The pledge arose and developed simultaneously with the emergence of elements private property, as a financial and economic instrument that ensures the protection of creditors and promotes the development of investment activities.

In its general sense, pledge can be defined as property or other valuables that serve as collateral for a loan. That is, a pledge is a kind of security for an obligation, in which the pledgee (legal or individual, accepting the subject of pledge as security for the loan issued by him), in case of default by the pledgor (legal or natural person that provided the subject of pledge to secure his debt), has a priority right over other creditors to satisfy his claim from the value of the pledged property.

A pledge arises by virtue of an agreement, as well as on the basis of the Law upon the occurrence of the circumstances specified in it, if the Law provides for what property and to ensure the fulfillment of which obligation is recognized as being in pledge.

The most common is a pledge under an agreement, when the pledgor (debtor) voluntarily pledges his property by concluding an appropriate agreement with the pledgee (creditor)

A pledge is a way to secure an obligation, and a pledge agreement is not independent, it is always associated with another agreement (purchase and sale, contract, commission, storage, etc.) that it provides. In addition, an agreement, an obligation secured by collateral, is concluded in order to withdraw the pledged property from possible collection according to the requirements of other creditors. A pledge agreement always stands behind another main agreement and is directly dependent on it.

The creditor retains the right of security even if the property is alienated by the owner in favor of third parties. However, the pledge does not give the right of ownership (possession or use) to the pledged property after the debtor violates his obligations, but serves as a means of satisfying the main claim of the creditor from the value of the pledged property.

It should be noted that the main provisions on the pledge, as such, are determined, firstly, by the Civil Code of the Russian Federation, and secondly, by the Law of the Russian Federation dated May 29, 1992 No. 2872 - 1 “On Pledge”. However, it must be borne in mind that the regulation of pledge in the Civil Code of the Russian Federation sometimes differs from its regulation in the above law.

The concept of pledge cannot be fully established without defining what is the subject of pledge.

The subject of pledge can be both movable and immovable property, as well as property rights, i.e. the objective rights of the participants in the relationship, related to the possession, use and disposal of property, as well as those material(property) claims that arise between participants in economic turnover regarding the distribution of this property and the exchange of goods, services, securities, etc.

The subject of pledge can be not only an existing object or rights to it, property that does not exist in kind at the time of the conclusion of the contract, for example, a future crop or a building to be built at the expense of a loan, which it acts as security for.

Main pledge principles:

1. Publicity– availability of information about the pledge of property for all interested parties.

2. concreteness- the property pledged must, by its characteristics (and in particular by its functional purpose), exactly match the data that it has as an object state registration.

3. Confidence– the value and liquidity of the property guarantees the repayment of the debt. Claims of the mortgagee are fulfilled under the guarantee of the agreed property of the pledger. The pledgee has the right to receive satisfaction on the same basis from insurance compensation for loss or damage to the pledged property, regardless of whose benefit it is insured, unless the loss or damage occurred due to reasons for which the pledgee is responsible.

There is a large number types of collateral, which differ from each other in accordance with the features that formed their basis.

From point of view the relationship of the parties to the mortgaged property The following main types of collateral are distinguished:

- classic pledge - the property remains with the pledger;

– pledge – the property is transferred to the pledgee in possession;

- a solid pledge - the property remains with the pledgor with the application of marks on it, indicating the pledge.

The type of collateral also depends on the terms of repayment of the loan received against the security of the property. In this case, different types of mortgages are distinguished. Mortgage - a security that determines the claim in relation to the pledged property provided by the pledgor in order to secure a loan.

1. Fixed rate mortgages. The mortgagor is obliged to make monthly payments on them to repay the loan debt and pay interest. Such loans are classified as self-absorbing. Amortization in this case means the process of paying off principal and interest on a loan.

2. Mortgages with a floating (or adjustable) interest rate. In this case, the rate of interest is tied to another market interest rate and adjusted in accordance with its changes. Adjustment is carried out, as a rule, no more than once a year. At the same time, the rate of interest on mortgages with a floating interest rate is lower, on average, by 1.5–2 percentage points than on mortgages with a fixed interest rate, which is associated with the awareness of the risk that the owners of adjustable mortgages take on. The essence of this risk is that the adjustment raises interest rate upwards, and monthly payments increase.

3. Mortgages with differentiated payments. Such mortgages provide for a gradual increase or decrease in payments to repay the loan. Such loans can, for example, be used for lending to young families whose income at the beginning of the loan period is lower than at the end.

4. Guaranteed mortgages. In this case, you need an insurer mortgage loan.

The right of pledge arises from the moment of conclusion of the pledge agreement, and in relation to the pledge of property to be transferred to the pledgee, from the moment of transfer of this property, unless otherwise provided by the pledge agreement.

The pledge is terminated in the following cases:

– when fulfilling obligations to secure collateral;

- in case of gross violations of the pledgee's obligations, entailing the threat of destruction of property and at the request of the pledger;

– upon termination of the pledge right and destruction of the pledged property, unless otherwise provided in the pledge agreement;

– if it is impossible to realize the pledge.

Pledge of immovable property to secure the monetary claim of the pledgee to the pledgor is called a mortgage.

However, there is a "but" here. We have given a general definition of mortgage, from which more detailed definitions can follow. this concept, based on the characteristics, condition and development of mortgages in different countries. So, for example, in the USA, under the mortgage refers to lending only in the housing sector. Therefore, although, by now, the mortgage has a certain international character, it is difficult to give an undeniable definition of this concept, since a representative of a particular country and population group can adjust it in his own way (Shevchuk D.A. An apartment on credit without problems . - M .: AST: Astrel, 2008).

Mortgage represents two aspects: legal and economic.

Legal content mortgage consists in the encumbrance of property rights to real estate objects when they are pledged.

Economic content mortgage is a market instrument for the circulation of property rights to real estate (in cases where other forms of alienation - purchase and sale, exchange - are inappropriate), allowing to attract additional financial resources for the implementation of any projects.

Legal regulation mortgage is carried out with the help of the Civil Code of the Russian Federation, as well as Federal Law No. 102 - FZ "On Mortgage" dated 16.07.

The subject of a mortgage may be real estate objects specified in the Civil Code of the Russian Federation, the rights to which are registered in the manner established for state registration. This property includes:

1. Enterprises as unified property complexes used in business activities.

The consent of the owner of the above-named real estate is required for the transfer of an enterprise to a mortgage. The pledgor, without the permission of the pledgee, is not entitled to transfer property related to the enterprise as a pledge, to make transactions aimed at alienating property related to the enterprise, unless otherwise provided by the mortgage agreement (Shevchuk D.A. Mortgage: just about the complicated. - M .: GrossMedia: ROSBUKh, 2008).

The mortgage of an enterprise may secure an obligation, the amount of which is not less than half of the value of all property related to this enterprise.

2. Buildings and structures(used in business activities) with simultaneous mortgage under the same agreement of the land plots on which they are located, or parts of these plots that functionally provide these buildings and structures. It must also be said here that if land plot on which the mortgaged object is located is leased, then simultaneously with the mortgage of the building or structure, the lease rights to this site or part of it must be pledged.

3. Residential buildings, apartments and parts residential buildings and apartments, consisting of one or more isolated rooms.

4. Hotels, holiday homes, dachas, garden houses and other buildings and premises not intended for permanent residence.

5. Air and sea vessels, inland navigation vessels and space objects.

6. Properties under construction, and materials and equipment that are prepared for their construction.

7. Subsoil plots, isolated water bodies.

8. Forests, perennial plantings.

Since real estate objects are located on the land, which are firmly connected with it, the pledge of buildings, structures, enterprises, isolated water bodies and perennial plantations is practically impossible without the simultaneous pledge of the relevant land plots (this has already been mentioned above). This determines the special role of land in the sphere of collateral relations.

9. Land plots owned by citizens, their associations, legal entities and provided for gardening, animal husbandry, individual housing, dacha and garage construction, household plots of personal subsidiary plots and land plots occupied by buildings, structures or structures, in the amount necessary for their economic maintenance (functional support).

In accordance with the Law "On Mortgage", as well as Art. 135 of the Civil Code of the Russian Federation, the property that is the subject of mortgage shall be considered to be pledged together with accessories as a whole.

In accordance with Russian legislation The subject of a mortgage cannot be:

- a part of the property, the division of which in kind is impossible without changing its purpose;

- property withdrawn from circulation, on which execution cannot be levied, as well as property in respect of which mandatory privatization is provided or the privatization of which is prohibited;

- state property: state and municipal lands, as well as agricultural land, state and municipal individual and multi-apartment residential buildings, subsoil plots and specially protected natural areas;

- part of the land plot, the area of ​​​​which is less minimum size for various purposes and permitted uses;

– shares in the ownership of the common property of a residential building separately from the ownership of the apartment.

6.2. MAIN PARTICIPANTS OF THE MORTGAGE LENDING SYSTEM

1 . Pledgor - an individual or legal entity that has provided real estate as a pledge to secure its debt. They have the following requirements:

– reliability and solvency;

- Voluntary pledge of real estate;

- ability to make advance payments.

2 . Mortgage lenders (pledge holders) are legal entities that issue loans secured by real estate. These include banks, funds and other credit institutions with which mortgagors enter into an agreement on the provision of a mortgage loan. Mortgage lenders service loans mortgage loans during the entire term of the contract.

mortgage bank- an institution that specializes in issuing a long-term loan secured by real estate. Loans by such banks are issued not only for housing, but also for industrial construction (for more details, see Shevchuk D.A. Banking operations. - M .: GrossMedia: ROSBUH, 2007).

Lending through mortgage banks is a classic mortgage loan scheme, on the basis of which most mortgage programs in the world work.

Advantages mortgage lending for banks:

– relatively low risk when issuing loans, as they are secured by real estate;

- long-term lending frees banks from private negotiations with customers;

– mortgage loans provide the bank with a quite stable clientele;

- Mortgages can be actively traded in the secondary market, which allows the bank to diversify its risk by selling the mortgage after the loan is issued.

Disadvantages of mortgage lending for banks:

- the need to keep narrow professional specialists in the staff - appraisers of real estate, which is presented as collateral, which increases the costs of the bank;

– long-term diversion of funds;

- a long term for which a loan is granted is a big threat to the bank's future profits, since it is very difficult to predict the dynamics of market interest rates for decades to come.

In general, lending to housing through mortgage banks is carried out according to the scheme shown in Fig. 6.1.

Rice. 6.1. Loan scheme through mortgage bank

The mortgage bank provides the mortgager with a loan for the purchase of housing, while a loan agreement is concluded between them, and as a result of it, a pledge agreement. The home buyer is the main figure in the mortgage lending mechanism, he sets it in motion. Then the pledgor concludes with the seller of housing a contract for the sale of real estate (if the housing is sold by a real estate company) or a construction contract (for the construction of newly built housing by a contracting construction organization). The mortgage bank, on the other hand, has the right to sell the mortgage of this mortgagor in the secondary securities market (for more details, see Shevchuk D.A. Banking operations. - M .: GrossMedia: ROSBUH, 2007).

The economic side of the emergence of mortgages secured by real estate is associated with the creation of conditions for providing a significant number of investors with the opportunity to obtain relatively cheap and long-term loans secured by mortgage-backed securities and their property rights to real estate. Features of such securities should be considered:

- transformation into a liquid (monetary) form of property rights to real estate of the mortgagor;

- the use of securities as collateral for a mortgage loan.

Fund- a special body for financing, organizing housing construction and returning loans to mortgagors.

Rice. 6.2. Financing scheme under the tax-free model.

Under this scheme, the buyer of a mortgage on the secondary securities market and the FSR enter into a contract for the sale of the mortgage. Between the FSR and the homebuyer are the following types contracts: a contract for the sale of real estate (or a contract for the sale of a share of housing under construction), a loan agreement, a pledge agreement.

The Fund also concludes agreements with the seller of housing: a real estate purchase and sale agreement, a construction contract.

In recent years, a number of regions of our country have already accumulated some experience in financing the construction of individual houses with the help of specially created funds.

For example, in the Belgorod region, a fund was created to support individual housing construction in the village. And it is this area that is the birthplace of the methodology for calculating agricultural products for loans received for the construction of housing. Like the Belgorod Foundation, the Samara Foundation was established in Samara. In 1996, 17 houses were built on loans from this fund, and in 1997, 4 times more. In 1998 this figure reached 200 individual houses. The funds received from the sale of agricultural products, which are calculated by rural residents, are directed to lending to new people on the waiting list.

3 . Home sellers. Sellers can be both individuals and legal entities, including construction contractors and real estate firms.

4 . State bodies, which

– carry out state registration of rights to real estate and transactions with it;

- maintain a unified state register of property rights to real estate.

Registration of a mortgage agreement must be carried out on the basis of an application by the mortgagor. On fig. 6.3 is a diagram illustrating the procedure for state registration of a mortgage.

Rice. 6.3. The procedure for state registration of a mortgage

The costs of paying fees for state registration of a mortgage and making changes and additions to the mortgage registration record are borne by the mortgagor, unless otherwise provided by agreement between him and the mortgagee (Shevchuk D.A. Loans to individuals. - M .: AST: Astrel, 2008 ).

The body responsible for registering a mortgage is obliged to compensate the interested person for losses caused by its illegal actions or inaction, including, for example, an unreasonable refusal to state registration of a mortgage, a delay in the state registration of a mortgage beyond the established period, state registration in violation of the requirements, imposed by the legislation of the Russian Federation to the content of the registration entry, or with other errors, illegal redemption of the registration entry.

5. Insurance companies. These can be both state-owned (municipal) companies and licensed insurance companies that insure mortgaged real estate, as well as, if necessary, the life and working capacity of the pledgor.

6 . Appraisers. These include both independent appraisers and appraisal agencies that produce a professional appraisal of real estate pledged.

7 . Mortgage agencies. These institutions maintain liquidity in the secondary market for housing loans and the mortgage-backed securities market. The main tasks of the Agency:

– attraction of new sources of private capital in the sphere of mortgage lending;

– formation of a liquid secondary market for mortgage loans.

At the expense of equity and borrowed funds, the Agency buys back from commercial banks accounts receivable under mortgage agreements, maintaining the liquidity of banks and increasing the attractiveness of mortgage lending (Shevchuk D.A. Banking operations. Principles. Control. Profitability. Risks. - M .: GrossMedia: ROSBUH, 2007).

Mortgage agencies in our country have not yet received full development.

An example is Moscow, where the main operator of the Moscow Mortgage Program is the specially created Moscow Mortgage Agency (MIA). The functions of the MIA include:

– development and implementation of unified mortgage standards and technologies, compliance with which is a prerequisite for repurchasing loans from qualified MIA lenders;

– repurchase from IIA-qualified lenders of mortgage loans that meet IIA standards;

– attraction of investors' funds by issuing and placing securities secured by own assets, as well as by guarantees of the Moscow Government.

If mortgage lending is carried out through the Fund, then the agency is created with its participation and represents local authorities, and also acts on behalf and on behalf of the Fund on the basis of an agency agreement.

8 . Guarantors-individuals and legal entities who vouched for the pledgor and bear property liability for its obligations. In the event that mortgage lending is conducted through the Fund, the guarantor enters into a guarantee agreement with this Fund. The participation of the guarantor in the mechanism of mortgage lending increases the likelihood of repayment of funds and thus ensures the stability and continuity of the financing process.

6.3. MORTGAGE LENDING OF RESIDENTIAL REAL ESTATE

In the EU countries, up to 80% of all loans are issued on the security of real estate, which indicates the development of the economy. Loan terms are quite long (up to 40 years). Credit interest change under the influence of macroeconomic processes. Mortgages are based state system valuation and further revaluation of real estate. The cadastral (normative) valuation serves as the basis for calculating real estate tax and serves as an objective measure of the amount of a mortgage loan. In case of non-payment of the loan, the mortgage bank has the possibility of forced sale of the mortgaged property. As a rule, for mortgage lending, banks attract third-party funds through placement on stock market own securities - mortgage bonds, which are very reliable.

Currently, there are two mortgage lending schemes:

– two-level("American model"), based on the secondary mortgage market. The essence of the model is as follows. The bank issues a mortgage loan to the borrower in exchange for an obligation to transfer a fixed amount to the bank every month for a certain period. This obligation of the borrower is secured by the mortgage of the acquired housing. The bank sells the loan to one of the mortgage lending agencies, transferring the collateral obligations as well. The agencies immediately reimburse the bank for the funds paid to the borrower and in return ask them to transfer the monthly payments received from the borrower minus the profit (margin) of the bank to the agency. the value monthly payments, i.e., the rate at which the agency undertakes to purchase mortgage loans is set by the agency itself on the basis of investors' requirements for the yield of the relevant financial instruments. Mortgage agencies, having bought a certain number of mortgage loans from commercial banks, collect them in pools and create a new security on the basis of each, the source of payments for which are the payments of borrowers. These payments are guaranteed not by a pledge of real estate, but by the agency as a legal entity. Agencies implement mortgage securities on the stock market and then also act as intermediaries, transferring to the investor who bought the security, payments to the agency from the bank minus their margin (for more details, see Shevchuk D.A. Banking operations. - M .: GrossMedia: ROSBUH, 2007).

In the US, mortgage-backed securities rates are only marginally higher than those on government securities, reflecting investors' confidence that in the event of a massive default by borrowers, the government will provide the necessary financial assistance to mortgage agencies to repay their obligations. State support makes it possible to consider the securities of mortgage agencies as practically risk-free and allows the most conservative investors to invest in them, such as, pension funds and, consequently, provides a flow into mortgage loans of the cheapest resources on the market.

– single-level("German model"). This is an autonomous balanced mortgage model, based on the savings and loan principle of functioning like the German “private building savings banks” - Bausparkasse, French Livret Epargne Logement, American Savings & Loans. Here, the depositor gets the opportunity to accumulate the necessary contribution for the purchase of an apartment (for example, in the amount of 50% of its value) for a long period, and then receive a mortgage loan for the purchase (construction) of a pre-selected apartment. The construction savings bank, being a closed financial structure, begins its activity with the formation authorized capital and on its basis has its own source of funds (including the housing fund) for issuing loans. All available funds of the cash desk (own and borrowed) are used only for the implementation of statutory activities, i.e. for financing housing construction and issuing mortgage loans for the purchase of built apartments.

Other mortgages

In Germany, there are so-called "mortgage loans". To obtain them, the borrower only needs to provide the bank with copies of documents confirming the owner's right to property, which acts as collateral for the loan. The amount of the loan depends on the value of the object of its security, i.e. on the value of the pledger's property. Such loans are provided mortgage banks and ordinary savings banks for a long period of up to 30 years. Every 5 years, the interest rate on them is reviewed. In addition, in Germany, "ordinary loans" are issued, which banks distribute along with or in addition to "mortgage loans". In terms of interest rate, these loans are close to mortgages, but practically differ from them only in the presence of a guarantee.

issued in Germany soft loans for families with limited incomes:

- preferential loans of first necessity, which are issued to people with low incomes, are interest-free and are accompanied by the payment of subsidies (about 40 thousand dwellings);

- concessional loans of the second necessity, which are provided to people with average incomes.

In France, concessional loans are called "soft loans for taking over property" and are used to finance the entry into ownership of families with modest income. At the same time, the norms of prices, housing conditions and the maximum payment possibilities of future residents are observed. Such loans are issued at a fixed or floating interest rate for a period of 20 years.

Preferential loans in Italy are distributed by the Land Credit Institutes and are issued for a period of no more than 25 years. Their size reaches 100% of the costs associated with the acquisition of housing. Interest rates on such loans are reduced depending on the funds available to the borrower.

In Spain, "qualified home loans" have become widespread. They are issued by public (official) credit authorities and private institutions on more favorable terms than market conditions, both in terms of interest rates, as well as in terms of the share of cash and the repayment period of the loan. In order to stimulate the issuance of these loans by various credit institutions, financial authorities, first of all, exempt them from the need to have mandatory reserves for these purposes.

In France, there are "tied loans". They can be issued by all institutions that undertake to comply with certain norms, but without the condition of taking into account monetary opportunities (income). Loans can be issued both for the purchase of new apartments and for the purchase of old ones, if the borrower performs work there for an amount equal to 25% of the cost, as well as for major repairs.

In the UK, a loan for the purchase of a bank borrower of his first house is issued as follows. The homebuyer is given the bank's brochure "Information for homebuyers". It describes in detail how to choose the right insurance and credit, what is the procedure for purchasing a house, and provides an application form for a loan. Loans are issued to persons over the age of 18 in the amount of up to 95% of the mortgage. The loan amount is determined by multiplying the borrower's annual income by 3. If two borrowers receive a loan at the same time, the loan amount is determined as follows: 2.25 x the total income of the borrowers, or 3 x the largest income of one of the borrowers + 1.13 x income second borrower.

If the bank borrower decides to purchase new house instead of the old one, the bank issues a housing loan in the amount of up to 80% of the cost or purchase price of the house (the smallest value is chosen). If the borrower of the bank decides to stay in the same house, the bank reimburses him up to 80% of the mortgage.

In Italy, "land advances" were widely used. They are issued by the Land Credit Institutes under a mortgage guarantee. The repayment period of such a loan is at least 18 months (on average - from 2 to 4 years). The next type of mortgage loans used in Italy are "long-term mortgage loans", which are also issued by Land Credit Institutions and other lending institutions. The Land Credit Institute issues such loans for a period of 10 to 25 years at a fixed or more often revised interest rate every 5 years. They can cover 50% of the purchase price or 75% of the construction price. Other credit institutions issue such loans for a period of 5 to 15 years at a market interest rate with payments to repay the debt every 6 months.

The main conditions for the implementation of classical models of mortgage lending are the stability of the economy, the reliability and efficiency of the financial and credit system, the presence of a developed securities market, the high solvency of the population, and most importantly, the active participation of the state as a guarantor of the stability of the entire system of relations in mortgage operations.

However, there are already a significant number of subjects Russian Federation that implement their own mortgage (pseudo-mortgage) programs and have gained some experience in this area.

The first mortgage lending program in the Russian Federation was developed joint stock company"Corporation" Housing Initiative "" together with Sberbank of Russia and the State Insurance of Russia.

This program provides for several schemes for mortgage lending for housing construction:

1. "Forward-creditinvest". This scheme is designed for commercial developers (legal entities) that carry out the construction of housing for the purpose of its further sale to wealthy clients, including commercial structures. In this case, the building object itself is the subject of pledge. The registration of collateral and the issuance of a loan are carried out in stages, as the facility is built.

2. "Retrocreditinvest". This scheme is intended for citizens wishing to improve their living conditions. A loan is issued against the security of an existing apartment, and only if its market value is higher than the cost of building a new one.

3. Futuresinvest. This scheme is intended for citizens who do not wish to mortgage their property. There are two options for it:

- the apartment is sold at auction with the condition of postponing the eviction until the completion of the construction of new housing. The former homeowner independently invests the proceeds from the sale of the apartment in the construction of real estate, taking on the financial risk and paying the bills of the investor-developer;

- the owner of the housing instructs the investor-developer to sell the old housing and build a new one, while shifting all the financial risks of instability of the final price of new construction onto the latter.

4. "Combinvest". This program is based on a combined scheme for organizing the process of investing in housing through a system of housing construction savings and the equity investment of these savings in specific objects and the provision of appropriate housing to citizens.

Sources of investment under this program can be:

a) Personal target contribution. The amount of this contribution is a fixed amount and is determined by the difference between the estimated investment value of the apartment for which the citizen is applying, and the estimated amount of the subsidy, if any. Personal deposits of citizens can be made both at a time and during the accumulation stage, the stage of investment and the stage of completion of settlements. These funds are deposited to the settlement account of the general manager of the project or a bank on his behalf. The right to a specific address of a new-built house arises for each citizen only if at least 50% of the calculated value of the total personal contribution is paid at the funded stage.

b) Targeted subsidies from local authorities, subsidies from commercial organizations in which citizens work, subsidies from extra-budgetary funds formed by the general manager of the project within the framework of the system by attracting legal entities and individuals to the construction.

c) Funds from the sale of an apartment previously occupied by the family of the person on the waiting list.

d) A short-term loan, which can be obtained from the general manager of the project in the amount of the balance of the estimated personal contribution that was not paid in the first two stages.

In a number of regions of the Non-Chernozem zone of Russia (including the Leningrad region), a housing lending scheme has been developed in countryside, using agricultural products as a means of repaying a loan (Fig. 6.4).

In Moscow, along with attempts to implement the "American" and "German" models, options for "youth" mortgages are being worked out. One of them provides for payment of 30% of the cost of an apartment by a young family with a child, the other 30% is compensated by the capital's administration, and a credit is provided for the remaining amount in installments for 15 years.

In Bashkortostan, the developed mortgage scheme involves down payments of up to 30% with possible installment terms from 5 to 15 years. As investment resources, budgetary funds and funds of buyers are used, as well as trade credits, which are provided to contractors in the form of building materials in the amount of up to 50 thousand rubles. for a period of 1 to 5 years at 8% per annum.

Rice. 6.4. Rural Mortgage Scheme

Features of the regional economy and the possibility of attracting budgetary resources in the regions give rise to various schemes of mortgage lending. However, as evidenced by the experience of economically developed countries, mortgage lending will not develop without federal support. To this end, in 1996, the Federal Agency for Housing Mortgage Lending was created, which should become the backbone of Russian mortgages.

Decree of the Government of the Russian Federation of January 11, 2000 No. 28 “On measures to develop the system of mortgage lending in the Russian Federation” approved the concept for the development of the system of mortgage lending in the country, according to which there should be a reorientation of the solution of housing problems of socially vulnerable groups of the population to solving the housing difficulties of the working population , having an average income, savings and received housing in the property as a result of privatization. For this part of the population, a long-term mortgage is the preferred way to solve the housing problem.

The concept defines the main goals and principles of mortgage, outlines ways to achieve and implement them. One of the goals is to create a system of residential mortgage lending without the need to support it with significant public funding. This implies a variety of mortgage schemes in Russia.

However, despite the fact that a mortgage loan contains a huge potential economic development, the transformation of real estate into working capital, helping the population to get housing, and creditors - income, it is still impossible to talk about the widespread development of mortgage loans in the country. The formation of mortgage lending in Russia is hampered by:

– detachment from mortgages of institutional investors (pension and other funds);

- "short" and "expensive" money of banks;

– lack of a developed residential real estate insurance system;

– the inability, in most cases, to declare income due to the reluctance of enterprises to officially pay wages;

- low income among the majority of the population.

The above factors can be attributed to socio-economic, and there are also factors of a regulatory and legislative nature:

- the impossibility of eviction from the mortgaged apartment of the borrower who does not fulfill the obligations under the loan;

- no criteria have been developed for the activities of guardianship and guardianship authorities when considering issues related to the mortgage of a dwelling encumbered with the rights of minors;

- the rules for pledge and alienation of land plots have not been developed, etc.

6.4. OTHER RESIDENTIAL PROPERTY LENDING

At this stage of development of the real estate market in the Russian Federation, in addition to mortgage lending, other mechanisms for lending to real estate are used.

More construction companies offer a variety of equity participation schemes (pay-as-you-go, pay-as-you-go) that allow the buyer to reduce the one-time cost of purchasing a home.

The developer undertakes to finance the construction of the facility (at all stages of construction) or its reconstruction at the expense of its own and borrowed funds (for example, funds commercial bank), to ensure the completion of construction by a certain date and within a certain period from the moment of signing the act of the State Acceptance Commission, to transfer apartments of a certain area to equity holders in accordance with an equity participation agreement.

The share agreement in construction is an important and binding document, which regulates relations between participants in such a housing construction lending scheme. Without this agreement, which is concluded in writing, it is subsequently impossible to formalize the ownership of the relevant living space, since for this, along with other documents, documents confirming the equity participation must be submitted.

IN general provisions of the contract, it must be written that the specified construction (reconstruction) object at the time of signing the contract has not been sold to anyone, not alienated in any other way, is not in dispute and is not under prohibition. It should also be indicated on what basis the organization attracting funds from equity holders has the authority to lend to this object.

The shareholder, in accordance with the agreement, undertakes to finance the construction (reconstruction) of the facility by depositing funds or in another way specified in the agreement (for example, by supplying building materials).

The main shareholders are individuals.

Advantages shared construction are as follows:

- staged payment (installment payments);

- indexing (with the growth of construction costs) only the residual cost of construction under the contract;

- the cost of acquiring housing with equity participation is usually lower than the market value of finished housing by 10-20%.

The disadvantages of shared construction include:

- loss of funds already invested in a residential real estate object in connection with the bankruptcy of an organization that concluded an agreement with the buyer on equity participation in construction;

- receiving an apartment of not the quality expected by the buyer.

On Russian market development of real estate, there are two main options for equity participation in construction:

1. Equity participation with staged payment:

- an individual schedule for paying the cost of an apartment is approved, taking into account inflation, as well as the possibilities and wishes of the equity holder;

- within the agreed time from the date of signing the contract at the initial cost of 1 sq. m the first installment is paid;

- the rest of the total area of ​​the apartment is paid in stages according to the schedule with indexation of the cost of 1 sq. m at the time of each payment, taking into account the prices in force in the construction industry (each installment pays a certain amount of sq. m of the total area of ​​the apartment);

- upon completion of construction, the final calculation is made based on the actual area transferred to the shareholder of the apartment.

2. Equity participation with offset of available housing:

- a specific apartment in a house under construction is assigned to the shareholder, indicating the area and its location;

- set the number of sq. m of the total area of ​​\u200b\u200bthe “new” apartment is considered paid at the time of the conclusion of the contract, depending on the sq. m of the total area of ​​\u200b\u200bthe "old" apartment owned by the shareholder. For the difference in the number of sq. m of total area compared to the area of ​​the “new” apartment, the shareholder pays in cash, in stages, during the construction period.

In this case, there are two options for offsetting "old" apartments:

- the shareholder's apartment is free, the ownership right to it immediately passes to the developer and the apartment goes into sale;

- the shareholder lives in his apartment during the entire construction period, until the moment he is provided with a new apartment, and the ownership passes to the developer after the shareholder moves to a new apartment.

Housing certificates are securities of a certain value, which secure the owner's right to a certain living space in a house under construction or renovation.

One certificate is issued, as a rule, for 0.1 square meter, and 10 certificates correspond to the price of one square meter of market value.

In fact, this is a kind of equity participation agreements, but with higher liquidity and mandatory indexation face value depending on a certain index (for example, the consumer price index or the so-called "construction coefficient" - the price index in construction).

The scheme for indexing the nominal value of a housing certificate is established upon its issuance and remains unchanged during the established period of validity of the housing certificate.

The main characteristics of housing certificates include:

– equivalence of a housing certificate of a certain area;

- dividing the construction process into several stages, each of which must be financed by a predetermined number of housing certificates;

- formation of the price of housing certificates depending on the costs for each stage of construction and on the level of inflation, reduced to a square meter of the total area of ​​​​apartments;

– choice by the investor of the form of redemption of housing bonds.

Currently, the Federal Commission for the Securities Market has registered a prospectus for the third issue of housing certificates. The third issue involves the issuance of 38091 certificates (each certificate corresponds to 0.1 sq. m.). The cost of 1 sq. m in the new series of certificates is 6500 rubles. The price of the certificate will be indexed every month - by 0.5%. With the proceeds from the sale of new certificates, it is planned to reconstruct three houses on Tambovskaya Street.

When lending with the help of housing certificates, a system is implemented for issuing and placing special securities - housing certificates, giving their owners the right to subsequently receive housing in houses for which the issuer makes an issue.

The bank, at the same time, can place housing certificates on the securities market, i.e., in this case, it assumes the role of an intermediary between the bond holder and the borrower, while at the same time becoming a guarantor of the return of the investor's funds in case the construction program fails. The guarantor (guarantor) for housing certificates can be a bank and Insurance Company(for details, see Shevchuk D.A. Banking operations. - M .: GrossMedia: ROSBUH, 2007).

The period of circulation of housing certificates corresponds to the period of implementation of the program for the construction of those facilities for which the borrower announces the issue of securities.

Income from housing certificates exists in kind or in cash.

In-kind income from housing certificates is obtained when they are redeemed with apartments of the corresponding area.

Cash income from housing certificates is obtained when they are redeemed at the price of construction of one square meter of the total area of ​​apartments in houses built on loan funds.

Since the bonds are redeemed on the basis of: one bond is a unit of housing area, the issuer of housing certificates has the opportunity to use non-traditional forms of providing apartments:

- exchange of an apartment of a smaller area for an apartment of a larger area with the transfer to the issuer of housing certificates for the difference in the areas of the apartment;

– provision of preferential terms for the sale of packages of housing certificates.

Transactions with housing certificates are subject to the taxation rules applicable to other securities, namely, the absence of accrual and payment of VAT, exemption from income tax in the amount of 1,000 minimum wages in case of income from their sale to individuals.

6.5. HOW TO GET A MORTGAGE LOAN TO PURCHASE AN APARTMENT

What is mortgage and home loans

Mortgage lending is becoming more and more popular in Russia every year. A mortgage allows you to buy a home today and pay its full cost over the next few years. This is much more convenient than saving money, exposing significant savings to inflationary and other risks.

Tips for the borrower

Buying an apartment is a complex and responsible process. If you spend a little time studying this topic, you can make your work much easier, significantly reduce possible losses and avoid disappointments. You must understand that the time spent on studying this issue will pay off in the savings. So here are our tips:

You should not choose a mortgage bank just because it has the lowest declared interest rates.

In the process of choosing a lender bank, interest rates play an important role, but we should not forget that there are additional fees for granting and servicing a loan, which in some cases can significantly increase the overall cost of the loan. Better to ask what lump sum payments You will be required to make extra and what additional fees you will have to pay during the entire loan period.

In addition, the interest rate indicated by the creditor bank is not always charged on the real balance. For example, a change in loan debt can be taken into account when calculating interest after 3 months after the actual repayment of the principal debt, and this will significantly increase your payments for using the loan. Thus, your real interest rate on the loan may be much higher than the nominal one.

Also, you should not forget about the quality of the service offered to you. The friendliness and professionalism of the bank's specialists will allow you to greatly facilitate the procedure for obtaining a loan, choose the most suitable loan product for you and make the most reasonable choice in relation to the purchased housing (for more details, see Shevchuk D.A. Banking operations. - M .: GrossMedia: ROSBUH, 2007 ).

When deciding on the choice of a lender, try not to outsource the clarification of loan conditions to your relatives or friends, because it can be like playing a broken phone.

Require the lender's written confirmation of consent to grant a loan.

After receiving a message from the bank (most likely verbal) that you are satisfied with the bank as a borrower, you must demand confirmation from the bank in writing, describing the main conditions of the upcoming loan transaction.

Think before you use a sales agent (realtor) who acts on the side of both the seller and the buyer.

This kind of agent, most often, cannot represent and protect the interests of both parties to the transaction at the same time. In this case, usually, the agent is more attentive to the interests of the seller, rather than the buyer. If you buy an apartment, then try to hire your agent (lawyer, lawyer), who will represent only your interests in this transaction.

Do not purchase an apartment without professional technical expertise and due diligence.

Any statement of the seller about the technical condition of the apartment must be documented. Remember that when buying housing on the secondary market, you are more likely to encounter parquet swelling or ceiling leakage, so try to find out exactly when the apartment was last overhauled and redecorated.

To check the technical condition of the apartment, it is best to hire an independent technical expert who, based on the results of the inspection, would draw up a written opinion, which would indicate all the advantages and disadvantages of the technical condition of this apartment at the time of its inspection.

Also, special attention should be paid to checking the legal purity of the apartment. In professional language, such a check is called<проверка чистоты титула>. This term implies the identification of all persons who have any rights to this apartment or potentially have them, checking for encumbrances from third parties and infringement of rights former owners apartments in previous alienation transactions.

It should be noted that in this matter there is no better ally and assistant than the creditor bank. The creditor bank is even more interested than you in the quality and liquidity of mortgage loan collateral.

Do not sign any documents without first reading them.

Never sign documents in a hurry. Ask your counterparty for copies of the contracts, carefully read them, and if you have any questions, then try to resolve them well in advance before signing the documents. It would be more preferable to carefully read all the documents again before signing them at the time of the transaction.

tax incentives

By purchasing a new apartment on credit, you can enjoy significant income tax benefits.

Effective January 1, 2001 new order calculation and application of income tax relief. In line with the new Tax Code, the taxpayer may deduct from his taxable income the amounts actually spent on new construction or the acquisition of a residential house or apartment in the Russian Federation, as well as the amounts used to pay interest on mortgage loans received by the taxpayer in banks of the Russian Federation.

The total amount of this deduction may not exceed 1,000,000 rubles, excluding amounts used to pay interest on mortgage loans. Calculate the savings on income tax You can right now with the Tax Calculator.

Even if you started using the relief before January 1, 2001, according to leading tax advisers, you can continue to use it in accordance with the Income Tax Law, deducting from your total taxable income the amounts used to repay the mortgage loan, including the principal debt and interest.

FAQ

How do I determine my documented monthly income?

The bank will determine maximum size loan you can qualify for based on your average monthly documented income over the past twelve months. In this case, it should be especially noted that the bank will take into account the income of both spouses.

What happens if I can't repay the loan?

If during the repayment of the loan you are unable to make payments in full due to objective reasons, the bank will try to help you and work out a mutually acceptable solution. Such a solution could be, for example, deferral of payments on account of repayment of the principal debt.

However, if these temporary economic measures do not work and you are unable to make mortgage payments, you will have to sell the apartment and use the proceeds from the sale to repay the debt to the bank. With the money left from the sale, you can buy yourself another home.

How is a mortgage loan for real estate purchase different from a regular loan?

Unlike other types of lending, a mortgage loan can only be granted for the purchase of housing, while the main collateral for it is a pledge (mortgage) of the housing being purchased.

For how many years can I get a loan?

The loan is issued for a period of up to 15-25 years. The bank offers loan products focusing on different customers. If you have the opportunity to contribute to repay the loan additional amount over the planned repayment schedule, you, having notified the bank in advance, will have the opportunity to make both partial and full early repayment loan. The bank will accept an additional amount from you to repay the loan and recalculate the amount of monthly payments, or, at your request, reduce the loan term.

Who checks the legal "purity" of the apartment?

Documents confirming the ownership of the seller of the apartment and the purity of the title are checked by the insurance company. An appraisal company will conduct an additional inspection of the apartment.

So, now, when buying an apartment, you are not alone with the "market", but you can have competent allies who will defend your interests.

How is the settlement with the seller of the apartment?

The bank issues money to the seller of the apartment after the state registration of the contract for the sale of the apartment at the expense of credit funds and the transfer of ownership to the borrower. An additional, but necessary condition for the actual provision of a loan is documentary evidence of the payment made. down payment.

Such a payment scheme is the safest for the buyer of an apartment and reliable for the seller.

What are the average rates of insurance companies for the three types of insurance?

The cost of all three types mortgage insurance usually amounts to no more than 1.5 percent of the remaining loan amount. As a rule, insurance contracts are concluded for one year with the payment of an insurance premium for this period.

Upon renewal insurance policy for each subsequent year, the amount of the insurance premium will be less, since it is calculated in accordance with the amount of the loan balance as of the date of conclusion of the insurance contract (taking into account the principal repayment made by the borrower).

What types of insurance accompany a mortgage loan?

A prerequisite for obtaining a loan is insurance of 3 types:

– insurance of the purchased apartment against the risks of damage and destruction;

– insurance of the right of ownership of the subject of the mortgage (i.e. the apartment you are buying);

– life and disability insurance of the borrower.

Insurance protects the borrower and the bank from additional risks. If an insured event occurs, the insurance company will transfer the necessary amount to the bank to repay the loan, and the borrower will be relieved of the need to make further repayment of the loan. Insurance costs are borne by the borrower.

How long after submitting the documents can I expect to receive a loan?

The term for consideration by the bank of an application for a mortgage loan does not exceed two weeks. Having received a positive decision from the Bank's Credit Committee, you will have to decide on the final choice of an apartment and conclude a loan agreement.

Then you need to draw up a deal for the sale and mortgage of the apartment. After the state registration of this transaction, you will become the owner of a new apartment.

Will I have to pay rent?

Do you mean maintenance payments? Yes, because the apartment belongs to you, and you will live in it.

Moreover, as the owner of the apartment, you will bear all the costs associated with the payment of real estate taxes, the operation and repair of the apartment, and you will also bear the costs associated with the operation and repair, including capital, of the entire house and adjacent territory.

What are the benefits of a mortgage loan?

By purchasing housing on credit, you get the opportunity to live in your own new apartment today, and pay for it gradually over several years.

At the same time, you are granted a substantial income tax relief. In accordance with the new Tax Code, a taxpayer can deduct from his taxable income the amounts actually spent on the purchase of a residential house or apartment, as well as the amounts used to pay interest on mortgage loans. The total amount of this deduction may not exceed 1,000,000 rubles, excluding amounts used to pay interest on mortgage loans.

To obtain a mortgage loan, there is no need to provide any additional collateral in addition to the purchased housing.

Who is looking for an apartment?

You have the opportunity to search for an apartment on your own or with the help of real estate companies.

What is a mortgage loan?

A mortgage loan is money that a bank provides to a client for the purchase of an apartment or house. For the use of the provided loan, the client pays interest to the bank, and also repays the borrowed funds on a monthly basis.

Housing purchased with a loan will be pledged (mortgage) with the bank until full repayment mortgage loan by the client. A mortgage loan is usually issued for a long term. The maximum loan term is 15–25 years.

Who is looking for an insurance company?

The bank will offer you a list of insurance companies. These are the largest Russian insurers that have offered minimum tariffs for compulsory types of insurance.

What is the legal framework for mortgage lending?

Among the numerous laws and legal acts of the Russian Federation, a number of documents that directly regulate mortgages can be distinguished:

– Civil Code of the Russian Federation (Articles 37, 131, 209, 246, 260, 329, 365, 387, 488; entire paragraph 3, Chapter 23);

– the federal law dated July 21, 1997 No. 122-FZ "On state registration of rights to real estate and transactions with it."

However, it should be remembered that the issuance of a mortgage loan is Bank operation Therefore, the specific procedure for issuing and servicing mortgage loans is regulated by banking legislation.

What is the role of the insurance company?

To obtain a mortgage loan, the borrower must draw up three types of insurance contracts:

– Insurance contract for the purchased apartment against the risks of damage and destruction;

– Insurance contract for the risk of loss of ownership of the acquired apartment;

– Contract of life insurance and disability of the borrower.

Such insurance is a mandatory requirement of the loan agreement. The Bank provides a list of insurance companies participating in the compulsory mortgage insurance program, which will issue all three types of insurance at minimum rates.

The Bank provides mortgage lending both in the markets of finished and under construction housing in Moscow and the Moscow Region, St. Petersburg and the Leningrad Region, etc.

You can get a mortgage loan under programs in other cities, through a network of banks.

Getting a mortgage loan from a bank is simple and affordable for everyone. Mortgage lending programs developed by us simplify the process of obtaining a loan as much as possible. The borrower does not require a large number of documents, does not require third-party guarantees. All bureaucratic procedures are kept to a minimum.

STEP #1. PRELIMINARY CALCULATION OF THE MORTGAGE CREDIT.

First of all, you need to assess what kind of apartment loan you need and what amount of apartment loan you can get with the available monthly income your family. For convenience, we have developed a Mortgage Calculator.

STEP #2. FILLING IN THE PRELIMINARY QUESTIONNAIRE.

After pre-determining the amount of the loan using Mortgage calculator, You need to contact the bank staff to fill out the preliminary questionnaire of the borrower.

STEP № 3. REGISTRATION OF DOCUMENTS FOR OBTAINING A LOAN FOR AN APARTMENT.

To obtain a mortgage loan in our bank does not require a large number of documents. When filling and collecting required documents You will be assisted by your personal bank consultant. Based on the submitted documents, the bank decides on the possibility of granting a loan.

STEP #4. SELECTING AN APARTMENT.

After receiving confirmation of the possibility of obtaining a loan from the bank, you can proceed to the choice of an apartment. You are not limited in choosing the seller of the apartment - it can be any real estate company or an individual. You can buy an apartment on the secondary housing market or a new apartment. The title documents for the apartment will be checked by the insurance company, and the market value will be determined by an independent appraisal company recommended by the bank.

STEP #5. SIGNING CONTRACTS.

After choosing a suitable apartment, you sign a loan agreement with the bank and draw up an apartment purchase and sale agreement. After signing all the agreements, the bank provides you with a mortgage loan.

Mortgage Dictionary

What is a mortgage?

For the first time the term "mortgage" appeared in Greece at the beginning of the VI century. Translated from Greek, a mortgage means a pledge in which the pledged property - usually land and other real estate - remains pledged to the creditor until the person who received the loan fulfills the monetary obligation.

Currently, mortgage lending is the main mechanism for solving the housing problem in Europe and America, where almost 90% of apartments and houses are purchased on credit. For Russian economy mortgage, although not new service, but still remains unfamiliar to many potential consumers. This is due to the fact that the mortgage lending process is surrounded by a lot of prejudices that have emerged as a result of the lack of awareness among Russians about the possibilities of this financial service. But the mechanisms that have proven their effectiveness throughout the world cannot go unnoticed in Russia, where the situation has now developed when the formation of a system of long-term mortgage lending has become not only an urgent, but also a feasible task.

A mortgage is attractive, first of all, because it allows you to become a home owner in a fairly short time, move into a new apartment, register all members of your family, and pay its cost over the next few years without fear of rising real estate prices. This is much more convenient than saving money, exposing significant savings to inflationary and other risks, or renting an apartment, since the amount of monthly loan payments is comparable to the monthly rent for a similar apartment. Another advantage of buying an apartment on credit is the opportunity to take advantage of tax incentives on income tax, which currently amounts to 1,000,000 rubles. The reliability and safety of buying an apartment with a mortgage loan lies in the fact that the apartment undergoes a thorough legal check by the bank and the insurance company and is fully registered in the ownership of the borrower upon receipt of the loan.

Buying real estate with a mortgage today is considered the most progressive and reliable way to solve the housing problem. It remains only to choose the most optimal mortgage program, taking into account the currency of the loan, rates and terms that suits you.

In order to help you understand the subtleties associated with obtaining a mortgage loan, we have developed a dictionary of mortgage terms.

Loan amortization

Loan amortization is the process of gradually repaying the principal of a mortgage loan and paying interest. Mortgage payments are usually made monthly. The payment schedule is fixed in the loan agreement between the lender and the borrower.

underwriting

Underwriting is an assessment of the borrower's solvency (sufficiency of income to cover loan payments), solvency (quality level of fulfillment of loan obligations), borrower's assets (availability of sufficient liquid assets necessary to make a down payment and pay related transaction costs).

Annuity payments

Annuity payments are monthly equal payments against the repayment of the loan and interest for the use of credit funds.

mortgage agreement

Mortgage agreement is an agreement under which one party (mortgagee), which is a creditor, has the right to satisfy its monetary claims against the other party (mortgagor).

Credit agreement

Credit agreement - an agreement between a credit institution (lender) and a borrower, according to which the lender undertakes to provide cash(loan) in the amount and on the terms stipulated by this agreement, for the acquisition by the borrower of the property, and the borrower undertakes to return the amount of money received and pay interest on it.

Early repayment of the loan

Early repayment of a loan is a voluntary payment by the borrower of the balance of the loan debt ahead of schedule stipulated by the loan agreement. The borrower is the recipient of a mortgage loan who pledges some real estate as collateral for the loan.

Mortgage

Mortgage is a registered security that establishes the right of its owner to receive performance under monetary obligation. Issued by the borrower when obtaining a mortgage loan.

Mortgage

A mortgage is a pledge of real estate.

Mortgage

Mortgage loan - funds issued for a long period of time by a credit institution secured by real estate.

Mortgage Calculator

Mortgage calculator - a tool that allows you to calculate the amount of future payments on a loan depending on income, term and size of the loan.

Credit history

Credit history - information about what loans the borrower took from banks, how disciplined the loan was repaid and interest was paid.

Credit Committee

The Credit Committee is a collegial body for making credit decisions in the bank, approving or rejecting the candidacies of specific borrowers and approving the specific terms of lending to each of them.

Creditworthiness of the borrower

The creditworthiness of the borrower is the willingness of the borrower to fulfill its financial obligations. It is determined on the basis of an analysis of his credit history.

Property valuation

Real estate appraisal is the process of determining the market value of a property. Conducting an independent assessment of the mortgaged property is a prerequisite for issuing a mortgage loan.

Solvency of the borrower

The solvency of the borrower is the ability of the borrower to repay the loan on time. It involves the analysis of income and expenses.

Co-borrower

Co-borrower - a person who becomes a co-owner of the acquired property and, together with the main borrower, is responsible to the lender for the repayment of the loan. As a rule, the spouse is the co-borrower. In this case, the income of the co-borrower is taken into account when calculating the loan amount.

loan account

Loan account is a borrower's personal account opened with a creditor bank for transferring loan funds and for subsequent crediting of loan payments to it.

LIBOR rate

The LIBOR rate is the weighted average rate for refinancing loans set by the London Interbank Exchange.

MosPrime rate

The MosPrime rate is an independent indicative rate, calculated by the National Monetary Association (NVA) on the basis of ruble deposit rates announced by the leading participants of the Russian money market first class financial institutions. When banks are included in the list for forming the MosPrime rate, their reputation is taken into account, financial position, volume of operations and experience in the Moscow money market.

Legal base

Tax Code of the Russian Federation - part one of July 31, 1998 N 146-FZ and part two of August 5, 2000 N 117-FZ - articles 20, 220;

Civil Code of the Russian Federation (articles 37, 131, 209, 246, 260, 329, 365, 387, 488, 855, 935, paragraph 3, chapter 23);

Law of the Russian Federation "On income tax from individuals";

Instruction of the State Tax Service of the Russian Federation of June 29, 1995 N 35 (as amended on April 28, 1999) on the application of the law of the Russian Federation "On personal income tax";

Shevchuk D.A. civil process. - Rostov-on-Don: Phoenix, 2006;

Shevchuk V.A., Shevchuk D.A. Banking Law: Proc. allowance. - M .: RIOR Publishing House, 2005;

www.denisshevchuk.narod.ru www.interfinance.ru www.interfinance.info www.pavlino-rus.narod.ru www.zheleznodorozhni.narod.ru www.corporateresources.narod.ru

Pledge of real estate is one of the guarantees for the protection of property rights of creditors. It has become widespread in banking Russia in connection with the provision of obligations under loan agreements and the acquisition of residential and commercial real estate. What is a real estate pledge, in what cases is it used, how is the contract drawn up and what risks does the establishment of this type of security entail?

What it is

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In addition to stimulating the development economic relations The functions of a real estate pledge primarily perform the task of providing a guarantee for the fulfillment of financial obligations by the debtor and protecting the interests and rights of the creditor's property. At the same time, the pledge does not realize the purpose of acquiring property, but serves only as a mechanism for obtaining loan funds for obtaining property in possession.

The parties to a relationship with a pledge are usually three parties: the owner of the property, the lender and the borrower.

The person who provided funds for the purchase of housing or commercial facility, does not acquire rights to property even if the conditions are violated by the debtor. He has the opportunity to claim, taking into account the requirements of the contract, for material compensation in the form of payment of fines and penalties for delay in fulfilling obligations by the debtor.

Mortgage is understood as a pledge of real estate, which applies to both residential and commercial facilities.

The term is used in two meanings:

• mortgage as a legal relationship to secure a pledge of real estate when acquiring housing, land, individual buildings, fixed assets or buildings when obtaining a loan from a creditor;
• mortgage as a security in the form of a mortgage. It is a security in which the rights of the creditor to the property are established.

Today in Russia there are two fundamental regulations:

• mortgage law;
• Real estate law.

The documents indicate the need to comply with the requirements of the legal norms specified in the loan agreement or employment agreement. Relations with a mortgage may be accompanied by formalization of relations on rent, other permitted use.

The features of real estate pledge include the possibility of canceling the property of the debtor or returning the property to the creditor in case of default on credit obligations to repay the debt. Recovery is carried out at the expense of the property provided as a pledge or by obtaining funds from its sale.

In what cases do you need

By virtue of the law, a mortgage arises in the following cases:

1. When purchasing finished or under construction housing at the expense of the bank. The provision comes into force on the basis of paragraph 1 of article 77 of the Mortgage Law from the moment of registration of the title fact in Rosreestr.
2. When registering a dwelling as the property of a serviceman under the state program for the accumulation of NIS. Relations are regulated by the provisions of the Law on “On the savings and mortgage system housing military personnel." Not all banks in Russia work with the federal subsidy program, but only the largest of them, such as Sberbank of Russia, Rosselskozbank, Bank of Moscow, VTB24, etc.
3. By virtue of the conclusion of an agreement on equity participation in construction on the basis of paragraphs. 1-3 Article 13 of the Federal Law No. 214 and paragraph 1 of Article 58 of the Mortgage Law.
4. When acquiring property in installments or with the condition of a delay, it is also possible to establish a pledge of real estate by virtue of and.

Important: in the event that the purchase and sale agreement with a deferral / installment plan does not contain a phrase stating that a pledge of real estate does not arise by virtue of Articles 488, 489 of the Civil Code of the Russian Federation, Rosreestr specialists will enter into the real estate database information about the occurrence of a mortgage by virtue of a pledge and establishing such encumbrance without fail.

The subject of a mortgage can be any property:

• residential apartment;
• an individual building with a land plot under it;
• offices, shops, warehouses, industrial buildings and other commercial premises;
• cottages, apartments and townhouses outside the city limits.

Mortgage by virtue of law applies in the following cases:

• rent;
• pledge of property rights;
• receipt of targeted loan funds;
• construction of real estate under investment agreements or in shared construction;
• when buying a home or business property borrowed funds received from a credit institution.

It is also possible to create a pledge of real estate on the basis of a private contract. Under the law, a mortgage is registered by virtue of a direct indication in regulations, in another case, when submitting a separate application from the parties to the relationship.

Pledge of real estate for a loan

Mortgage real estate can be accepted for receiving funds any:

• owned by the borrower;
• acquired under a contract of sale;
• when participating in a shareholding relationship.

An important point in the conclusion of the contract is the determination of the value of the object transferred to secure credit obligations. An analysis of prices for similar real estate on the market is carried out independently by a lender or an accredited organization offered by a bank or other financial institution.

A feature of the pledge of real estate is the absence of the need for the pledgee to apply to get the property back to the court. Its return occurs when the pledgee fails to fulfill the requirements automatically upon sending a notification.

Secured by commercial real estate and objects suitable for habitation, loans are transferred on terms of more favorable rate in reduced size. This is due to the presence of a guarantee of material security in case of default by the debtor. At the same time, the more expensive real estate is offered as collateral and the larger the loan amount, the higher the interest rate on the loan.

How to draw up a contract

To draw up a real estate pledge agreement, you must complete the following steps:

1. Get bank approval for a loan or mortgage.
2. Provide all documents for real estate for the conclusion of a contract of sale for loan funds.
3. Registration of permission in the bank for the purchase of a certain housing or commercial property.
4. Conclusion of a pledge agreement with a bank with the participation of three parties: the homeowner, the borrower and the lender. Inclusion of information about the encumbrance of a property with a pledge or mortgage, placing information in a single database of state real estate by filing a corresponding application with Rosreestr.
5. Removal of restrictions on the disposal of real estate - a pledge, after the closure of credit obligations in full, upon providing confirmation of the payment of the debt on the basis of the terms of the loan agreement.

Amendments to the real estate pledge agreement are possible only with the approval of all parties to the relationship when drawing up additional agreements to the main act and their subsequent registration with Rosreestr, after which they become valid and enter into force.

The contract is drawn up in 4 identical copies for submission to the Rosreestr archive, for the property owner - the seller, the borrower - the buyer and the lender - the bank. All of them are transferred to the registering authority in originals, which are returned to the parties after a legal examination and placement of information in the register of real estate transactions.

The text of the contract must contain the following information:

• a detailed description of the property - location address, cadastral number, layout characteristics;
• an indication of the title documents on the basis of which the ownership of the seller is registered, a certificate of Rosreestr on ownership or an extract from the USRN;
• information about the mortgagor and the pledgee, the number and date of conclusion of the loan agreement;
• term for repayment of debt under a loan or mortgage agreement, termination of obligations;
• assessment of monetary claims against the debtor - the loan amount specified in the loan agreement with interest and other charges.

The mortgage comes into force after the registration of the relevant changes. If the borrower violates his obligations, the collateral is transferred back to the owner on the terms specified in the contract of sale and for the issuance of a loan.

Possible risks

In practice, the parties to collateral relations are faced with the following nuances:

• it is imperative to check the property secured before issuing a loan, this can be done by submitting an application for issuing an extract from the USRN for the presence of encumbrances and restrictions in relation to the object;
• when registering a mortgage on residential property, it is mandatory to check the absence of arrears in utility bills and those registered per square meter, this is especially true for registering minor children, who are quite difficult to evict without providing living space to legal representatives and often only in court;
• a mortgage is accompanied by a verification of title documents for real estate and the absence of restrictions already imposed on the disposal of property, such as arrests based on a court decision or a decision of a bailiff, a pledge on other financial obligations - loan agreements, mortgages against collateral, a dispute regarding an object;
• when registering property as a pledge, it is advisable to check the history of real estate - how many times it was the subject of transfer of ownership through transactions, in what periods - the smallest number of them serves as a guarantee of the absence of claims from former owners or potential owners, such as citizens who did not accept the inheritance on time;
• difficulties will arise with registration of real estate with illegal redevelopment as a pledge - first it must be agreed with authorized government bodies, in the practice of the courts there is an inspection upon the fact of the property pledged, the cadastral and technical passports are also checked with the real state of the apartment, so it is not possible for the owners of the objects to hide such a circumstance.

Video: Pledge of real estate

The pledge arose and developed simultaneously with the emergence of elements of private property, as a financial and economic instrument that provides protection for creditors and promotes the development of investment activities.

In its general sense, pledge can be defined as property or other valuables that serve as collateral for a loan. Those. a pledge is a kind of security for an obligation, in which the pledgee (a legal or natural person who accepts the subject of pledge as security for a loan issued by him), in case of default by the pledgor (a legal or natural person who provided the subject of pledge to secure his debt) has a pre-emptive right before other creditors to satisfy his claim from the value of the pledged property.

A pledge arises by virtue of an agreement, as well as on the basis of the Law upon the occurrence of the circumstances specified in it, if the Law provides for what property and to ensure the fulfillment of which obligation is recognized as being in pledge.

The most common is a pledge under an agreement, when the pledgor (debtor) voluntarily pledges his property by concluding an appropriate agreement with the pledgee (creditor)

A pledge is a way to secure an obligation, and a pledge agreement is not independent, it is always associated with another agreement (purchase and sale, contract, commission, storage, etc.) that it provides. In addition, an agreement, an obligation secured by collateral, is concluded in order to withdraw the pledged property from possible collection according to the requirements of other creditors. A pledge agreement always stands behind another main agreement and is directly dependent on it.

The creditor retains the right of security even if the property is alienated by the owner in favor of third parties. However, the pledge does not give the right of ownership (possession or use) to the pledged property after the debtor violates his obligations, but serves as a means of satisfying the main claim of the creditor from the value of the pledged property.

It should be noted that the main provisions on the pledge, as such, are determined, firstly, and secondly, by the Law of the Russian Federation of May 29, 1992 No. 2872 - 1 "On Pledge". However, it must be borne in mind that the regulation of pledge in the Civil Code of the Russian Federation sometimes differs from its regulation in the above law.

The concept of pledge cannot be fully established without defining what is the subject of pledge.

subject of pledge can be both movable and immovable property, as well as property rights, i.e. objective rights of the participants in the relationship, related to the possession, use and disposal of property, as well as those material(property) claims that arise between participants in economic turnover regarding the distribution of this property and the exchange of goods, services, securities, etc.

The subject of pledge can be not only an existing object or rights to it, property that does not exist in kind at the time of the conclusion of the contract, for example, a future crop or a building to be built at the expense of a loan, which it acts as security for.

Main pledge principles:

1. Publicity– availability of information about the pledge of property for all interested parties.

2. concreteness- the property pledged must, by its characteristics (and in particular by its functional purpose), exactly match the data that it has as an object of state registration.

3. Confidence– the value and liquidity of the property guarantees the repayment of the debt. Claims of the mortgagee are fulfilled under the guarantee of the agreed property of the pledger. The pledgee has the right to receive satisfaction on the same basis from the insurance indemnity for the loss or damage to the pledged property, regardless of in whose favor it is insured, unless the loss or damage occurred due to reasons for which the pledgee is responsible.

There is a large number types of collateral, which differ from each other in accordance with the features that formed their basis.

From point of view the relationship of the parties to the mortgaged property The following main types of collateral are distinguished:

Classic pledge - the property remains with the pledger;

Mortgage - the property is transferred to the pledgee in possession;

Solid pledge - the property remains with the pledgor with the application of marks on it, indicating the pledge.

The type of collateral also depends on the terms of repayment of the loan received against the security of the property. In this case, different types of mortgages are distinguished. Mortgage - a security that determines the claim in relation to the pledged property provided by the pledgor in order to secure a loan.

1. Fixed rate mortgages. The mortgagor is obliged to make monthly payments on them to repay the loan debt and pay interest. Such loans are classified as self-absorbing. Amortization in this case means the process of paying off principal and interest on a loan.

2. Mortgages with a floating (or adjustable) interest rate. In this case, the rate of interest is tied to another market interest rate and adjusted in accordance with its changes. Adjustment is carried out, as a rule, no more than once a year. At the same time, the rate of interest on mortgages with a floating interest rate is lower, on average, by 1.5-2 percentage points than on mortgages with a fixed interest rate, which is associated with the awareness of the risk that the owners of adjustable mortgages take on. The essence of this risk is that the adjustment raises the interest rate up, and the volume of monthly payments increases.

3. Mortgages with differentiated payments. Such mortgages provide for a gradual increase or decrease in payments to repay the loan. Such loans can, for example, be used for lending to young families whose income at the beginning of the loan period is lower than at the end.

4. Guaranteed mortgages. In this case, you need a mortgage insurer.

The right of pledge arises from the moment of conclusion of the pledge agreement, and in relation to the pledge of property to be transferred to the pledgee, from the moment of transfer of this property, unless otherwise provided by the pledge agreement.

The pledge is terminated in the following cases:

When fulfilling obligations to secure collateral;

In case of gross violations of the pledgee's obligations, entailing the threat of destruction of property and at the request of the pledger;

Upon termination of the pledge right and destruction of the pledged property, unless otherwise provided in the pledge agreement;

In case of impossibility of realizing the pledge.

Pledge of immovable property to secure the monetary claim of the pledgee to the pledgor is called a mortgage. .

However, there is a "but" here. We have given a general definition of mortgage, from which more detailed definitions of this concept can follow, based on the characteristics, condition and development of mortgages in different countries. So, for example, in the USA, under the mortgage refers to lending only in the housing sector. Therefore, although, by now, mortgages have a certain international character, it is difficult to give an undeniable definition of this concept, since a representative of a particular country and population group can adjust it in his own way.

Mortgage represents two aspects: legal and economic.

Legal content mortgage consists in the encumbrance of property rights to real estate objects when they are pledged.

Economic content Mortgage is a market instrument for the turnover of property rights to real estate (in cases where other forms of alienation - purchase and sale, exchange - are inappropriate), which allow attracting additional financial resources for the implementation of any projects.

Legal regulation of mortgages is carried out with the help of the Civil Code of the Russian Federation, as well as Federal Law No. 102 - FZ "On Mortgage" dated July 16, 1998.

The subject of a mortgage may be real estate objects specified in the Civil Code of the Russian Federation, the rights to which are registered in the manner established for state registration. This property includes:

1. Enterprises as unified property complexes used in business activities.

The consent of the owner of the above-named real estate is required for the transfer of an enterprise to a mortgage. The pledgor, without the permission of the pledgee, is not entitled to transfer property related to the enterprise as a pledge, to make transactions aimed at the alienation of property related to the enterprise, unless otherwise provided by the mortgage agreement.

An enterprise's mortgage may secure an obligation, the amount of which is not less than half of the value of all property related to this enterprise.

2. Buildings and structures(used in business activities) with simultaneous mortgage under the same agreement of the land plots on which they are located, or parts of these plots that functionally provide these buildings and structures. Here it is also necessary to say that if the land plot on which the pledged object is located is leased out, then simultaneously with the mortgage of the building or structure, the lease rights to this plot or part of it must be pledged.

3. Residential buildings, apartments and parts of residential buildings and apartments, consisting of one or more isolated rooms.

4. Hotels, holiday homes, dachas, garden houses and other buildings and premises not intended for permanent residence.

5. Air and sea vessels, inland navigation vessels and space objects.

6. Properties under construction, and materials and equipment that are prepared for their construction.

7. Subsoil plots, isolated water bodies.

8. Forests, perennial plantings.

Since real estate objects are located on the land, which are firmly connected with it, the pledge of buildings, structures, enterprises, isolated water bodies and perennial plantations is practically impossible without the simultaneous pledge of the relevant land plots (this has already been mentioned above). This determines the special role of land in the sphere of collateral relations.

9. Land plots owned by citizens, their associations, legal entities and provided for gardening, animal husbandry, individual housing, dacha and garage construction, household plots of personal subsidiary plots and land plots occupied by buildings, structures or structures, in the amount necessary for their economic maintenance (functional support).

In accordance with the Mortgage Law, as well as, the property that is the subject of mortgage is considered to be pledged together with accessories as a whole.

In accordance with Russian legislation, the subject of a mortgage cannot be:

Part of the property, the division of which in kind is impossible without changing its purpose;

Property withdrawn from circulation, on which execution cannot be levied, as well as property in respect of which mandatory privatization is provided or the privatization of which is prohibited;

State property: state and municipal lands, as well as agricultural land, state and municipal individual and multi-apartment residential buildings, subsoil plots and specially protected natural areas;

Part of the land plot, the area of ​​which is less than the minimum size for various purpose and permitted use;

Shares in the ownership of the common property of a residential building separately from the ownership of the apartment.

Legislative regulation of pledge relations is found in the laws of Manu in Ancient India (II century BC), and it is developed in detail in Roman law.

The term "mortgage" (from the Greek hypotheke - pledge), according to historians, first appeared in Greece at the beginning of the 6th century. BC, and even then was associated with ensuring the liability of the debtor to the creditor by certain land holdings. The history of the development of mortgages in Russia is given in Appendix. 16.

Such a definition is legitimate for the Russian Federation.

For example, Art. 339, 340, 349, etc.

In more detail, the features of the mortgage of enterprises of buildings and structures are considered in Chapter XII of the Law "On Mortgage".

Previous

By scale of use bank loan citizens and commercial organizations can judge the stability and development of the country's economy.

Relationship bank lending and the country's economy is clearly defined by the fact that almost every loan is based on the orientation of its recipient towards solving promising tasks, including: the construction of residential buildings, the creation or reconstruction of an enterprise, the construction of facilities that are significant for the country's infrastructure, etc.

Serious problem, just in time economic crisis, for commercial banks was the risk of default on loans. But it's no secret that the bank issues loans from savings funds of citizens and enterprises, which are stored in deposit accounts, while undertaking to return depositors their money with accrued interest. That is, the bank is obliged to protect the money of its depositors by strengthening guarantees for the return of funds by the borrower. Mortgages (mortgage of real estate) and pledge of movable property are the most common ways to ensure the fulfillment of loan obligations by the borrower.

Based on Art. 334 of the Civil Code of the Russian Federation, a pledge gives the creditor-mortgagee a priority right to satisfy his claim at the expense of the pledged property, if the borrower fails to fulfill his obligations to repay the loan. An exception is cases of bankruptcy of an enterprise, when the creditor has the right to receive his funds only after the first and second queue of creditors, which are:

• first step - compensation moral damage and harm caused to life and health (paragraph 1, clause 4, article 134 of the Bankruptcy Law);
• the second priority is wages and severance pay (paragraph 2, clause 4, article 134 of the Bankruptcy Law).

Pledge of real estate

Since 1998, in the Russian Federation, real estate mortgages have been regulated by the Mortgage Law. The mortgage agreement may be subject to general rules Civil Code of the Russian Federation on pledge, unless otherwise provided by the Mortgage Law.

Subjects of mortgage (Art. 76 Mortgage Law):

• buildings and constructions;
• land;
• bosom;
• forests;
• isolated water bodies;
• air and sea vessels;
• perennial plantations;
• inland navigation vessels;
• apartments;
• unfinished building projects.

In addition to the above items of mortgage, the collateral can be cash on accounts, non-cash foreign currency etc.

Basically, collateral relations arise from the relevant agreement, and collateral may also be provided for by law. So, for example, a pledge by law applies to an apartment or a residential building acquired or built using bank credit funds or funds from a targeted loan (clause 1, article 77 of the Mortgage Law).

A pledgor is a person who pledges property belonging to him. Such a person may be not only the debtor under the main obligation, but also a third person who wishes to pledge his property to secure someone else's obligation. The relations of the debtor under the main obligation and the pledgor in this case are outside the pledge agreement.

The owner of the property has the right to dispose of it at his own discretion, that is, he can mortgage it, sell it, donate it, etc. An exception is property that has been transferred to economic management. An enterprise that owns property transferred to economic possession can only pledge the movable part of such property (clause 2 of article 295 of the Civil Code of the Russian Federation). To mortgage real estate, the company will need the permission of the owner. The property of institutions financed from the owner's funds cannot be pledged. At the same time, these institutions can pledge property acquired with funds received from permitted entrepreneurial activities (clause 2, article 298 of the Civil Code of the Russian Federation).

State-owned enterprises have the right to pledge the immovable and movable property assigned to them only after receiving the permission of the owner for this. The current legislation gives state-owned enterprises the right to dispose at their own discretion, including bailing out the products they produce.

Pledge can be not only direct property, but also property rights. This right may be pledged without the consent of the owner, unless a law or contract provides for a prohibition on such actions.

Pledge agreement

The pledge is formalized by an agreement concluded in writing.

• subject of pledge;
• appraisal of the subject of pledge;
• the size, term and essence of the fulfillment of obligations;
• determination of the party who will have collateral for the duration of the loan.

Mortgage agreement in accordance with Art. 339 of the Civil Code of the Russian Federation is subject to notarization at the location of the property pledged. Also, a contract of pledge of movable property is subject to notarization, if this property provides the main obligation under the contract. After notarization, the pledge of real estate is subject to state registration, in order to avoid establishing a pledge on the same property several times. Along with other real estate transactions, mortgage registration is governed by the Real Estate Registration Act. Movable property, namely all types of transport, in accordance with paragraph 2 of Art. 40 of the Pledge Law are subject to mandatory registration of the pledge.

Any deviation from the requirements for a pledge agreement leads to the recognition of such an agreement as invalid.

Termination of pledge

The pledge is terminated due to (Article 352 of the Civil Code of the Russian Federation):

• destruction of the pledged thing;
• termination of the obligation secured by the pledge;
• termination of property rights;
• sales at public auction of pledged property;
• the impossibility of selling the collateral;
• transfer of rights to the pledged property to the pledgee;
• transfer of debt under the main obligation to another person;
• seizure of the pledged property from the pledgor by the legal owner or as a sanction for an offense or crime.

The pledgor has the right to demand the return of the property held by the pledgee, if the latter grossly violates the obligation to ensure the safety of the pledged property.

After the termination of the pledge under the mortgage, an appropriate note must be entered in the register of registration of mortgage agreements. The termination of the pledge obliges the pledgee to return the pledged property to its owner.

Modern legislation in the field of pledge is aimed at protecting the interests of both parties, both the pledgor and the pledgee. Lawyer's advice in civil cases will allow you to protect yourself from illegal actions on the part of any of the parties to the pledge agreement, as well as protect your property or rights in case of disputes.

• guarantee. Features of the contract and the responsibility of the parties ;
• credit. Features according to the law.

Sincerely,
Victoria Demidova, lawyer.

M.L. Pashkov,
lawyer

The current civil legislation defines a pledge as a method of securing obligations, by virtue of which the creditor under the obligation secured by the pledge (pledgee) has the right, in the event that the debtor fails to fulfill this obligation, to receive satisfaction from the value of the pledged property preferentially over other creditors of the person who owns this property (pledger), for exemptions established by law (Article 334 of the Civil Code of the Russian Federation, hereinafter referred to as the Civil Code of the Russian Federation). Like any other way of securing an obligation (excluding bank guarantee), the pledge is in the nature of an accessory (additional) obligation and terminates with the fulfillment of the main obligation.

In accordance with Art. 4 of the Law of the Russian Federation of May 29, 1992 N 2872-1 "On Pledge", a valid claim can be secured by a pledge, in particular, arising from a loan agreement, including a bank loan, purchase and sale agreements, property lease, transportation of goods and other agreements. The subject of pledge may be things, securities, other property and property rights. Claims of a personal nature, as well as other claims, the pledge of which is prohibited by law, cannot be the subject of a pledge.

The following brief conclusions can be drawn from the provisions of the current legislation.

1. Pledge arises on the basis of contracts. In accordance with Art. 154 of the Civil Code of the Russian Federation, the contract is a bilateral transaction. Article 420 of the Civil Code of the Russian Federation gives the concept of a contract as an agreement between two or more persons on the establishment, change or termination of civil rights and obligations. Thus, a pledge can be established in order to secure an obligation by a party to an agreement, that is, to a specific transaction. A pledge cannot secure the obligation of the parties under a bill of exchange.

2. The legislator does not limit the range of pledged items, indicating, however, that the subject of pledge cannot be things that have been withdrawn from circulation, and claims that are inextricably linked with the personality of the creditor, in particular, claims for alimony, for compensation for harm caused to life or health, and other rights, the assignment of which to another person is prohibited by law.

Real estate may also be pledged.

In Russia, mortgage issues are regulated by the Civil Code of the Russian Federation (Chapter 23, paragraph 3), Federal Law No. 102-FZ of July 16, 1998 "On Mortgage" (mortgage of real estate) (hereinafter referred to as the Law on Mortgage), departmental acts, judicial arbitration practice .

Mortgages in modern Russian law called real estate mortgage.

In accordance with the Mortgage Law, the subject of mortgage is:

1) land plots, with the exception of land plots that are in state or municipal ownership, as well as agricultural land from the composition of the land of agricultural organizations, peasant (farmer) farms and field land plots of personal subsidiary plots;

2) enterprises, as well as buildings, structures and other immovable property 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.

Mortgage is established on the basis of an agreement between the mortgagor and the mortgagee. Mortgages are characterized by a number of features.

1. The pledger may be the owner of the property or a person who owns the property on the right of economic management. Moreover, it should be noted that not only the debtor under the main obligation can be a pledgor. The law provides for the possibility for a third party to be a mortgagor under a mortgage agreement. The main condition for the mortgagor is that the property must be in his ownership or economic management. When considering the issue of the right of a person who has property under the right of economic management to provide it as a subject of mortgage, it must be borne in mind that, in accordance with paragraph 2 of Art. 295 of the Civil Code of the Russian Federation, a state enterprise is not entitled to pledge immovable property belonging to it by right of ownership without the consent of the owner of this property. As you know, property is assigned on the right of economic management only to state or municipal unitary enterprises (clause 2, article 113 of the Civil Code of the Russian Federation). The owners of this property are either the state or municipal authorities. According to the resolution of the Supreme Council of the Russian Federation of December 27, 1991 N 3020-1 "On the delimitation of state property in the Russian Federation", the order state property is assigned to the Government of the Russian Federation, which has the right to delegate to ministries and departments a number of powers in relation to objects of federal property, including the conclusion of property pledge agreements.

According to Art. 131 of the Civil Code of the Russian Federation, the right of ownership and other real rights to immovable things (in accordance with Article 130 of the Civil Code of the Russian Federation, real estate, in particular, includes buildings and structures) are subject to state registration in the unified state register by justice authorities. The body that carries out state registration of rights to real estate and transactions with it certifies the registration by issuing a document on the registered right or transaction, or makes an inscription on the document subject to registration. According to Art. 14 of the Federal Law of July 21, 1997 N 122-FZ "On State Registration of Rights to Real Estate and Transactions with It", a document certifying the emergence and changes in the right to real estate is a certificate of state registration of rights.

If the pledgor is not the owner of the property or, being the owner of this property on the right of economic management, has not received the consent of the owner, the mortgage agreement may be declared invalid due to non-compliance of its terms with the requirements of the law.

An example from arbitration practice: a Russian commercial and industrial commercial bank applied to the Arbitration Court of St. Petersburg and the Leningrad Region with a demand to force PTO Tsarskoye Selo LLP to conclude an agreement on pledge of real estate on the basis of preliminary contract. By decision of July 17, 1995, in satisfaction claims denied. At the same time, the court proceeded from the fact that at the time of the decision, PTO Tsarskoye Selo LLP did not have the right of ownership of the disputed property. In addition, due to the maturity of the loan, the pledge agreement would not become a way to secure the main obligation, but a way to repay the debt for the borrower.

2. The rights to real estate must be registered in the manner established for the state registration of rights to real estate in accordance with the current legislation.

Currently, state registration of rights to real estate is carried out in accordance with Federal Law No. 122-FZ of July 21, 1997 "On State Registration of Rights to Real Estate and Transactions Therewith."

3. In accordance with paragraph 3 of Art. 340 of the Civil Code of the Russian Federation, mortgage of a building or structure is allowed only with simultaneous mortgage under the same agreement of the land plot on which this building or structure is located, or of a part of this plot that functionally provides the mortgaged object, or of the right to lease this plot or its corresponding part belonging to the pledgor.

This condition caused quite a lot of controversy; for example, what to do in the case when the rights to the land plot are not registered. Arbitrage practice formulated the following approach to this problem.

If the pledger of the building or structure is not the owner or tenant of the land plot, the mortgage agreement cannot be considered inconsistent with the law on the basis of paragraph 3 of Art. 340 of the Civil Code of the Russian Federation. The rights of the pledgor, and when foreclosing a building or structure, the rights of the buyer to the land plot should be determined on the basis of Art. 37 of the Land Code of the Russian Federation, according to which, upon transfer of ownership of a building, structure or its transfer to others legal entities or citizens, along with these objects, also transfers the right to use land plots.

Article 69 of the Mortgage Law confirms the conclusion made in the course of law enforcement practice.

The above rule shall be applied if the person acting as the pledgor of the building or structure is the owner or tenant of the relevant land plot.