(mortgage of real estate)

last edition dated 10/05/2015

Chapter I. Basic provisions

Article 1. Grounds for the emergence of a mortgage and its regulation

Article 2. Obligation secured by a mortgage

Article 3. Requirements secured by a mortgage

Article 4. Securing additional expenses of the mortgagee with a mortgage

Article 5. Property that may be the subject of a mortgage

Article 6. The right to pledge property under a mortgage agreement

Article 7. Mortgage of property in common ownership

Chapter II. Conclusion of a mortgage agreement

Article 8. General rules for concluding a mortgage agreement

Article 9. Contents of the mortgage agreement

Article 9.1. Features of the terms of a credit agreement, loan agreement, which are concluded with an individual for purposes not related to his business activities, and the borrower’s obligations under which are secured by a mortgage

Article 10. State registration of a mortgage agreement

Article 11. Emergence of a mortgage as an encumbrance

Article 12. Warning to the mortgagee about the rights of third parties to the subject of mortgage

Chapter III. Mortgage

Article 13. Basic provisions on the mortgage

Article 14. Contents of the mortgage

Article 15. Attachments to the mortgage

Article 16. Registration of mortgage holders

Article 17. Exercising rights under a mortgage and fulfilling the obligation secured by the mortgage

Article 18. Restoration of rights to a lost mortgage

Chapter IV. State registration of mortgage

Article 19. Basic provisions on state registration of mortgages

Article 20. Procedure for state registration of mortgages

Article 21. Refusal of state registration of a mortgage and suspension of state registration of a mortgage

Article 22. Registration record of mortgage and certificate of state registration of mortgage

Article 23. Correction, modification and addition of the mortgage registration record

Article 24. State duty

Article 25. Redemption of the mortgage registration record

Article 25.1. Redemption of a mortgage registration record in the event of liquidation of the mortgagee who is a legal entity

Article 26. Public nature of state registration of mortgages

Article 27. Appeal of actions related to state registration of mortgages

Article 28. Responsibility of the body registering mortgages

Chapter V. Ensuring the safety of property pledged under a mortgage agreement

Article 29. Use by the pledgor of the pledged property

Article 30. Maintenance and repair of pledged property

Article 31. Insurance of pledged property. Borrower liability insurance and lender financial risk insurance

Article 32. Measures to protect pledged property from loss and damage

Article 33. Protection of pledged property from claims of third parties

Article 34. The right of the pledgee to inspect the pledged property

Article 35. Rights of the pledgee in case of improper provision of safety of the pledged property

Article 36. Consequences of loss or damage to pledged property

Chapter VI. Transfer of rights to property pledged under a mortgage agreement to other persons and encumbrance of this property with the rights of other persons

Article 37. Alienation of pledged property

Article 38. Preservation of a mortgage when the rights to the mortgaged property are transferred to another person

Article 39. Consequences of violating the rules on alienation of pledged property

Article 40. Encumbrance of pledged property with the rights of other persons

Article 41. Consequences of forced seizure by the state of pledged property

Article 42. Consequences of vindication of pledged property

Chapter VII. Subsequent mortgage

Article 43. The concept of subsequent mortgage and the conditions under which it is allowed

Article 44. Warning to mortgagees about previous and subsequent mortgages. Modification of a previous mortgage agreement

Article 45. State registration of subsequent mortgages

Article 46. Satisfaction of claims of mortgagees under previous and subsequent mortgages

Chapter VIII. Assignment of rights under a mortgage agreement. Transfer and pledge of mortgage

Article 47. Assignment of rights under a mortgage agreement or an obligation secured by a mortgage

Article 48. Transfer of rights to a mortgage

Article 49. Pledge of mortgage

Chapter IX. Foreclosure of property pledged under a mortgage agreement

Article 50. Grounds for foreclosure on mortgaged property

Article 51. Judicial procedure for foreclosure on pledged property

Article 52. Jurisdiction and jurisdiction of cases of foreclosure on mortgaged property

Article 53. Measures to protect the interests of other mortgagees, absent mortgagor and other persons

Article 54. Issues resolved by the court when considering a case of foreclosure on mortgaged property

Article 54.1. Grounds for refusal to foreclose on mortgaged property

Article 55. Extrajudicial foreclosure of pledged property

Article 55.1. Settlement agreement on an obligation secured by a mortgage in the event of foreclosure on the subject of the mortgage

Article 55.2. Procedure for sending notifications and requirements

Chapter X. Sale of pledged property subject to foreclosure

Article 56. Sale of pledged property

Article 57. Procedure for holding public auctions during enforcement proceedings

Article 58. Declaring public auctions void

Article 59. Sale of pledged property by agreement of the parties

Article 59.1. Reservation of pledged property

Article 60. Termination of foreclosure on pledged property and its sale

Article 61. Distribution of the amount proceeds from the sale of pledged property

Chapter XI. Features of land mortgages

Article 62. Land plots that may be the subject of a mortgage

Article 62.1. Mortgage of land plots in municipal ownership and land plots for which state ownership is not demarcated

Article 63. Land plots not subject to mortgage

Article 64. Mortgage of a land plot on which there are buildings or structures belonging to the mortgagor

Article 64.1. Mortgage of a land plot acquired using credit funds from a bank or other credit organization or funds from a targeted loan

Article 64.2. Mortgage of a land plot on which buildings or structures are located, acquired or constructed using credit funds from a bank or other credit organization or funds from a targeted loan

Article 65. Construction by the mortgagor of buildings or structures on the mortgaged land plot

Article 66. Mortgage of a land plot on which there are buildings or structures owned by third parties

Article 67. Valuation of a land plot with its mortgage

Article 68. Features of foreclosure on mortgaged land plots and their sale

Chapter XII. Features of mortgages for enterprises, buildings, structures and non-residential premises

Article 69. Mortgage of enterprises, buildings or structures with the land plot on which they are located

Article 69.1. Mortgage of buildings, structures and non-residential premises acquired using credit funds from a bank or other credit organization or funds from a targeted loan

Article 70. Mortgage of an enterprise as a property complex

Article 71. Obligations that may be secured by a mortgage of an enterprise

Article 72. Rights of the pledgor in relation to the pledged enterprise

Article 73. Foreclosure of a mortgaged enterprise

Chapter XIII. Features of mortgages of residential buildings and apartments

Article 74. Application of rules on mortgages of residential buildings and apartments

Article 75. Mortgage of apartments in a multi-apartment residential building

Article 76. Mortgage of residential buildings under construction

Article 77. Mortgage of residential houses and apartments purchased with a loan from a bank or other credit organization

Article 77.1. Mortgage of a rented house

Article 78. Foreclosure of a mortgaged residential building or apartment

Chapter XIV. Final provisions

Article 79. Entry into force of this Federal Law

It has become one of the most popular loan products. To regulate this segment of services of financial organizations, the “Mortgage Law” 102-FZ was adopted back in 1998. Since then, a lot has changed and various changes have been made to this law several times. The most recent (as of April 2018) dates back to December 2017.

What laws govern mortgage loans?

But federal law 102-FZ is far from the only one that needs to be taken into account when mortgage lending. Yes, it contains the most basic points and everything you need to understand the essence of the issue, but there are also other regulations that also need to be taken into account:

What does Federal Law 102 say about mortgages?

Despite the fact that to fully understand the essence of a mortgage and all the features associated with it, you need to study all the documents presented above, the main thing you need to know is the law No. 102-FZ.

Basic provisions

The first chapter of the Mortgage Law is divided into seven articles. In the first one you can learn about the grounds on which a mortgage arises and how it is regulated. Among the main provisions, it is worth highlighting that the collateral, which is security for a mortgage loan, must remain in the use of the owner and is not transferred to the bank. In addition, either the debtor himself or any other person can provide his property as collateral if there is an appropriate agreement to do so.

The second article talks about emerging obligations. Some important features are not indicated here, everything is quite obvious. In the next, third chapter, the law talks about the requirements secured by a mortgage: that after transferring the property as collateral, the borrower must receive the agreed amount for it. It must either correspond to the value of the property or be lower than it.

The fourth article states that if the bank is obliged to bear the costs of maintaining the pledged property instead of its owner, then the costs incurred can be compensated from the property.

Typically, an additional amount is added to the existing debt.

The fifth article lists property that can act as collateral:

1. Earth.
2. Apartments.
3. Houses (including garden houses).
4. Transport (land, water or air).

The sixth article is devoted to the very right to pledge property. The limitations and features of this operation are indicated. And finally, the seventh chapter talks about exactly how an object should be pledged if it has several owners. In such a situation, the consent of absolutely all owners is mandatory. However, if the object is in common shared ownership and part of it can really be separated and clearly defined, then the consent of all owners is not required.

Banks are extremely reluctant to accept only a share in real estate as collateral, since it is extremely difficult to sell it later, since it is necessary to take into account the pre-emptive right of other owners of the property. However, such property can be successfully accepted as additional collateral. In this case, the terms of the contract and the financial situation of the borrower are of great importance. For some people, banks make significant relaxations and concessions. The main thing for them is to clearly see that the person is able to repay the loan.

Conclusion of an agreement

The second chapter is entirely devoted to the peculiarities of concluding mortgage agreements. This lists the basic elements of the document and the rules to follow. The annexes and features of their accession to the agreement are separately specified.

Describes the requirement for document registration and the exercise of rights/responsibilities listed in the agreement between the parties.

Mortgage

The third chapter describes the features of drawing up a mortgage. In most cases, this is part of the mortgage agreement, but the law distinguishes this concept separately. The articles in this chapter largely copy the information from the previous section.

State registration of a mortgage loan

The fourth chapter of Law 102-FZ talks about exactly how state registration of mortgages should occur. Here you can get information about how exactly the procedure itself should be performed, how you can change or delete data and how much it will cost (state duty). It should be noted that articles 21, 27 and 28 of this chapter have already lost force and cannot be referred to.

Ensuring the safety of property

In the fifth chapter you can find out:

• How the owner can use the collateral. It must be taken into account that any restrictions present in the contract that relate to the use of property are automatically considered void. Moreover, the owner has the right to use the mortgaged property to generate income (for example, rent out an apartment).
• How and at whose expense the repair and maintenance of the facility is carried out. Unless the mortgage agreement states otherwise, all such costs are borne by the mortgagor. Moreover, neglect of its duties may give rise to the bank's right to demand early repayment of the debt.
• On the features and obligations of insurance of pledged property. The bank client is obliged to insure the property at his own expense for a value not less than the current debt. In some cases, the bank additionally requires life insurance, but this is no longer a mandatory requirement. If the borrower defaults on his obligations, the bank will most likely demand early repayment.
• What measures can be taken to protect such property from the actions of third parties, natural disasters or other similar problems.
• That the mortgagee has every right to inspect the mortgaged property.
• What rights does a bank have to ensure its interests?
• About the possible consequences of loss or loss of property.

Transfer of rights to property

This is the name of the sixth chapter of the law, which talks about exactly how the transfer of rights to mortgaged property can be carried out. You can immediately learn about the consequences of such actions, as well as about the forced option of transferring property, which is especially relevant in the case of the subsequent sale of the collateral to pay off the debt.

Subsequent mortgage

The seventh chapter is devoted to the possibility of registering the same object as collateral under several loan agreements. It describes the features and priority of debt collection if such a situation arises, as well as which mortgage options can be declared invalid.

In the latter case, the option is to register as collateral an object that is already collateral, bypassing the existing ban.

Assignment of rights

The bank receives the right and opportunity to assign its rights to the collateral, unless otherwise stated in the agreement concluded with the debtor. In this case, the obligation to pay the debt itself may or may not be transferred. The parties can agree on this separately. You can also transfer the rights to the mortgage. To do this, it is enough to enter the new owner on this document.

Foreclosure of property

If the debtor does not fulfill his obligations or violates the agreements reached, the bank has the right to sue him, take away the collateral and sell it, thereby reimbursing all its expenses and returning the amount of the debt. It should be noted that in such a situation, the amount received is not always enough, and the bank has the right to demand that the borrower pay the balance of the debt.

Sale of pledged property

If the bank decides to sell the debtor’s property, it can do so either with or without the latter’s consent. In the first case, the parties can come to an agreement that suits them and sell the collateral in a way that is convenient for everyone. In the second case, the only possible option is bidding. The bank arranges an auction at which the minimum possible price of the property is indicated. If no one has expressed a desire to purchase the property, then the price is reduced.

Features of land mortgages

Land can be pledged, but only on the condition that there are no restrictions on this. Moreover, it is possible to pledge the rights to lease a plot, but only for the duration of the lease agreement and provided that the lessor agrees with this. Otherwise, the land will not be able to be used to obtain a mortgage loan. It should be noted that when registering a private house as collateral, the land under it is mandatory to be pledged.

Features of enterprise mortgage

If a building (office, industrial complex, workshop, warehouse or other similar objects) belonging to a legal entity is pledged, the land under it must also be pledged. The exception is situations in which a legal entity has not registered ownership of the land and uses it on a lease basis. In the latter case, the lease right is transferred as collateral and, if necessary, the new owner is obliged to obtain the same rights to the land as the previous one.

Features of mortgages of residential buildings and apartments

Households or apartments can become the subject of collateral if there are no restrictions. For example, if the apartment is the property of a disabled person or a minor, then you must first obtain permission from the guardianship authorities to transfer the property as collateral. Part of the residential premises may be pledged if they are allocated in kind, but premises owned by the municipality or the state (non-privatized) cannot be pledged.

Final provisions of the law

Law No. 102-FZ has been in force since its adoption. The same applies to all changes made to the document. It should be borne in mind that all clauses of the law apply only to those contracts that were concluded after its adoption. This also applies to all changes made. That is, if the mortgage agreement was concluded according to the rules that were relevant as of 2015, it does not need to be redone to comply with all emerging innovations.

Changes in the mortgage law 2017-2018

During 2017-2018, several changes were made to Law No. 102-FZ. Let's look at their main features:

Changes within the framework of the adopted law No. 141-FZ of July 1, 2017 affected the registration of a mortgage simultaneously with the execution of a purchase and sale agreement, which facilitated the lending option in which the same real estate that would be pledged was provided as collateral. A separate article also appeared related to the renovation program in Moscow.

On November 25, 2017, another law No. 328-FZ was adopted, according to which the parties were able to enter into pledge agreements even if the fact of the pledge itself arose on the basis of other documents. Other changes:

1. Article 4 of the law specifies who exactly bears the costs and for whom.
2. It is no longer possible to pledge space objects.
3. Art.6. It is clarified what kind of property can be pledged.
4. Art.9. Minor changes have been made to improve understanding of the text.

New mortgage law

At the moment, the government does not yet plan to repeal the current law and create a new one, because the existing system works quite effectively and fulfills its functions. However, quite significant changes will be made to Law No. 102-FZ. In particular, from July 1, 2018, many new articles on electronic mortgages will come into force. The new system will make the process of processing documents somewhat easier, since a significant part of the actions will be transferred to the State Services website.

Contrary to popular belief, a mortgage is not a loan for the purchase of real estate of any form, but a pledge of property that cannot be moved without damage or destruction, to obtain means of payment or as a guarantee of the fulfillment of obligations under transactions.

Considering the traditionally high cost of real estate, the purity and legality of transactions with it is extremely important, since shortcomings at the stage of legal regulation of relations are fraught with great damage to the legal owner. In the Russian Federation, the mortgage of real estate is regulated by the Law “On Mortgage”, the current 2020 version of which came into force on October 5, 2015, having undergone the sixteenth amendment.

General provisions No. 102-FZ

Mortgage, as a type of civil relationship, gives the mortgagee a priority, in relation to other creditors, the right to satisfy his financial claims in the amount of expenses incurred, minus the funds allocated for payment to the budget. The borrower himself or a third party can act as the entity providing the collateral, while ownership and use of the property remains with the mortgagor.

Any objects related to real estate are subject to mortgage only to the extent that their circulation is permitted by law. In this case, the purpose of the collateral can be:

• obtaining a loan or loan;
• contractual obligations;
• guarantee of compensation for harm.

Covered Requirements

If the text of the mortgage agreement does not establish a fixed payment for the mortgagee or a share of the value of the collateral, then, by default, The following requirements must be met:

1. Return of the principal amount of the debt remaining at the time of the conditions for foreclosure.
2. Compensation for interest on the use of a credit or loan provided for in an agreement on the paid provision of money in debt.
3. Payment of fines or penalties, the amount of which is agreed upon by the formalized relationship of the parties.
4. All costs of the mortgagee associated with legal proceedings and interaction with government services.
5. Covering overhead costs for organizing the sale of collateral.

Additional expenses

When organizing the procedure for foreclosure of the pledged property, the pledgee may be faced with a situation where additional expenses will be required to make the sale of the pledge possible, in particular for:

• maintenance or protection from attacks;
• repayment of debts on tax payments and fees;
• payment of current and overdue utility bills.

All such expenses, which are additional in nature and justified by the optionality of the mortgagor, are subject to compensation from the value of the collateral upon its sale.

Property for collateral

A pressing question for potential borrowers is what exactly can be used as collateral for a loan or loan. The Federal Law “On Mortgage” in Article 5 regulates the following objects suitable for this:

1. Plots of land, except for those in municipal or federal ownership, and also not corresponding to the sizes established for lands for various purposes. Restrictions on state land can be lifted if it is intended for development and the administration or federal agency is willing to give its permission for the pledge.
2. Any real estate, including production purposes used for the implementation of entrepreneurship.
3. Houses and apartments intended for housing, as well as their isolated parts in the form of one or more rooms.
4. Summer cottages, garden buildings, garage buildings and other construction projects of consumer value.
5. Large vehicles for movement by air, rivers and seas, as well as in outer space.
6. Property unfinished construction, subject to the long-term right to use the land plot from the mortgagor or the consent of the lessor, if the building area is leased.
7. Lease rights real estate, subject to the consent of the lessor.
8. Equity rights in real estate construction.

Necessary rights of the mortgagor

In order to be able to pledge property, the subject of civil relations must have a registered right of ownership or economic management. Mortgages are not allowed on the following objects:

• lands withdrawn from circulation intended for use for government purposes, for the construction of buildings, laying communications or as a protected area;
• not subject to foreclosure by law;
• intended for mandatory privatization;
• not subject to transfer into private ownership, for example, cultural heritage objects.

If the alienation requires the consent of another person, such as a spouse, then the mortgage security needs the same formality. All inseparable improvements to the property are subject to collateral along with it.

In the case of shared ownership, the corresponding part can be mortgaged without the consent of other shareholders, who, upon its alienation, will have priority of purchase. Co-ownership requires the written consent of all legal title holders to use the property as collateral.

Requirements for the contract

Being a type of civil relationship, a mortgage must comply with the requirements for contracts imposed by the Civil Code of the Russian Federation and No. 102-FZ “On Mortgage”.

Document preparation

The relationship sealed by the mortgage agreement must be substantive and include an unambiguous definition of the collateral object, for which the following are indicated:

• detailed name;
• location;
• the right that is the basis of property;
• registration authority that recorded ownership;
• value in monetary terms, based on an assessment by agreement of the parties.

If the right to lease is pledged, then the details of the leased object are indicated, as with the direct pledge of the object.

To define the boundaries of the mortgagor’s obligations, a detailed indication of the conditions for the return of the collateral is required, including:

1. Circumstances of occurrence, and if the basis is an agreement, then its details (number, date and place of conclusion).
2. A monetary amount, and in case of a phased return - the frequency and size of payments, or conditions that allow their determination by indirect parameters.
3. Deadline.

When registering a mortgage, this circumstance is emphasized, unless it is a registration action “by default.”

Registration subtleties

The mortgage agreement is drawn up in a single copy of the document in typewritten form, signed by the parties to the transaction and registered in Rosreestr. If the necessary data listed above is at least partially missing, then the agreement is not subject to registration, which is mandatory, since otherwise the transaction is considered void. The date of conclusion of the collateral relationship is counted not from the moment the agreement is signed by the parties, but from the moment of its registration.

If the terms of a mortgage are included in a loan agreement, it is subject to similar registration requirements.

The mortgage note, being a security document certifying the mortgage, upon registration is transferred to the registration chamber along with the agreement, which may terminate after the registration procedure if the relevant conditions are agreed upon in advance.

The parties can notarize the mortgage transaction by receiving certified copies, which are provided to Rosreestr to complete registration procedures. The specificity is that if one of the parties does not provide its copy, then the possibility of extrajudicial foreclosure, even if it is provided for in the contract, is canceled.

The restriction on the mortgagor’s ability to dispose of property until the obligations are fulfilled is registered, and the right of pledge does not require registration.

If, when concluding a mortgage agreement, the mortgagor was aware of the existence of claims to the property from third parties, but did not notify the mortgagee about this in writing, then the latter has the right to demand early fulfillment of obligations or changes in the terms of the mortgage relationship.

Registration procedure

A mortgage, being a real estate transaction involving the creation of an encumbrance on property rights, is subject to mandatory registration in the state register at the location of the pledged property.

Procedure

The basis for registration actions in relation to the mortgage agreement is the provision of an application signed by the parties to the transaction, or from a notary, if he has certified the relevant document. A mortgage by force of law, that is, arising from the relevant agreement, is registered on the basis of an application from at least one of the subjects of the relationship - the mortgagor, pledgee or notary, and payment of a state fee is not required.

The registering authority takes information about the mortgagee from the provided mortgage agreement and does not have the right to demand additional information or documents from him.

The mortgagee when registering a mortgage for housing purchased under a mortgage for military personnel is considered to be the federal executive body that coordinates the work of the savings mortgage system.

To certify the rights of the mortgagee, the mortgage note, as well as the documents specified as attachments, are submitted to the registration chamber, along with the agreement and application. To formalize the assignment of rights to a pledge, you will need to provide the relevant agreement for registration and confirm payment of the fee. Information about a new pledge holder is entered into the register based on his application and payment of the appropriate fee.

Dates and deadlines

The time interval allocated by Rosreestr for registration actions is determined by the type of collateral object, namely:

• land plots, buildings, structures and non-residential premises – 15 days;
• Residential Properties - 5 days;
• other objects – 1 month.

A way to reduce the registration time is to notarize the mortgage agreement or the implied collateral relationship, since in this case the registration period is minimal and is 5 working days.

The date of registration of the mortgage differs from the date of submission of documents or their return to the participants in the property pledge relationship and is determined by the order in which the documentation is received according to the dates of acceptance for work.

Conditions for refusal

The registration authority has the right to refuse to enter the necessary data into the register of transactions with real estate if there are grounds in accordance with Article 20 No. 122-FZ as amended. dated 12/29/15. If an objective reason for refusal is identified, then the corresponding notification must be sent to the applicants within the regulated period allotted for registration.

The desire of one of the parties to suspend or cancel a real estate transaction, including its collateral, is not enough; the participation of both entities is required.

If shortcomings are identified that are insufficient for refusal, or a legal dispute arises over the property, registration may be suspended for a period of no more than 1 month, until the comments are eliminated or a decision is made on the claim.

Record of registration of pledge

An entry must be made in the register that includes:

• information about the first lien holder;
• data on the subject of the mortgage;
• monetary amount of the obligation secured by the pledge;
• a note on the registration of a mortgage.

Registration marks containing the full name of the registering authority, date, place of registration of the pledge and number, according to the entry in the register, are affixed by Rosreestr employees on contracts, mortgages and certificates of registration of property rights.

Making adjustments

To change the contents of a state registration record, mutual consent of the parties to a real estate transaction, formalized by an agreement, is required, provided that the adjustment will not harm a third party. If a mortgage was issued when the transaction was executed, then changes are not allowed.

Removal of encumbrances

The cancellation of the registration record is carried out within three working days, and the basis for this may be:

• mortgagee's statement and mortgage, with a mark indicating the fulfillment of obligations by the pledgor;
• decision of the world justice body terminating the mortgage;
• statement of the executive authority the federal level regulating the functioning of the savings-mortgage system for military mortgages.

To issue a certificate of registration of rights without a note on the presence of encumbrances, you must additionally provide a document with the corresponding entry; other papers are not required for registration actions. As a result, the entry in the register is canceled, and the mortgagor receives a certificate without encumbrances and a mortgage (if required) with a note on the fulfillment of obligations, certified by the signature and seal of the mortgagee.

All of the listed points regulating the civil relations of the parties when pledging real estate took place in text No. 102-FZ even before its last amendment, and the new law on mortgages, that is, as amended on October 5, 2015, has only one significant addition in relation to mortgages for military personnel. The new edition supplemented Article 25 of the Law, concerning the repayment of an entry in the mortgage register, with a paragraph declaring the need for an application from the federal body coordinating the work of the savings-mortgage system to remove the encumbrance on the mortgage of military personnel.

FEDERAL LAW OF THE RUSSIAN FEDERATION

No. 102-FZ On mortgage (real estate pledge)

Accepted

State Duma

Approved

Federation Council

CHAPTER I. BASIC PROVISIONS

Article 1. Grounds for the emergence of a mortgage and its regulation

1. Under an agreement on the pledge of real estate (mortgage agreement), one party - the pledgee, who is a creditor under the obligation secured by the mortgage, has the right to receive satisfaction of his monetary claims against the debtor under this obligation from the value of the pledged real estate of the other party - the mortgagor, preferentially before others creditors of the pledgor, with exceptions established by federal law.

The mortgagor may be the debtor himself under the obligation secured by a mortgage, or a person not participating in this obligation (a third party).

The property on which the mortgage is established remains with the mortgagor in his possession and use.

2. To a pledge of real estate arising on the basis of a federal law upon the occurrence of the circumstances specified therein (hereinafter referred to as a mortgage by force of law), the rules on a pledge arising by virtue of a mortgage agreement are correspondingly applied, unless otherwise established by federal law.

3. The general rules on pledge contained in the Civil Code of the Russian Federation apply to relations under a mortgage agreement in cases where the specified Code or this Federal Law does not establish other rules.

4. A pledge of land plots, enterprises, buildings, structures, apartments and other real estate can arise only insofar as their circulation is permitted by federal laws.

Article 2. Obligation secured by a mortgage

1. A mortgage may be established to secure an obligation under a credit agreement, a loan agreement or another obligation, including an obligation based on purchase and sale, lease, contract, other agreement, damage, unless otherwise provided by federal law.

2. Obligations secured by a mortgage are subject to accounting by the creditor and debtor, if they are legal entities, in the manner established by the legislation of the Russian Federation on accounting.

Article 3. Requirements secured by a mortgage

1. 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).

Unless otherwise provided by the agreement, the mortgage also ensures payment to the mortgagee of the amounts due to him:

1) as compensation for losses and/or as a penalty (fine, penalty) due to non-fulfillment, delay in fulfillment or other improper fulfillment of an obligation secured by a mortgage;

2) in the form of interest for the unlawful use of someone else’s money, provided for by the obligation secured by the mortgage or by federal law;

3) for compensation of legal costs and other expenses caused by the foreclosure of the pledged property;

4) to reimburse expenses for the sale of the pledged property.

2. Unless otherwise provided by the agreement, the mortgage secures the claims of the mortgagee to the extent that they have at the time of their satisfaction at the expense of the pledged property.

3. If the mortgage agreement specifies the total fixed amount of the mortgagee’s claims secured by the mortgage, the debtor’s obligations to the mortgagee in excess of this amount are not considered secured by the mortgage, with the exception of claims based on subparagraphs 3 and 4 of paragraph 1 of this article or on article 4 of this Federal Law.

Article 4. Securing additional expenses of the mortgagee with a mortgage

In cases where the mortgagee, in accordance with the terms of the mortgage agreement or due to the need to ensure the preservation of the property pledged under this agreement, is forced to bear the costs of its maintenance and/or security or to pay off the debt of the mortgagor for taxes, fees or utilities associated with this property payments, compensation to the pledgee for such necessary expenses is ensured from the pledged property.

Article 5. Property that may be the subject of a mortgage

1. Under a mortgage agreement, the real estate specified in paragraph 1 of Article 130 of the Civil Code of the Russian Federation, the rights to which are registered in the manner established for the state registration of rights to real estate and transactions with it, including.

(paragraph supplemented from January 11, 2005 by Federal Law of December 30, 2004 No. 216-FZ)

1) land plots, with the exception of land plots specified in Article 63 of this Federal Law;

2) enterprises, as well as buildings, structures and other real estate used in business activities;

3) residential buildings, apartments and parts of residential buildings and apartments, consisting of one or more isolated rooms;

4) dachas, garden houses, garages and other buildings for consumer purposes;

5) aircraft and sea vessels, inland navigation vessels and space objects.

Buildings, including residential buildings and other structures and structures directly connected to the land, may be the subject of a mortgage, subject to the rules of Article 69 of this Federal Law.

2. The rules of this Federal Law apply to the pledge of unfinished real estate constructed on a land plot in accordance with the requirements of the legislation of the Russian Federation, including buildings and structures, subject to the rules of Article 69 of this Federal Law.

3. Unless otherwise provided by the contract, the thing that is the subject of the mortgage is considered pledged together with accessories (Article 135 of the Civil Code of the Russian Federation) as a single whole.

4. Part of the property, the division of which in kind is impossible without changing its purpose (indivisible thing), cannot be an independent subject of mortgage.

5. The rules on the mortgage of real estate accordingly apply to the pledge of the rights of a tenant under a lease agreement for such property (lease right), since otherwise is not established by federal law and does not contradict the essence of rental relations.

Article 6. The right to pledge property under a mortgage agreement

1. A mortgage may be established on the property specified in Article 5 of this Federal Law, which belongs to the mortgagor by right of ownership or by the right of economic management.

2. Mortgage of property withdrawn from circulation, property on which, in accordance with federal law, cannot be foreclosed on, as well as property in respect of which mandatory privatization is provided for in accordance with the procedure established by federal law or the privatization of which is prohibited is not permitted. *6.2)

3. If the subject of the mortgage is property, the alienation of which requires the consent or permission of another person or body, the same consent or permission is necessary for the mortgage of this property.

Decisions on the pledge of real estate that is state-owned and not secured by the right of economic management are made by the Government of the Russian Federation or the government (administration) of a constituent entity of the Russian Federation.

4. The right to lease may be the subject of a mortgage with the consent of the lessor, unless otherwise provided by federal law or the lease agreement. In the cases provided for in paragraph 3 of Article 335 of the Civil Code of the Russian Federation, the consent of the owner of the leased property or the person who has the right of economic management over it is also required.

5. A pledge of real estate is not the basis for the release of a person who acted as a mortgagor under a mortgage agreement from fulfilling the conditions under which he participated in an investment (commercial) competition, auction or otherwise in the process of privatization of the property that is the subject of this pledge.

6. The mortgage applies to all inseparable improvements to the subject of the mortgage, unless otherwise provided by the agreement or this Federal Law.

(the clause was additionally included on January 11, 2005 by Federal Law of December 30, 2004 No. 216-FZ)

Article 7. Mortgage of property in common ownership

1. On property that is in common joint ownership (without determining the share of each owner in the right of ownership), a mortgage can be established with the consent of all owners. Consent must be given in writing, unless federal law provides otherwise.

2. A participant in common shared ownership may pledge his share in the right to common property without the consent of other owners.

If, at the request of the mortgagee, foreclosure is applied to this share upon its sale, the rules of Articles 250 and 255 of the Civil Code of the Russian Federation on the pre-emptive right of purchase belonging to the remaining owners and on foreclosure on a share in the right of common ownership are applied, with the exception of cases of foreclosure on a share in the right of ownership of the common property of a residential building ( Article 290 of the Civil Code of the Russian Federation) in connection with the foreclosure of an apartment in this building.

CHAPTER II. CONCLUSION OF A MORTGAGE AGREEMENT

Article 8. General rules for concluding a mortgage agreement

The mortgage agreement is concluded in compliance with the general rules of the Civil Code of the Russian Federation on concluding agreements, as well as the provisions of this Federal Law.

Article 9. Contents of the mortgage agreement

1. The mortgage agreement must indicate the subject of the mortgage, its valuation, essence, size and deadline for fulfilling the obligation secured by the mortgage.

2. The subject of the mortgage is determined in the agreement by indicating its name, location and a description sufficient to identify this subject.

The mortgage agreement must indicate the right by virtue of which the property that is the subject of the mortgage belongs to the mortgagor, and the name of the body carrying out state registration of rights to real estate and transactions with it (hereinafter referred to as the body carrying out state registration of rights) that registered this right pledgor.

If the subject of the mortgage is a leasehold right owned by the mortgagor, the leased property must be defined in the mortgage agreement in the same way as if it were itself the subject of the mortgage, and the lease term must be indicated.

3. The valuation of the subject of the mortgage is determined in accordance with the legislation of the Russian Federation by agreement between the mortgagor and the mortgagee in compliance with the requirements of Article 67 of this Federal Law when mortgaging a land plot and is indicated in the mortgage agreement in monetary terms.

When mortgaging state and municipal property, its assessment is carried out in accordance with the requirements established by federal law, or in the manner prescribed by it.

The paragraph was deleted from November 13, 2001 by Federal Law of November 9, 2001 No. 143-FZ

In the case of a pledge of unfinished real estate that is in state or municipal ownership, the market value of this property is assessed.

(paragraph additionally included on November 13, 2001 by Federal Law of November 9, 2001 No. 143-FZ)

4. The obligation secured by a mortgage must be named in the mortgage agreement, indicating its amount, the basis for its occurrence and the deadline for fulfillment. In cases where this obligation is based on any agreement, the parties to this agreement, the date and place of its conclusion must be indicated. If the amount of the obligation secured by the mortgage is subject to determination in the future, the mortgage agreement must indicate the procedure and other necessary conditions for its determination.

5. 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 these amounts to be determined.

6. If the rights of the mortgagee in accordance with Article 13 of this Federal Law are certified by a mortgage, this is indicated in the mortgage agreement, with the exception of cases of issuance of a mortgage under a mortgage by force of law.

(clause supplemented on February 14, 2002 by Federal Law of February 11, 2002 No. 18-FZ)

Article 10. State registration of the mortgage agreement.

1. A mortgage agreement is concluded in writing and is subject to state registration.

An agreement that lacks any data specified in Article 9 of this Federal Law, or violates the rules of paragraph 4 of Article 13 of this Federal Law, is not subject to state registration as a mortgage agreement.

Failure to comply with the rules on state registration of a mortgage agreement entails its invalidity. Such an agreement is considered void.

2. The mortgage agreement is considered concluded and comes into force from the moment of its state registration.

3. When including a mortgage agreement in a loan or other agreement containing an obligation secured by a mortgage, the requirements established for a mortgage agreement must be met with regard to the form and state registration of this agreement.

4. If the mortgage agreement states that the rights of the mortgagee in accordance with Article 13 of this Federal Law are certified by a mortgage, together with such an agreement, the mortgage is submitted to the body that carries out state registration of rights. If the conclusion of a corresponding agreement entails the creation of a mortgage by force of law, in the case of drawing up a mortgage note, the corresponding agreement and the mortgage note are presented. The body carrying out state registration of rights makes a mark on the mortgage about the time and place of state registration, numbers and seals the sheets of the mortgage in accordance with paragraph two of paragraph 3 of Article 14 of this Federal Law.

(article as amended, put into effect on January 11, 2005 by Federal Law of December 30, 2004 No. 216-FZ)

Article 11. Emergence of a mortgage as an encumbrance

1. State registration of a mortgage agreement is the basis for making a mortgage entry in the Unified State Register of Rights to Real Estate and Transactions with It.

State registration of an agreement giving rise to a mortgage by force of law is the basis for making a record of the emergence of a mortgage by force of law in the Unified State Register of Rights to Real Estate and Transactions with It.

The paragraph became invalid on January 1, 2005 - Federal Law of November 2, 2004 No. 127-FZ.

2. A mortgage as an encumbrance on property pledged under a mortgage agreement arises from the moment of conclusion of this agreement.

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 established by the agreement.

3. The rights of the mortgagee (the right of pledge) to the property provided for by this Federal Law and the mortgage agreement are considered to arise from the moment an entry about the mortgage is made in the Unified State Register of Rights to Real Estate and Transactions with It, unless otherwise established by federal law. If the obligation secured by the mortgage arose after the entry of the mortgage into the Unified State Register of Rights to Real Estate and Transactions with It, the rights of the mortgagee arise from the moment this obligation arises.

The rights of the pledgee (the right of pledge) to the pledged property are not subject to state registration.

(article as amended, put into effect on February 14, 2002 by Federal Law of February 11, 2002 No. 18-FZ)

Article 12. Warning to the mortgagee about the rights of third parties to the subject of mortgage

When concluding a mortgage agreement, the mortgagor is obliged to warn the mortgagee in writing about all the rights of third parties to the subject of the mortgage known to him at the time of state registration of the agreement (rights of pledge, lifelong use, lease, easements and other rights). Failure to fulfill this obligation gives the mortgagee the right to demand early fulfillment of the obligation secured by the mortgage or change the terms of the mortgage agreement.

CHAPTER III. MORTGAGE

Article 13. Basic provisions on the mortgage

1. The rights of the mortgagee under the obligation secured by a mortgage and under the mortgage agreement may be certified by a mortgage, unless otherwise established by this Federal Law.

A mortgage may certify the rights of the mortgagee under the mortgage by force of law and under the obligation secured by this mortgage, unless otherwise established by this Federal Law.

(paragraph additionally included on February 14, 2002 by Federal Law of February 11, 2002 No. 18-FZ)

2. A mortgage is a registered security certifying the following rights of its legal owner:

The right to receive performance under a monetary obligation secured by a mortgage, without providing other evidence of the existence of this obligation;

The right of lien on property encumbered with a mortgage.

(clause as amended, put into effect on February 14, 2002 by Federal Law of February 11, 2002 No. 18-FZ)

3. The obligated persons under the mortgage are the debtor for the obligation secured by the mortgage and the mortgagor.

4. Drawing up and issuing a mortgage is not allowed if:

1) the subject of the mortgage is:

Enterprise as a property complex;

(paragraph no longer in force on February 10, 2004 - Federal Law of February 5, 2004 No. 1-FZ(

Forests;

The right to lease the property listed in this subclause;

2) a mortgage secures a monetary obligation, the amount of debt for which is not determined at the time of concluding the agreement and which does not contain conditions allowing this amount to be determined at the appropriate time.

In the cases provided for in this paragraph, the terms of the mortgage in the mortgage agreement are invalid.

5. The mortgage is drawn up by the mortgagor, and if he is a third party, also by the debtor for the obligation secured by the mortgage.

The mortgage is issued to the original mortgagee by the body carrying out state registration of rights after state registration of the mortgage.

(paragraph as amended, put into effect on January 11, 2005 by Federal Law of December 30, 2004 No. 216-FZ)

The transfer of rights under the mortgage and the pledge of the mortgage are carried out in the manner established by Articles 48 and 49 of this Federal Law.

6. The debtor under an obligation secured by a mortgage, the mortgagor and the legal owner of the mortgage may, by agreement, change the terms of the mortgage previously established by them.

7. When concluding an agreement specified in paragraph 6 of this article and paragraph 3 of Article 36 of this Federal Law, and transferring a debt under an obligation secured by a mortgage, these agreements provide for:

Or making changes to the contents of the mortgage by attaching the original of this agreement to it and indicating in the text of the mortgage itself the agreement as a document that is an integral part of the mortgage, in accordance with the rules of part two of Article 15 of this Federal Law;

Or cancellation of the mortgage and at the same time the issuance of a new mortgage, drawn up taking into account the relevant changes.

State registration of an agreement to change the contents of a mortgage must be carried out within one day from the moment the applicant applies to the body carrying out state registration of rights. State registration of such an agreement is free of charge.

In case of cancellation of the mortgage and at the same time the issuance of a new mortgage, together with an application for making changes to the records of the Unified State Register of Rights to Real Estate and Transactions with It, the mortgagor transfers to the body carrying out state registration of rights a new mortgage, which is handed over to the mortgagee in exchange for the existing in his legal possession of the mortgage.

The canceled mortgage is stored in the archives of the body carrying out state registration of rights until the mortgage registration record is redeemed.

(clause as amended, put into effect on January 11, 2005 by Federal Law of December 30, 2004 No. 216-FZ)

Article 14. Contents of the mortgage

1. The mortgage at the time of its issuance to the original mortgagee by the body carrying out state registration of rights must contain:

(paragraph supplemented on February 14, 2002 by Federal Law of February 11, 2002 No. 18-FZ; as amended by Federal Law of December 30, 2004 No. 216-FZ, entered into force on January 11, 2005 - see previous edition)

1) the word “mortgage” included in the title of the document;

2) the name of the pledgor and an indication of the place of his registration or his name and an indication of the location, if the pledgor is a legal entity;

3) the name of the original pledgee and an indication of the place of his registration or his name and an indication of the location if the pledgee is a legal entity;

(subparagraph as amended, entered into force on January 11, 2005 by Federal Law of December 30, 2004 No. 216-FZ)

4) the name of the loan agreement or other monetary obligation, the execution of which is secured by a mortgage, indicating the date and place of conclusion of such an agreement or the basis for the occurrence of the obligation secured by the mortgage;

5) the name of the debtor under the obligation secured by the mortgage, if the debtor is not a mortgagor, and an indication of the place of registration of the debtor or his name and location, if the debtor is a legal entity;

(subparagraph as amended, entered into force on January 11, 2005 by Federal Law of December 30, 2004 No. 216-FZ);

6) an indication of the amount of the obligation secured by the mortgage and the amount of interest, if they are payable on this obligation, or the conditions that allow this amount and interest to be determined at the appropriate time;

7) an indication of the deadline for payment of the amount of the obligation secured by the mortgage, and if this amount is payable in installments - the timing (frequency) of the relevant payments and the amount of each of them or the conditions allowing to determine these terms and amounts of payments (debt repayment plan);

8) the name and description sufficient for identification of the property on which the mortgage is established, and an indication of the location of such property;

9) monetary value of the property on which the mortgage is established, and in cases where the establishment of a mortgage is mandatory by law, the monetary value of the property, confirmed by the conclusion of the appraiser;

(subparagraph as amended, entered into force on November 13, 2001 by Federal Law of November 9, 2001 No. 143-FZ)

10) the name of the right by virtue of which the property that is the subject of the mortgage belongs to the mortgagor, and the body that registered this right, indicating the number, date and place of state registration, and if the subject of the mortgage is a lease right belonging to the mortgagor - the exact name of the property that is the subject lease, in accordance with subparagraph 8 of this paragraph and the validity period of this right;

11) an indication that the property that is the subject of the mortgage is encumbered with the right of lifelong use, lease, easement, or other right, or is not encumbered with any of the rights of third parties subject to state registration at the time of state registration of the mortgage;

12) the signature of the mortgagor, and if he is a third party, also of the debtor under the obligation secured by the mortgage;

13) information on state registration of mortgages provided for in paragraph 2 of Article 22 of this Federal Law;

(subparagraph as amended, entered into force on January 11, 2005 by Federal Law of December 30, 2004 No. 216-FZ)

14) indication of the date of issue of the mortgage to the original mortgagee. In the case of a mortgage being issued under a mortgage, by force of law, inclusion in the mortgage of the data specified in subclause 10 of this clause is ensured by the body carrying out state registration of rights. The procedure for including this data in the mortgage is determined by Article 22 of this Federal Law.

(subparagraph supplemented on February 14, 2002 by Federal Law of February 11, 2

Federal Law 102 On Mortgage and Pledge of Real Estate was adopted in 1998. It discusses all the features of taking out a loan of this kind, its repayment, regulation of controversial issues, transfer of real estate from collateral to ownership and other important nuances.

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Regulatory issues 102-FZ

Purchasing real estate presents a certain difficulty associated with large sums: not every family can afford to immediately pay several million rubles, and therefore they have to apply for a loan from banks.

A mortgage is a loan (the issuance of money to a citizen) when the purchased property is pledged as collateral.

In other words, the apartment that the family purchases is the property of the bank until the borrowed amount is paid.

Good to know: In fact, a mortgage is the surrender of an object as collateral for obtaining a loan.

Mortgages are regulated by several laws:

1. Chapter 42 of the Civil Code of the Russian Federation (Civil Code): defines the relationship between the lender and the borrower when taking out a loan.
2. Federal Law No. 102 “On Mortgage (Pledge of Real Estate)”: it relates directly to mortgage lending.
3. Federal Law No. 122 on the need for state registration of rights to real estate.

General provisions of the Mortgage Law

The Federal Law on Mortgage is FZ-102 as amended, which consists of 14 chapters.

It regulates all the basic provisions for obtaining and paying off a mortgage:

1. General provisions: grounds for occurrence, obligations of the parties, what property can become collateral.
2. Agreement: rules of compilation, content, its registration, encumbrance.
3. Mortgage: its content, drafting, fulfillment of the rights and obligations specified in it.
4. State registration of documents: procedure, fee amount, cancellation of entry.
5. Security of the apartment: It is important for the bank that the property does not lose value, that is, when it is sold, the entire amount can be raised. This applies to this chapter.
6. Rights to real estate and their transfer to other persons: We are talking about the alienation of an apartment and the consequences of violation.
7. Subsequent mortgage: its concept, features and registration.
8. Assignment of rights and transfer of invoice.
9. Foreclosure of mortgaged property(confiscation due to debts): is this possible, how does it happen.
10. Sale of confiscated real estate: all options for sale or transfer.
11. Chapters 11-13 refer to mortgages of special objects not mentioned earlier.

Take into account: The chapters talk about private and apartment buildings, apartments in a building under construction, land plots, and non-residential premises.

12. Chapter 14 is the final chapter.

Requirements for the contract

The document is usually drawn up by the bank's lawyers, but it is worth checking.

The following points must be noted in the contract:

1. Subject of mortgage: apartment, room, house, land, premises. It is necessary to accurately indicate the address of the property, its cadastral number, technical characteristics (area, floor, number of premises) and features. The collateral must be accurately identified and described so that it can be easily identified.

Lawyer's Note: It is impossible to simply write “an apartment purchased by a citizen” - such an agreement will not be valid, since the judge, if necessary, will not be able to understand what is at stake.

2. Property value: we are talking about the estimated price - the price at which the apartment can be sold. It must be agreed upon by the parties.
3. All conditions for issuing a loan: size, terms, payment procedure, details of the parties. On the recipient side, they usually indicate a person who is ready to take on repayment obligations if something happens to the main payer.
4. Ownership of the property: If the property is collateral, this is indicated.

If at least one point is not agreed upon, the contract will not be concluded.

Registration of the contract according to the law

The mortgage agreement must be registered at the location of the property. Only after this does it come into force.

It is not necessary to notarize the document.

It is necessary to submit to Rosreestr:

• statement from both sides;
• the mortgage agreement and the documents that are mentioned in it, for example, the mortgage note;
• loan agreement or other document confirming receipt of money;
• receipt of payment of state duty;
• other documents required in individual cases.

Rosreestr is obliged to register the transaction within 15 days from the date of submission of documents: this will be confirmed by an entry in the Unified State Register. A mark will also be placed on the mortgage agreement itself: it indicates the date, number, full name of the authority and its address.

After repaying the loan, you will need to contact Rosreestr again and remove the encumbrance. If the contract is terminated for other reasons, the entry will need to be canceled.

Removal of encumbrances

Encumbrance is a status of real estate in which a citizen does not have the right to enjoy all property rights.

Until the mortgage is repaid, the owner of the apartment is the bank: the family can live in it, repair, equip it, but have no right to sell, exchange or carry out large-scale renovation work.

Good to know: The ban on major renovation work is associated with a possible decrease in the value of the apartment - the bank cannot allow this.

Only after fulfilling obligations to the creditor, the family receives all rights, and the encumbrance is removed from the apartment.

It happens like this:

1. A citizen writes an application to the bank with a request to provide him with all the documents: mortgage, statement of debt repayment, documents for the apartment.
2. With them and an application to remove the encumbrance, he goes to Rosreestr.
3. After verification, Rosreestr issues a certificate of ownership, and the status of the property changes.

Note: The procedure for removing the encumbrance can also occur differently: after contacting the bank, its employee sets a date for a meeting at Rosreestr, where he brings the documents. In this case, the procedure is carried out under the control of the bank, which eliminates any errors on its part.

Despite the fact that most banks draw up identical agreements, the clauses of which are based on current legislation, it is recommended to study the laws specified in the article. This will help you find an error or inaccuracy in the document and avoid serious problems in the future.

Watch the video in which a specialist explains the features of registering apartments under the mortgage law: