Real estate pledge to secure a monetary claim. Debentures
The applicant wants to approve the regulation on the procedure, conditions and terms for the sale of property of the debtor - citizen (SP)
The applicant disputes the results of the auction for the sale of property of the debtor - citizen (IP)
The applicant does not agree with the distribution of funds from the sale of property of the debtor - citizen (SP)
The lender wants to include in the register of creditors' claims a claim based on an agreement on compensation
1. Of the proceeds from the sale of the subject of pledge, seventy percent is allocated to repay the claims of the creditor for the obligation secured by the pledge of the property of the debtor, but not more than the principal amount of the debt for the obligation secured by the pledge and the interest due. Funds remaining from the amount received from the sale of the subject of the pledge are deposited into the debtor's special bank account in the following order:
twenty percent of the proceeds from the sale of the subject of pledge - to repay the claims of creditors of the first and second stage in the event of insufficiency of other property of the debtor to repay these claims;
2. In the event that the requirements of the bankruptcy creditor under the loan agreement are secured by the pledge of the property of the debtor, eighty percent of the proceeds from the sale of the pledged item shall be allocated to repay the requirements 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 a secured obligation and interest due. The remaining funds from the amount received from the sale of the subject of the pledge are deposited into the special bank account of the debtor in the following order:
fifteen percent of the proceeds from the sale of the subject of pledge - to repay the claims of creditors of the first and second stage in the event of insufficiency of other property of the debtor in order to repay these claims;
the remaining funds - for the repayment of court expenses, expenses for the payment of remuneration to the arbitration manager and payment for the services of persons engaged by the arbitration manager in order to ensure the performance of his duties.
(see text in previous edition)
2.1. Funds intended for repayment of claims of creditors of the first and second stage and remaining in the special bank account of the debtor after full repayment of such claims are used to repay part of the requirements of the competitive creditors secured by the pledged property of the debtor, not repaid from the value of the pledged item due to the deduction of part of the value for repayment of claims of creditors of the first and second stage in accordance with paragraphs 1 and this article.
The funds remaining after the full repayment of court expenses, expenses for the payment of remuneration to the arbitration manager and payment for the services of persons involved in the arbitration manager in order to ensure the performance of the duties assigned to him, are included in the bankruptcy estate.
Claims of creditors that are not satisfied at the expense of the value of the pledged item for obligations secured by the pledge of property of the debtor are satisfied as part of the claims of creditors of the third priority.
2.2. Claims of a creditor under an obligation secured by a pledge of rights under a bank account agreement are satisfied by debiting the bank on the basis of an order from the bankruptcy trustee of funds from the debtor’s pledge account and issuing them to the creditor under an obligation secured by pledge of rights under a bank account agreement, or crediting them to the account indicated such a lender.
The requirements of the creditors specified in this clause are satisfied in the amount of seventy percent of the money available on the collateral account, and if the pledge of rights under the bank account agreement provides for the requirements of the bankruptcy creditor under the loan agreement, in the amount of eighty percent of the money in the specified account, but not more than the size of a claim secured by a pledge under a bank account agreement.
Funds remaining after satisfying the claims of creditors provided for in this clause shall be used in accordance with the rules provided for in clauses 1 - 2.1 of this article.
3. The bankruptcy trustee shall open a separate debtor account with a credit institution, which is intended only to satisfy the claims of creditors at the expense of the proceeds from the sale of the pledged item in accordance with this article (special bank account of the debtor).
The contract of the special bank account of the debtor indicates that the funds held in the special bank account of the debtor may be debited only to pay off the claims of creditors of the first and second stages, as well as to pay off court expenses, expenses on payment of remuneration to arbitration managers and payment for the services of persons involved arbitration manager in order to ensure the performance of its duties.
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 bidding, the procedure and conditions for ensuring the safety of the pledged item are determined by the bankruptcy creditor, the requirements of which are secured by the pledged property being sold. The specified information is subject to inclusion by the arbitration manager at the expense of the debtor in the Unified Federal Register of Bankruptcy Information no later than fifteen days before the start date of the sale of the pledged item at auction.
(see text in previous edition)
In the event of a disagreement between the bankruptcy creditor regarding the obligation secured by the pledge of the debtor's property and the bankruptcy trustee or persons participating in the bankruptcy case regarding the initial sale price, the procedure and conditions for tendering for the sale of the collateral, the procedure and conditions for ensuring the security of the collateral each of them, within ten days from the date of inclusion of information in the Unified Federal Register of Bankruptcy Information, is entitled to apply for resolution of such disagreements to the arbitration court, p considering a bankruptcy case, based on the results of which the arbitration court makes a determination on determining the initial selling price, approving the procedure and conditions for tendering for the sale of the subject of pledge, the procedure and conditions for ensuring the safety of the subject of pledge, which may be appealed. If the sale of the subject of the 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 written consent of the bankruptcy creditor, the requirements of which are secured by the pledge of the property being sold.
(see text in previous edition)
In case of disagreement between the bankruptcy creditor for the obligation secured by the pledge of the debtor's property and the bankruptcy trustee, as well as between bankruptcy creditors for the obligations secured by the pledge of the same property of the debtor, regarding the procedure and conditions for tendering for the sale of the pledged property, each of they are entitled to apply for resolution of such disagreements to the arbitration court considering the bankruptcy case, based on the results of the consideration of which the arbitration court issues a ruling on b approval of the procedure and conditions for tendering for the sale of the subject of a pledge, which may be appealed.
(see text in previous edition)
4.1. In the event that the repeated bidding is declared invalid, the bankruptcy creditor for the obligations secured by the pledge of the property of the debtor has the right to leave the subject of the pledge with himself with an estimate of ten percent less than the initial selling price at the repeated bidding.
The bankruptcy creditor for obligations secured by the pledge of the debtor's property, when leaving the subject of pledge for itself, is obligated to transfer funds in the amount determined in accordance with paragraphs 1 and this article to a special bank account in the manner established
The pledge arose and developed simultaneously with the emergence of elements of private property, as a financial and economic instrument that protects creditors and promotes the development of investment activity.
In its general sense, pledgecan be defined as property or other values \u200b\u200bthat serve as collateral for a loan. Those. a pledge is a certain way of securing an obligation, in which the pledge holder (legal or natural person accepting the pledged item as security issued by him), in case of default by the pledgor (legal or natural person who has provided the pledged item to secure his debt), has the preemptive right to other creditors to satisfy their claim from the value of the mortgaged 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 therein, if the Law provides what property and to ensure the fulfillment of what obligation is recognized as being in the pledge.
The most common is the pledge under the contract, when the pledgor (debtor) voluntarily pledges his property, concluding an appropriate agreement with the pledge holder (creditor)
A pledge is a way of securing an obligation, and a pledge agreement is not independent in nature; it is always associated with another agreement (sale, contract, commission, storage, etc.) that it provides. In addition, the contract, obligations with security of the pledge, is concluded in order to deduce the pledged property from the possible recovery under the requirements of other creditors. A pledge agreement always stands behind another main contract and is directly dependent on it.
The lender retains the security right even in case of alienation of property by the owner in favor of third parties. However, the pledge does not give the right of ownership (possession or use) of the pledged property after violation by the debtor of its 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 05.29.92 No. 2872 - 1 "On the pledge". However, it should be borne in mind that the regulation of collateral in the Civil Code of the Russian Federation is sometimes different from its regulation in the above law.
The concept of a pledge cannot be fully established without determining what the subject of a pledge is.
Subject of pledge can be both movable and immovable property, as well as property rights, i.e. objective rights of the participants in the relationship, related to the possession, use and disposal of property, as well as those material (property) requirements that arise between participants in the economic turnover regarding the distribution of this property and the exchange of goods, services, securities, etc.
The subject of the pledge may be not only an existing object or rights to it, property that does not exist in kind at the time of the conclusion of the contract, for example, a future crop or building to be built at the expense of the loan, the guarantee of which it acts.
The main collateral principles:
1. Publicity- the availability of information on the pledged property for all interested parties.
2. Specificity- property transferred as collateral must in its characteristics (and in particular for its functional purpose) exactly match the data that it has as an object of state registration.
3. Confidence- the value and liquidity of the property guarantees the return of the debt. The requirements of the pledge holder are fulfilled under the guarantee of the agreed property of the pledgor. The pledge holder has the right to receive, on the same basis, satisfaction from insurance compensation for loss or damage to the pledged property, regardless of whose benefit it is insured, unless loss or damage has occurred for reasons for which the pledge holder is responsible.
There are a large number types of collateralwhich differ from each other in accordance with the characteristics that formed their basis.
From point of view relationship of the parties to the pledged property The following main types of collateral are distinguished:
Classic mortgage - property remains with the mortgagor;
Mortgage - property is transferred to the mortgagee into possession;
Firm pledge - the property remains with the pledger with the application of signs indicating pledge on it.
The type of collateral also depends on the conditions of repayment of the loan property obtained on the security basis. At the same time, various types of mortgages are distinguished. Mortgage - a security that defines the requirement for mortgaged property provided by the mortgagor in order to secure a loan.
1. Mortgages with a fixed interest rate. The mortgagor is required to make monthly payments to pay off loan debt and pay interest. Such loans are classified as self-absorbing. Depreciation in this case means the process of repayment of the main debt and interest on the use of credit.
2. Mortgages with a floating (or adjustable) interest rate. Moreover, the interest rate is tied to a different market interest rate and adjusted in accordance with its changes. Correction is carried out, as a rule, no more than once a year. At the same time, the interest rate 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 an awareness of the risk that owners of adjustable mortgages take upon themselves. The essence of this risk is that the adjustment raises the interest rate up, and the volume of monthly payments increases.
3. Mortgages with differentiable payments. Such mortgages provide for a gradual increase or decrease in loan repayments. Such loans can, for example, be used for lending to young families with income at the beginning of the loan term less than at the end.
4. Guaranteed mortgages. In this case, a mortgage insurer is required.
The right to pledge arises from the moment of conclusion of the pledge agreement, and in respect of the pledge of property to be transferred to the pledge holder, from the moment of transfer of this property, unless otherwise provided by the pledge agreement.
The pledge terminates in the following cases:
In the performance of obligations to ensure collateral;
In case of gross violations by the pledge holder of their duties, entailing a threat of destruction of property and at the request of the pledgor;
Upon termination of the security right and the death of the pledged property, unless otherwise provided in the pledge agreement;
If it is impossible to sell the pledge.
A pledge of real estate to secure a monetary claim of a pledge holder against a pledgor is called a mortgage .
However, there is some "but." We have given a general definition of mortgages, from which more detailed definitions of this concept can flow from the characteristics, condition and development of mortgages in various countries. So, for example, in the USA, a mortgage is understood as lending only in the housing sector. Therefore, although by now, the mortgage is of some international character, however, it is difficult to give an undeniable definition of this concept, since the representative of a country or population group can adjust it in its own way.
Mortgage represents two aspects: legal and economic.
Legal Content Mortgages consists in encumbrance of property rights to property in real estate when they are pledged.
Economic content Mortgages is a market-based instrument for the circulation of property rights to real estate (in cases where other forms of alienation - purchase and sale, exchange - are impractical), which allow attracting additional financial resources for the implementation of any projects.
The legal regulation of mortgages takes place with the help of the Civil Code of the Russian Federation, as well as Federal Law No. 102 - Federal Law “On Mortgages” dated July 16, 1998.
The subject of a mortgage may be real estate objects specified in the Civil Code of the Russian Federation, the rights to which are registered in the manner established for state registration. This immovable property includes:
1. Enterprises, as single property complexes used in entrepreneurial activity.
To transfer a company to a mortgage, the consent of the owner of the above-mentioned real estate is required. The mortgagor, without the permission of the mortgagee, is not entitled to transfer property related to the enterprise as a pledge, to make transactions aimed at the alienation of property related to the enterprise, unless otherwise provided by the mortgage agreement.
A mortgage of an enterprise may be secured by an obligation, the amount of which is at least half of the value of all property that relates to this enterprise.
2. Buildings and structures (used in entrepreneurial activity) with a simultaneous mortgage under the same agreement of the land plots on which they are located, or parts of these plots that functionally provide these buildings and structures. It is also necessary to say here that if the land on which the property to be mortgaged is leased, then at the same time as the mortgage of the building or structure, the lease rights to this land or part of it are necessarily laid.
3. Residential buildings, apartments and parts of residential buildings and apartments, consisting of one or more isolated rooms.
4. Hotels, rest houses, summer residences, garden houses and other buildings and premises not intended for permanent residence.
5. Aircraft and sea vessels, inland navigation vessels and space objects.
6. Real estate in progress, 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 that are firmly connected with it, the pledge of buildings, structures, enterprises, isolated water bodies and perennial plantings is practically impossible without the simultaneous pledge of the corresponding land plots (this was already mentioned above). This defines the special role of land in the field of collateral 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 plots of land for personal subsidiary plots and land plots occupied by buildings, structures or structures, in the amount of, necessary for their maintenance (functional support).
In accordance with the Law on Mortgage, as well as, property that is the subject of a mortgage is considered to be pledged together with accessories as a whole.
In accordance with Russian law, the subject of a mortgage cannot be:
A part of property whose division in kind is impossible without changing its purpose;
Property withdrawn from circulation, which cannot be levied, as well as property in respect of which mandatory privatization is provided or the privatization of which is prohibited;
State property: state and municipal lands, as well as agricultural land, state and municipal individual and multi-apartment residential buildings, subsoil plots and specially protected natural territories;
Part of the land plot, the area of \u200b\u200bwhich is less than the minimum size for various purposes and permitted use;
Shares in the right of ownership of the common property of a residential building separately from the ownership of the apartment.
The legislative regulation of collateral relations is 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 VI century. BC, and even then was associated with ensuring the liability of the debtor to the creditor of certain land holdings. The history of the development of mortgages in Russia is given in adj. sixteen.
Such a definition is valid for the Russian Federation.
For example, Art. 339, 340, 349, etc.
More details of the mortgages of enterprises of buildings and structures are discussed in chapter XII of the Law "On Mortgage".
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By the scale of the use of bank credit by citizens and commercial organizations, one can judge the stability and development of the country's economy.
The interconnection of bank lending and the country's economy is clearly defined by the fact that almost every loan is oriented towards its destination for solving promising tasks, including: construction of residential buildings, creation or reconstruction of an enterprise, construction of facilities significant for the country's infrastructure, etc.
A serious problem at the time of the economic crisis for commercial banks was the risk of default on loans. But it’s no secret that the bank gives loans from savings funds of citizens and enterprises that are stored in deposit accounts, pledging to return to depositors their money with accrued interest. That is, the bank is obliged to protect the money of its depositors by strengthening guarantees of repayment of funds by the borrower. The most common ways to ensure that a borrower fulfills credit obligations are mortgages (real estate pledges) and movable property pledges.
Based on Art. 334 of the Civil Code of the Russian Federation, the pledge gives priority to the creditor-pledge holder to satisfy his claim at the expense of the mortgaged property, if the borrower does not fulfill his obligations to repay the loan. An exception is cases of bankruptcy of an enterprise when the creditor has the right to receive his funds only after the first and second stage of creditors, which are:
- the first stage is compensation for non-pecuniary damage and harm to life and health (paragraph 1 of paragraph 4 of article 134 of the Bankruptcy Law);
- the second stage is remuneration of labor and severance pay (paragraph 2 of clause 4 of article 134 of the Bankruptcy Law).
Real Estate Pledge
Since 1998, in the Russian Federation, real estate collateral has been regulated by the Mortgage Law. The general rules of the Civil Code of the Russian Federation on pledge may be applied to the mortgage agreement, unless otherwise provided by the Mortgage Law.
Mortgage Items (Article 76 of the Law on Mortgages):
- buildings and constructions;
- land;
- bosom;
- the woods;
- isolated water bodies;
- aircraft and ships;
- perennial plantings;
- inland navigation vessels;
- apartments;
- construction in progress.
In addition to the above-mentioned mortgage items, the pledge may be funds that are in the accounts, non-cash foreign currency, etc.
Mostly collateral relations arise from the relevant agreement, and a pledge may also be provided for by law. So, for example, the pledge according to the law applies to an apartment or apartment house purchased or built using credit funds of a bank or funds of a special-purpose loan (paragraph 1 of Article 77 of the Law on Mortgages).
Pledger is a person who pledges property belonging to him. Such a person may be not only the debtor of the main obligation, but also a third person who wants to mortgage his property to secure another's obligation. The relations of the debtor under the main obligation and the pledgor in such a case are outside the pledge agreement.
The owner of the property has the right to dispose of it at his discretion, that is, he can mortgage it, sell it, donate it, etc. An exception is property that has been transferred to economic management. An enterprise that owns property that has been transferred into economic ownership may mortgage only a movable part of such property (Section 2, 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 at the expense of the owner may not be mortgaged. At the same time, these institutions can pledge property acquired with funds received from permitted entrepreneurial activity (paragraph 2 of Article 298 of the Civil Code of the Russian Federation).
State-owned enterprises are entitled to pledge immovable and movable property assigned to them only after receiving the permission of the owner. The current legislation entrusts the right to treasury enterprises to dispose at their own discretion, including to pledge on bail their products.
A pledge may be not only direct property, but also property rights. This right may be pledged without the consent of the owner, unless a ban on such actions is provided by law or contract.
Pledge agreement
A pledge shall be executed in an agreement concluded in writing.
- subject of pledge;
- assessment of the subject of pledge;
- the size, term and substance of the performance of obligations;
- determination of the party which will have collateral for the duration of the loan.
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 pledged. Also, a pledge contract for movable property is subject to notarial certification, if this property provides the main obligation under the contract. After notarization, a pledge of real estate is subject to state registration, in order to avoid establishing a pledge on the same real estate several times. Along with other real estate transactions, registration of mortgages is regulated by the Law on Registration of Real Estate Rights. Movable property, namely all types of transport, according to paragraph 2 of Art. 40 of the Law on pledge, subject to mandatory registration of pledge.
Any deviation from the requirements of the pledge agreement leads to the recognition of such a contract is not valid.
Termination of Collateral
The pledge is terminated in connection with (Article 352 of the Civil Code of the Russian Federation):
- destruction of the pledged thing;
- termination of a pledged obligation;
- termination of property law;
- public sale of mortgaged property;
- the impossibility of selling collateral;
- transfer of rights to pledged property to the pledge holder;
- transfer of debt on a primary obligation to another person;
- the seizure of the mortgaged property from the mortgagor by the legal owner or in the sanction procedure for the offense or crime.
The mortgagor has the right to demand the return of the property held by the mortgage recipient if the latter grossly violates the obligation to ensure the safety of the mortgaged property.
After the termination of the mortgage pledge, a corresponding note should be entered in the register of registration of mortgage agreements. Termination of the pledge obliges the pledge holder to return the collateral property to its owner.
Current legislation in the field of collateral is aimed at protecting the interests of both parties, both the mortgagor and the mortgagee. Lawyer consultation in civil matters, it will protect itself from unlawful actions on the part of any of the parties to the pledge agreement, as well as protect its property or rights in the event of a dispute.
- surety. Features of the contract and liability of the parties ;
- credit. Features according to law.
Yours faithfully,
Victoria Demidova, lawyer.
Real estate pledge is one of the guarantees for protecting property rights of lenders. It has become widespread in the banking sector of Russia in connection with the provision of obligations under loan agreements and the acquisition of residential and commercial real estate. What is a pledge of real estate, in what cases is it applied, how is a contract drawn up and what risks does the establishment of this type of collateral entail?
What it is
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In addition to activating the development of economic relations, the functions of real estate pledge primarily fulfill 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 lender. At the same time, the pledge does not fulfill the purpose of acquiring property, but serves only as a mechanism for obtaining loan funds to obtain property in possession.
The parties to a pledged relationship are usually three parties: the owner of the property, the lender and the borrower.
A person who has issued funds for the purchase of a home or commercial property does not acquire property rights even if the debtor violates the conditions. He will have the opportunity to claim, taking into account the requirements of the contract on material compensation in the form of payment of fines and penalties for late performance of obligations by the debtor.
A pledge of real estate is understood as a mortgage that applies to both residential and commercial property.
The term is used in two meanings:
- mortgage as a legal relationship to secure a mortgage of real estate when acquiring 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 in which the creditor's rights to the property are established.
Today in Russia there are two fundamental regulatory acts:
- Mortgage law;
- Real Estate Mortgage Act.
The documents indicate the need to comply with legal requirements specified in the loan agreement or employment agreement. Relations with a mortgage may be accompanied by registration of relations on a lease, other permitted use.
The peculiarities of real estate pledges include the possibility of canceling the property of the debtor or returning the property to the creditor in case of default on credit obligations to repay the debt. The collection is carried out at the expense of property pledged or by receiving money from its sale.
In what cases is needed
By law, a mortgage arises in the following cases:
- When purchasing finished or under construction housing at the expense of the bank. The provision comes into force on the basis of paragraph 1 of article 77 of the Law on mortgages from the moment of registration of the fact of establishing fact in Rosreestr.
- When registering a dwelling in the ownership of a soldier under the state program of accumulation of NIS. Relations are governed by the provisions of the law on the accumulative-mortgage housing system for military personnel. Not all Russian banks work with the federal subsidy program, but only the largest of them, like Sberbank of Russia, Rosselskozbank, Bank of Moscow, VTB24, etc.
- By virtue of the conclusion of the contract of participation in construction on the basis of paragraphs. 1-3 article 13 of the Federal Law No. 214 and paragraph 1 of article 58 of the Law on Mortgage.
- When acquiring property in installments or with a deferred condition, it is also possible to establish a pledge of real estate by virtue of and.
Important: in the event that the deferred purchase installment agreement does not specify the phrase that the real estate pledge does not arise by virtue of Art. 488, 489 of the Civil Code of the Russian Federation, Rosreestr specialists will enter into the real estate database information about the occurrence of the mortgage due to the pledge and the establishment of such a burden without fail.
The subject of the mortgage can be any property:
- residential apartment;
- 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 law applies in the following cases:
- annuities;
- pledge of property rights;
- obtaining targeted loan funds;
- construction of real estate under investment contracts or in shared construction;
- upon purchase of housing or commercial facilities on borrowed funds received from a credit institution.
It is also possible the emergence of a mortgage on the basis of a private contract. According to the law, a mortgage is registered by virtue of a direct indication in regulatory enactments, in another case, when a separate application is submitted from the parties to the relationship.
Pledge of real estate with a loan
Mortgaged property may be accepted to receive any money:
- owned by the borrower;
- purchased under a sales contract;
- when participating in an equity relationship.
An important point in concluding an agreement is determining the value of the object transferred for collateral for loan obligations. An analysis of prices for similar real estate in the market is carried out independently by the lender or accredited organization, which is offered by a bank or other financial organization.
A feature of real estate pledge is the absence of the need for a pledge holder to apply for property back to court. Its return occurs if the requirements of the pledge recipient are not automatically upon notification.
On the security of commercial real estate and facilities suitable for living, loans are transferred at a lower interest rate. This is due to the existence of a guarantee of material support 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 the interest rate on the loan.
How to draw up a contract
To draw up an agreement on real estate pledge, the following steps are required:
- Get bank approval for a loan or mortgage.
- Provide all documents for real estate for concluding a contract of sale on loan funds.
- Registration of permission in the bank 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 homeowner, the borrower and the lender. The inclusion of information about the encumbrance of the property with a mortgage or mortgage, the placement of information in a single database of state real estate by applying to the Rosreestr with a corresponding application.
- Removing restrictions on the disposal of real estate is a pledge, after the closure of credit obligations in full when providing confirmation of payment of debt on the basis of the terms of the loan agreement.
Amendments to the real estate pledge agreement are possible only with the approval of all parties to the relationship when drawing up additional agreements to the main act and their subsequent registration with the Rosreestr, after which they become valid and enter into force.
The contract is made in 4 identical copies for submission to the Rosreestr archive, for the owner of the real estate - seller, borrower - buyer and creditor - bank. All of them are transferred to the registration authority in originals, which are returned to the parties after a legal examination and placement of information in the register of real estate transactions.
The text of the contract must contain information:
- a detailed description of the property - location address, cadastral number, layout characteristics;
- an indication of title documents on the basis of which ownership of the seller is registered, Rosreestr certificate of ownership or extract from the USRN;
- information about the mortgagor and mortgagee, number and date of conclusion of the loan agreement;
- term for repayment of debt under a loan or mortgage agreement, termination of obligations;
- assessment of monetary claims against the debtor - the loan amount prescribed in the loan agreement with interest and other charges.
Possible risks
In practice, the parties to collateral relations face the following nuances:
- you must definitely check the property on bail before issuing a loan, you can do this by submitting an application for the issuance of an extract from the USRN for any encumbrances and restrictions regarding the property;
- when registering a pledge of residential property, it is mandatory to check the absence of debts for utility bills and registered per square meter, this is especially important for the registration of minor children, it is quite difficult to evict them without providing living space to legal representatives and often only in court;
- the mortgage is accompanied by a check of title documents for real estate and the absence of restrictions on the disposal of property already imposed, such as arrests on the basis of a court decision or a bailiff, pledge of other financial obligations - loan agreements, mortgage against collateral, dispute regarding the property;
- when registering property as a pledge, it is advisable to check the history of the real estate - how many times it was the subject of the transfer of ownership of transactions, during which periods - the smallest number of them ensures that there are no claims from former owners or potential owners, such as citizens who did not accept the property on time;
- difficulties arise when mortgaging real estate with illegal redevelopment - it must first be agreed with the authorized state bodies, in the practice of the courts there is an inspection on the fact of the property being pledged, the cadastral and technical passports are also checked with the real state of the apartment, so this fact should not be hidden It seems possible for the owners of objects.
Video: Real estate collateral
M.L. Pashkov,
lawyer
The current civil law defines a pledge as a way of securing obligations, by virtue of which a creditor under a secured obligation (pledge holder) has the right, in case of failure by the debtor to fulfill this obligation, to receive satisfaction from the value of the pledged property mainly to other creditors of the person to whom this property belongs (pledger), for exemptions established by law (Article 334 of the Civil Code of the Russian Federation, hereinafter referred to as the Civil Code of the Russian Federation). Like any other way of securing an obligation (excluding a bank guarantee), the pledge is in the nature 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 05.29.92 N 2872-1 "On pledge" a pledge may provide for a valid claim, in particular, arising from a loan agreement, including a bank loan, purchase and sale contracts, property leases, carriage of goods and other contracts. The subject of pledge may be things, securities, other property and property rights. The subject of the pledge may not be claims of a personal nature, as well as other requirements, the pledge of which is prohibited by law.
The following brief conclusions can be drawn from the provisions of the current legislation.
1. A pledge arises on the basis of contracts. In accordance with Art. 154 of the Civil Code of the Russian Federation, the contract is a bilateral transaction. Article 420 of the Civil Code of the Russian Federation gives the concept of a contract as an agreement of two or more persons on the establishment, amendment or termination of civil rights and obligations. Thus, a pledge may be established in order to secure an obligation by a party under a contract, that is, on a specific transaction. A pledge cannot be secured by an obligation of the parties on a bill of exchange.
2. The legislator does not limit the range of pledged items, however, indicating that the pledged item cannot be items taken out of circulation and claims inextricably linked to the identity 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.
The subject of pledge may also be real estate.
In Russia, mortgage issues are regulated by the Civil Code of the Russian Federation (Ch. 23 paragraph 3), Federal Law of 16.07.98 N 102-ФЗ "On Mortgage" (real estate pledge) (hereinafter referred to as the Law on Mortgage), departmental acts, judicial arbitration practice .
Mortgage in modern Russian law is called a pledge of real estate.
In accordance with the Law on Mortgages, the subject of the mortgage are:
1) land plots, with the exception of land plots that are in state or municipal ownership, as well as agricultural land from the lands of agricultural organizations, peasant (farmer) farms and field land plots of personal subsidiary plots;
2) enterprises, as well as buildings, structures and other real estate used in entrepreneurial activity;
3) residential buildings, apartments and parts of residential buildings and apartments, consisting of one or more isolated rooms;
4) cottages, garden houses, garages and other structures for consumer use;
5) aircraft and sea vessels, inland navigation vessels and space objects.
A mortgage is established on the basis of an agreement between the mortgagor and the mortgagee. Mortgages are characterized by a number of features.
1. The pledger may be the owner of the property or a person owning property on the basis of the right of economic management. Moreover, it should be noted that the mortgagor can be not only the debtor for the main obligation. The law provides for the possibility for a third party to be a pledger under a mortgage agreement. The main condition for the mortgagor - the property must be on his right of ownership or economic management. When considering the right of a person who has property under the right of economic management, to provide it as a mortgage subject, it must be borne in mind that in accordance with paragraph 2 of Art. 295 of the Civil Code of the Russian Federation, a state-owned enterprise is not entitled to pledge immovable property belonging to it by right of ownership without the consent of the owner of this property. As you know, property is secured by the right of economic management only to state or municipal unitary enterprises (paragraph 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 Decree of the Supreme Council of the Russian Federation of December 27, 91 N 3020-1 "On the delimitation of state property in the Russian Federation", the disposal of state property is vested in the Government of the Russian Federation, which is entitled to delegate to ministries and departments a number of powers in respect of federal property, including the conclusion of pledge agreements property.
According to Art. 131 of the Civil Code of the Russian Federation, the right of ownership and other property rights to immovables (in accordance with Article 130 of the Civil Code of the Russian Federation, immovables, in particular, buildings and structures) are subject to state registration in the unified state register by the justice authorities. The body that carries out state registration of rights to real estate and transactions with it, certifies the registration by issuing a document on the registered right or transaction, or inscribes it on the document to be registered. According to Art. 14 of the Federal Law of July 21, 1997 N 122-ФЗ "On State Registration of Rights to Real Estate and Transactions therewith", a document certifying the occurrence and amendment of the right to real estate is a certificate of state registration of rights.
If the mortgagor is not the owner of the property or, being the owner of this property on the basis of economic management, has not received the consent of the owner, the mortgage agreement may be invalidated due to non-compliance of its conditions with the requirements of the law.
An example from arbitration practice: The Russian Commercial and Industrial Commercial Bank appealed to the Arbitration Court of St. Petersburg and the Leningrad Region with a request to force PTO Tsarskoye Selo LLP to conclude a real estate pledge agreement on the basis of a preliminary agreement. By a decision of July 17, 1995, claims were denied. At the same time, the court proceeded from the fact that, at the time of the decision, PTO Tsarskoye Selo LLP did not have ownership of the disputed property. In addition, in connection with the maturity of the loan, the pledge agreement would not be 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 prescribed 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 July 21, 1997 N 122-ФЗ "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, a mortgage of a building or structure is allowed only with a simultaneous mortgage under the same contract of the land plot on which this building or structure is located, or a part of this plot that functionally provides the mortgaged property, or the right to lease this land plot or its corresponding part belonging to the pledger.
This condition caused a lot of controversy; for example, what to do when the rights to a land plot are not formalized. Judicial practice has formulated the following approach to this problem.
If the mortgagor of the building or structure is not the owner or tenant of the land, the mortgage agreement cannot be deemed to be 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 mortgagor, and when foreclosing on a building or construction, the rights of the buyer to the land should be determined on the basis of Art. 37 of the Land Code of the Russian Federation, according to which when transferring ownership of a building, construction or when transferring it to other legal entities or citizens, along with these objects, the right to use land is transferred.
Section 69 of the Law on Mortgages confirms the conclusion reached during law enforcement practice.
The above rule shall be applied if the person acting as the mortgagor of the building or structure is the owner or tenant of the respective land plot.