The right to leave real estate on bail today is enjoyed by many Russians. However, not everyone studied the Federal Law "On Mortgage", which directly regulates one of the areas of lending. This article will provide a brief description of the main points of this bill.
About the mortgage
What is a mortgage contract? The current law "On Mortgage" stipulates that one party to a transaction must be a pledge holder, that is, a creditor, and the second party - a pledger, or simply a debtor. The mortgagor is secured by a mortgage, because of which he has one important obligation: to satisfy the monetary claims of the mortgagee, who provided the debtor with real estate.
The Law "On Mortgage" stipulates that real estate may include enterprises, buildings, apartments, land and some other elements. The circulation of these types of property should be regulated by relevant law.
The requirements that are provided by the mortgage are not so great: this is the payment to the creditor of the interest due to him for the use of the loan. As a rule, a mortgage agreement establishes a fixed amount of the basic and additional requirements of the pledge holder. Any such agreement must strictly comply with the law "On Mortgage".
About the subject of a mortgage
What property can act as the legal subject of a mortgage? According to the law under consideration, it is worth highlighting:
- land plots, the area of which is larger than the established minimum size or corresponds to it;
- buildings and enterprises used for business activities;
- residential houses and apartments with isolated rooms;
- garages, garden houses and cottages;
- aircraft, ships or spaceships;
- car seats.
The Law "On Mortgage" stipulates that the subject of a mortgage are also accessories pledged with the main thing. At the same time, parts of the property of indivisible things cannot act as the subject of an agreement.
Conclusion of an agreement
An important point in the entire process of mortgage lending is the competent conclusion of the contract. This should happen in accordance with the norms of the Russian Civil Code. The content of the contract should reflect the following:
- directly the subject of the mortgage, its substance, size and valuation characteristic;
- name and location of the item (for accurate identification of the pledged thing);
- an exact description of the obligation that is ensured by the mortgage agreement, as well as the grounds for the occurrence and term of the agreement
- the procedure and necessary conditions for determining the amount, if the amount will be determined in the future;
- periods of payments and their sizes, if the subject of mortgage lending will be sold in parts;
- an indication of the certification of the rights of the mortgagee of the mortgage.
And what exactly is called a mortgage? What kind of document is this and what does it have to do with a mortgage agreement? Answers to all these questions are contained in the third chapter of the law "On Mortgage" (Federal Law No. 102).
About Mortgage
A mortgage is a security of the registered type. Thanks to this document, the following rights of its owner are subject to certification:
- the right to pledge property that is the subject of a mortgage agreement;
- the right to fulfill monetary obligations on a mortgage.
Other forms of certification, except for a mortgage, have not yet been established by law. In this case, the obligated persons, according to the mortgage, are both the mortgagor and the debtor. Compilation of a mortgage is always engaged by the mortgagor.
In what cases can the issuance of mortgages be realized? The relevant federal law defines the following conditions:
- the subject of the mortgage is the property complex;
- the amount of debt on the mortgage is not determined, and there are no conditions that would help to determine this amount.
A particularly important point is the content of the mortgage, which will be described later.
Mortgage Content
According to the current version of the Law "On Mortgage", at the time of issue to the original mortgagee, the mortgage must contain:
- names and information identifying the mortgagor and the mortgagee (information requirements will vary slightly depending on whether the parties to the agreement are individuals or legal entities);
- name of the contract provided by the mortgage;
- Indication of the required mortgage amount, as well as the amount of interest;
- indication of the timing of payment of the amount;
- information necessary to identify the property on which the mortgage is established;
- signatures of the parties to the agreement, as well as information on the state registration of the mortgage agreement.
The compiler of the mortgage is fully liable for losses incurred in connection with the elimination of the mortgage or because of the discrepancy of its validity. It is also worth noting that the cancellation of certain requirements of the document in question is possible, if non-conformities were identified almost immediately after preparation.
State registration
Section 20 of the Federal Law on Mortgages as a Pledge of Real Estate provides for state registration of the entire process. As you know, a mortgage can enter into legal force only after appropriate state registration. A notarized agreement signed by both parties to the transaction is a source of mutual obligations.
If there is a mortgage in which the rights of the pledge holder are certified, the registration authority may require the mortgage itself, as well as the documents indicated in it. As a result of registration, information about the new pledge holder will be entered into the Unified State Register.
Use of property
The mortgagor, who has received the right to use this or that property, has the opportunity to extract from the subject of the contract all income and fruits, if this does not harm the property and cannot reduce its value. The creditor may not limit the right to use the property by the pledgor. What else is the debtor able to do?
According to the law on foreign currency mortgages, the mortgagor is required to maintain the property received in good condition and bear the costs of its maintenance in a timely manner - until the termination of the mortgage agreement. In fact, these two obligations are the main ones of the debtor. In addition, it is worth noting the implementation of overhaul and maintenance, insurance processes, taking measures to protect the mortgaged property from damage or loss, and much more. The law states that the mortgagor is obliged to protect his property from the claims of third parties, as well as to ensure its safety in every way.
Property Transfer
The sixth chapter of the bill under consideration states the possibility of transferring the right to property mortgaged under a mortgage agreement to other citizens. We are talking about the processes of donation, sale or exchange, implemented by the mortgagor. But how can this be planned? Everything here is not so complicated.
The main point worth paying attention to is an indication of the possibility of transferring property to a mortgage. If such a condition is not specified in the document, then the mortgagor simply will not be able to use all of the above rights (the exception is inheritance of property by will).
A person who takes the place of the mortgagor acquires a number of duties. So, the pledge of property remains valid until the debtor fulfills all the duties assigned to it.
Separately, it is worth noting the liability imposed on the mortgagors in the event they violate the rules. It is established by the Russian Civil Code.
Other provisions of the law
Is it possible to accept a subsequent mortgage as a guarantee of a previous, outstanding mortgage? The law, in particular its seventh chapter, regulates this possibility, subject to certain nuances.
Chapter nine states the right of the pledge holder to foreclose on property in order to satisfy legal requirements not fulfilled by debtors. This should happen in a judicial proceeding. Chapter Ten regulates the sale of property through public bidding. Decision on the implementation also belongs to the court. Finally, the eleventh chapter of the draft law "On Mortgage" examines in detail the types of individual land plots that are and are not subject to a mortgage.
Probably the most widely read among Russian mortgagors is chapter 13, which tells about the peculiarities of mortgages for residential apartments and houses. It refers to the requirements for such types of property. This, for example, the presence of isolated rooms, the need for state registration of real estate and some other points. At the same time, the law interprets the repayment of a mortgage as the complete fulfillment by the pledger of its obligations.