Mortgage(from Latin hypotheca - pledge, from Greek hypoteke) is a type of pledge in which real estate is pledged, but at the same time remains the property of the debtor. If the debtor does not fulfill his obligations, then the creditor has the right to receive satisfaction through the sale of this property.

It is necessary to distinguish between the concepts of mortgage and, in which a loan is issued by a bank secured by real estate. A mortgage loan is one of the components of the mortgage system. When receiving a loan to purchase real estate, the purchased property itself is mortgaged (collateral) to the bank as a guarantee of loan repayment.

Services for selecting, processing and obtaining mortgage loans are called mortgage brokerage. Mortgage brokerage is carried out by a specialist trained for this activity - mortgage broker.

A mortgage is also a pledge of the owner’s existing real estate for the purpose of obtaining a credit or loan, which will be used either for repairs or construction, or for other needs at the discretion of the borrower-mortgagor.

In case of failure to fulfill the main obligation, foreclosure is applied only to the pledged real estate, and the mortgagee has a priority right to satisfy his claims over other creditors of the debtor.

Grounds for the emergence of mortgages and its regulation

The current legislation provides for two types of grounds for the emergence of a mortgage:

1. by force of law;
2. by virtue of the contract.

Mortgage by force of law

Mortgage by force of law (legal mortgage) is a mortgage that arises upon the occurrence of certain facts specified in the law, regardless of the will of the parties regarding the occurrence of a mortgage, upon the transfer of ownership of a property from one person to another, more precisely upon the acquisition of this right by a new owner, but with the obligatory occurrence facts determined by law.

A mortgage arises by force of law in the following five main and common cases:

1. Acquisition of residential houses, apartments, land plots using credit funds from a bank or other credit organization or funds from a targeted loan.
2. Construction of residential houses, buildings, structures or apartments using credit funds from a bank or other credit organization or funds from a targeted loan.
3. Sale on credit.
4. Rent.
5. Pledge of property rights.

Mortgage by agreement

Mortgage by agreement (negotiated mortgage) is a mortgage that arises on the basis of a mortgage agreement (mortgage of real estate).

A mortgage agreement is not an independent obligation, but consists of securing an obligation under a loan agreement, credit agreement or other obligation.

A mortgage by force of law differs from a mortgage arising on the basis of an agreement only in that the first arises by virtue of a direct indication in the law and is registered automatically together with another agreement even without an application from the parties, and a mortgage by virtue of an agreement is subject to registration upon a separate application of the parties. Since a mortgage, by force of law, arises with a targeted loan for the purchase of housing, when such a mortgage is registered, the owner of the property changes, and to be more precise, such a mortgage arises simultaneously with the acquisition of real estate by the borrower.

Property that can be the subject of a mortgage

Property that may be the subject of a mortgage is defined in Article 5 of the Mortgage Law - immovable things specified in Article 130 of the Civil Code of the Russian Federation, the rights to which are registered in the manner established for state registration of rights to real estate and transactions with it.

Such things include:

1. land plots, with the exception of land plots specified in Article 63 of the Mortgage 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 consumer buildings;
5. air and sea vessels, inland navigation vessels and space objects.

Assessment of the borrower's solvency

Assessment of the borrower's solvency (underwriting) is an assessment of the Client’s capabilities to service the issued mortgage loan, that is, a calculation of the loan amount that the borrower will be able to repay, taking into account the characteristics of the borrower himself (type of employment, monthly income and the possibility of confirming it, the presence of co-borrowers or guarantors, family composition, presence of minor dependents , etc.). The client goes through the underwriting procedure twice: when contacting a mortgage broker (carried out by the underwriter of the brokerage company) before concluding an agreement for the provision of services, and also at the bank (carried out by bank credit analysts) when considering an application for a mortgage loan.

Brief description of the bank's underwriting procedure. Calculation of odds:

These coefficients were developed by banks together with the Federal Agency for Housing Mortgage Lending based on the experience of the United States and European countries. It is this set of indicators that reflects a complete picture of the borrower’s solvency, and also allows us to standardize the procedure for approving and issuing a mortgage loan. In each banking program, these coefficients are approved in advance, but in some cases they can be adjusted, for example, according to the method of confirming income. K/Z, O/D and P/D may vary depending on the subject of the Russian Federation, the size of the average salary and the preferences of a particular bank.

After calculating using these coefficients, a minimum amount is usually selected, which will be the loan amount. Income and the method of confirming it are one of the main factors that influence the loan amount. Most banks understand that not all income of future borrowers is reflected in the employer’s accounting records, so they are developing various ways to confirm income, for example: a free-form income certificate.

Features of a mortgage loan

The loan is issued for a long term (up to 50 years). The interest rate on a mortgage loan is lower than on other types of loans. The borrower of a mortgage loan must have a so-called “down payment” available - part of the cost of the property purchased without taking into account the mortgage loan (although in some banks this condition is not mandatory). The size of the down payment usually affects the interest rate of the loan and ranges from 0% to 70% of the value of the mortgage property. The bank puts forward a number of special requirements for the mortgage loan borrower: confirmation of income, continuous work experience, etc. Obligatory participants in mortgage lending are insurance and appraisal companies, which provide the bank with the security of the transaction. The mortgage loan is usually repaid in equal payments - annuities. The size of such a permanent annuity payment (A) is calculated using the formula.

The differences between a mortgage by law and by contract are quite significant. These formats have their own characteristics and are used under different circumstances. At the same time, you do not need to think that the mortgage by virtue of the contract is not legal. On the contrary, it also does not contradict the regulatory framework; it’s just that it’s very difficult to actually call such a loan a mortgage.

Federal Law No. 102-FZ “On Mortgage” provides a specific definition of this type of loan. Actually, any mortgage has one important feature: money is lent to the client, and in return he provides the bank with security in the form of collateral.

For Russian financial institutions, the most typical type is a mortgage, in which the client buys real estate with allocated funds. That is, in this case we are talking about a targeted loan. The bank not only imposes requirements on the form of real estate, but also directly on its characteristics.

A “legal” mortgage allows borrowers to purchase an apartment on the primary or secondary market, in a building under construction, including land, a house, a room or a share in an apartment. Some banks offer targeted loans for the purchase of a garage. For business representatives, special types of real estate are provided (commercial real estate, for example, industrial or warehouse premises).

For banks, mortgages are legally more profitable and safer, since they reduce their risks of losing money by obtaining collateral. The client cannot dispose of it, despite the fact that it is registered as property, until the debt is fully repaid and the encumbrance is removed.

A legal mortgage arises under the following conditions:

• at the time of signing the annuity agreement (the property becomes the property of another person who assumes obligations to care for a dependent; such a scheme is often used to support the elderly by relatives or private nursing homes);
• targeted purchase of finished or under construction real estate with money issued by the bank;
• sale of real estate on credit or in installments.

Mortgages by law are not limited to bank loans. Similar legal relations can arise between individuals and legal entities. For example, a family has some money on hand to buy an apartment. The buyer agrees to provide installment payments for the remaining amount. At the time of signing the purchase and sale agreement, the terms of the installment plan are prescribed. In this case, there is also a mortgage by force of law.

If the mortgage is issued through a bank, then the sequence of actions looks approximately as follows:

1. the client applies to the bank for preliminary approval of the mortgage;
2. a person is looking for suitable real estate;
3. after assessing the property, the bank makes a final decision on the mortgage, and a loan agreement is signed between the parties;
4. a purchase and sale transaction is concluded;
5. the seller receives the funds due to him from the bank.

The fact that money is transferred from the bank indicates that housing is purchased with borrowed funds. Which just confirms the need to use real estate as collateral. In the future, if suddenly the borrower cannot or does not want to fulfill his obligations, the bank has the right to confiscate the property, sell it and take money to pay off the debt.

An important feature of concluding a mortgage by force of law is the mandatory presence of a mortgage.

This type of mortgage is very rare in Russian banks. It assumes that all the terms of the agreement between the lender and the borrower are written individually. In essence, this type of mortgage has more in common with a conventional loan than with a statutory mortgage. It has the following formats:

1. the bank issues money with which the client buys real estate, while the loan is not targeted and does not require the provision of collateral;
2. in the form of collateral, the client provides not the property being purchased, but the property he already owns;
3. The pledge is issued after registration of ownership.

Few banks are willing to provide this type of mortgage, since this significantly increases the risk of non-repayment of borrowed funds. Even the latter option has its disadvantages for the lender. In this case, the client is given time to register the property in his name. Only after this is a pledge agreement concluded. However, from an official point of view, the property has no encumbrances. And if the client refuses to formalize it, then the bank, even in court, will not be able to obtain ownership of the home until the contract is fully repaid.

What is the difference?

Mortgage by law and contract has many differences. They concern not only risks for the bank, but also other important features:

Type of mortgage	By force of law	By virtue of the contract
On what basis does it arise?	According to the law	Based on the contract
Registration Features	Registration of a mortgage occurs automatically when registering documents for real estate in Rosreestr. Submission of papers can be carried out by either party (mortgagor or pledgee) or both at the same time.	A separate mortgage registration is required. Submitting documents to Rosreestr requires the presence of both parties at once.
Type of loan		Non-target
Availability of collateral	Necessarily, it is the purchased property	Maybe, but not necessarily. The list of possible real estate includes the borrower's existing real estate
Do I need to pay the state fee separately?

A mortgage is legally more profitable for the bank. From a financial point of view, it is also better for the borrower: he does not have to spend money on state fees, and the lending conditions for such a loan are more profitable. A mortgage, by virtue of the contract, gives more rights and freedoms in relation to the purchased property, but the absence of any collateral will require the client to confirm his financial solvency and reliability.

will try to explain such a complex phenomenon as “mortgage by force of agreement” and “mortgage by force of law”. In the practice of mortgage lending, citizens have a lot of questions and these questions are often asked on the websites of our companies. Our experts have summarized the response data into one material.

First, you need to understand the legal aspects of such a phenomenon as a mortgage by force of law. This is how representatives of the Office of the Federal Registration Service for St. Petersburg and the Leningrad Region explain this term:

Question: What is a “mortgage by operation of law”?

Answer: In accordance with paragraphs 1, 2 of Art. 11 of the Federal Law "On state registration of rights to real estate and transactions with it" N 122-ФЗ dated July 21, 1997 (hereinafter referred to as the Registration Law), state registration of an agreement entailing the emergence of a mortgage by force of law is the basis for inclusion in the Unified State register of rights to real estate and transactions with it, records of the emergence 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 established by the agreement.

In accordance with clause 43 of the Rules for maintaining the Unified State Register of Rights to Real Estate and transactions with it, approved by Decree of the Government of the Russian Federation No. 219 of February 18, 1998 (hereinafter referred to as the Rules for maintaining the Unified State Register), records of restrictions (encumbrances) of ownership and other real rights for a real estate property are entered into the Unified State Register of Rights on the basis of contracts and other documents subject to mandatory state registration that serve as the basis for the emergence of restrictions (encumbrances).

Clause 1 Art. 77 of the Federal Law “On Mortgage (Pledge of Real Estate)” No. 102-FZ dated July 16, 1998 states that an apartment purchased using credit funds from a bank or other credit organization is considered pledged from the moment of state registration of the borrower’s ownership of a residential building or apartment.

According to clause 27 of the Instruction on the procedure for state registration of mortgages of real estate objects, approved by Order of the Ministry of Justice of the Russian Federation No. 213 dated June 15, 2006, if it is impossible to establish from the title document and other documents submitted for state registration of rights (transfer of rights) that an object of real estate is the subject of a mortgage arising on the basis of law (for example, the purchase and sale agreement does not indicate that this object is being acquired using credit or borrowed funds, etc.), state registration of the mortgage by force of law is carried out on the basis of a joint application the mortgagor and the mortgagee with the attachment of documents confirming the creation of a mortgage on the basis of the law (loan agreement, loan agreement with the condition of a targeted loan).

It is also necessary to provide: an identification document of the applicant. When a representative applies, a document confirming his authority; documents named in the mortgage agreement as attachments. When certifying the rights of the mortgage holder - the original of the mortgage and the originals of the documents named in the mortgage as attachments; the original plan of the property, certified by the state body (organization) carrying out state accounting and technical inventory of real estate in the territory of the registration district. For a land plot - a cadastral plan of the land plot.

Now that everything has become completely clear, experts will comment on the legislation.

Lawyer comments Anton Lebedev :

In other words, a mortgage by force of law arises in the event of the acquisition of real estate at the expense of credit (loan) funds into the ownership of the borrower and, possibly, a minor. The defining moment for a mortgage by virtue of the law is precisely the receipt of funds for the purpose of purchasing a property and the acquisition of real estate into the ownership of the person receiving funds on credit or a loan.

The provisions of the legislation on mortgages by force of law provide a preferential regime for the emergence of a mortgage: state registration of a mortgage by force of law is carried out without submitting a separate application and without paying a state fee.

The exception to this rule is minors. This is because minors cannot, in most cases, earn enough income to make mortgage payments. Moreover, minors have limited legal capacity and cannot independently enter into transactions until they are 14 years old, and from 14 to 18 years old only with the consent of a legal representative - usually their parents. Until the age of 18, the sale of real estate to a minor must be approved by the guardianship authorities. Even after reaching the age of 18, a person may not start earning money to pay off a mortgage loan, because... he can go to college and continue to be dependent on his parents.

In my opinion, the confusion in this rule is caused by the restrictions existing in the mortgage programs themselves, because Legislation interprets mortgages by force of law much more broadly than banks use. Banks are trying to limit the participation of minors in mortgage programs. A significant portion of mortgage programs do not allow a minor to be included as a co-owner unless necessary. This is due to the increased risks of banks in foreclosure on such property. The participation of a minor in a mortgage transaction is permitted provided that he sells a share of real estate, the money from the sale of which is used to purchase a new “mortgage” home. This is due to the fact that the guardianship authority will not give permission to simply sell the property of a minor without providing him with any other housing, and without selling the minor’s share, the transaction will be impossible. Banks do not dare to reject an entire group of potential borrowers.

I would also like to say something about a mortgage by virtue of an agreement. The rule is quite simple - everything that is not a mortgage by law is a mortgage by contract. Previously, non-residential real estate was an exception - non-residential real estate was pledged only on the basis of a mortgage agreement. This has now been fixed. In the case where a mortgage loan is obtained on the security of existing housing, the emergence of a mortgage is possible only on the basis of an agreement. Even if the loan was received by one borrower, and two people, including the borrower, should become the owners, it is necessary to conclude a mortgage agreement, because By virtue of the law, it will be impossible for two people to have a mortgage at once.

Issues related to the registration of a mortgage by law and agreement raise many problems and disputes. This is due to the rather blurred line between the terms used. In this article, we will analyze what a mortgage by force of law means, what are the features, cases of application, and how a mortgage by force of contract differs from that provided by law.

Mortgage by force of law

The correct definition of the term mortgage by force of law, what it means and what rules it is regulated by, is possible only with the correct use of the following basic financial definitions:

• mortgage;
• mortgage loan (loan).

Many citizens incorrectly identify these concepts and assume that in both cases we are talking about obtaining a loan to purchase a home, which is typical only for a mortgage loan.

A mortgage is one of the ways to ensure the fulfillment of obligations under an agreement, including a loan agreement, under which real estate is pledged as collateral. The owner of such property is actually deprived of the right to dispose of it without obtaining the consent of the pledgee, namely to carry out purchase and sale transactions, barter, donations and others.

Obligations by force of law are based on the effect of regulations that establish, regardless of the wishes of the parties, the obligation to pledge real estate. The normative basis of such relations is:

Civil Code of the Russian Federation;

• Federal Law of July 13, 2015 N 218-FZ “On State Registration of Real Estate”;
• Federal Law of July 16, 1998 N 102-FZ “On Mortgage (Pledge of Real Estate)”;
• Federal Law of July 21, 1997 N 122-FZ “On state registration of rights to real estate and transactions with it” (loses in full force from January 1, 2020).

From the meaning of these norms we can conclude that a mortgage, by force of law, has the following characteristic features:

• the creditor and mortgagee is a bank or other credit organization;
• real estate is acquired using borrowed funds;
• the conditions and requirements for collateral are contained in the loan agreement;
• To register, the mortgagor or mortgagee must submit an application for a mortgage by force of law and provide a loan agreement, on the basis of which information about the parties is entered into the state register;
• registration of ownership of the acquired object and the collateral encumbrance are carried out simultaneously.

The analysis allows us to classify the types of mortgages by force of law depending on the grounds for their occurrence:

• use of loan funds when purchasing real estate during the construction stage - despite the absence of the property at the time of execution of the loan agreement, it is assumed to be transferred as collateral;
• applying for a loan for the purchase of a finished property - registration of the rights of the mortgagee is carried out at the moment the rights to the property are transferred to the mortgagor;
• arising from the conditions of the rent;
• other cases directly provided for by the law.

Please note that the parties are subject to a special preferential regime, which exempts them from paying state fees during registration.

Mortgage by agreement

Although the law mentions the type of pledge of property arising from the terms of the agreement, it does not clearly regulate it and does not contain the concept of what a mortgage under an agreement is. From the meaning of the above norms, one should understand all types of pledge of real estate that do not have the characteristics of a mortgage established at the legislative level.

The collateral arising from the agreement may arise in various situations, for example, when applying for a loan or serve as a guarantee for the fulfillment of other obligations. Regardless of the basis for the occurrence of collateral obligations, a separate independent mortgage agreement must be concluded, containing information about the parties and the object of the collateral.

Registration of encumbrance is carried out in accordance with the following rules:

• a joint statement is required from the pledgor and the pledgee or a statement from the notary who certified the agreement;
• data is entered into the Unified State Register of Real Estate in strict accordance with the executed transaction;
• registration is carried out separately and does not imply a change in ownership and other proprietary rights to the object;
• making an entry in the state register is carried out after paying the state duty - 1000 rubles (clause 28, part 1, article 333.33 of the Tax Code of the Russian Federation).

The transfer of property as collateral is carried out on a voluntary basis, for example, to obtain a larger amount of a consumer loan or to obtain a loan with a minimum interest rate.

Distinctive features

Correct classification of existing legal relations within the framework of collateral obligations will allow not only to register the encumbrance according to the rules, but also to determine whether payment of state duty is necessary in a particular case.

For easy understanding, the distinctive features are presented in a table.

Registration of a mortgage by force of law is relevant for all mortgage loans, including those issued under special government programs. Encumbrance of property under the rules of mortgage by virtue of an agreement is used by representatives of large and medium-sized businesses to open a line of credit or obtain loans for the development of their activities, as well as by individuals in mutual lending secured by real estate.

The rules of the Civil Code of the Russian Federation (hereinafter referred to as 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 can be pledged, including things and property rights. 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 pledged 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 Article 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 fulfillment, 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 to pay 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.