the pledged property, such collection is possible only by a court decision.
There are two cases in which extrajudicial collection is impossible:
- The period during which the debt is not repaid (delay) does not exceed 3 months.
- The balance of the debt is less than 5% of the debt.
In practice, debt collection by banks through the sale of pledged property occurs only in extreme cases, when other methods do not bring the desired result. However, one should not forget that the law in such cases, as a rule, is on the side of the creditor, since on the part of the debtor the concluded mortgage agreement is violated. Therefore, if it still comes to extreme measures, it is possible to sell the pledged property to pay off the debt.
Realization of property
Debtors' property is sold by putting it up for public auction in the form of an auction. Its organization and conduct are not regulated within the framework of this law. The procedural legislation and the Civil Code are responsible for this.
In general terms, the bidding is carried out as follows. Not earlier than 30, but not later than 10 days before the auction, an announcement is posted in the official newspaper with information about when, where and what will be put up for auction.
Those wishing to participate must pay a deposit in the amount not exceeding 5% of the initial sale price of the property. The winner is the one who offered the highest price... The rest of the deposit is returned immediately.
On the day of the auction, a protocol is signed with the winner. The decision is valid for 5 days, during which the buyer pays the remainder of the value of the property, after which, again, within 5 days, a purchase and sale agreement is concluded with him.
Out-of-court sale of property takes place according to a similar scheme with the only difference that the auction is organized by an authorized person on behalf of the pledgee. The proceeds from the sale are distributed among all the pledgees, and the remainder is returned to the pledger.
The law also states that the creditor can keep the property for himself, if this in question in the contract. The debtor can at any time, before the announcement of the auction closed, stop the collection by paying off the debt.
The auction may be declared invalid if only one buyer is present, the initial amount has not been increased, or the winner has not paid for the property. By the way, for the latter, the Civil Code provides for liability, which is expressed in damages.
Features of mortgages on land
The mortgage of land plots is possible if the turnover of such objects is not limited by legislation or its size exceeds the minimum value established by regulatory enactments for plots of this kind and purpose.
Municipal property can be pledged as collateral. But there are conditions:
- the site should be allocated for individual housing construction within the framework of social programs;
- the mortgage should be associated with obtaining a loan for the arrangement of this site;
- the decision on the possibility of collateral is taken by the municipal authority.
A land plot acquired with credit funds is pledged from the moment of registration of ownership. If the owner wants to build any buildings or structures on the land, he does not need to ask the permission of the mortgagee. Only if this does not contradict the contract, these buildings will also become the subject of a pledge. This is exactly the moment when the principle of indivisibility works, that is, buildings cannot exist separately from the site, respectively, they are also included in the pledge.
Consider another case as well. For example, citizen X owns a land plot acquired with personal funds and without encumbrances. Once he decided to build a residential building on this site with funds mortgage loan... The bank issued the money and from that moment took the plot as collateral. And then, after the construction of the house and registration of the rights to it, he will also take the house as collateral. The same principle of indivisibility. Only in this case, the lender initially took the land as collateral, since the housing has not yet been built, and the loan must be secured with something.
The foreclosure on land is also carried out through open tenders. An important feature is the sale of agricultural land. Until the harvest is harvested and sold, foreclosure cannot be levied on these lands.
Mortgage for non-residential premises
The mortgage of non-residential premises has a number of features, which are described in the relevant section of the law.
So, an enterprise as a single property complex is transferred into a mortgage with all the property that is located on the territory, including the land plot.
Detached non-residential premises are pledged in full, together with the land plot.
In this case, the pledgee cannot in any way hinder or restrict the pledger's right to use the property. The only exceptions are transactions with the alienation of real estate and its transfer as a pledge.
The company can be pledged only if the amount of debt obligations is at least half assessed value property. The term for filing claims for the collection of a pledge is at least one year from the date of the conclusion of the contract.
Suppose enterprise N is mortgaged to bank Y under a loan agreement for a period of 9 months. If the company does not repay the debt, the bank still cannot start the collection procedure earlier than 12 months from the date of signing the document.
By the way, it is possible to collect a debt from a mortgage enterprise only by a court decision.
Mortgage of residential buildings and apartments
TO residential buildings and when transferring them to a mortgage, apartments also have special requirements, since they can be the place of residence of not only the mortgagor.
It should be noted right away that the mortgage of residential premises that are in municipal ownership is not allowed. The rest of the objects have a number of peculiarities:
- When alienating property in which minor children are registered, permission from the guardianship authorities is required.
- During the construction of a residential building, the mortgage can be provided with materials and equipment, but after construction, the finished house is pledged.
- According to article 77 of the law, residential premises that are purchased with credit money are pledged from the moment of registration of property rights.
- With the "Military mortgage" housing is pledged by the lender and government body, which makes payments to repay the loan.
By the way, recently the Federation Council adopted amendments to the law "On the accumulative mortgage system", according to which money is accrued for " Military mortgage". Now more categories of military personnel have the right to restore their account after re-entering the service.
The most important point in this section is the clause on foreclosure on housing. This fact is the basis for the eviction of the tenants. It is carried out in accordance with the requirements of the law. This point is described in detail in Art. 78.
As you can see, this federal law gives a fairly clear idea of mortgages. It is an effective tool that regulates the mortgage market in Russia. What is important is that it is a living document that, if not always lightning fast, reacts to change. current situation and allows the development of housing construction in the country.
Whatever we think about a mortgage, it becomes easier to get a mortgage every year. Much credit for this belongs to the mortgage legislation. you can find out further.
If you need qualified help from a mortgage lawyer, protection of your interests in front of the bank or the other half in case of divorce, we recommend that you sign up for a free consultation with our lawyer. He will provide professional assistance and suggest an effective way out of your situation.
Do you still have questions on this topic? We are waiting for them below. Please rate the post and click the social media buttons.
Federal Law 102 is intended to provide a comprehensive legal regulation mortgage lending. The law consists of 79 articles, where all parties to mortgage lending are described in detail and legally defined in accordance with the Civil Code of the Russian Federation. We list the main sections of the law and give a brief description of them.
Basic provisions. In this chapter, the law defines the concept of "mortgage", lists the grounds for concluding a loan agreement for the purpose of acquiring real estate, describes the rights and obligations of the parties (the mortgagor and the mortgagee), lists the requirements for collateral and its list (residential houses, apartments, summer cottages, consumer buildings (garages, baths, garden houses, etc.), property for business activities, parking spaces.
Mortgage agreement. In the section of the law, the rules are spelled out by which the parties conclude a mortgage agreement and register a pledge. According to the law, a mortgage must be registered with Rosreestr. In addition to Federal Law 102 Federal Law “On Mortgage”, this procedure is regulated by Federal Law 218 “On State Registration of Real Estate”. The transaction is entered into the Unified State Register of Real Estate, after which the registration is considered completed. To carry it out, a joint statement by each party is required, as well as a notary certifying the contract.
Mortgage. The law describes what kind of mortgage should be in terms of content, form, how it must be registered, the procedure for exercising rights under this document. The changes for July 2018 largely affected this chapter.
The procedure for registering a mortgage. In the section, the law determines how a mortgage agreement is registered, specifies the conditions under which the registration record on a mortgage (real estate pledge) can be changed, the amount of state duty is determined, and the procedure for removing property from encumbrances is spelled out.
Collateral insurance. The provision of the law obliges the mortgagor to preserve the property, including using the insurance procedure. The law determines the procedure for compensating the debtor for damage if the property is damaged or lost through his fault. Wherein compulsory insurance applies only to the object of collateral, and insurance against the risk of non-payment remains a voluntary procedure.
Property rights from third parties. The law determines the conditions and procedure for the transfer of rights to property acquired in a mortgage, to third parties are described in this chapter of the law.
Subsequent mortgage procedure. In the provision of the law, the procedure for re-encumbrance of property is determined, it is described on what conditions it can be carried out, the rules for registration are listed.
Grounds for assignment of rights under a mortgage agreement. The law defines in this section the right of the bank to sell the claim of the debt to third parties in the event of a breach by the borrower of its obligations.
Collection procedure. The law gives grounds and describes the procedure for collecting the subject of a pledge in court; options for resolving disputes between the parties to a mortgage agreement are spelled out. The borrower has the right to demand that the sale of the property be deferred by one year in court. During this period, according to the law, he can still use the property.
Realization of mortgaged real estate. The law establishes the procedure for the sale of real estate at auction in case of termination of the contract, lists the grounds on which the foreclosure on real estate is terminated.
Features of the mortgage of a land plot. The law lists the types of plots that are allowed to be pledged. This chapter of the law establishes the rights of the parties to the mortgage agreement to buildings that are located on the pledged territory, the procedure for collecting land, depending on its category, is indicated.
The procedure for pledging enterprises. It was determined during what time the obligations of the parties under the mortgage agreement for the acquisition of enterprises must be fulfilled, what rights the borrower and the lender have, the rules for the collection of the pledged property.
Mortgage of residential real estate. The chapter of the law establishes the rules for the transfer of private houses and apartments as a pledge, in the case of foreclosure on property - the procedure for its sale by open auction.
According to Federal Law 102 "On Mortgages (Pledge of Real Estate)", it is allowed to pledge buildings and other real estate only if it is provided for by federal legislation. A mortgage can be secured on the basis of a sale and purchase, a lease under a loan or a loan, and a lease, contract or purchase and sale agreement is also possible. In fact, you can establish any obligations that the law provides in terms of securing a mortgage. The owner of the property used as collateral under the loan agreement may not be a party to the agreement, but only provide him with his real estate.
To ensure all obligations between the mortgagor and the mortgagee, the law "On Mortgage" defines a package of documents that must be used when drawing up a mortgage agreement.
Preferential categories of citizens
The law "On Mortgage (Pledge)" defines the category of beneficiaries who use government assistance and take out a loan on facilitated terms. It includes large families, military personnel, families using maternal capital as well as young families, workers in science, education and health.
For each category, on a legislative basis, banks develop special mortgage lending programs. They take into account the belonging of the borrower to a certain group of beneficiaries and the type of real estate. The law defines options state support:
- Compensation of a part of the interest rate. The loan is actually given to the borrower at a reduced rate, since the difference is compensated by the state;
- Subsidy. To make the first installment on a mortgage, the state pays a certain amount for the borrower;
- Targeted assistance. It can be used by citizens who receive capital under the state program, for example, for a mortgage, you can use the "Maternity capital";
- Special programs. For example, it could be the "Military Mortgage" - the Ministry of Defense will also act as the mortgagee, in addition to the credit institution.
The law "on mortgages" provides for each category its own list of documents required when concluding a mortgage agreement with the use of state aid.
Federal Law 102 determines the maximum number of co-borrowers - there should be no more than three. If several people own the right to the mortgage object, the contract can be concluded only with their written and notarized consent. If the owners of housing that is taken on a mortgage are minor children or incapacitated citizens, the permission of the guardianship authorities is required. Article 77 of this law obliges them to check whether the mortgage agreement violates their rights.
What documents are needed for a mortgage
For each transaction, the law provides its own list of documents.
Individual borrowers are required to attach to the written mortgage application an identity card with registration in the territory of the Russian Federation and Russian citizenship, as additional document- military ID or driver's license. A certificate in the form of 2-NDFL is also used to confirm the borrower's solvency and a copy work book, which is certified by the employer. In addition, you will need an employment contract, including all changes to it. The law stipulates that mortgage payments should not be more than 60 percent of income (in fact, this percentage is usually less). Per reporting period need a copy tax return, marriage certificate. If the borrower owns securities, he must provide copies of them as evidence of additional source income.
In addition to the standard package, which includes an application and a passport for each family member, you need to submit a birth certificate of children and a certificate of family composition, a document from the Federal Tax Service, a copy of a work book and a certificate from the place of work, an extract from the house book. In addition, you will need an extract from the Unified State Register, if we are talking about the purchase of real estate, and registration of ownership of real estate.
As mentioned above, various property can be acquired using a mortgage. The main principle according to which the law "On Mortgage" makes it possible to use property as collateral is its indivisibility. This means that the property cannot be used for its intended purpose as a separate object if some part of it is separated from it. So, private house can be purchased with a mortgage only together with the land on which it is located. In addition, the mortgage is registered at the location of the subject of the contract (real estate).
To conclude a mortgage agreement for the acquisition of each type of property, the law establishes its own list of documents. To take an apartment or a private house on a mortgage, in addition to the main ones (passport and birth certificate of real estate owners, which are needed to draw up a mortgage agreement for any type of real estate), it is necessary to provide copies of documents that confirm ownership of housing. These include a contract of sale, privatization, donation or exchange, a copy of the cadastral passport from the BTI, a certificate that the living space is not occupied by anyone (no one is registered in the apartment or house). The law defines the documents for shared construction (they are often used by young families) and the purchase of housing on a mortgage in a house that has not yet been commissioned. In addition to the basic documents, a standard agreement for participation in shared construction, copies of constituent documents from the developer will be required. From tax service it is necessary to take a certificate of registration and registration. You will also need a copy of the developer's decision to sell the property to the borrower and documents confirming the developer's right to sell real estate.
The land plot can be taken out as a mortgage for individual development. To register ownership of it, you will need a sales contract, a cadastral passport and a registration certificate. In addition, the law requires a building permit and a finished architectural project buildings that are planned to be erected on the site, including an estimate and an agreement with a construction company.
Recent changes in the law
102 of the Federal Law "On Mortgages (Pledge of Real Estate)" is constantly being improved. So, on July 1, 2018, it underwent changes in Art. 14 - "Content of the mortgage". The requirements for a mortgage have become more specific and complete. The current edition obliges to indicate the following data in the mortgage bond:
- type of property;
- the area of the subject of the mortgage (another key characteristic of the object with a quantitative value);
- cadastral number;
- market value of real estate.
In connection with the changes that the law "On Mortgage" has undergone, the current edition establishes that if some data that must be indicated in the mortgage deed is not enough, it is considered invalid. Moreover, if an invalid document is included in the package of papers transferred for registration of the right, Rosreestr, represented by the Real Estate Appraisal Department, is obliged to suspend registration. Individuals must indicate their SNILS data in the document (legal entities must instead enter their TIN and OGRN). These changes only apply to mortgages that were issued after 07/01/2018, the rest can keep the form that meets the previous legislative requirements.
The full text of the articles and the wording contained in the latest edition can be found at consultant.ru.
In addition, the changes also affected the substantive aspect of the agreement between the borrower and the credit institution. They are related to the change in Federal Law 353 "On consumer loans". The number of clauses of the mortgage agreement has increased, due to which the risk of disputes between the parties to the agreement has become significantly lower. The law sets the amount of payment of a forfeit in case of delay in payments, its amount depends on the key rate of the Central Bank of the Russian Federation. 61 Art. The Federal Law in the latest edition defines the procedure for collecting the debt and establishes that the borrower's debt to the lender is considered closed if the price of the acquired real estate has decreased to such an extent that the bank could not sell it at an auction. Debt collection due to the borrower's violation of the mortgage agreement is not allowed if less than 5 percent of the loan amount remains to be paid.
The parties can now also issue a mortgage in in electronic format- on the website of Rosreestr or the portal "Gosuslugi". The ability to submit a certificate online greatly simplifies the procedure for collecting the necessary documentation, reduces time and financial expenses and ensures the safety of all collected papers.
Among the expected amendments, it is possible to note the subsequent development of digital technologies, the cancellation of transactions in foreign currency, the application of mortgage restructuring.
Pros and cons of the law "On mortgages"
Thanks to the changes that took place throughout the entire term of the Law "On Pledge (Mortgage)", it became possible to effectively protect the rights of the lender and the borrower under the mortgage agreement, and the agreement procedure itself was simplified. Like any legislative document, Federal Law 102 has both positive and negative sides.
Pros of ФЗ 102
Among the merits of the law "On Mortgage" can be noted that in new edition the interests of each party to the loan agreement are now taken into account, the procedure for concluding a transaction is simplified, some procedures are carried out electronically, which saves time and effort of the borrower.
The law covers all aspects of the relationship between the mortgagor and the mortgagee, lists their obligations and the grounds for starting each procedure under the contract, the procedure for concluding and terminating the contract.
The Federal Law "On Mortgage" contains a list of objects that can be used as collateral, and a list of documents for concluding a transaction for each type of real estate is determined.
Also, the law delimits various categories of citizens, gives grounds for using state support under a mortgage agreement, purchasing housing on credit on preferential terms, including on.
Cons of the law "On mortgage"
However, the law has its drawbacks. Among them are the following. The law still does not indicate the grounds on which the pledge terminates (this provision is currently regulated by the Civil Code of the Russian Federation in Article 352).
If the contract is terminated, the law does not remove the encumbrance from the property. So, if the borrower bought real estate with the funds received on credit, but then the contract with the owner of the property was terminated, a record of the current mortgage will still remain in Rosreestr until payments are made under the contract.
The law retains the right of the lender to sell mortgage debt to a third party. On this basis, licensed collection agencies willingly outbid the right to reclaim the debt from the borrower under the mortgage agreement. The person who took out the mortgage cannot prevent this in any way, if on his part there are violations of the contract.
Conclusion
Let's summarize. Before, you should study the key provisions of Federal Law 102 "On mortgages".
First of all, it should be noted that the property is pledged to a credit institution until the mortgage is closed, and until that time the borrower has no right to dispose of the property until the contract is terminated.
On the basis of loan delinquencies, the bank has the right to begin the procedure for seizing property and then implement it at an open auction. In this case, the proceeds are transferred to the lender as compensation for costs, including costs associated with legal proceedings.
The law gives the creditor the right to check the condition of the real estate pledged to him, and the ownership of it by individuals.
In general, we can say that the law to a greater extent protects the rights and interests of the lender than the borrower, including in terms of debt collection and seizure of collateral.
Federal Law on Mortgages No. 102 establishes a system of lending as collateral for real estate and agricultural allotments on the territory of the Russian Federation. Since July 2017, significant innovations have been made to Federal Law 102.
102 law on mortgages: recent amendments and current version of the law
In this article, we will analyze federal law on mortgages pledged real estate ... You can download the current version of the law for 2017, find out the latest changes, the history of the document, as well as expert comments on the main articles.
History of the creation of mortgage legislation
For 84 years of the 20th century, there was no mortgage in Russia. From the very beginning of their regime, the authorities of the USSR deprived the population of the country of the right to private property. Mortgages under the new rules in Russia appeared only at the end of the 20th century. For its development to the present state, it took fundamental changes in the attitude of the state to property relations and housing construction. In addition, major legislative changes were required.
Only on the eve of 1991 did the first prerequisites for the revival of the institution of mortgage in Russia appear. This was the Law on Property, passed in December 1990. Then, until 1993, laws on mortgages and on the fundamentals of housing policy were successively adopted. The main provisions were also enshrined in the Civil Code. Mortgages for real estate have begun to be remembered more and more often.
These laws allowed dozens of banks by the end of 1994 to establish a system for issuing mortgage loans. At the same time, this business was poorly controlled by a meager set of regulatory frameworks in this area, which did not allow mortgages to reach a high level of development and transparency. A fundamentally new and powerful federal law was required.
It was adopted on July 16, 1998, a month before the grave crisis of the Russian economy. 102 FZ for mortgages has become a kind of bible, which, together with the Civil Code, made it what it is now.
Recent changes and current version of the law
For almost 20 years, the mortgage law has undergone numerous adjustments related to the development of mortgages and changes in other regulatory documents. Now the revision of July 03, 2016 is relevant, as amended on 07/01/2017.
The most important events in the mortgage market in 2016 that influenced the mortgage legislation were:
1. Legislative limitation of the amount of forfeit for late loan repayment (should not exceed the key rate of the Central Bank on the date of the loan agreement).
A few words about the key rate of the Central Bank. In simple words, this is the interest rate at which banks take out short-term loans (1 week) and open deposits of the same maturity with the Central Bank. From May 2, 2017, the rate is 9.25%.
2. Obligatory notarization of transactions with real estate, which is in shared ownership.
That is, now, in order to sell an apartment divided by shares, it is not enough to conclude a purchase agreement in a simple written form. It is necessary to visit a notary and draw up a transaction according to his form. Accordingly, the cost of registration has increased greatly.
3. Changing the procedure for calculating the tax on the sale of an apartment. Since 01.01.2016, the period of ownership of real estate has increased, after which the owner is exempted from paying sales tax, from 3 to 5 years. In addition, now the tax amount is calculated from the cadastral value or from the value specified in the sales contract, whichever is greater. That is, transactions with an underestimation of the value in the contract have lost their meaning, since the cadastral value is approximately equal to the market value.
There is good news, too. If the ownership right is registered before 01.01.2016, the term remains the same - 3 years.
Example. Citizen Ivanov bought an apartment worth 3,000,000 rubles. in April 2016. In May 2017, he sold it. Cadastral value - 3,000,000 rubles, under a purchase / sale agreement - 1,000,000 rubles. The tax will be calculated based on the cadastral value in the amount of 2,000,000 rubles. (minus the tax deduction of 1 million) and will be equal to 260,000 rubles.
4. Another good news for borrowers under the Military Mortgage program. Now information on such contracts will not be taken into account in the credit history of a serviceman. In fact, he himself does not pay the loan. The state does it for him.
5. Since July 2016, the law stipulates the right to mortgage parking spaces.
General Provisions
The main provisions of the law on mortgages fix the definition of a mortgage, the basis for its occurrence, a description of the requirements for pledge and property that can be pledged.
The pledge must necessarily be secured by an agreement in which there are two parties: the pledger (owner of the object) and the pledgee (creditor). Moreover, the owner may not have anything to do with the loan, but only provide it with his property.
The mortgage itself is established not only under the loan agreement. This could be:
- loan agreement,
- lease contract,
- work agreement,
- obligation based on a sales contract and others.
That is, any obligations, if they are not subject to the order of security determined by another law, can be the subject of a mortgage.
The agreement establishes a complete list of obligations that are covered by the pledge. If something goes against the agreements, the pledgee also has the right to receive compensation for losses, interest for the misuse of his funds, as well as legal costs and expenses for the sale of the pledged property, provided that nothing else is specified in the contract. That is why it is so important to write this document correctly.
The following property can be pledged:
- land plots, but not all (exceptions are described in article 63 of the law);
- property used for business;
- residential buildings (including parts consisting of isolated rooms);
- summer cottages, garden houses, baths, garages and other consumer buildings;
- ships (air, sea, river) and even space objects;
- parking place.
The main principle that applies to collateral is indivisibility. That is, a part of the property, which independently, after being divided in kind, cannot be used for its intended purpose, is not accepted as a pledge. Simply put, you cannot lay just the engines of the plane, or just the roof of the house.
Also an important point is that a residential building on a land plot can only be accepted as collateral together with the land. If the site is leased, then the lease right is laid. At the same time, if the term of the contract with the lessor is more than 5 years, the permission of the owner is not even required.
Mortgage agreement
The general rules for concluding all civil law contracts in Russia are enshrined in the Civil Code. The Mortgage Law introduces additional requirements that must be met.
The following information must be specified in the contract without fail:
- the subject of the mortgage and its assessment;
- essence, volume and deadline for the fulfillment of obligations.
The subject of the pledge must be described in detail so that it can be accurately identified. The contract records the name of the object, description and location. In this case, the same rules apply to the leased property, additionally indicate the lease term.
If necessary, the parties can include in the agreement the procedure for the sale of the pledge in case of debt collection in court, or describe options for settlement in the pre-trial period.
When it comes to a mortgage loan agreement with an individual who purchases real estate that is not intended for entrepreneurial activity, the rules described in the Law on Consumer Credit apply to it. That is, the following conditions must be met without fail:
- The full cost of the loan is indicated in the agreement, and it is obligatory on the first page.
- The lender is prohibited from charging the borrower for actions that are assigned to him by law, and which he does in his own interests (all kinds of commissions for issuing a loan and other payments not related to a mortgage).
- The conditions and procedure for issuing a loan must be freely available for review (including on the Internet).
- The borrower must be given a payment schedule.
It is discussed in more detail in a separate article.
Mortgage
The mortgage bond is a registered security, in which the right of the pledgee's claim against the pledgor to fulfill the obligations and the right to pledge the property are enshrined. There is no mandatory requirement in the law for its availability for concluding a mortgage agreement. It may not be there.
The document is drawn up either by the pledger or, if the property belongs to a third party, by both of them.
The law clearly describes the list of information that must be reflected in the mortgage, as well as the obligation to register paper with a state body (for example, Rosreestre). If at least one of the points listed below is not met, the mortgage cannot be called as such:
- The title of the document must contain the word "Mortgage".
- For individuals - the name of the pledger, details of the identity document. For legal entities - the name of the organization and the location.
- For the pledgee, the same details as in clause 2.
- The same details of the debtor, if he is not the pledger.
- Date and place of the conclusion of the agreement, as well as the grounds for the occurrence of obligations (for example, the number of the loan agreement).
- The amount of obligations and interest, as well as the term for their performance.
- Name, description and location of the pledged item.
- The assessed value of the property.
- State registration of a mortgage deed.
- Indication of the presence / absence of encumbrance of property with the rights of third parties.
- Signature of the pledger and the debtor (if they are not the same person).
- Indicating the date of transfer of the mortgage to the lender.
The mortgage can be assigned to a third party. Then the claims of the new pledgee will be based only on the information reflected in the paper.
A lost mortgage can be restored by making a duplicate, about which a corresponding mark is made on it.
When paying off obligations to the creditor, the mortgage is returned to the mortgagor, who then removes the encumbrance from the property in the state body.
You will learn how it works from another article.
Mortgage registration
The mortgage, by virtue of the law, must be registered with Rosreestr. In addition to the law "On Mortgage", this process is regulated by Law No. 218-FZ "On State Registration of Real Estate".
State registration formally consists in a record of the transaction in the Unified State Register of Real Estate.
The basis for registering a transaction is a joint application of the pledger and the pledgee, or on the basis of an application by a notary who certified the agreement.
Registration of a mortgage by virtue of the law is carried out with the simultaneous registration of the ownership of the person on whose rights the encumbrance is imposed. If available, a mortgage is registered.
The state is disassembled step by step in this article.
Safety of mortgage property
The fundamental point is that the pledge of property does not give the creditor the opportunity to restrict the right of the pledger to use this property for its intended purpose. He is also entitled to benefit from the collateral, while the creditor cannot claim this income.
At the same time, the pledger is obliged to keep the property in good condition and, if necessary, carry out repairs at its own expense, unless otherwise specified in the contract.
Disputes often arise regarding the legality of the creditor's claim to insure the collateral against damage, deterioration or loss. The law states that such insurance can be provided for by the terms of the loan agreement. As a rule, the property is insured at the expense of the mortgagor.
In addition, the owner is obliged to take all available measures to preserve the property intact and safe and inform the pledgee if there is a real threat of loss of the pledge.
Subsequent mortgage
Subsequent mortgage consists in re-pledging already mortgaged property. It can be a pledge to the same creditor (for other obligations), or to others.
It is important to follow the terms of the original mortgage agreement. If it contains a direct prohibition on subsequent mortgages (and in most housing mortgage agreements it is), then such a transaction will be invalidated regardless of whether the potential mortgagee knew about it or not.
There are also cases when the contract specifies the requirements for the registration of a subsequent mortgage. In this case, a new contract must be concluded in compliance with these conditions.
Otherwise, the subsequent mortgage differs little from the current one. Special attention should be paid only to the collection procedure. Here one should be guided by the rule of priority rights of claim, in accordance with which the repayment of obligations is carried out in turn, starting with the first creditor. So the last creditor may not have enough money from the sale of property.
Assignment
The pledgee has the right, at his discretion, to transfer the right to claim the fulfillment of obligations under the mortgage to any third party. For example, if a bank wants to assign collateral to a third party, it does not have to be licensed to carry out mortgage lending.
In this case, the person to whom the right to the mortgage has passed also receives the rights under the obligation secured by the pledge. That is, this person takes the place of the original creditor.
The transfer of a mortgage is made by concluding an agreement in a simple written form. A corresponding entry about the new pledgee must be made on the security.
Interestingly, the law expressly prohibits making notes on a mortgage, prohibiting its transfer to third parties. Such a record is a priori null and void.
Collection
If the debtor untimely and not in full repays its obligations, thereby violating the terms of the concluded agreement, the creditor has the right to start compulsory collection of the debt.
There are two ways of development of events:
- trial;
- extrajudicial collection.
If the mortgage agreement does not provide for the possibility of out-of-court settlement of the debt (introduced by Article 55 of the Law) by collecting the pledged property, such collection is possible only by a court decision.
There are two cases in which extrajudicial collection is impossible:
- The period during which the debt is not repaid (delay) does not exceed 3 months.
- The balance of the debt is less than 5% of the debt.
In practice, debt collection by banks through the sale of pledged property occurs only in extreme cases, when other methods do not bring the desired result. However, one should not forget that the law in such cases, as a rule, is on the side of the creditor, since on the part of the debtor the concluded mortgage agreement is violated. Therefore, if it still comes to extreme measures, it is possible to sell the pledged property to pay off the debt.
More details are discussed in a separate article.
Realization of property
Debtors' property is sold by putting it up for public auction in the form of an auction. Its organization and conduct are not regulated within the framework of this law. The procedural legislation and the Civil Code are responsible for this.
In general terms, the bidding is carried out as follows. Not earlier than 30, but not later than 10 days before the auction, an announcement is posted in the official newspaper with information about when, where and what will be put up for auction.
Those wishing to participate must pay a deposit in the amount not exceeding 5% of the initial sale price of the property. The winner is the one who offered the highest price. The rest of the deposit is returned immediately.
On the day of the auction, a protocol is signed with the winner. The decision is valid for 5 days, during which the buyer pays the remainder of the value of the property, after which, again, within 5 days, a purchase and sale agreement is concluded with him.
Out-of-court sale of property takes place according to a similar scheme with the only difference that the auction is organized by an authorized person on behalf of the pledgee. The proceeds from the sale are distributed among all the pledgees, and the remainder is returned to the pledger.
Also, the law states that the creditor can keep the property for himself, if this is referred to in the agreement. The debtor can at any time, before the announcement of the auction closed, stop the collection by paying off the debt.
The auction may be declared invalid if only one buyer is present, the initial amount has not been increased, or the winner has not paid for the property. By the way, for the latter, the Civil Code provides for liability, which is expressed in damages.
Features of mortgages on land
The mortgage of land plots is possible if the turnover of such objects is not limited by legislation or its size exceeds the minimum value established by regulatory enactments for plots of this kind and purpose.
Municipal property can be pledged as collateral. But there are conditions:
- the site should be allocated for individual housing construction within the framework of social programs;
- the mortgage should be associated with obtaining a loan for the arrangement of this site;
- the decision on the possibility of collateral is taken by the municipal authority.
A land plot acquired with credit funds is pledged from the moment of registration of ownership. If the owner wants to build any buildings or structures on the land, he does not need to ask the permission of the mortgagee. Only if this does not contradict the contract, these buildings will also become the subject of a pledge. This is exactly the moment when the principle of indivisibility works, that is, buildings cannot exist separately from the site, respectively, they are also included in the pledge.
Consider another case as well. For example, citizen X owns a land plot acquired with personal funds and without encumbrances. One day he decided to build a residential building on this site using a mortgage loan. The bank issued the money and from that moment took the plot as collateral. And then, after the construction of the house and registration of the rights to it, he will also take the house as collateral. The same principle of indivisibility. Only in this case, the lender initially took the land as collateral, since the housing has not yet been built, and the loan must be secured with something.
The foreclosure on land is also carried out through open tenders. An important feature is the sale of agricultural land. Until the harvest is harvested and sold, foreclosure cannot be levied on these lands.
Disassembled in detail in the last article.
Mortgage for non-residential premises
The mortgage of non-residential premises has a number of features, which are described in the relevant section of the law.
So, an enterprise as a single property complex is transferred into a mortgage with all the property that is located on the territory, including the land plot.
Detached non-residential premises are pledged in full, together with the land plot.
In this case, the pledgee cannot in any way hinder or restrict the pledger's right to use the property. The only exceptions are transactions with the alienation of real estate and its transfer as a pledge.
An enterprise can be pledged only if the amount of debt obligations is at least half of the appraised value of the property. The term for filing claims for the collection of a pledge is at least one year from the date of the conclusion of the contract.
Suppose enterprise N is mortgaged to bank Y under a loan agreement for a period of 9 months. If the company does not repay the debt, the bank still cannot start the collection procedure earlier than 12 months from the date of signing the document.
By the way, it is possible to collect a debt from a mortgage enterprise only by a court decision.
Mortgage of residential buildings and apartments
When transferring them to a mortgage, special requirements are also imposed on residential buildings and apartments, since they can be the place of residence of not only the mortgagor.
It should be noted right away that the mortgage of residential premises that are in municipal ownership is not allowed. The rest of the objects have a number of peculiarities:
- When alienating property in which minor children are registered, permission from the guardianship authorities is required.
- During the construction of a residential building, the mortgage can be provided with materials and equipment, but after construction, the finished house is pledged.
- According to article 77 of the law, residential premises that are purchased with credit money are pledged from the moment of registration of property rights.
- With the "Military mortgage" housing is pledged by the lender and by the government agency, which makes payments to repay the loan.
By the way, recently the Federation Council adopted amendments to the law "On the accumulative mortgage system", according to which money is accrued for the "Military mortgage". Now more categories of military personnel have the right to restore their account after re-entering the service.
The most important point in this section is the clause on foreclosure on housing. This fact is the basis for the eviction of the tenants. It is carried out in accordance with the requirements of the law. This point is described in detail in Art. 78.
As you can see, this federal law gives a fairly clear idea of mortgages. It is an effective tool that regulates the mortgage market in Russia. What is important is that this is a living document that, if not always lightning fast, reacts to changes in the current situation and allows the development of housing construction in the country.
Whatever we think about a mortgage, it becomes easier to get a mortgage every year. Much credit for this belongs to the mortgage legislation. you can find out further.
If you need qualified help from a mortgage lawyer, protection of your interests in front of the bank or the other half in case of divorce, we recommend that you sign up for a free consultation with our lawyer. He will provide professional assistance and suggest an effective way out of your situation.
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