What is a pledge by force of law? Real estate pledge

Deputy Head of the Department of Legal Support of Credit and Investment Activities of Alfa Bank

Grounds for the emergence of the right of pledge, part 1

Bail by force of law. 1

Pledge by virtue of a contract. eleven

Conditions on the subject of collateral. 14

Conditions on the valuation of the collateral. 17

Conditions on the essence, size and deadline for fulfillment of the main obligation. 22

According to paragraph 3 of Art. 334 of the Civil Code of the Russian Federation, a pledge arises by virtue of an agreement; the law also arises on the basis of the law upon the occurrence of the circumstances specified in it, if the law stipulates what property and to ensure the fulfillment of what obligation is recognized as being in the law. The rules of the Civil Code of the Russian Federation on a pledge arising by virtue of an agreement are correspondingly applied to a pledge arising on the basis of law, unless otherwise provided by law.

Bail by force of law

There are relatively few cases when the law recognizes property as pledged to ensure the proper fulfillment of the corresponding primary obligation. Such cases are established in the Civil Code of the Russian Federation, the Law of the Russian Federation “On Pledge”, the Federal Law “On Mortgage (Pledge of Real Estate)”, the Federal Law “On Participation in Shared Construction of Apartment Buildings and Other Real Estate...”, the Federal Law “On the Privatization of State and Municipal property”, Code of Merchant Shipping of the Russian Federation, namely:

unless otherwise provided by the purchase and sale agreement, from the moment the goods are transferred to the buyer and until payment, goods sold on credit are recognized as being pledged by the seller to ensure the buyer fulfills his obligation to pay for the goods (Clause 5 of Article 488 of the Civil Code of the Russian Federation).

Since, on the basis of clause 3 of Art. 489 of the Civil Code of the Russian Federation, the provisions of clause 5 of Art. 488 of the Civil Code of the Russian Federation, then, unless otherwise provided by the purchase and sale agreement, from the moment of transfer of the goods to the buyer and until payment, goods sold on credit with the condition of payment in installments are recognized as being pledged by the seller to ensure the fulfillment by the buyer of his obligation to pay for the goods .

Also clause 6 of Art. 35 of the Federal Law “On the Privatization of State and Municipal Property” provides that from the moment of transfer to the buyer of state or municipal property purchased in installments in the order of privatization and until the moment of full payment, the specified property is recognized as being pledged to ensure the buyer’s fulfillment of his obligation to pay for the acquired state property. or municipal property;

when transferring a plot of land or other real estate for payment of rent, the buyer of the rent, as security for the obligation of the rent payer, acquires the right of pledge over this property (clause 1 of Article 587 of the Civil Code of the Russian Federation); unless otherwise provided by federal law or an agreement, a land plot acquired using credit funds from a bank or other credit organization or funds from a targeted loan provided by another legal entity for the acquisition of this land plot is considered to be pledged from the moment of state registration of the borrower's ownership of this land plot. land plot. If the corresponding land plot is leased, a mortgage arises by force of law for the right to lease, unless otherwise established by federal law or the lease agreement (Article 64.1 of the Federal Law “On Mortgage (Pledge of Real Estate)”, hereinafter referred to as the Law on Mortgage); unless otherwise provided by federal law or an agreement, a land plot on which, using credit funds from a bank or other credit organization or funds from a targeted loan provided by another legal entity, a building or structure has been acquired, constructed or is under construction, or the right to lease such a land plot is considered to be in pledge from the moment of state registration of ownership of an acquired, constructed or under construction building or structure or from the moment the body carrying out state registration of rights receives notification of the mortgagor and pledgee about the conclusion of a loan agreement (loan agreement with the condition of intended use) with the attachment of the specified agreement ( Art. 64.2 of the mortgage law); unless otherwise provided by federal law or an agreement, a residential house or apartment acquired or built in whole or in part using credit funds from a bank or other credit organization or funds from a targeted loan provided by another legal entity for the purchase or construction of a residential house or apartment are considered to be in pledge from the moment of state registration of the borrower’s ownership of a residential house or apartment (Article 77 of the mortgage law); To ensure the fulfillment of the developer’s obligations under the contract, from the moment of state registration of the contract, the participants in shared construction are considered to have a land plot provided for the construction (creation) of an apartment building and (or) other real estate object, which will include shared construction objects, as collateral, owned by the developer on the right of ownership, or the right to lease a specified land plot and an apartment building and (or) other real estate object being built (created) on this land plot (clause 1 tbsp. 13 of the Federal Law “On participation in shared construction of apartment buildings and other real estate…”); upon state registration of the developer's ownership of an unfinished construction object, such an unfinished construction object is considered to be pledged to participants in shared construction from the moment of state registration of the developer's ownership of such an object (Clause 2, Article 13 of the Federal Law “On Participation in Shared Construction of Apartment Buildings and other real estate..."); upon state registration of the developer’s ownership of residential and (or) non-residential premises included in an apartment building and (or) other real estate, the construction (creation) of which was carried out with the involvement of funds from participants in shared construction, these premises are considered to be pledged to the participants shared construction from the moment of state registration of the developer’s ownership of such premises (Clause 3, Article 13 of the Federal Law “On participation in shared construction of apartment buildings and other real estate…”); when pledging rights (claims), if the debtor of the pledgor fulfills his obligation before the pledgor fulfills the obligation secured by the pledge, everything received by the pledgor becomes the subject of the pledge (Clause 1 of Article 58 of the Law of the Russian Federation “On Pledge”); maritime lien on the requirements for the shipowner specified in Art. 367 of the Merchant Shipping Code of the Russian Federation.

For a pledge arising by force of law, no agreement between the pledgor and the pledgee is required; the basis for the emergence of the right of pledge is the law itself and the circumstances with which the law binds the parties with a pledge relationship.

In this case, the parties may, by agreement, exclude the occurrence of a pledge arising by force of law in cases where the law provides such a right. According to paragraph 4 of Art. 421 of the Civil Code of the Russian Federation, in cases where the condition of the contract is provided for by a norm that is applied insofar as the agreement of the parties does not establish otherwise (dispositive norm), the parties may, by their agreement, exclude its application or establish a condition different from that provided for in it. The parties to an agreement for the purchase and sale of goods on credit, including with the condition of installment payment (dispositive norm of clause 4 of Article 488 of the Civil Code of the Russian Federation), as well as the parties to a credit agreement or a targeted loan for the purchase of a land plot or building, can exclude the pledge in their relations (buildings, structures), residential building, apartment or for their construction (dispositive norms of Articles 64.1, 64.2, 77 of the Federal Mortgage Law. In this case, the parties may directly stipulate that the seller (creditor, lender) has a right of pledge on the relevant property ) does not apply.

The parties can at any time transform a pledge created by force of law into a contractual pledge by concluding an appropriate pledge agreement. In this case, from the moment the pledge agreement is concluded, the pledge is considered to arise from the agreement.

An interesting feature is that a pledge of real estate that has arisen by force of law (the right to lease real estate that requires state registration, with the exception of enterprises as property complexes) can be certified by the issuance by the mortgagor of the corresponding mortgage (Clause 1, Article 13 of the Federal Law “On Mortgage” (mortgage of real estate)"). In this case, the pledge is not considered to have arisen from the contract (since there is no contract in this case), but continues to be considered a pledge that has arisen by force of law.

When a pledge arises by force of law in relation to real estate, its state registration is carried out in the system of the Unified State Register of Rights to Real Estate and Transactions with It. According to the general requirements of paragraph 1 of Art. 131 of the Civil Code of the Russian Federation and the special norm of paragraph 2 of Art. 20 of the Federal Law on Mortgage, mortgages are subject to state registration by force of law.

In this sense, it is not particularly difficult for the registering authority to identify a mortgage that has arisen by force of law during the state registration of agreements for participation in the shared construction of an apartment building or other real estate. Simultaneously with the state registration of the agreement, the registering authority registers the encumbrance in relation to the land plot owned by the developer on which construction is being carried out, or the right to lease such a plot by mortgage in favor of the construction participant. When state registration of the developer’s ownership rights to an unfinished construction project or to premises in a finished (completed construction) real estate project, the registering authority also records the fact that they are encumbered with a mortgage in favor of those registered in the Unified State Register of Construction Participants. Special difficulties should not arise during the state registration of the pledge by virtue of clause 1 of Art. 587 of the Civil Code of the Russian Federation in favor of the annuity buyer.

It’s a different matter when it comes to pledges arising under Art. 64.1, 64.2, 77 of the mortgage law, when the encumbered property was purchased or built with borrowed funds. The registering authority cannot always, on the basis of the documents presented during state registration of the emergence (transfer to the pledgor) of the right of ownership of real estate, establish the specified circumstances with which the emergence of the right of pledge is associated. If the registration authority has not found any grounds for state registration of the mortgage by force of law, the mortgagee has the right to demand such registration by submitting an application to the registration authority.

This kind of legal situation is reflected in arbitration practice (clause 9 of the Review of the practice of consideration by arbitration courts of disputes related to a mortgage agreement, information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation).

The arbitration court recognized the registration authority's evasion from accepting documents for registration of a legal mortgage as unlawful. In accordance with the rules of paragraph 2 of Art. 20 of the Law on Mortgage, a mortgage is by force of law subject to state registration, which is carried out by the registering authority without submitting a separate application and without paying for state registration. Since, in violation of paragraph two of paragraph 2 of Art. 20 the registering authority did not carry out state registration of the mortgage by force of law at the time of registration of the joint stock company's ownership of the acquired non-residential premises, the bank, as the mortgage holder, by force of law had the right to apply to the registering authority for state registration.

Difficulties in identifying the emerging right of pledge are also possible when registering the transfer of ownership of real estate acquired under a purchase and sale agreement on credit (including with the condition of payment in installments). For example, it is sometimes difficult for the registration authority to determine the specific terms of a payment transaction and to find out whether real estate has been paid for at the time of state registration of the transfer of ownership or not. From this point of view, the parties are recommended to more accurately indicate in the purchase and sale agreement for the right of pledge that they conclude, the conditions that are associated with its occurrence.

It should be noted that a pledge arising by force of law (clause 5 of Article 488, clause 3 of Article 489 of the Civil Code of the Russian Federation) in relation to goods sold under a purchase and sale agreement on credit (including with the condition of installment payment ), has extremely controversial practice.

The purchase and sale agreement is so widely used in civil transactions that sometimes doubts arise whether such a pledge “works” in all cases. After all, the subject of purchase and sale can be a variety of things, and by virtue of clause 4 of Art. 454 of the Civil Code of the Russian Federation – and property rights. If the thing is not individually defined, then the parties to the purchase and sale agreement may limit themselves to indicating the generic characteristics of the item of purchase and sale, without identifying it in such a way that it can be distinguished from other things owned by the buyer. This is especially true for property that can only be determined by some measure (weight, volume, etc.). It can be extremely difficult, and sometimes impossible, to establish what kind of property we are talking about (which is still in the buyer’s possession, or which he used, or transferred to another person). In these cases, foreclosure on the property, which the seller considers to have transferred to the buyer and refers to his pledge, may be refused due to the absence of signs identifying the item of sale. In addition, by virtue of Art. 223 of the Civil Code of the Russian Federation, the parties to a purchase and sale agreement may agree on the transfer of ownership of the goods not at the time of transfer of the goods, but at some other moment after the transfer of the goods (for example, at the time of payment). In this case, the right of pledge also does not arise. But the most important role in the emergence of the right of pledge is the will of the parties, aimed at establishing credit relations under the terms of the purchase and sale agreement. As a result, arbitrations involving seller claims based on statutory liens are highly case-by-case and depend entirely on the specific circumstances of the case.

Example:

In the decision of the Federal Arbitration Court of the North-Western District dated 01/01/2001 in case No. A/2007 on the collection of debt under a contract for the sale and purchase of fish processing equipment and the foreclosure of sold equipment, the judicial panel supported the judicial acts of lower courts on the collection of debt for payment for equipment and the refusal to file a penalty against him. As follows from the case materials, under the purchase and sale agreement, the seller transfers to the buyer the ownership of used and unusable equipment according to the list attached to the agreement, and the buyer accepts the specified equipment and undertakes to pay the appropriate price for it. Under the terms of the agreement, the transfer of equipment by the seller and acceptance of the equipment by the buyer by the time the agreement was concluded was actually carried out; the parties stipulated that the agreement has the force of a transfer deed. The terms of the agreement also stipulate that the buyer's monetary obligation is subject to payment in the appropriate amount by bank transfer by transfer to the seller's bank account within three days after signing the agreement. Based on these terms of the transaction, the courts did not consider the seller to have the right of pledge to which he refers. According to the ruling of the Supreme Arbitration Court of the Russian Federation /08, there were no violations of substantive law by the courts, and the transfer of the case materials to the Presidium of the Supreme Arbitration Court of the Russian Federation was refused.

In accordance with the Resolution of the Federal Arbitration Court of the Far Eastern District dated January 1, 2001 in case No. F03-A73/06-1/4956, the court, having established the circumstances associated with the buyer paying less than 50% of the cost of real estate, indicating a significant violation by the buyer of the terms of the purchase agreement - sale, came to the conclusion that there were grounds in accordance with Article 450 of the Civil Code of the Russian Federation to satisfy the plaintiff’s demands for termination of the contract. At the same time, the court applied the provisions of paragraph 5 of Art. to the controversial legal relations. 488 of the Civil Code of the Russian Federation, according to which, when the goods are transferred to the buyer before payment, the sold goods are recognized as being pledged to the seller to ensure the buyer fulfills his obligation to pay for the goods. The court also indicated that, in accordance with the provisions of the Federal Law “On Insolvency (Bankruptcy),” at the stage of opening bankruptcy proceedings against the plaintiff, the execution of transactions not related to the repayment of the debtor’s obligations to bankruptcy creditors is not provided. According to the decision of the Supreme Arbitration Court of the Russian Federation /07, no grounds for reviewing the case by way of supervisory review were established; the judicial acts that took place remained unchanged.

Perhaps more controversial in practice is the pledge established by paragraph 1 of Art. 58 Law of the Russian Federation “On Pledge”. We are talking about a situation where a right (claim) to the debtor is transferred as collateral, which is fulfilled by him, the debtor, during the period of validity of the collateral. The law states that everything received by the pledgor becomes the subject of a pledge. Thus, the initial pledge of the right (claim) to the debtor, arising from the pledge agreement, is transformed into a pledge (by force of law) in relation to the property received by the pledgor under this right (claim).

The effect of this legal norm is disputed primarily by the fact that the Law of the Russian Federation “On Pledge” was adopted before the entry into force of the Civil Code of the Russian Federation, and therefore, due to the requirements of Art. 4 of the Federal Law of 01.01.2001 “On the entry into force of part one of the Civil Code of the Russian Federation” must be valid in the part that does not contradict it. The Civil Code of the Russian Federation itself, when regulating the pledge of property rights, did not provide for a similar legal norm, but retained the institution of pledge of property that the pledgor will acquire in the future (clause 6 of Article 340 of the Civil Code of the Russian Federation). For these reasons, the positive application of the provisions of paragraph 1 of Art. 58 of the Law of the Russian Federation “On Pledge” is practically not found in judicial and arbitration practice, and is completely absent from the acts of the Presidium of the Supreme Arbitration Court of the Russian Federation.

It should be noted that the pledge of property that the pledgor will acquire in the future and the right of pledge to the property received under the pledged right (claim) have significant differences. First of all, the pledge of property that the mortgagor will acquire in the future has a wider application. For example, the subject of pledge in the sense of clause 6 of Art. 340 of the Civil Code of the Russian Federation can become a thing manufactured not only by the contractor on the instructions of the customer (mortgagor), but also by the pledgor himself. While the emergence of the right of pledge by virtue of Art. 58 of the Law of the Russian Federation “On Pledge” for a manufactured item can arise only in a contract transaction when the rights of claim of the customer against the contractor were the subject of the initial pledge. And, if the pledge of a future thing does not arise until the fact of its acquisition, when pledging rights (claims), the pledge extends to the pledged right (claim), and therefore, before its execution by the debtor of the pledgor, it can be foreclosed on in the usual manner for a pledge.

The legal position is that paragraph 1 of Art. 58 of the Law of the Russian Federation “On Pledge” contradicts the Civil Code of the Russian Federation, in our opinion, is not entirely justified. In fact, it boils down to the fact that the provisions of the law containing cases of the emergence of a pledge, by virtue of the very fact of their adoption before the Civil Code of the Russian Federation, should be declared invalid. At the same time, this conclusion does not follow from the content of Art. 4 of the Federal Law of 01.01.2001 “On the entry into force of part one of the Civil Code of the Russian Federation”, nor from its meaning.

The Civil Code of the Russian Federation itself provides for the possibility of a pledge arising by force of law. According to paragraph 3 of Article 334 of the Civil Code of the Russian Federation, a pledge arises by force of law when circumstances arise in it, if the law stipulates what property and to ensure the fulfillment of what obligation is recognized as being pledged. From paragraph 1 of Art. 58 of the Law of the Russian Federation “On Pledge” entails all these conditions that are required by the Civil Code of the Russian Federation. Therefore, the right of pledge over the pledged right (claim) received by the pledgor, established in paragraph 1 of Art. 58 of the Law of the Russian Federation “On Pledge” should be considered current.

The use of such collateral is again complicated by the problem of identifying the subject of collateral and the property of its realizability. In most cases, the pledgor transfers the rights of a monetary claim to the pledgee as collateral, and since money, being a means of payment, cannot be the subject of collateral, the funds paid by the debtor of the mortgagor are not received as collateral. According to paragraph 2 of Art. 58 of the Law of the Russian Federation “On Pledge”, when receiving sums of money from its debtor to fulfill an obligation, the pledgor is obliged, at the request of the pledgee, to transfer the corresponding amounts to fulfill the obligation secured by the pledge, unless otherwise established by the pledge agreement. Application of paragraph 1 of Art. 58 of the Law of the Russian Federation “On Pledge” becomes relevant if the right (claim) to the debtor to receive goods or results of work performed is initially pledged. And since judicial and arbitration practice on such collateral has not found positive application, this collateral must be used with extreme caution in cases where its use does not entail significant legal risks for the mortgagee.

A maritime mortgage must be distinguished from a maritime mortgage (mortgage on a marine vessel). If when mortgaging a sea vessel we are talking about a registered pledge, mainly by agreement of the parties to ensure the fulfillment of civil obligations, then the maritime lien is a specific institution of international maritime law implemented in the Russian legal system.

The Russian Federation acceded to the International Convention on Maritime Liens and Mortgages of 1993 (Federal Law of 01/01/2001). Based on the provisions of this convention, the rules on maritime liens were reflected in the Merchant Shipping Code of the Russian Federation. Article 367 of this Code establishes that a maritime lien on a ship is secured requirements for the shipowner in relation to:

Deadline for fulfillment of the main obligation determined by the corresponding calendar date determined by the debtor and creditor in the transaction they concluded, or by the expiration of a period of time indicated by them, which is calculated in years, months, weeks, days or hours, or by indicating an event that must inevitably occur (Article 190 of the Civil Code of the Russian Federation) .

There may be cases when a transaction containing the terms of the main monetary claim does not contain the deadlines for their fulfillment by the debtor. According to paragraph 2 of Art. 314 of the Civil Code of the Russian Federation, in cases where the obligation does not provide for a deadline for its fulfillment and does not contain conditions allowing to determine this period, it must be fulfilled within a reasonable time after the obligation arises. An obligation that is not fulfilled within a reasonable time, as well as an obligation whose performance period is determined by the moment of demand, the debtor is obliged to fulfill within seven days from the date the creditor submits a demand for its execution, unless the obligation to perform at another time follows from the law, other legal acts, terms of the obligation, business customs or the essence of the obligation.

Therefore, the absence in the transaction concluded between the debtor and the creditor of conditions on the deadline for fulfilling the main monetary claim does not in itself indicate the need to specify it in the pledge agreement; in this case, the deadline for fulfilling the main obligation is regulated by clause 2 of Art. 314 Civil Code of the Russian Federation. In order to protect the interests of a third party pledgor who is not a debtor under the main monetary claim (principal obligation), it is recommended that the pledge agreement indicate the validity period of the pledge agreement or another period limiting the time limit of the pledgee’s right to foreclose on the pledged property. If the deadline for fulfillment of the main obligation is determined by the moment of demand, then indicating the validity period of the pledge agreement seems necessary.

If a transaction between a debtor and a creditor is concluded under a condition (Article 157 of the Civil Code of the Russian Federation) and this is of significant importance in determining the size and (or) deadline for fulfilling the main monetary obligation, then these conditions must be indicated.

If the collateral secures several basic monetary claims, then each of these claims is subject to description.

Both existing and possible future monetary claims against the debtor are subject to description, which, by agreement between the parties to the pledge agreement, are included in the main monetary claims secured by the pledge.

When securing a principal monetary obligation that is subject to execution in installments as collateral, the parties to the collateral agreement must indicate the timing (frequency) of the relevant payments and their amounts or the conditions allowing them to be determined.

For example, it is becoming important for banks to provide collateral for credit transactions, in which, in addition to the obligation to repay the loan itself, the borrower’s obligation to pay interest accrued on the loan amount is provided. Interest for using a loan relate to the main monetary requirements, the terms of payment of which are subject to reflection in the pledge agreement. Interest is a payment for the provision of a loan service by the bank; they give the credit transaction a compensatory nature; by their nature, they are the price of the loan agreement. This was confirmed in judicial practice. According to paragraph 15 of the joint resolution of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation /14 “On the practice of applying the provisions of the Civil Code of the Russian Federation on interest for the use of other people’s funds”, when considering disputes related to the execution of a loan agreement, as well as the execution by the borrower obligations to repay a bank loan, it should be taken into account that the interest paid by the borrower on the loan amount in the amount and in the manner specified in clause 1 of Art. 809 of the Civil Code of the Russian Federation, are a payment for the use of funds and are subject to payment by the debtor according to the rules on the main monetary debt.

Interest for using a loan requires a description in the collateral agreement also because they are added to the loan amount and are considered inextricably linked until the moment when the accrued interest for the expired period of using the loan has not become an obligation to pay them and, thus, they will not have the sign of an independent monetary claim. As a rule, when registering collateral, we are talking about interest for using the loan as a future requirement. Therefore, being in legal connection with the body of the loan, they are subject to reflection in the pledge agreement and be part of the claims secured by the pledge. The Civil Code of the Russian Federation does not specifically regulate the conditions for interest on the use of a loan in collateral legal relations. At the same time, they are reflected in the Federal Law “On Mortgage (Pledge of Real Estate)” in relation to a special type of collateral - mortgage. In paragraph 1 of Art. 3 of this Federal Law establishes that a mortgage established to secure the execution of a credit agreement or loan agreement with the condition of payment of interest also ensures payment to the creditor (lender) of the interest due to him for using the loan (borrowed funds).

Example:

In the decision of the Federal Arbitration Court of the Volga District dated 01.01.2001 /07, he considered, in cassation proceedings, the materials of the case on the claim to recognize the mortgage agreement as an unconcluded transaction. In accordance with the loan agreement, the fulfillment of obligations under which was secured by the mortgage agreement, the borrower undertakes to repay not only the loan amount, but also pay monthly interest for using this loan. The timing (frequency) of interest payments is regulated in the relevant clauses of the loan agreement. However, this information was not included in the mortgage agreement concluded with the third party mortgagor. Based on this, the cassation court confirmed the legality and validity of the judicial act of the appellate court recognizing the mortgage agreement as not concluded.

Refusing to review the case materials by way of supervision, the panel of judges of the Supreme Arbitration Court of the Russian Federation indicated that, by virtue of clause 1 of Art. 9 of the Federal Law “On Mortgage (Pledge of Real Estate)”, the mortgage agreement must indicate the subject of the mortgage, its valuation, essence, size and deadline for fulfilling the obligation secured by the mortgage.

According to paragraph 5 of this article, if the obligation secured by a mortgage is subject to execution in parts, the mortgage agreement must indicate the terms (frequency) of the relevant payments and their amounts or conditions allowing to determine these amounts.

In accordance with paragraph 1 of Art. 3 of the said law, a mortgage ensures payment to the mortgagee of the principal amount of debt under a loan agreement or other obligation secured by a mortgage in full or in part provided for by the mortgage agreement. A mortgage established to secure the execution of a credit agreement or a loan agreement with the condition of paying interest also ensures payment to the creditor (lender) of the interest due to him for using the loan (borrowed funds). The loan agreement establishes that the borrower undertakes to repay not only the loan amount, but also pay monthly interest for using this loan. The timing (frequency) of interest payments is regulated in the loan agreement. Recognizing the mortgage agreement as not concluded, the courts proceeded from the fact that this agreement did not indicate the timing of payment of interest under the loan agreement, that is, the condition on the deadline for fulfilling the main obligation was not agreed upon. There were no violations of uniformity in the application and interpretation of legal norms by the courts (determination of the Supreme Arbitration Court of the Russian Federation /08).

In another arbitration case considered by the Presidium of the Supreme Arbitration Court of the Russian Federation (resolution /02), the mortgage agreement was not recognized as a whole not concluded due to the absence of a clause in the agreement on the amount of the interest rate for using the loan.

The open joint-stock company “Bank “Zenit”” filed a claim with the Moscow Arbitration Court against the closed joint-stock company “Andronik” to foreclose on real estate - a building that is the subject of collateral under a mortgage agreement dated 01.01.2001 N 3s-5212.

The borrower, the open joint-stock company Commercial Bank Infobank, and the tenant of the disputed building, the limited liability company Commercial Bank Union-Trade, were involved as third parties in the case.

By decision dated January 1, 2001, the claims were denied. The court recognized the mortgage agreement as not concluded, since it lacks the procedure and other necessary conditions for determining the amount of the obligation secured by the mortgage, and there is no data on determining the amount of the obligation in the future. By the decision of the appellate court dated January 1, 2001, the decision was left unchanged for the same reasons.

The Federal Arbitration Court of the Moscow District, by its resolution dated January 1, 2001, upheld these judicial acts. At the same time, the cassation court additionally came to the conclusion that the legislation does not provide for the possibility of securing with a mortgage an obligation that will arise in the future.

These judicial acts were met with a protest from the Deputy Chairman of the Supreme Arbitration Court of the Russian Federation, which was satisfied by the Presidium on the following grounds.

As was evident from the case materials, an agreement dated January 1, 2001 N 03-075/2000 on the provision of loans was concluded between Zenit Bank and Infobank Bank. This transaction is consensual, since the lender’s obligations to issue loans arose from the moment the agreement was concluded. In the agreement, the parties stipulated the method and procedure for fulfilling the obligation, namely: on the basis of written statements from the borrower transmitted to the lender via the SWIFT system. The total amount of funds provided to the borrower must not exceed 1 million US dollars. The lender's obligations to provide loans terminate 12 months from the date of the first loan.

To secure the loan agreement, Zenit Bank entered into a mortgage agreement dated January 1, 2001 No. 3c-5212. The subject of the mortgage was a building owned by the mortgagor and the right to lease the land plot underneath it. The transaction with the rights to lease the land plot was agreed upon with the Moscow Land Committee.

At the request of the borrower, transmitted via the SWIFT system, Zenit Bank provided Infobank with a loan in the amount of 28 million rubles for a period from April 17 to April 18, 2001, with interest accrued on the principal amount in the amount of 10% per annum and a penalty of in the amount of 0.25% if the loan is not repaid on time. The debt amount was not repaid by the due date.

The fact of issuance of the loan and its non-repayment by the borrower is confirmed. Since September 21, 2001, bankruptcy proceedings have been initiated against Infobank Bank.

Since the obligations to pay the principal, interest and penalties were not fulfilled by the borrower, the creditor filed a present claim against the mortgagor to foreclose on the pledged property in accordance with Art. 334 Civil Code of the Russian Federation.

The courts, recognizing the mortgage agreement as not concluded, did not take into account the following. By virtue of paragraph 1 of Art. 339 of the Civil Code of the Russian Federation, the essential terms of the pledge agreement are the subject of the pledge and its valuation, the essence, size and period of fulfillment of the obligation secured by the pledge, as well as the condition regarding which of the parties (the pledgor or the pledgee) has the pledged property. If the parties do not reach an agreement on at least one of these conditions or the corresponding condition is absent in the agreement, the pledge agreement cannot be considered concluded.

The mortgage agreement defines the collateral and provides its valuation. Section 4 of the agreement concerns the essence, size and period of performance of the obligation secured by the mortgage.

Thus, according to clause 4.1.1, the mortgage ensures that the borrower repays the principal loan amount in the amount of 1 million US dollars; the loan repayment date has been set - 12 months from the date of the first loan; the amount of the penalty for late loan repayment has been determined. Also, the mortgagor and the mortgagee provided that the mortgage ensures the payment of interest on the loan amount at a rate agreed upon by the lender and the borrower in accordance with the terms of the loan agreement, and compensation for losses caused by non-fulfillment or improper fulfillment of obligations under the loan agreement.

The absence of a specific interest rate for the use of a loan in the agreement on the provision of loans and, accordingly, in the mortgage agreement could not lead to the recognition of the latter transaction as not concluded as a whole.

Since the courts did not fully examine the circumstances relevant to the case and incorrectly applied the rules of substantive law, all of these judicial acts were canceled, and the case was sent for a new trial to the court of first instance.

The legal position on the above case formulated by the Presidium of the Supreme Arbitration Court of the Russian Federation appears to be quite balanced and justified. Interest on the use of a loan is already an independent monetary claim and, when foreclosure on the pledged property, can be separated from the body of the loan. In principle, the mortgage agreement can be considered to secure the remaining monetary claims of the mortgagee, without taking into account interest for using the loan. Taking into account the circumstances of the case, the recognition of the mortgage agreement as not concluded as a whole was considered illegal.

Read in the next issue:

Conditions on penalties

Interest on the use of other people's funds

Discrepancies in the description of the terms of the main obligation

An indication of which party has the pledged property

Requirements for drawing up a pledge agreement

Cases where a notarial form of a pledge agreement is required

The goods are considered sold on credit in the case where the purchase and sale agreement provides for payment for the goods after a certain time after its transfer to the buyer (clause 1 of Article 488 of the Civil Code of the Russian Federation).

Clause 2 art. 348 Civil Code of the Russian Federation, clause 3, art. 54.1 of the Federal Law “On Mortgage (Pledge of Real Estate)”

Clause 7 art. 28.1 of the Law of the Russian Federation “On Pledge”

Clause 2 art. 345 Civil Code of the Russian Federation

Clause 6 of the Review of the practice of considering disputes related to the application by arbitration courts of the norms of the Civil Code of the Russian Federation on pledge, information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation

Name of the transaction, date of conclusion, number and other identifying features. Federal Law “On Mortgage (Pledge of Real Estate)” in Art. 9 also requires that the mortgage agreement indicate the place of conclusion of the transaction between the creditor and the debtor

Almost everyone dreams of having their own home, be it a small apartment or their own house. In modern economic realities, it can be problematic to save up even for a few square meters, not to mention the possibility of mortgaging existing housing. For this reason, citizens have to turn to banks for a loan. A mortgage by law is a loan for the construction or purchase of housing, in which the borrower, according to an agreement, pledges the property as collateral.

What is a mortgage by law?

The essence of the concept is that the buyer-borrower transfers real estate to the lender as security for the fulfillment of contractual obligations. If the buyer experiences force majeure and is unable to pay the debt, the borrower has every right to sell the pledged property to cover the debt. A legal mortgage is used if there is no need to draw up a separate agreement, but there are certain factors specified by law.

The difference between a mortgage by law and contract

There is another type of mortgage - by virtue of an agreement. At first glance, it may seem that the difference between them is small, but they have fundamental differences between themselves. A mortgage by force of law differs from a mortgage by force of contract in that in the first version it arises on the basis of legal grounds, and in the second - on the basis of mutual agreement. By virtue of the law, a mortgage is registered automatically when registering a real estate purchase and sale transaction, but by virtue of an agreement - only upon mutual application of the mortgagee and the lender.

In simple terms, for a contractual mortgage, any real estate of the debtor acts as collateral as security under the loan agreement. The emergence of a mortgage on the basis of the law occurs when the purchased housing is transferred to the lender as security, and it does not matter whether it is being built or purchased on the secondary market. In essence, this is a targeted loan for the purchase of a home.

Legal basis

Since housing lending is a complex system of mutual settlements between parties, all procedures are regulated by legislative acts adopted at different times. In addition to Federal Law 102-FZ “On Mortgage (Pledge of Real Estate)”, there are a considerable number of acts that are the basis for the emergence of mortgage activity, but among the main ones it is worth highlighting the following:

• Housing Code of the Russian Federation;
• Federal Law “On state registration of rights to real estate and transactions with it”;
• Federal Law “On Credit Histories”;
• Resolution on subsidizing young families for the purchase of housing.

Cases where a pledge arises by force of law

When a legal mortgage arises, certain collateral and property obligations arise. There are a large number of situations when these circumstances may arise - this includes the acquisition of an apartment, a separate house, a plot of land and similar objects exclusively with the use of borrowed funds from the bank. The same applies to real estate construction if it is carried out with money allocated by a credit institution.

Mortgage of residential houses and apartments

The legal lien on real estate applies only to housing that belongs to individuals or legal entities. As for state and municipal housing, it cannot participate in the mortgage. It is important to understand that part of a residential apartment or house can also act as collateral, but only if it is an isolated room intended for living.

Selling on credit

As already noted, a mortgage is a loan that is issued to a citizen for the purchase of real estate, and here the purchased housing acts as direct collateral, which is separately stated in the contract. The creditor acquires the right to real estate while paying off the debt, although the mortgagor has the right to live there.

Rent

When concluding a rent agreement, a mortgage also arises by force of law, when the recipient of the rent transfers his home into ownership of another person who is the payer of the rent (all this is formalized by a notary). For understanding, we can give an example: a person transfers his apartment to a citizen who undertakes to care for him and provide him with everything necessary until his death. The ownership right passes after the conclusion of the annuity agreement, but the encumbrance is valid until the death of the annuitant, after which the encumbrance must be removed.

Pledge of property rights

An obvious example is the purchase of housing under construction on credit. In fact, the object has not yet been built, but the borrower, as a shareholder, has the right to it, since he has made a down payment. He borrows the rest of the money from a credit institution, but the bank requires collateral to obtain a mortgage. However, since the object has not yet been registered, it cannot act as a guarantee. For this reason, a pledge of property rights is issued, and subsequently it is replaced with the constructed housing.

Registration of a legal mortgage

For registration, you can resort to the services of a mortgage broker, or you can do everything yourself. First, you need to contact a credit institution to clarify how much you can count on. Then you can start searching for a suitable option. Then you need to enter into a preliminary agreement with the seller and provide the necessary package of documents for consideration by the credit institution.

Having submitted all the papers, you will have to wait for a decision, since all the papers will be carefully checked. If the outcome of the situation is positive, it will be possible to sign a purchase and sale agreement, which must indicate that the property is being purchased partially with credit funds. After this, the mortgage and ownership of the home will be registered, and the seller will be able to receive his money.

Registration of a mortgage by force of law

Registration of a legal mortgage is carried out without charging a state fee. In addition, there is no need to write a joint statement. State registration assigns certain property rights to the borrower, which are necessarily recorded in Rosreestr. An important point is that the registration of the contract occurs simultaneously with the registration of property rights. The date of registration is the day on which the entry was made into the register of rights to liquid real estate.

What property can be the subject of a mortgage?

If we look at the legislation, we can see that not every property can be the subject of a mortgage. It is prohibited, for example, to transfer property owned by the state as security. For housing where minors are the owners, a special approach is applied. Here is a list of what can be the subject of collateral:

• land;
• buildings, enterprises, objects under construction, apartments, houses, cottages, garages, etc.;
• land plots together with objects;
• lease rights (other rights) to use land plots, buildings and structures.

Limitations on encumbrance of rights

Since purchasing real estate has many pitfalls, lenders try to protect themselves in every possible way. For this purpose, mortgage restrictions by law apply, which arise immediately after registration. Encumbrance of the right is a guarantee that the borrower will pay the credit institution for the borrowed funds and return them within the time established by the mortgage agreement with a certain margin.

Underwriting – assessment of the borrower’s solvency

There is always a possibility that the mortgage borrower will not be able to repay the loan, and the reasons for this may vary. In order to avoid this, a high-quality check of the applicant’s solvency is necessary. To do this, underwriting is carried out, or in simple words, an assessment of a citizen’s ability to service the mortgage loan issued to him. In this way, the loan amount, term, interest rate and other essential criteria are determined.

It is calculated according to the relationship of financial indicators. The experience of American specialists is taken as a basis. The method is called the five “C” system (from the English letter “C”, with which all five components of underwriting begin):

• Character – reputation;
• Capacity – level of financial content;
• Capital – availability of equity capital (down payment);
• Collateral – income sufficiency;
• Conditions – economic conditions at the time of lending.

Calculation and analysis of mortgage loan servicing ratios

As practice shows, clients applying for a housing loan are subject to less stringent requirements, but this does not mean that their solvency is not checked. The table below shows the main indicators according to which the underwriting process is carried out:

Coefficient	Decoding	Description
	payment/income	ratio of loan payments to income for a specified period
	liabilities/income	the ratio of the borrower's expenses on mortgage obligations to the total income that is taken into account
	loan/collateral	ratio of the loan amount to the cost of the loaned object
	loan/liquidation value	the ratio of the loan amount to the minimum value for which the collateral can be sold

In order for the lender to make a positive decision on issuing a loan, it is necessary that the above values ​​have the following figures:

Most credit institutions have their own indicators, so there are no exact values. Depending on the region, the average salary in the region and other circumstances, these coefficients may fluctuate.

Features of mortgage lending

Different states have their own characteristics of a mortgage loan. Depending on the legislative framework and established practice, a private model of housing lending is formed. In Russia, for example, the distinctive features are the use of maternity capital or a military mortgage. In addition, the current economic situation and mortgage risks also impose their own characteristics - the rates offered by domestic banks are almost 10 times higher than abroad.

American model using state budget funds

The American system began its formation more than a hundred years ago. Its main idea is that when purchasing real estate, and this is mainly purchase and sale on the secondary market, the missing amount is provided by the mortgage bank. He then resells the debt to a mortgage agency, which issues securities that are subsequently sold on the stock market. Payments for them are funds returned by the borrower.

European model of a mortgage mechanism

In Europe, and many developing countries, the German model of housing lending is adopted as a basis. Its essence lies in the fact that the client opens a bank account where he makes contributions until they reach a certain level. As a rule, this is about half the cost of the purchased housing. After this, the bank will provide him with a loan for the missing amount, taking the purchased property as collateral. Additionally, the state compensates the citizen about 10% of the cost of housing in the form of a subsidy.

Mortgage conditions by law

In various financial institutions, the conditions for providing housing loans have both common features and some differences. A mandatory condition for all lenders is insurance of the property, which does not contradict the law, confirmation of the borrower’s income and an independent assessment of the real estate. All other parameters may vary.

An initial fee

Depending on the amount the property was valued at, the bank provides the client with a loan. As a rule, the borrower is required to deposit a certain amount himself. This figure depends solely on the lender itself, but generally it is at least 10% of the cost of housing. Sometimes the bank finances 100% of the cost, but such programs exist by agreement with construction companies that are partners of the lender.

Interest rate

As already noted, the interest rate offered by Russian banks leaves much to be desired. It directly depends on the level of inflation in the country and the key rate of the Central Bank. Currently, its indicator is at the level of 10–12% per annum, although some lenders can find other figures. However, do not forget that the reduced rate may be associated with other fees associated with the consideration of documents or the issuance of a mortgage loan.

Payment amount calculation

To pay off debt, two types of payment calculations are used. With the differentiated method, the loan body is divided into equal parts, and interest is charged on the balance of the debt. This repayment method is beneficial if the client takes out a targeted loan for a small amount and for a short period, since at the initial stage the loan payments are very high. The amount of the annuity payment is calculated using a certain formula. As a result, equal amounts are charged throughout the borrowing period.

Requirements for the borrower

If a citizen plans to take advantage of a housing loan, he must meet certain parameters. The bank immediately pays attention to a positive credit history, since the loan being issued is large, and the lender is interested in repaying it. The work experience at the last place of work must be at least 6 months, and the client’s age must be 21–65 years. It’s worth mentioning right away that the given parameters have average values, because each bank has the right to present its own requirements.

Tax benefits for mortgage lending

For citizens who purchase real estate through lending, according to Russian legislation, a tax deduction is provided. In simple terms, this is a refund of part of the income tax paid. The amount has certain restrictions depending on the price of the purchased apartment (no more than 2 million rubles). Today the maximum possible refund amount is 260,000 rubles.

How to remove a mortgage legally

Believing that after paying the entire amount of the debt with interest to the creditor, the encumbrance will be removed automatically, the borrower is greatly mistaken. Once you have completed your payments, you must complete this procedure yourself. You need to contact the Unified State Register of Enterprises with a request to issue a new certificate of ownership, but for this you will need to provide a certain package of documents, which must include a document indicating full settlement with the creditor.

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Current data on real estate collateral

Any real estate can be purchased either from your own savings or from borrowed funds. In case of real estate purchase By attracting a loan from a bank, the latter becomes both your lender and the mortgagee of the purchased property. It is also possible to provide installment plans by the seller himself, which also does not cancel the mechanism described
higher.

In reality this means the following - you become an owner the desired apartment/cottage/land plot, taking into account a large limitation, namely, encumbering this object with collateral.

Your property is a guarantor of the fulfillment of your obligations to the bank (seller), that is, in case of delay in monthly payments according to the schedule, actual non-payment, non-compliance with other obligations under the agreement, the bank (seller) has the right to sell your property in the form agreed upon in the agreement to pay off your debt .

Legally, a mortgage is by force of law defined in paragraph 2 of Article 1 of Federal Law No. 102-FZ “On Mortgage (Pledge of Real Estate)”; procedurally it consists of the following: a purchase and sale agreement is concluded between the seller and the buyer using credit funds, between the bank and the buyer — loan agreement.

The first stipulates recorded in writing the rights and obligations of the parties, the key of which are the description of the property, its cadastral (or conditional) number, the area of ​​the property and, most importantly, the payment procedure.

Thus, already in the very purchase and sale agreement the fact of acquisition of property using loan funds is recorded, the creditor himself is recorded and a link is made with the loan agreement. The loan agreement describes the conditions for providing funds for the purchase of real estate (indication of the intended use is mandatory in a particular case), the term, loan amount, payment schedule and penalties for non-compliance with the conditions.

In our case it is also important are the conditions, in which the bank has every right to sell your property at auction or in any other agreed way to pay off your debt.

In practice, banks are not interested in taking measures to sell your mortgaged property, since the main activity of banks is not the purchase and sale of property, which also incurs certain costs for the bank, such as property valuation, agency costs and other commissions, value added tax costs , which cannot be offset due to non-VAT taxable income.

However, the presence of collateral for the loan allows the bank bear less expenses on reserves for a given loan, which ultimately increases the bank's profit. For the buyer (borrower), the pledge of real estate by virtue of the law is a kind of limiter, since awareness of the risk of losing real estate forces them to take their financial obligations in the most serious way.

Additional costs for the borrower include: compulsory insurance of the acquired property and the need for an assessment to determine the collateral value.

Unlike a mortgage by virtue of a contract, when the property is your property and the loan received does not have a clear use of funds for the purchase of real estate, the parties do not bear the cost of registering the encumbrance of the property.

Encumbrance of the object is recorded both in agreements concluded with the bank and the seller, and in registration with the official body that carries out registration of real estate transactions - the Federal Service for State Registration, Cadastre and Cartography.

It is worth noting that registration of encumbrance does not require separate filing, but is formed in the process of submitting documents for registration of the purchase and sale of real estate. That is, for registration with the authority, the presence of the bank is not required; the buyer and seller or their representatives, respectively, are sufficient.

The fact of encumbrance of an object can be documented by an extract from the Unified State Register of Real Estate.

This extract can be obtained for a fee by making a request at the Multifunctional Center for the provision of state and municipal services nearest to you, provided you have a passport.

The very fact of encumbrance can be confirmed free of charge through the service “Reference information on real estate objects online” on the Rosreestr website - to do this, it is enough to know the full address of the object or its cadastral (conditional) number, as a rule, this information is available both in the loan agreement and and the purchase and sale agreement.

Fact of encumbrance recorded in the column“Rights and restrictions”, where in the restrictions section there will be information about the number and date of recording the encumbrance of the object.

After full repayment of obligations to the bank or seller, the owner of the property must submit documents for the repayment of encumbrances in the form of a mortgage record by force of law, which will subsequently allow the owner use your property in full, without regard to previously concluded agreements with the seller and the lender.

The rules of the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation) on real rights are applied to the pledge of real estate (mortgage), and to the extent not regulated by these rules and the Federal Law of July 16, 1998 No. 102-FZ "On mortgage (mortgage of real estate)" ( hereinafter – the Law on Mortgage), general provisions on pledge (clause 4 of Article 334 of the Civil Code of the Russian Federation).

The concept of a pledge agreement is given in Article 334 of the Civil Code of the Russian Federation, according to which “by virtue of a pledge, the creditor of the obligation secured by the pledge (pledgee) has the right, in the event of non-fulfillment or improper performance by the debtor of this obligation, to receive satisfaction from the value of the pledged property (the subject of the pledge) preferentially before other creditors of the person who owns the pledged property (the mortgagor).

By virtue of a pledge, in accordance with the norms of the Civil Code of the Russian Federation, the creditor has the right, in the event of non-fulfillment or improper performance by the debtor of the secured obligation, to receive satisfaction from the value of the pledged property (clause 1 of Article 334 of the Civil Code of the Russian Federation). A mortgage as a type of collateral provides satisfaction at the expense of the value of real estate exclusively.

According to paragraph 1 of Article 130 of the Civil Code of the Russian Federation, immovable things (real estate, real estate) include land plots, subsoil plots and everything that is firmly connected to the land, that is, objects whose movement without disproportionate damage to their purpose is impossible, including buildings, structures , objects of unfinished construction.

A mortgage agreement is an agreement on the pledge of real estate. The mortgage agreement contains provisions on the subject of the mortgage, the market valuation of the subject of the mortgage, the essence, size and deadline for fulfilling the obligation (material conditions) secured by the mortgage, and other conditions (Clause 1 of Article 9 of the Mortgage Law). The absence of essential conditions in a mortgage agreement makes such an agreement unconcluded (Article 432 of the Civil Code of the Russian Federation).

The mortgage agreement is drawn up in simple written form and does not require mandatory notarization (Clause 1, Article 10 of the Mortgage Law").

Any property, including things and property rights, can be pledged. Exceptions are established by law (clause 1 of article 336, clause 1 of article 358.1 of the Civil Code of the Russian Federation).

The pledged property remains with the pledgor, unless otherwise provided by the Civil Code of the Russian Federation, another law or agreement (clause 1 of Article 338 of the Civil Code of the Russian Federation).

The mortgagor can be either the debtor himself or a third party (Clause 1, Article 335 of the Civil Code of the Russian Federation). To pledge a thing, it is necessary that the pledgor has the right of ownership to it. A person who has another property right may pledge a thing in cases provided for by the Civil Code of the Russian Federation (clause 2 of Article 335 of the Civil Code of the Russian Federation). The mortgagor of the right may be a person who is a creditor in the obligation from which the pledged right arises (right holder) (clause 1 of Article 358.1 of the Civil Code of the Russian Federation).

The pledgee of the pledge is a bank or other credit organization, or another legal entity that provided a loan or targeted loan for the purchase of real estate (land or residential premises).

The pledge agreement must be concluded in simple written form, unless a notarial form is established by law or agreement of the parties.

A pledge agreement to secure the fulfillment of obligations under an agreement, which must be notarized, is subject to notarization.

Failure to comply with the form of the pledge agreement entails its invalidity (clause 3 of Article 339 of the Civil Code of the Russian Federation).

In accordance with paragraph 3 of Article 339 of the Civil Code of the Russian Federation and paragraph 1 of Article 19 of the Law on Mortgage (as amended in force on the date of conclusion of the agreement), a mortgage is subject to state registration in the Unified State Register of Rights to Real Estate and Transactions with It (hereinafter referred to as the Unified State Register of Real Estate) in the manner , established by Federal Law No. 122-FZ of July 21, 1997 “On state registration of rights to real estate and transactions with it” (hereinafter referred to as the Registration Law).

As established by paragraph 1 of Article 11 of the Law on Mortgage (as amended in force on the day the agreement was concluded), state registration of an agreement giving rise to a mortgage by force of law is the basis for making a record in the Unified State Register of the occurrence of a mortgage by force of law.

In the case of a mortgage, by force of law, the mortgage as an encumbrance of property arises from the moment of state registration of ownership of this property, unless otherwise determined by the agreement (clause 2 of Article 11 of the Law on Mortgage).

The rights of the mortgagee (the right of pledge) to the property provided for by the Law on Mortgage and the mortgage agreement are considered to arise from the moment the mortgage is recorded in the Unified State Register, unless otherwise provided by law. If an obligation secured by a mortgage arose after a record of the mortgage was made in the Unified State Register, the rights of the mortgagee arise from the moment this obligation arises (clause 3 of Article 11 of the Mortgage Law).

Paragraph 2 of Article 20 of the Mortgage Law stipulates that a mortgage is subject to state registration by force of law.

State registration of a mortgage by force of law is carried out simultaneously with the state registration of the property rights of the person whose rights are encumbered by the mortgage, unless otherwise provided by federal law. The rights of the mortgagee under a mortgage may by force of law be certified by a mortgage.

In accordance with paragraph 1 of Article 2 of the Registration Law, state registration is the only evidence of the existence of a registered right.

An analysis of the stated rules of law allows us to conclude that any pledge of real estate, regardless of the basis for its occurrence, is subject to state registration, since state registration is the only evidence of the existence of a registered right.

There are two types of real estate mortgage: mortgage by contract and mortgage by law.

A mortgage by virtue of an agreement arises at the will of the parties, on the basis of a mortgage agreement concluded between them.

A mortgage occurs by force of law if:

– a residential house or apartment purchased in whole or in part with a loan from a bank or other credit organization is pledged from the moment of state registration of the mortgage in the Unified State Register (Clause 1 of Article 77 of the Mortgage Law);

– residential premises built in whole or in part using savings for housing provision for military personnel provided under a targeted housing loan agreement in accordance with Federal Law of August 20, 2004 No. 117-FZ “On the savings-mortgage system for housing provision for military personnel” is considered to be located pledged from the moment of state registration of ownership of a residential building (Clause 4, Article 77 of the Mortgage Law);

– a land plot acquired using credit funds from a bank or other credit organization, or funds from a targeted loan provided by another legal entity for the acquisition of this land plot, is considered to be pledged from the moment of state registration of the borrower’s ownership of this land plot. If the corresponding land plot is leased, then a mortgage arises by force of law for the right to lease, unless otherwise established by federal law or the lease agreement (Clause 1, Article 64.1 of the Mortgage Law);

– when constructing a building or structure on a land plot mortgaged under a mortgage agreement, the mortgage applies to these buildings and structures, unless otherwise provided by the mortgage agreement (Article 65 of the Mortgage Law);

– a land plot on which, using credit funds from a bank or other credit organization, or funds from a targeted loan provided by another legal entity, a building or structure has been acquired, constructed or is under construction, the right to lease such a land plot is considered to be pledged from the moment of state registration of ownership rights for a building or structure acquired, constructed or under construction, unless otherwise provided by federal law or agreement (Article 64.2 of the Mortgage Law);

– in the case of registration of ownership of a completed property that was previously registered and mortgaged as an object of unfinished construction, the mortgage remains in force, and its subject is the building (structure) erected as a result of the completion of construction (Article 76 of the Mortgage Law );

– when transferring a plot of land or other real estate for payment of rent, the recipient of the rent, as security for the obligation of the rent payer, acquires the right of pledge over this property (clause 1 of Article 587 of the Civil Code of the Russian Federation);

– a mortgage by force of law arises if a property is purchased on credit or in installments (Articles 488 and 489 of the Civil Code of the Russian Federation);

– a land plot owned by the developer (right of lease or sublease), and an apartment building and (or) other real estate object being built (created) on this land plot to ensure the fulfillment of the obligations of the developer (mortgagor) under the agreement from the moment of state registration of the agreement are considered pledged by participants in shared construction (mortgagors).

Today, the period for state registration of a mortgage of land plots, buildings, structures, and non-residential premises is 15 working days, and a mortgage of residential premises is 5 working days.

From July 1, 2014, a mortgage agreement or a loan agreement containing an obligation secured by a mortgage is not subject to state registration, however, the mortgage itself must be registered in the manner prescribed by law. For residential mortgages, an accelerated registration period is provided - five working days from the date of submission of the necessary documents. By virtue of the law, no state duty is paid for state registration of a mortgage.

If the property being mortgaged is jointly owned, the written consent of all owners is required. The consent of the other spouse must be notarized (clause 1, article 7 of the Mortgage Law, clause 3, article 35 of the Family Code of the Russian Federation).

When a residential house or apartment owned by minors, persons with limited legal capacity or incompetent persons over whom guardianship or trusteeship has been established is pledged, the transaction must be agreed upon with the guardianship and trusteeship authority (clause 5 of article 74 of the Mortgage Law, clause 2 Art. 37 of the Civil Code of the Russian Federation).

With the termination of the loan obligation, the pledge is terminated. The termination of the mortgage must be noted in the Unified State Register (Article 352 of the Civil Code of the Russian Federation, Article 25 of the Mortgage Law). As a general rule, to redeem a mortgage record, it is sufficient to submit to the registration authority:

– statement from the mortgage holder;

– or a joint application of the pledgor and the pledgee;

– or an application from the mortgagor with the simultaneous submission of a mortgage note containing a note from the mortgage owner regarding the fulfillment of the obligation secured by the mortgage in full. This mark must include words about the fulfillment of the obligation and the date of its execution, and must also be certified by the signature of the owner of the mortgage and certified by his seal (if there is a seal) (clause 2 of article 25 of the Mortgage Law).

When the mortgage registration record is redeemed, the mortgage is canceled (Clause 3, Article 25 of the Mortgage Law).

The mortgage registration entry is repaid within three working days (Clause 1, Article 25 of the Mortgage Law).

There is no state duty paid for repaying the mortgage registration record.

Thus, a mortgage is traditionally understood as a pledge of real estate that remains in the possession of the debtor, but with the prohibition of the right to freely dispose of this property. The qualifying features of a mortgage are the subject of the pledge agreement, which can only be an immovable thing, and the retention by the mortgagor of the rights to own and use this thing.

Natalya Shcherbinina,

chief expert

Omsk department

Rosreestr Office

in the Omsk region,

state registrar.

1. Collateral concept
2. Types of collateral
3. Grounds for the occurrence of a pledge (agreement and law; examples of the occurrence of a pledge on the basis of the law);
4. Subject of collateral
5. Cases when property and rights cannot be the subject of pledge: 1). property that is not subject to foreclosure; 2). claims are inextricably linked with the identity of the creditor; 3). property the pledge of which is limited or prohibited by law
6. Conditions of the pledge agreement (material terms of the pledge agreement; conditions on the procedure for the sale of pledged property: judicial or extrajudicial procedure);
7. Pledge agreement form
8. State registration and accounting of collateral
9. Pros and cons of collateral
10. Judicial practice and publications about collateral on the site

In other words, if the debtor (pledgor) fails to fulfill his obligation, the pledged item is sold at auction, and the funds received are transferred to the creditor (pledgee). The pledgee may receive the pledged item in kind in the event of improper fulfillment of the obligation only in cases provided for by law.

Mortgage - type of collateral, in which the pledged property is transferred by the pledgor into the possession of the pledgee. The concept of “mortgage” is absent in the Civil Code of the Russian Federation.

2. Types of collateral

The Civil Code of the Russian Federation provides for the following types of collateral:

• pledge of goods in circulation (clause 1 of Article 357 of the Civil Code of the Russian Federation);
• pledge of things in a pawnshop (Article 358 of the Civil Code of the Russian Federation);
• pledge of rights of obligation (Articles 358.1 - 358.8 of the Civil Code of the Russian Federation);
• pledge of rights under a bank account agreement (Articles 358.9 - 358.14 of the Civil Code of the Russian Federation);
• pledge of rights of participants of legal entities (Article 358.15 of the Civil Code of the Russian Federation);
• pledge of securities (Articles 358.16, 358.17 of the Civil Code of the Russian Federation).

Types of collateral are distinguished on the following grounds:

At the location of the pledged property(Article 338 of the Civil Code of the Russian Federation):

• firm pledge - without transfer of property. A type of firm pledge is the pledge of goods in circulation (Article 357 of the Civil Code of the Russian Federation);
• mortgage - with the transfer of the pledged property. A type of mortgage is a pledge in a pawnshop (Article 358 of the Civil Code of the Russian Federation).

On the subject of collateral:

• pledge of property;
• pledge of rights.

According to the degree of connection of the mortgaged property with the land:

• pledge of real estate (mortgage).

A special type of collateral is a subsequent pledge (Article 342 of the Civil Code of the Russian Federation).

3. Grounds for the creation of a pledge

The grounds for the emergence of a pledge are established by Article 334.1 of the Civil Code of the Russian Federation.

As a general rule, a pledge between the pledgor and the pledgee arises on the basis agreement. At the same time, in cases established by law, a pledge arises upon the occurrence of circumstances specified in the law ( statutory bail).

Examples of the emergence of a pledge based on the law

In particular, the norms of the Civil Code of the Russian Federation and other federal laws establish the following circumstances under which a pledge arises:

Goods sold on credit are pledged to the seller until payment is made.

Unless otherwise provided by the purchase and sale agreement, from the moment the goods are transferred to the buyer and until payment is made, goods sold on credit are recognized as being pledged by the seller to ensure the buyer fulfills his obligation to pay for the goods (Clause 5 of Article 488 of the Civil Code of the Russian Federation).

Goods sold on credit with an installment plan are pledged by the seller

The rules provided for in paragraphs 2, 4 and 5 of Article 488 of this Code (clause 3 of Article 489 of the Civil Code of the Russian Federation) apply to an agreement for the sale of goods on credit with the condition of payment in installments.

The right of pledge of the rent recipient to the real estate transferred for rent payment

When transferring a plot of land or other real estate for payment of rent, the recipient of the rent, as security for the obligation of the rent payer, acquires the right of pledge over this property (Clause 1, Article 587 of the Civil Code of the Russian Federation).

The holder of the pledge certificate has the right to pledge the goods.

The holder of the pledge certificate, other than the holder of the warehouse receipt, has the right to pledge the goods in the amount of the loan issued under the pledge certificate and interest on it. When pledging goods, a note about this is made on the warehouse receipt (clause 3 of Article 914 of the Civil Code of the Russian Federation).

The developer's land plot and the real estate on it are pledged to the participants in shared construction

To ensure the fulfillment of the obligations of the developer (mortgagor) under the agreement, from the moment of state registration of the agreement, the participants in shared construction (mortgagors) are considered to be pledged for the construction (creation) of an apartment building and (or) other real estate object, which will include shared construction objects , a land plot owned by the developer, or the right to lease, the right to sublease the specified land plot and an apartment building and (or) other real estate object being built (created) on this land plot.

Pledge in the manner established by Art. Art. 13 - 15 of the Law “On Participation in Shared Construction”, the following obligations of the developer must be ensured under all contracts concluded for the construction (creation) of an apartment building and (or) other real estate on the basis of one construction permit:

• return of funds contributed by a participant in shared construction in cases provided for by the specified Law and (or) agreement;
• payment to a participant in shared construction of funds due to him in compensation for losses and (or) as a penalty (fine, penalty) due to non-fulfillment, delay in fulfillment or other improper fulfillment of the obligation to transfer the shared construction object, and other due to him in accordance with the agreement and ( or) federal laws of funds (Articles 13 - 15 of Law No. 214-FZ “On participation in shared-equity construction of apartment buildings and other real estate and on amendments to certain legislative acts of the Russian Federation”).

State and municipal property purchased in installments is pledged until payment is made.

“From the moment of transfer to the buyer of the property acquired in installments and until the moment of full payment, the specified property, by virtue of this Federal Law, is recognized as being pledged to ensure the buyer’s fulfillment of his obligation to pay for the acquired state or municipal property.

If the buyer violates the deadlines and procedure for making payments, foreclosure is applied to the pledged property in court" (clause 6, article 35 of the law of December 21, 2001 N 178-FZ "On the privatization of state and municipal property" (as amended on July 3. 2016)).

Pledge of land purchased with loan funds (mortgage)

Unless otherwise provided by federal law or an agreement, a land plot acquired using credit funds from a bank or other credit organization or funds from a targeted loan provided by another legal entity for the acquisition of this land plot is considered to be pledged from the moment of state registration of the borrower's ownership of this land plot. land plot (clause 1 of article 64.1 "On mortgage (mortgage of real estate)".

Pledge of residential premises purchased or built with loan funds (mortgage)

"Residential premises acquired or built in whole or in part using credit funds from a bank or other credit organization or funds from a targeted loan provided by another legal entity for the acquisition or construction of the specified residential premises are pledged from the moment of state registration of the mortgage in the Unified State Register of Real Estate" (Clause 1, Article 77 of the Law of July 16, 1998 N 102-FZ (as amended on July 3, 2016) “On mortgage (real estate pledge)".

The rules of law prohibiting foreclosure on the property of a debtor organization are contained, for example, in the following articles of federal laws:

Civil Code of the Russian Federation:

• . Property of a religious organization
• . Peculiarities of foreclosure on property according to requirements for the parties to the escrow agreement
• . Segregation of property held in trust
• . Exclusive right to a secret invention

2). Requirements are inextricably linked to the identity of the creditor

• Article 21. Preliminary permission of the guardianship and trusteeship authority affecting the exercise of property rights of the ward

As a general rule, a pledge agreement must be concluded in simple written form (Articles 160, 161 of the Civil Code of the Russian Federation), except if the law or agreement does not provide for a notarial form of a pledge agreement ().

Failure to comply with the established rules on the form of the pledge agreement entails its invalidity.

8. State registration and accounting of collateral

State registration and accounting of the pledge is carried out in order to ensure the rights of both the pledgee and third parties.

The mandatory state registration of a pledge agreement is established in the following cases ():

• if, in accordance with the law, the rights confirming the ownership of property by a certain person are subject to state registration (Article 8.1 of the Civil Code of the Russian Federation);
• if the subject of the pledge is the rights of a participant (founder) of a limited liability company (Article 358.15 of the Civil Code of the Russian Federation).

For other property pledged, different rules apply.

The relationship of pledge of securities is regulated by the provisions of Article 358.16 of the Civil Code of the Russian Federation (“Pledge of Securities”).

Information about the pledge of rights under a bank account agreement is taken into account in accordance with the rules of Art. 358.11 Civil Code of the Russian Federation.

The register of notifications about the pledge of movable property is maintained in the manner established by the legislation on notaries (see Chapter XX.1 “Registration of notifications about the pledge of movable property” of the Fundamentals of the legislation of the Russian Federation on notaries).

The pledgee, in relations with third parties, has the right to refer to the right of pledge belonging to him only from the moment of making an entry on the registration of the pledge, except in cases where the third party knew or should have known about the existence of the pledge earlier. The absence of an accounting record does not affect the relationship of the pledgor with the pledgee.

Amendments to the notice of pledge are permitted in the following cases:

• when information about the pledge changes (changes about the item, the value of the item, the deadline for fulfilling obligations, etc.);
• upon termination of the collateral relationship. The procedure for amending the notice of pledge or terminating the pledge is regulated in more detail by the provisions (Article 103.6 of the Fundamentals of the Legislation of the Russian Federation on Notaries).

9. Pros and cons of collateral

The pros and cons of collateral are as follows.

1. Certain guarantees that in the event of failure to fulfill obligations by the debtor, the creditor will receive satisfaction from the pledged property.

2. The subject of the pledge can be any property: movable and immovable, rights under a bank account agreement, property rights, exclusive rights, shares in the authorized capital, shares. We wrote about exceptions above.

3. The pledgee’s obligations are satisfied preferentially before other creditors (i.e., the pledgee’s claims are satisfied first, and only then the claims not secured by the pledge).

4. It is prohibited to dispose of property that is pledged without the permission of the pledgee, and if this prohibition is violated, the pledge does not terminate even in the event of alienation of the property to a bona fide purchaser.

5. The subject of the pledge may be things and property rights that the pledgor will acquire in the future. In this case, the right of pledge arises with the pledgee from the moment the pledgor acquires the relevant property or right.

6. The pledgor under a pledge agreement can be not only the debtor himself, but also a third party. That is, to secure the debtor’s obligation, any person can pledge his property.

7. A pledge (i.e. a pledge with the transfer of an item to the pledgee) provides more guarantees of ensuring the fulfillment of obligations, since the physically pledged property is located with the creditor-pledgee.

8. All expenses of the creditor are paid from the value of the pledged item - interest, penalties, losses caused by delay in execution, as well as the expenses of the pledgee necessary for the maintenance of the pledged item and collection (Article 337 of the Civil Code of the Russian Federation).

The disadvantages of collateral include the following circumstances:

1. If the pledged movable property is not transferred to the pledgee, there is a possibility of its alienation by an unscrupulous counterparty, which may lead to the impossibility of identifying its new owner and location and, as a consequence, the impossibility of selling this property at auction.

2. The procedure for foreclosure on pledged property and its sale at auction by bailiffs is quite labor-intensive and lengthy, which, of course, does not lead to the prompt restoration of the financial position of the creditor.

10. Judicial practice and publications about collateral for the site

• Apartments under an agreement for participation in shared construction cannot be pledged to a bank (clause 15 of the Review of Practice..., approved by the Presidium of the Supreme Court of the Russian Federation on December 4, 2013)
• If the loan agreement is secured by both a pledge and a guarantee, then the termination of one method of security does not terminate the validity of the other (clause 6 of the Review of Judicial Practice..., approved by the Presidium of the Supreme Court of the Russian Federation on May 22, 2013)
• Foreclosure of real estate pledged as security under a loan agreement (clause 12 of the Review of Judicial Practice..., approved by the Presidium of the Supreme Court of the Russian Federation on May 22, 2013)
• Objections to AHML's statement of claim for debt collection under a loan agreement, foreclosure of pledged property