Pledge of real estate to secure a monetary claim. Debentures
The applicant wants to approve the regulation on the procedure, conditions and terms for the sale of the property of the debtor - citizen (IP)
The applicant disputes the results of the auction for the sale of the property of the debtor - citizen (IP)
The applicant does not agree with the distribution of funds from the sale of the property of the debtor - citizen (IP)
The creditor wants to include in the register of creditors' claims a claim based on a cancellation agreement
1. From the proceeds from the sale of the pledged item, seventy percent is directed to the repayment of the creditor's claims under the obligation secured by the pledge of the debtor's property, but not more than the principal amount of the debt on the obligation secured by the pledge and the interest due. The funds remaining from the amount received from the sale of the pledged item are deposited into a special bank account of the debtor in the following order:
twenty percent of the amount received from the sale of the pledged item - for the repayment of the claims of the creditors of the first and second priority in the event that other property of the debtor is insufficient to repay the said claims;
2. In the event that the claims of the bankruptcy creditor under the loan agreement are secured by the pledge of the debtor's property, eighty percent of the proceeds from the sale of the subject of the pledge shall be directed to repay the claims of the bankruptcy creditor under the loan agreement secured by the pledge of the debtor's property, but not more than the principal amount of the debt on the pledged obligation and interest due. The remaining funds from the amount received from the sale of the pledged item are deposited into a special bank account of the debtor in next order:
fifteen percent of the amount received from the sale of the pledged item - for the repayment of the claims of the creditors of the first and second priority in the event that other property of the debtor is insufficient to settle the specified claims;
the remaining funds - to cover legal costs, expenses for the payment of remuneration to the insolvency practitioner and payment for the services of persons attracted by the insolvency practitioner in order to ensure the fulfillment of the duties assigned to him.
(see text in previous edition)
2.1. The funds intended for the repayment of the claims of the creditors of the first and second priority and remaining in the special bank account of the debtor after the full repayment of such claims are directed to the repayment of the part of the bankruptcy creditors' claims secured by the pledge of the debtor's property that was not repaid from the value of the pledged item in connection with the withholding of part of the value for repayment of claims of creditors of the first and second priority in accordance with paragraphs 1 and of this article.
The monetary funds remaining after the full repayment of court costs, expenses for the payment of remuneration to the insolvency practitioner and payment for the services of persons attracted by the insolvency practitioner in order to ensure the fulfillment of the duties assigned to him, are included in the bankruptcy estate.
Claims of creditors not satisfied at the expense of the value of the pledged item under the obligations secured by the pledge of the debtor's property are satisfied as part of the claims of creditors of the third priority.
2.2. The creditor's claims under the obligation secured by the pledge of rights under the bank account agreement are satisfied by writing off the bank on the basis of the order of the bankruptcy commissioner Money from the pledge account of the debtor and their issuance to the creditor under an obligation secured by the pledge of rights under the bank account agreement, or crediting them to the account specified by such a creditor.
The claims of the creditors specified in this clause are satisfied in the amount of seventy percent of the funds available in the pledged account, and in the event that the claims of the bankruptcy creditor under the loan agreement are secured by the pledge of rights under the bank account agreement, in the amount of eighty percent of the funds available on the specified account, but not more than the amount of the claim secured by the pledge of rights under the bank account agreement.
The funds remaining after the satisfaction of the creditors' claims provided for in this paragraph shall be used according to the rules provided for in paragraphs 1 - 2.1 of this article.
3. The liquidator opens in credit institution a separate account of the debtor, which is intended only to satisfy the claims of creditors at the expense of funds received from the sale of the subject of pledge, in accordance with this article (special bank account of the debtor).
The agreement of the special bank account of the debtor states that the funds in the special bank account of the debtor may be debited only to pay off the claims of creditors of the first and second priority, as well as to pay off court costs, expenses on payment of remuneration to the arbitration manager and payment for the services of persons involved the arbitration manager in order to ensure the fulfillment of the duties assigned to him.
Transactions made in violation of the requirements of this clause may be invalidated.
(see text in previous edition)
The initial selling price of the pledged item, the procedure and conditions for holding tenders, the procedure and conditions for ensuring the safety of the pledged item are determined by the bankruptcy creditor, whose claims are secured by the pledge of the property being sold. The specified information is subject to inclusion by the arbitration manager at the expense of the debtor in the United federal register information on bankruptcy no later than fifteen days before the start date of the sale of the pledged item at the auction.
(see text in previous edition)
In the event of a disagreement between the bankruptcy creditor under the obligation secured by the pledge of the debtor's property and the bankruptcy administrator or persons participating in the bankruptcy case regarding the initial sale price, the procedure and conditions for holding tenders for the sale of the pledged item, the procedure and conditions for ensuring the safety of the pledged item, each of them, within ten days from the date of inclusion of information in the Unified Federal Register of Information on Bankruptcy, has the right to apply for the resolution of such disagreements to the arbitration court considering the bankruptcy case, following the results of which the arbitration court issues a ruling on determining the initial selling price, approving the procedure and the conditions for holding tenders for the sale of the pledged item, the procedure and conditions for ensuring the safety of the pledged item, which can be appealed. If the sale of the subject of pledge is carried out together with the sale of other property of the debtor, the procedure and conditions for such a sale cannot be established without the consent of the writing a bankruptcy creditor whose claims are secured by a pledge of the property being sold.
(see text in previous edition)
In the event of a disagreement between the bankruptcy creditor under the obligation secured by the pledge of the debtor's property and the bankruptcy administrator, as well as between the bankruptcy creditors under the obligations secured by the pledge of the same property of the debtor, in matters of the procedure and conditions for holding tenders for the sale of the pledged item, each of they have the right to apply with an application for the resolution of such disagreements to the arbitration court considering the bankruptcy case, based on the results of which the arbitration court issues a ruling on the approval of the procedure and conditions for holding tenders for the sale of the subject of pledge, which can be appealed.
(see text in previous edition)
4.1. In the event that repeated auctions are declared invalid, the bankruptcy creditor for obligations secured by the pledge of the debtor's property shall have the right to retain the subject of the pledge with an assessment of it in the amount of ten percent lower than the initial sale price at the repeated auctions.
The bankruptcy creditor for obligations secured by the pledge of the debtor's property, when leaving the subject of pledge, is obliged to transfer funds in the amount determined in accordance with paragraphs 1 and this article to a special bank account in the manner prescribed
The pledge arose and developed simultaneously with the emergence of elements of private property, as a financial and economic instrument that ensures the protection of creditors and contributes to the development of investment activities.
In its general sense, pledge can be defined as property or other valuables that serve as collateral for a loan. Those. a pledge is a way to secure an obligation in which the pledgee (legal or individual accepting the subject of pledge as security for the loan issued by him), in case of default by the pledgor (a legal entity or individual who provided the subject of pledge to secure his debt) has a pre-emptive right over other creditors to satisfy his claim from the value of the pledged property.
The pledge arises by virtue of the contract, as well as on the basis of the Law upon the occurrence of the circumstances specified in it, if the Law provides for what property and for ensuring the fulfillment of which obligation is recognized as being pledged.
The most widespread is a pledge under an agreement, when the pledger (debtor) voluntarily pledges his property, concluding an appropriate agreement with the pledgee (creditor)
A pledge is a way to secure an obligation, and a pledge agreement is not independent, it is always associated with another agreement (sale, contract, commission, storage, etc.) that it provides. In addition, an agreement, an obligation secured by a pledge, is concluded in order to withdraw the pledged property from the possible collection on the claims of other creditors. The pledge agreement always stands behind the other main agreement and is directly dependent on it.
The creditor retains the pledge right even if the property is alienated by the owner in favor of third parties. However, the pledge does not give the right of ownership (possession or use) to the pledged property after the debtor violates his obligations, but serves as a means of satisfying the main claim of the creditor from the value of the pledged property.
It should be noted that the main provisions on the pledge, as such, are determined, firstly, and secondly, by the law of the Russian Federation of May 29, 1992, No. 2872-1 "On Pledge". However, it should be borne in mind that the regulation of pledge in the Civil Code of the Russian Federation sometimes differs from its regulation in the aforementioned law.
The concept of a pledge cannot be fully established without defining what is the subject of a pledge.
The subject of the pledge can be both movable and immovable property, as well as property rights, i.e. objective rights of the participants in the relationship, associated with the possession, use and disposal of property, as well as those material(property) claims that arise between participants in economic turnover regarding the distribution of this property and the exchange of goods, services, securities, etc.
The subject of a pledge can be not only an existing object or rights to it, to property that does not exist in nature at the time of the conclusion of the contract, for example, a future harvest or a building to be built using a loan, which it acts as collateral.
The main principles of pledge:
1. Publicity- the availability of information on being pledged property for all interested parties.
2. Concreteness- property pledged must, according to its characteristics (and in particular, functional purpose) match exactly with the data it has as an object state registration.
3. Confidence- the value and liquidity of the property guarantees the return of the debt. The claims of the pledgee are fulfilled under the guarantee of the agreed property of the pledger. The pledgee has the right to receive, on the same basis, satisfaction from the insurance indemnity for the loss or damage of the pledged property, regardless of in whose favor it is insured, unless the loss or damage has occurred for reasons for which the pledgee is responsible.
There are many types of collateral, which differ from each other in accordance with the characteristics that formed their basis.
From point of view relationship of parties to pledged property the following main types of collateral are distinguished:
Classic pledge - the property remains with the pledger;
Mortgage - property is transferred to the possession of the mortgagee;
Solid pledge - the property remains with the pledger with signs on it, indicating the pledge.
The type of collateral also depends on the terms of repayment of the loan received against the collateral of the property. At the same time, Various types mortgages. A mortgage is a security that defines a claim in relation to the mortgaged property provided by the mortgagor for the purpose of securing a loan.
1. Mortgages with a fixed interest rate. The pledgor is obliged to make monthly payments on them to repay the loan debt and pay interest. Such loans are classified as self-depreciating. Depreciation in this case means the process of repayment of the principal debt and interest on the use of the loan.
2. Mortgages with floating (or adjustable) interest rates. In this case, the interest rate is tied to another market interest rate and is adjusted in accordance with its changes. The adjustment is carried out, as a rule, no more than once a year. At the same time, the rate of interest on mortgages with a floating interest rate is lower, on average by 1.5-2 percentage points, than on mortgages with a fixed interest rate, which is associated with the awareness of the risk that the owners of adjustable mortgages assume. The essence of this risk is that the adjustment raises the interest rate upwards and the volume of monthly payments increases.
3. Mortgage bonds with differentiated payments. Such mortgages provide for a gradual increase or decrease in payments to repay the loan. Such loans can, for example, be used for lending to young families who have less income at the beginning of the loan term than at the end.
4. Guaranteed mortgages. In this case, you need a mortgage loan insurer.
The right of pledge arises from the moment of the conclusion of the pledge agreement, and in relation to the pledge of property that is to be transferred to the pledgee, from the moment of transfer of this property, unless otherwise provided by the pledge agreement.
The pledge is terminated in the following cases:
When fulfilling obligations to secure the pledge;
In case of gross violations by the pledgee of his obligations, entailing the threat of destruction of property and at the request of the pledger;
Upon termination of the pledge right and destruction of the pledged property, unless otherwise provided in the pledge agreement;
If it is impossible to sell the pledge.
Pledge real estate to secure the pledgee's monetary claim against the pledgor is called a mortgage .
However, there is some "but" here. We gave general definition mortgages from which more detailed definitions can flow of this concept, based on the characteristics, condition and development of mortgages in different countries. So, for example, in the USA, mortgage refers to lending only in the housing sector. Therefore, although, by now, the mortgage has a certain international character, it is difficult to give an undeniable definition of this concept, since a representative of a particular country and population group can adjust it in his own way.
The mortgage has two aspects: legal and economic.
Legal content mortgage is the encumbrance of property rights to real estate objects when they are pledged.
Economic content Mortgages are a market instrument for the turnover of property rights to real estate objects (in cases where other forms of alienation - purchase and sale, exchange - are inappropriate), allowing to attract additional funds for the implementation of any projects.
Legal regulation mortgages are carried out with the help of the Civil Code of the Russian Federation, as well as Federal Law No. 102 - FZ "On Mortgages" dated 07.16.98.
The subject of a mortgage can be real estate objects specified in the Civil Code of the Russian Federation, the rights to which are registered in the manner prescribed for state registration. This immovable property includes:
1. Enterprises as single property complexes used in entrepreneurial activity.
For the transfer of the enterprise into a mortgage, the consent of the owner of the aforementioned real estate is required. The pledger, without the permission of the pledgee, is not entitled to transfer property related to the enterprise as a pledge, to conclude transactions aimed at alienating the property related to the enterprise, unless otherwise provided by the mortgage agreement.
The mortgage of an enterprise can secure an obligation, the amount of which is at least half of the value of all property that belongs to this enterprise.
2. Buildings and structures(used in business) with a simultaneous mortgage under the same contract land plots, on which they are located, or parts of these sites that functionally provide these buildings and structures. It is also necessary to say here that if the land plot on which the pledged object is located is leased, then simultaneously with the mortgage of the building or structure, the lease rights to this plot or part of it are necessarily pledged.
3. Residential buildings, apartments and parts of residential buildings and apartments, consisting of one or more isolated rooms.
4. Hotels, rest houses, summer cottages, garden houses and other buildings and premises not intended for permanent residence.
5. Aircraft and sea vessels, inland navigation vessels and space objects.
6. Unfinished real estate objects, and materials and equipment that are prepared for their construction.
7. Subsoil plots, isolated water bodies.
8. Forests, perennial plantings.
Since real estate objects are located on the land, which are firmly connected with it, the mortgage of buildings, structures, enterprises, isolated water bodies and perennial plantings is practically impossible without the simultaneous mortgage of the corresponding land plots (this was already mentioned above). This determines the special role of land in the sphere of mortgage relations.
9. Land plots owned by citizens, their associations, legal entities and provided for gardening, animal husbandry, individual housing, summer cottage and garage construction, personal land plots subsidiary plots and land plots occupied by buildings, structures or structures in the amount necessary for their economic maintenance (functional support).
In accordance with the law "On Mortgage", as well as, property that is the subject of a mortgage is considered pledged together with accessories as a whole.
In accordance with Russian legislation the subject of a mortgage cannot be:
Part of the property, the division of which in kind is impossible without changing its purpose;
Property withdrawn from circulation, which cannot be foreclosed, as well as property in respect of which mandatory privatization is envisaged or the privatization of which is prohibited;
State property: state and municipal lands, as well as agricultural land, state and municipal individual and apartment buildings, subsoil plots and specially protected natural areas;
A part of a land plot, the area of which is less than the minimum size for various intended purpose and permitted use;
Shares in ownership of common property residential building separate from the ownership of the apartment.
Legislative regulation pledge relations are found in the laws of Manu in Ancient India (II century BC), and it was developed in detail in Roman law.
The term "mortgage" (from the Greek hypotheke - pledge), according to historians, first appeared in Greece at the beginning of the 6th century. BC, and even then was associated with ensuring the liability of the debtor to the creditor by certain land holdings. The history of the development of mortgages in Russia is given in Appendix. 16.
This definition is valid for Russian Federation.
For example, Art. 339, 340, 349, etc.
In more detail, the features of the mortgage of enterprises of buildings and structures are considered in Chapter XII of the Law "On Mortgage".
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By scale of use bank loan citizens and commercial organizations can judge the stability and development of the country's economy.
Interconnection bank lending and the country's economy is clearly defined by the fact that practically every loan is based on the orientation of its recipient towards solving long-term problems, including: the construction of residential buildings, the creation or reconstruction of an enterprise, the construction of facilities that are significant for the country's infrastructure, etc.
A serious problem at the time economic crisis, for commercial banks there was a risk of non-repayment of loans. But it is no secret that the bank issues loans from the savings funds of individuals and enterprises, which are kept in deposit accounts, while pledging to return the money to depositors with accrued interest. That is, the bank is obliged to protect the money of its depositors by strengthening the guarantees of the borrower's return of funds. The most common ways to secure the performance of the borrower of credit obligations are mortgages (real estate pledge) and movable property pledge.
Based on Art. 334 of the Civil Code of the Russian Federation, the pledge gives the priority right to the creditor-pledgee to satisfy his claim at the expense of the pledged property, if the borrower fails to fulfill his obligations to repay the loan. An exception are cases of bankruptcy of an enterprise, when the creditor has the right to receive his funds only after the first and second stages of creditors, which are:
- the first stage - compensation for moral harm and harm caused to life and health (paragraph 1 of clause 4 of article 134 of the Bankruptcy Law);
- the second stage is wages and severance payments (paragraph 2 of clause 4 of article 134 of the Bankruptcy Law).
Real estate pledge
Since 1998, in the Russian Federation, real estate pledges are regulated by the Law on Mortgages. The mortgage agreement can be applied general rules Of the Civil Code of the Russian Federation on Pledge, when otherwise is not established by the Law on Mortgages.
Mortgage items (Art. 76 Mortgage Law):
- buildings and constructions;
- land;
- bosom;
- forests;
- isolated water bodies;
- aircraft and ships;
- perennial plantings;
- inland navigation vessels;
- apartments;
- unfinished construction projects.
In addition to the above mortgage items, the pledge can be the funds that are in the accounts, non-cash foreign currency etc.
Basically, the pledge relationship arises from the relevant agreement, and the pledge may also be provided for by law. So, for example, a deposit under the law applies to an apartment or residential building purchased or built using credit funds bank or funds of a target loan (clause 1 of article 77 of the Law on Mortgages).
A pledger is a person who pledges his property. Such a person can be not only the debtor under the main obligation, but also a third party who wants to pledge his property to secure someone else's obligation. The relationship between the debtor under the main obligation and the pledger in this case are outside the pledge agreement.
The owner of the property has the right to dispose of it at his own discretion, that is, he can mortgage, sell, donate, etc. The exception is property that has been transferred to economic management. An enterprise that owns property transferred into economic possession can only mortgage the movable part of such property (clause 2 of article 295 of the Civil Code of the Russian Federation). To mortgage real estate, the company will need the permission of the owner. The property of institutions financed from the funds of the owner cannot be mortgaged. At the same time, these institutions can pledge property acquired with funds received from permitted entrepreneurial activities (clause 2 of article 298 of the Civil Code of the Russian Federation).
State-owned enterprises have the right to mortgage the immovable and movable property assigned to them only after receiving the permission of the owner for this. The current legislation entitles state-owned enterprises to have the right to dispose at their own discretion, including bail, the products they have produced.
The pledge can be not only the immediate property, but also property rights. This right can be pledged without the consent of the owner, unless a prohibition on such actions is provided by law or agreement.
Pledge agreement
The pledge is formalized by a written agreement.
- subject of pledge;
- appraisal of the subject of pledge;
- the amount, time and substance of the fulfillment of obligations;
- determination of the party with which for the duration of the loan will be mortgaged property.
Mortgage agreement in accordance with Art. 339 of the Civil Code of the Russian Federation is subject to notarization at the location of the property being pledged. A contract of pledge of movable property is also subject to notarization if this property provides the main obligation under the contract. After notarization, the pledge of immovable property is subject to state registration, in order to avoid the establishment of a pledge on the same property several times. Along with other real estate transactions, the registration of a mortgage is regulated by the Law on the Registration of Rights to Real Estate. Movable property, namely all types of transport, in accordance with paragraph 2 of Art. 40 of the Law on Pledge, are subject to mandatory registration of the pledge.
Any deviation from the requirements for a pledge agreement leads to the recognition of such an agreement as invalid.
Termination of pledge
The pledge is terminated in connection with (Article 352 of the Civil Code of the Russian Federation):
- destruction of the pledged thing;
- termination of the obligation secured by the pledge;
- termination of property rights;
- public sale of pledged property;
- impossibility of selling the pledged property;
- the transfer of rights to the pledged property to the mortgagee;
- transfer of debt under the main obligation to another person;
- seizure of the pledged property from the pledger by the legal owner or in the order of sanctions for an offense or crime.
The pledgor has the right to demand the return of the property held by the pledger if the latter grossly violates the obligations to ensure the safety of the pledged property.
After the termination of the mortgage pledge, a corresponding note must be made in the register of registration of mortgage agreements. Termination of the pledge obliges the pledgee to return the pledged property to its owner.
Modern legislation in the field of pledge is aimed at protecting the interests of both parties, both the pledger and the pledgee. Advocate consultation in civil cases will allow you to protect yourself from illegal actions on the part of any of the parties to the pledge agreement, as well as protect your property or rights in the event of a dispute.
- surety. The peculiarity of the contract and the responsibility of the parties ;
- credit. Features according to the law.
Sincerely,
Victoria Demidova, attorney.
Real estate pledge is one of the guarantees for the protection of creditors' property rights. She was widely adopted in banking Russia in connection with securing obligations under loan agreements and the acquisition of residential and commercial real estate... What is a real estate pledge, in which cases it is applied, how is the contract drawn up and what risks does the establishment of this type of security entail?
What it is
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In addition to enhancing development economic relations functions of real estate pledge performs primarily the task of providing guarantees for the fulfillment of financial obligations by the debtor and protecting the interests and rights to the property of the creditor. At the same time, the pledge does not fulfill the purpose of acquiring property, but only serves as a mechanism for obtaining loan funds to obtain ownership of the property.
The parties to the relationship with the collateral are usually three parties: the owner of the property, the lender and the borrower.
A person who issued funds for the purchase of housing or a commercial facility does not acquire rights to property even if the debtor violates the conditions. He has the opportunity to claim, taking into account the requirements of the agreement on material compensation in the form of payment of fines and penalties for late performance of obligations by the debtor.
Real estate collateral is understood as a mortgage, which applies to both residential and commercial facilities.
The term has two meanings:
- mortgage as a legal relationship to secure a pledge of real estate when purchasing housing, land, individual buildings, fixed assets or buildings when obtaining a loan from a lender;
- mortgage as a security in the form of a mortgage. It is a security that establishes the rights of the creditor to the property.
Today in Russia there are two fundamental regulations:
- Mortgage Law;
- Real estate mortgage law.
The documents indicate the need to comply with the legal requirements specified in the loan agreement or employment agreement. Relationships with a mortgage may be accompanied by the registration of relations about rent, other permitted use.
The peculiarities of real estate collateral include the possibility of canceling the debtor's property or returning the property to the creditor in the event of default on loan obligations to repay the debt. The collection is carried out at the expense of the property pledged as a pledge or by receiving funds through its sale.
When is it necessary
By virtue of the law, a mortgage arises in the following cases:
- When purchasing ready-made or housing under construction at the expense of the bank. The provision comes into force on the basis of clause 1 of article 77 of the Law on Mortgage from the moment of registration of the fact of title in Rosreestr.
- When registering living quarters in the property of a soldier state program accumulation of NIS. Relations are governed by the provisions of the Law on the Savings and Mortgage System housing military personnel ". Far from all Russian banks work with the federal subsidy program, but only the largest of them, such as Sberbank of Russia, Rossellskozbank, Bank of Moscow, VTB24, etc.
- By virtue of the conclusion of the contract equity participation in construction on the basis of paragraphs. 1-3 of Article 13 of the Federal Law No. 214 and paragraph 1 of Article 58 of the Law on Mortgages.
- When purchasing property in installments or with a deferral condition, it is also possible to establish a pledge of real estate by virtue of and.
Important: if the contract of sale and purchase with a deferral / installment plan does not specify the phrase that the mortgage does not arise by virtue of Articles 488, 489 of the Civil Code of the Russian Federation, the specialists of Rosreestr will enter information on the occurrence of the mortgage in the real estate database by virtue of the mortgage and the establishment of such an encumbrance without fail.
Any real estate object can be the subject of a mortgage:
- residential apartment;
- an individual building with a land plot under it;
- offices, shops, warehouses, industrial buildings and other commercial premises;
- cottages, apartments and town houses outside the city limits.
Mortgage by virtue of the law applies in the following cases:
- rent;
- pledge of property rights;
- obtaining funds for a target loan;
- construction of real estate under investment contracts or in shared construction;
- when purchasing housing or commercial objects on borrowed funds received from a credit institution.
It is also possible that a mortgage may arise on the basis of a private contract. According to the law, a mortgage is registered by virtue of a direct indication in regulations, in another case, when submitting a separate application from the parties to the relationship.
Pledge of real estate with a loan
Collateralized real estate can be accepted to receive funds, any:
- owned by the borrower;
- acquired under a sale and purchase agreement;
- when participating in an equity relationship.
An important point in the conclusion of the agreement is the determination of the value of the object transferred for collateral for loan obligations. The analysis of prices for similar real estate on the market is carried out independently by the lender or an accredited organization offered by a bank or other financial organization.
A feature of real estate pledge is that there is no need for the pledgee to apply to get the property back to court. It is returned if the pledgee fails to comply with the requirements automatically when a notification is sent.
On the security of commercial real estate and objects suitable for living, loans are transferred on terms of more than favorable rate in reduced size. This is due to the existence of a guarantee of material security in case of default by the debtor. At the same time, the more expensive real estate is offered as collateral and the larger the loan amount, the higher interest rate for a loan.
How to draw up a contract
To complete an agreement on real estate mortgage, you need to perform the following steps:
- Obtain bank approval for a loan or mortgage.
- Provide all documents for real estate to conclude a sale and purchase agreement for loan funds.
- Registration of a bank permit for the purchase of a certain housing or commercial property.
- Conclusion of a pledge agreement with a bank with the participation of three parties: the home owner, the borrower and the lender. Inclusion of information about the encumbrance of a property with a pledge or mortgage, placing information in a single base state real estate by filing a relevant application with Rosreestr.
- Removal of restrictions on the disposal of real estate - a pledge, after the closure of credit obligations in full upon provision of confirmation of the payment of the debt on the basis of the terms of the loan agreement.
Amendments to the real estate pledge agreement is possible only with the approval of all parties to the relationship when drawing up additional agreements to the main act and their subsequent registration in the Federal Register, after which they become valid and come into force.
The agreement is drawn up in 4 identical copies for submission to the Rosreestr archive, for the property owner - the seller, the borrower - the buyer and the lender - the bank. All of them are transferred to the registering authority in originals, which are returned to the parties after legal expertise and the placement of information in the rosary of real estate transactions.
The text of the agreement must contain information:
- detailed description of the property - address of location, cadastral number, layout characteristics;
- an indication of the documents of title, on the basis of which the ownership of the seller is registered, the certificate of the Rosreestr of ownership or an extract from the USRN;
- information about the mortgagor and mortgagee, the number and date of the loan agreement;
- term for repayment of a debt on a loan or mortgage agreement, termination of obligations;
- assessment of monetary claims against the debtor - the loan amount specified in the loan agreement with interest and other charges.
Potential risks
In practice, the parties to the mortgage relationship are faced with the following nuances:
- it is imperative to check the property on bail before issuing a loan; this can be done by submitting an application for the issuance of an extract from the USRN for the presence of encumbrances and restrictions in relation to the object;
- when registering a mortgage on residential property, it is imperative to check that there are no debts for utility bills and are registered on square meters, this is especially true for the registration of minor children, whom it is rather difficult for legal representatives to evict without providing a living space, and often only in court;
- the mortgage is accompanied by a check of title documents on real estate and the absence of restrictions already imposed on the disposal of property, such as arrests based on a court decision or an order of a bailiff, bail on other financial obligations – credit agreements, a mortgage against security, a dispute over an object;
- when registering property as a pledge, it is advisable to check the history of real estate - how many times it was the subject of the transfer of ownership under transactions, in what periods - the smallest number of them serves as a guarantee of the absence of claims from former owners or potential owners, such as citizens who did not accept the inheritance on time;
- difficulties will arise with the pledge of real estate with illegal redevelopment - first, it must be agreed with the authorized government bodies, in the practice of courts there is an inspection on the fact of the property pledged as collateral, cadastral and technical passports with the real state of the apartment are also checked, so it is not possible for the owners of the objects to hide such a circumstance.
Video: Real estate mortgage
M.L. Pashkov,
lawyer
The current civil legislation defines a pledge as a method of securing obligations, by virtue of which the creditor under the obligation secured by the pledge (the pledgee) has the right, in the event of the debtor's failure to fulfill this obligation, to receive satisfaction from the value of the pledged property, mainly to other creditors of the person who owns this property (the pledger), for exemptions established by law (Art.334 Civil Code Of the Russian Federation, hereinafter referred to as the Civil Code of the Russian Federation). Like any other method of securing an obligation (excluding a bank guarantee), the pledge has the character of an accessory (additional) obligation and terminates with the fulfillment of the main obligation.
In accordance with Art. 4 of the Law of the Russian Federation of May 29, 1992 N 2872-1 "On Pledge", a pledge can be secured with a valid claim, in particular, arising from a loan agreement, including bank loan, contracts of sale, property lease, carriage of goods and other contracts. The subject of a pledge can be things securities, other property and property rights. The subject of a pledge cannot be claims of a personal nature, as well as other claims, the pledge of which is prohibited by law.
From the provisions current legislation the following short conclusions can be drawn.
1. The pledge arises on the basis of contracts. In accordance with Art. 154 of the Civil Code of the Russian Federation, the agreement is a bilateral transaction. Article 420 of the Civil Code of the Russian Federation gives the concept of an agreement as an agreement of two or more persons to establish, change or terminate civil rights and responsibilities. Thus, a pledge can be established in order to secure an obligation by a party under a contract, that is, under a specific transaction. The pledge cannot secure the obligation of the parties under the bill.
2. The legislator does not limit the range of objects of pledge, indicating, however, that the subject of pledge cannot be things taken out of circulation and claims that are inextricably linked with the personality of the creditor, in particular, claims for alimony, for compensation for harm caused to life or health, and other rights, the assignment of which to another person is prohibited by law.
Real estate can also be the subject of a pledge.
In Russia, mortgage issues are regulated by the Civil Code of the Russian Federation (Chapter 23 paragraph 3), Federal law dated 16.07.98 N 102-FZ "On mortgage" (mortgage of real estate) (hereinafter referred to as the Law on Mortgages), departmental acts, judicial and arbitration practice.
A mortgage in modern Russian law is a pledge of real estate.
In accordance with the Law on Mortgages, the subject of a mortgage is:
1) land plots, with the exception of land plots in state or municipal ownership, as well as agricultural land from the land of agricultural organizations, peasant (farmer) households and field land plots of personal subsidiary plots;
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.
The mortgage is established on the basis of an agreement between the mortgagor and the mortgagee. A number of features are characteristic of mortgages.
1. The pledger may be the owner of the property or a person who owns the property on the basis of the right of economic management. Moreover, it should be noted that the pledger can be not only the debtor under the main obligation. The law provides for the possibility for a third party to be a mortgagor under a mortgage agreement. The main condition for the mortgagor is that the property must be in his ownership or business. When considering the issue of the right of a person who owns property on the right of economic management, to provide it as a subject of mortgage, it must be borne in mind that in accordance with paragraph 2 of Art. 295 of the Civil Code of the Russian Federation state enterprise is not entitled to pledge real estate owned by him on the basis of the right of ownership, without the consent of the owner of this property. As you know, property is assigned on the basis of the right of economic management only to state or municipal unitary enterprises (clause 2 of article 113 of the Civil Code of the Russian Federation). The owners of this property are either the state or municipal authorities. According to the resolution of the Supreme Council of the Russian Federation of December 27, 1991 N 3020-1 "On the delimitation of state property in the Russian Federation", the order state property entrusted to the Government of the Russian Federation, which has the right to delegate to ministries and departments a number of powers in relation to objects of federal property, including the conclusion of property pledge agreements.
According to Art. 131 of the Civil Code of the Russian Federation, the right of ownership and other property rights to immovable things (in accordance with Article 130 of the Civil Code of the Russian Federation, immovable things, in particular, include buildings and structures) are subject to state registration in a single state register bodies of justice. The body that carries out state registration of rights to real estate and transactions with it, certifies the registration made by issuing a document on the registered right or transaction, or makes an inscription on the document to be registered. According to Art. 14 of the Federal Law of 21.07.97 N 122-FZ "On state registration of rights to immovable property and transactions with it" the document certifying the occurrence and change of the right to immovable property is a certificate of state registration of rights.
If the pledger is not the owner of the property or, being the owner of this property on the basis of the right of economic management, has not received the consent of the owner, the mortgage agreement may be invalidated due to the inconsistency of its terms with the requirements of the law.
An example from arbitration practice: Russian commercial and industrial commercial Bank contacted Arbitration court the city of St. Petersburg and Leningrad region with the requirement to force LLP "PTO" Tsarskoye Selo "" to conclude an agreement on mortgage of real estate on the basis of preliminary contract... By a decision of July 17, 1995, the claims were dismissed. At the same time, the court proceeded from the fact that at the time of the decision, PTO Tsarskoye Selo LLP did not have the right of ownership to the disputed property. In addition, in connection with the onset of the loan repayment period, the pledge agreement would not become a way to secure the main obligation, but a way to repay the debt for the borrower.
2. Rights to immovable property must be registered in the manner established for state registration of rights to immovable property in accordance with applicable law.
Currently, state registration of rights to real estate is carried out in accordance with Federal Law of 21.07.97 N 122-FZ "On state registration of rights to real estate and transactions with it."
3. In accordance with paragraph 3 of Art. 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 contract of a land plot on which this building or structure is located, or a part of this plot that functionally provides the mortgaged object, or the right to lease this plot or its corresponding part owned by the mortgagor.
This condition caused a lot of controversy; for example, what to do in the case when the rights to land plot not decorated. Arbitrage practice formulated the following approach to this problem.
If the mortgagor of the building or structure is not the owner or lessee of the land plot, the mortgage agreement cannot be considered inconsistent with the legislation on the basis of paragraph 3 of Art. 340 of the Civil Code of the Russian Federation. The rights of the pledger, and when levying execution on a building or structure, the buyer's rights to a land plot should be determined on the basis of Art. 37 Land Code Of the Russian Federation, according to which upon the transfer of ownership of a structure, structure or upon its transfer to others legal entities or to citizens, along with these objects, the right to use land plots is transferred.
Article 69 of the Law on Mortgage confirms the conclusion made in the course of law enforcement practice.
The above rule shall apply if the person acting as the mortgagor of the building or structure is the owner or lessee of the respective land plot.