The main legislative document defining the conditions for the provision of mortgage loans is Federal Law on Mortgage No. 102 from 07/16/98

It contains the basic concepts of a transaction, requirements for its execution and registration. The concept of subsequent mortgage, mortgage is given, the features of mortgage lending of land are determined.

The law has undergone various changes and additions several times. The latest edition was issued on 12/31/17, the changes made to the Law will come into force on 06/01/18. They relate to the presence of a collateral manager.

The current version of the law consists of 14 chapters, 79 articles, including those that are currently no longer in force.

Chapter 1

Contains 7 articles that define the grounds for the emergence of a mortgage and what requirements it provides.

A mortgage is a type of collateral and is a complex security measure because it secures the entire obligation. Registration of a transaction on preferential terms, using government support programs is called “Social Mortgage”.

The law establishes that land plots, real estate used for business, residential apartments, houses and parts thereof, and other real estate can be mortgaged. This category of property includes ships, aircraft, and parking spaces.

Chapters 2-4

The rules for concluding an agreement, its content and features are determined. The procedure for registering a mortgage agreement is explained.

The concept of a mortgage on real estate is given, what must be contained in it, how the rights under the security are exercised and the implementation of the pledge right. How should registration of owners take place?

Chapters 5-6

The law determines that the pledgor has the right to use the pledged property and receive profit from it in cash or in kind. His responsibilities include monitoring the condition of the property and making repairs as required.

Art. 31 establishes the need to insure the mortgaged item at the expense of the mortgagor:

It is determined that the beneficiary under the insurance contract is the creditor-mortgagee.

The lender has the right to check the collateral both according to documents and its actual existence. This right is contained in Art. 34 Federal Law.

The law determines that the mortgagor has the right to alienate the pledged property only with the consent of the creditor; if a mortgage was issued, then this right must be separately stipulated in it. After the transfer of ownership rights to a third party, it becomes the borrower under the agreement until the loan and interest are fully repaid. This primarily applies to situations where heirs enter into inheritance rights to housing registered with a mortgage.

Chapters 7-8

The concepts of subsequent mortgage and assignment of rights under a mortgage agreement are given.

Subsequent mortgage, according to the Law, is a transfer of rights to the mortgaged property under one agreement to secure obligations under another agreement. The law does not prohibit the mortgagee from assigning rights under the obligation secured by the mortgage to third parties. When registering a mortgage, the transaction is carried out in simple written form, and an endorsement is placed on the document.

A mortgage can be pledged under a mortgage agreement with or without the right of transfer.

Chapters 9-10

It is determined how the foreclosure of the pledged property should be carried out, in what cases it is carried out, and what grounds exist for refusal to foreclose. How to make pre-trial collection. Contains rules for the sale of recovered property through auction, by agreement of the parties.

The creditor has the right to impose foreclosure on the pledged property if the terms of the loan agreement that he secures are not met when bankruptcy proceedings are introduced against the debtor.

Chapters 11-13

The land plot can be pledged, since it is not limited in circulation. You can transfer the right to lease a land plot as security within the term of the lease agreement. You cannot mortgage plots that are in state or municipal ownership. The mortgagor has the right to carry out construction work on the site, which will be covered by the mortgage. If a structure is built on a land plot using loan funds, after registering it as ownership, it becomes the subject of a pledge.

If the plot is part of agricultural land, foreclosure on it is possible only after the harvest and sale of the crop obtained from it.

When pledging non-residential enterprises in a complex, the rights of the pledgee extend to all the property that is part of it along with the land plot. The pledged property may include: buildings, structures, production and warehouse workshops, inventories, finished products, intangible assets, etc. Foreclosure is possible only by court decision.

The collateral for housing can be apartments in an apartment building, housing under construction, or individual households. If the owner of the mortgaged property is a minor child, the consent of the guardianship authorities to the transaction is required. Foreclosing on a residential building or apartment is possible pre-trial or through the court. Sales can be made in the form of an auction or competition.

Chapter 14

Contains final provisions, determines the entry into force of the legislative act.

Latest document revisions

During its validity, Federal Law No. 102 was amended and supplemented 20 times. In 2017 alone, the act was revised 6 times.

The last 4 changes were made on 12/31/17. They touched on the following:

Key points when applying for a mortgage. What you should pay attention to

Concluding a mortgage agreement is a serious decision for the borrower and his family. The contract is concluded for a long period, so you should carefully analyze your own financial budget and try to predict future income.

Main risks of the transaction:

The risk of losing your job, getting into a difficult life situation, or the occurrence of force majeure circumstances.
Lose the mortgaged property if you do not pay the debt on time.
If there is a delay, lenders impose additional fines and fees.
The possibility of revising the interest rate upward, which is provided for in almost all loan agreements.
When buying an apartment on the secondary market, there is a risk of losing the property while maintaining the amount of debt.

Before contacting the bank, you must select the loan currency, its approximate amount, and term. Select a lender, collect information about the bank’s loan products, and customer reviews.

It should be taken into account that the borrower will incur additional costs when completing the transaction: insurance, appraisal, registration of collateral. This will entail an additional increase in the total cost of housing.

1 Real estate documents

To consider the possibility of a mortgage, the borrower must collect a package of documents for the property offered as security for the loan:

Certificate of registration of ownership (if available);
An extract from the Unified State Register, valid no earlier than 30 days on the day of contacting the bank;
Basis documents: certificate of inheritance, privatization agreement, sale and purchase, etc.;
Cadastral, technical passport;
Certificates of absence of encumbrances, extract from the house register on the presence of registered persons;
Certificate of marriage, birth of children;
Report on the assessment of the market value of the property.

Some lenders require the provision of a preliminary purchase and sale agreement when purchasing housing on the secondary market.

2 Documents from the bank

When completing a transaction, the borrower receives the following documents from the bank:

The original loan agreement, which stipulates all the terms of the transaction.
Debt repayment schedule.
A real estate pledge agreement (Mortgage agreement), which is provided after registration of the transaction in Rosreestr. It defines the terms of the mortgage, the rights and obligations of the parties, and the parameters of the pledged property.

Is the law observed in practice?

Failure to comply with legal requirements by the parties to a transaction may lead to its nullity. Therefore, in practice, the requirements of the Law are complied with without fail.

However, there are constant disputes arising from the mortgage agreement, so the courts take into account not only the norms of Federal Law No. 102, but also the requirements of the Civil Code of the Russian Federation, Land, Family, etc. Codes.

If the pledged property is alienated in violation of the rules established by Article 37, the creditor has the right to demand early repayment of the loan or foreclosure on the pledged property.

Non-standard cases of interpretation of the law by the court

The largest number of disputes is related to the repayment of debt under an agreement or foreclosure of the pledged property. If the bank files a claim against the borrower, it can file a counterclaim to declare the mortgage agreement invalid due to the inconsistency of all essential terms of the agreement.

An additional reason may be that the agreement does not comply with the Law - the lack of consent of the other half of the family to the transaction, the transaction is not in the interests of a minor, if the rights to dispose of the building are transferred without simultaneous collateral of the land plot on which it is located, etc.

The pledge agreement may be declared invalid. For example, when applying for a non-targeted loan secured by an apartment, the mortgage agreement may be considered void if this is the borrower’s only home and the loan was not issued for its purchase.

Refusal to foreclose on the pledged property is allowed by the court if the amount of obligations outstanding by the borrower is insignificant (less than 5%) and the period of delay specified by law.

Conclusion

The requirements established by the Law for registering the acquisition of real estate with a mortgage are mandatory for borrowers, lenders, and mortgagors.

It is extremely important to observe and take into account all possible nuances of the transaction. If it is difficult for a borrower to understand the legal intricacies of the process, it is better for him to seek help from professional lawyers.

When deciding to take out a mortgage, you should rely on your own financial capabilities for repayment. Non-standard cases of interpretation of the law on mortgage by the court, when the transaction is recognized as not having taken place, are an exception to the rule and you should not count on them.

Banks carefully follow the mortgage granting procedure and work on the content of agreements justifying the transaction.

Bank loan offers for the purchase of real estate are regulated by Federal Law 102 on real estate mortgages. It is on its basis that the relationship between the lender and the borrower is built and determined. It defines the very concept of a mortgage, the documents necessary for registration, and options for collateral for real estate. Thanks to clear regulation by law, the consumer has become more protected in front of banking organizations, and the housing lending market itself has experienced unprecedented growth. Let us examine in more detail what exactly 102 Federal Law establishes.

Mortgage concept

The law defines a mortgage as a loan agreement, the collateral of which is real estate. This allows you to significantly reduce the risk for a financial institution in case of non-payment of debt. The borrower has the right to reside and dispose of his property, but with certain restrictions. For example, if you want to sell real estate, you must first obtain permission from the bank.

It is possible to obtain permission from the bank only if the apartment is forced to sell due to the impossibility of repaying the debt. It is worth noting that in this case, the bank will most likely take on the sale itself and return the difference to you, but you should not count on a large amount, since when selling, the bank is simply interested in returning its own funds.
The risk for the bank is also reduced by the fact that the borrower must make a down payment, the minimum amount of which in different banks and for different loan programs is 15-20%. Thus, if the bank has to sell the home due to non-payment of debt, it may even agree to a lower price.
After the mortgage is issued, the mortgage on the apartment remains with the bank, and after the debt is repaid and the encumbrance is removed, it is returned to the borrower. But until then, the bank has the right to dispose of this mortgage at its own discretion, for example, it can pledge it itself or sell it to another financial organization. This will not affect the borrower in any way and the terms of the loan will remain the same.

Two types of mortgage lending

Considering No. 102 of the Federal Law on mortgages as collateral for real estate, two methods of mortgage lending can be distinguished, which relate rather to the form of collateral:

In the first case, the property you purchase will act as collateral. This option is suitable for borrowers. Who have a sufficient amount for a down payment.
The second option is more risky, since existing real estate serves as collateral. In this case, a down payment is not required at all, but the cost of the purchased housing should be no more than 70-80% of the estimated value of the mortgaged property. This option is well suited for those who do not have money for a down payment, but have expensive housing, but in this case the risk is significantly higher, since the loss in case of repossession will be higher.

For what purposes is a mortgage issued?

As stated above, a mortgage is issued for the purchase of housing secured by existing or purchased real estate. But what exactly can you buy? The borrower can choose between ready-made apartments on the secondary or primary market, housing under construction, a plot of land with a ready-made object, or for further construction of a dacha or house, you can take out a mortgage to purchase a townhouse.

However, it is worth remembering that different programs provide for different real estate objects. This is especially worth paying attention to if you want to take out a mortgage under a preferential program, for example, a mortgage with government support only provides for the purchase of housing in new buildings that were built with government funding.

Mandatory insurance when obtaining a mortgage

Typically banks require compulsory insurance, such as:

Borrower's life insurance.
Insurance on property serving as collateral.
They may also require you to insure your title to the property.

In the terms of lending, various banks clearly indicate that if you refuse to renew, the interest rate will be increased, it is worth remembering, since usually the increase is 2.5% per annum, which can amount to an impressive amount.

The nuances of signing a mortgage loan agreement

After receiving a positive decision and choosing an apartment, you must sign a loan agreement, which should include the following points:

At the beginning, information about the object of the contract is indicated. We are talking about purchased real estate.
Further, according to the appraiser's report, the value of the object is indicated.
Naturally, the contract must contain information about the loan amount, repayment terms, as well as the calculation of monthly payments until full repayment.
And finally, the point about ownership.

Pledge of real estate when applying for a mortgage

The law regulates the mortgage and determines the guarantor. 102 of the Federal Law on mortgages as collateral for real estate clearly establishes that the acquired or existing real estate serves as collateral. Moreover, the objects can be varied, including even sea vessels, which are not real estate, as well as industrial buildings.

In any case, the bank does not risk anything, since the down payment, as well as the fact that the mortgaged property must be more expensive than the purchased one, guarantees the bank a return of its money and even a profit. Of course, you can avoid foreclosure and contact the bank for the sale of the mortgaged property. In this case, it will be possible to return part of the funds paid.

Federal Law on Mortgage No. 102 establishes a system of lending as collateral for real estate and agricultural plots on the territory of the Russian Federation. Since July 2017, significant innovations have been introduced into Federal Law 102.

102 mortgage law: latest changes and current version of the law

In this article we will look at federal law on real estate mortgages . You can download the current version of the law for 2017, find out the latest changes, the history of the document, as well as expert commentary on the main articles.

History of the creation of mortgage legislation

For 84 years of the 20th century there was no mortgage in Russia. From the very beginning of their regime, the USSR authorities deprived the country's population of the right to private property. Mortgages according to the new rules appeared in Russia only at the end of the 20th century. For its development to its present state, fundamental changes were required in the state’s attitude to property relations and housing construction. In addition, major legislative changes were required.

Only on the eve of 1991 did the first prerequisites for the revival of the mortgage institution in Russia appear. This was the Law on Property, adopted in December 1990. Then, until 1993, laws on collateral and on the fundamentals of housing policy were successively adopted. The main provisions are also enshrined in the Civil Code. People are starting to think about real estate mortgages more and more often.

These laws allowed dozens of banks to establish a system for issuing mortgage loans by the end of 1994. At the same time, this business was poorly controlled by a meager set of regulatory frameworks in this area, which did not allow mortgages to reach a high level of development and transparency. A fundamentally new and powerful federal law was required.

It was adopted on July 16, 1998, a month before the severe crisis of the Russian economy. 102 of the Federal Law for mortgages has become a kind of bible, which, together with the civil code, made it what it is now.

Latest changes and current version of the law

Over the course of almost 20 years, numerous adjustments have been made to the mortgage law related to the development of mortgages and changes in other regulatory documents. The current edition is dated July 3, 2016, with amendments dated July 1, 2017.

The most important events in the mortgage market in 2016 that influenced mortgage legislation were:

1. Legislative limitation on the amount of penalties for late repayment of a loan (should not exceed the key rate of the Central Bank on the date of conclusion of the loan agreement).

A few words about the key rate of the Central Bank. In simple words, this is the interest rate at which banks take short-term loans (1 week) and open deposits with the Central Bank of the same terms. From May 2, 2017, the rate is 9.25%.

2. Mandatory notarization of transactions with real estate that is in shared ownership.

That is, now in order to sell an apartment divided into shares, it is not enough to conclude a purchase and sale agreement in simple written form. It is necessary to visit a notary and formalize the transaction according to his form. Accordingly, the cost of registration has increased significantly.

3. Changing the procedure for calculating tax on the sale of an apartment. From 01/01/2016, the period of ownership of real estate, after which the owner is exempt from paying sales tax, has increased from 3 to 5 years. In addition, the tax amount is now calculated from the cadastral value or from the value specified in the purchase and sale agreement, whichever is greater. That is, transactions with undervaluation in the contract have lost their meaning, since the cadastral value is approximately equal to the market value.

There is good news. If ownership was registered before 01/01/2016, the period remains the same - 3 years.

Example. Citizen Ivanov purchased an apartment worth 3,000,000 rubles. in April 2016. In May 2017, he sold it. Cadastral value - 3,000,000 rubles, under the purchase/sale agreement - 1,000,000 rubles. The tax will be calculated based on the cadastral value in the amount of 2,000,000 rubles. (minus the tax deduction of 1 million) and will be equal to 260,000 rubles.

4. Another good news for borrowers under the Military Mortgage program. Now information on such agreements will not be taken into account in the serviceman’s credit history. In fact, he himself does not pay the loan. The state does this for him.

5. Since July 2016, the law has provided for the right to mortgage parking spaces.

General provisions

The main provisions of the mortgage law establish the definition of a mortgage, the basis for its occurrence, a description of the requirements for collateral and the property that can be pledged.

The pledge must be secured by an agreement in which there are two parties: the pledgor (owner of the object) and the pledgee (creditor). Moreover, the owner may not have anything to do with the loan at all, but only provide it with his property.

The mortgage itself is established not only under the loan agreement. It could be:

loan agreement,
lease contract,
work agreement,
obligation based on a purchase and sale agreement, etc.

That is, any obligations, if they are not subject to a security procedure defined by another law, may be the subject of a mortgage.

The contract establishes a complete list of obligations that are covered by the pledge. If something goes against the agreements, the pledgee also has the right to receive compensation for losses, interest for the unlawful use of his funds, as well as legal costs and expenses for the sale of the pledged property, unless otherwise specified in the agreement. This is why it is so important to draft this document correctly.

The following property can be provided as collateral:

land plots, but not all (exceptions are described in Article 63 of the law);
property used for business activities;
residential buildings (including parts consisting of isolated rooms);
dachas, garden houses, bathhouses, garages and other consumer buildings;
vessels (air, sea, river) and even space objects;
parking space.

The basic principle that applies to collateral is indivisibility. That is, part of the property that, after division in kind, cannot be used for its intended purpose, is not accepted as collateral. Simply put, you cannot pawn just the engines of an airplane, or just the roof of a house.

Another important point is that a residential building on a land plot can only be accepted as collateral along with the land. If the plot is leased, then the right to lease is pledged. Moreover, if the contract with the landlord is valid for more than 5 years, the owner’s permission will not even be required.

Mortgage agreement

The general rules for concluding all civil contracts in Russia are enshrined in the Civil Code. The Mortgage Law introduces additional requirements that must be met.

The following information must be included in the contract:

subject of mortgage and its valuation;
essence, volume and period of fulfillment of obligations.

The subject of the pledge must be described in detail so that it can be accurately identified. The contract records the name of the object, description and location. In this case, the same rules apply to leased property; in addition, the lease period is indicated.

If necessary, the parties can include in the contract a procedure for the sale of the collateral in the event of debt collection in court or describe settlement options in the pre-trial period.

When it comes to a mortgage loan agreement with an individual who purchases real estate that is not intended for business activities, the rules described in the Law “On Consumer Credit” apply to it. That is, the following conditions must be met:

The contract indicates the full cost of the loan, and it must be on the first page.
The lender is prohibited from charging the borrower a fee for actions that are imposed on him by law, and which he does in his own interests (all kinds of commissions for issuing a loan and other payments not related to the mortgage).
The conditions and procedure for issuing a loan must be publicly available for review (including on the Internet).
The borrower must be given a payment schedule.

Discussed in more detail in a separate article.

Mortgage

A mortgage is a registered security that secures the right of claim of the mortgagee to the pledgor for the fulfillment of obligations and the right to pledge property. The law does not require that it be present in order to conclude a mortgage agreement. It may not exist.

The document is drawn up either by the mortgagor or, if the property belongs to a third party, by both of them.

The law clearly describes the list of information that must be reflected in the mortgage, as well as the obligation to register the paper with a government agency (for example, Rosreestr). If at least one of the points listed below is not met, the mortgage cannot be referred to as such:

The title of the document must contain the word “Mortgage”.
For individuals - the name of the mortgagor, details of the identity document. For legal entities - name of the organization and location.
For the mortgagee, the same details as in clause 2.
The same details of the debtor, if he is not a mortgagor.
The date and place of conclusion of the agreement, as well as the grounds for the occurrence of obligations (for example, the number of the loan agreement).
The amount of obligations and interest, as well as the deadline for their fulfillment.
Name, description and location of the collateral.
Confirmed appraised value of the property.
A note on state registration of the mortgage.
Indication of the presence/absence of encumbrance of property with the rights of third parties.
Signature of the mortgagor and the debtor (if they are not the same person).
Specifying the date on which the mortgage is transferred to the lender.

The mortgage may be assigned to a third party. Then the claims of the new mortgagee will be based only on the information reflected in the paper.

A lost mortgage can be restored by making a duplicate, about which a corresponding mark is made on it.

When the obligations to the creditor are repaid, the mortgage is returned to the mortgagor, who then removes the encumbrance from the property with a government agency.

You will learn how it works in another article.

Mortgage registration

The mortgage must be registered with Rosreestr by force of law. In addition to the Law “On Mortgages”, this process is regulated by Law No. 218-FZ “On State Registration of Real Estate”.

State registration formally consists of recording a transaction in the Unified State Register of Real Estate.

The basis for registering a transaction is a joint application of the pledgor and the pledgee, or on the basis of an application from a notary who certified the agreement.

Registration of a mortgage by force of law is carried out with the simultaneous registration of the property rights of the person on whose rights the encumbrance is imposed. If available, the mortgage is registered.

The state is discussed step by step in this article.

Security of mortgaged property

The fundamental point is that the pledge of property does not give the creditor the opportunity to limit the right of the mortgagor to use this property for its intended purpose. He also has the right to benefit from the collateral, but the creditor cannot claim this income.

At the same time, the mortgagor is obliged to maintain the property in good condition and, if necessary, carry out repairs at his own expense, unless otherwise specified in the agreement.

Disputes often arise regarding the legality of the lender's requirement to insure the collateral against damage, damage or loss. The law states that such insurance may be provided for in the terms of the loan agreement. As a rule, the property is insured at the expense of the mortgagor.

In addition, the owner is obliged to take all available measures to preserve the property safe and sound and to inform the pledgee if there is a real threat of loss of the pledge.

Subsequent mortgage

A subsequent mortgage is a re-mortgage of property that has already been mortgaged. This may be a pledge to the same creditor (for other obligations), or to others.

It is important to comply with the terms of the original mortgage agreement. If it contains an express prohibition on subsequent mortgages (and most residential mortgage agreements do), then such a transaction will be invalid regardless of whether the potential mortgagee knew about it or not.

There are also cases when the agreement specifies the requirements for obtaining a subsequent mortgage. In this case, a new contract must be concluded in compliance with these conditions.

Otherwise, the subsequent mortgage differs little from the current one. Particular attention should be paid only to the collection procedure. Here you should be guided by the rule of priority rights of claim, in accordance with which obligations are repaid one by one, starting with the first creditor. So the last creditor may not have enough money from the sale of property.

Assignment

The mortgagee has the right, at its discretion, to transfer the right to demand fulfillment of obligations under the mortgage to any third party. For example, if a bank wants to assign a mortgage to a third-party organization, it does not necessarily have to have a license to carry out mortgage lending.

In this case, the person to whom the right under the mortgage has been transferred also receives rights under the obligation secured by the mortgage. That is, this person takes the place of the original creditor.

The transfer of the mortgage is accomplished by concluding an agreement in simple written form. An appropriate entry about the new pledgee must be made on the security.

Interestingly, the law directly prohibits making notes on the mortgage prohibiting its transfer to third parties. Such a record is a priori insignificant.

Collection

If the debtor repays his obligations untimely and not in full, thereby violating the terms of the concluded agreement, the creditor has the right to begin forced collection of the debt.

There are two ways things can develop:

trial;
extrajudicial recovery.

If the mortgage agreement does not provide for the possibility of out-of-court settlement of debt (introduced by Article 55 of the law) by collecting the pledged property, such recovery is possible only by court decision.

There are two cases in which out-of-court recovery is not possible:

The period during which the debt is not repaid (overdue) does not exceed 3 months.
The outstanding balance is less than 5% of the debt amount.

In practice, debt collection by banks through the sale of pledged property occurs only in extreme cases, when other methods do not bring the desired result. However, we should not forget that the law in such cases, as a rule, is on the side of the creditor, since the debtor violates the concluded mortgage agreement. Therefore, if it comes to extreme measures, it is possible to sell the pledged property to pay off the debt.

Discussed in more detail in a separate article.

Sale of property

Debtors' property is sold by putting it up for public sale in the form of an auction. Its organization and conduct are not regulated under this law. Procedural legislation and the Civil Code are responsible for this.

In general terms, trading is carried out as follows. No earlier than 30, but no later than 10 days before the auction, an advertisement is placed in the official newspaper with information about when, where and what will be put up for auction.

Those wishing to participate must make a deposit in an amount not exceeding 5% of the initial sale price of the property. The winner is the one who offered the highest price. For the rest, the deposit is returned immediately.

On the day of the auction, a protocol is signed with the winner. The decision is valid for 5 days, during which the buyer pays the balance of the cost of the property, after which, again within 5 days, a purchase and sale agreement is concluded with him.

The extrajudicial sale of property follows a similar pattern, with the only difference being that the auction is organized by an authorized person on behalf of the mortgagee. The proceeds from the sale are distributed among all mortgagees, and the remainder is returned to the mortgagor.

The law also states that the creditor can keep the property if this is mentioned in the contract. The debtor may at any time, before the auction is declared closed, stop collection by paying off the debt.

The auction may be declared invalid if only one buyer showed up, the initial amount was not increased, or the winner did not pay for the property. By the way, the Civil Code provides for liability for the latter, which is expressed in compensation for losses.

Features of a land mortgage

Mortgage of land plots is possible if the turnover of such objects is not limited by law or its size exceeds the minimum value established by regulations for plots of this type and purpose.

Municipally owned land plots may be provided as collateral. But there are conditions:

the site must be allocated for individual housing construction as part of social programs;
the mortgage must be related to obtaining a loan for the development of this site;
the decision on the possibility of bail is made by the municipal authority.

A land plot acquired using loan funds is pledged from the moment ownership is registered. If the owner wants to construct any buildings or structures on the land, he does not need to ask the mortgagee’s permission. Only if this does not contradict the agreement, these buildings will also become the subject of collateral. This is exactly the moment when the principle of indivisibility works, that is, buildings cannot exist separately from the site, accordingly, they are also included in the mortgage.

Let's consider another case. For example, citizen X owns a plot of land, acquired with personal funds and without encumbrances. One day he decided to build a residential building on this site using a mortgage loan. The bank issued the money and from that moment took the plot as collateral. And then, after building the house and registering the rights to it, he will also take the house as collateral. The same principle of indivisibility. Only in this case, the lender initially took the land as collateral, since the housing has not yet been built, and the loan must be secured with something.

Foreclosure of land also occurs through open auctions. An important feature is the sale of agricultural land. Until the harvest is harvested and sold, these lands cannot be foreclosed on.

Discussed in detail in the previous article.

Mortgage for non-residential premises

Mortgage of non-residential premises has a number of features that are described in the relevant section of the law.

Thus, an enterprise as a single property complex is transferred to a mortgage with all the property located on the territory, including a land plot.

A separate non-residential premises is pledged in its entirety, along with the land plot.

In this case, the pledgee cannot in any way interfere with or limit the mortgagor’s right to use the property. The only exceptions are transactions involving the alienation of real estate and its pledge.

An enterprise can be pledged only if the amount of debt obligations is at least half of the estimated value of the property. The period for submitting claims for the collection of collateral is at least one year from the date of conclusion of the contract.

Let's say enterprise N is mortgaged to bank Y under a loan agreement for a period of 9 months. If the company does not repay the debt, the bank still cannot begin the collection procedure earlier than 12 months from the date of signing the document.

By the way, it is possible to collect a mortgage debt from a company only by a court decision.

Mortgage of residential houses and apartments

When transferring them to a mortgage, special requirements are also imposed on residential buildings and apartments, since they may be the place of residence not only of the mortgagor.

It’s worth noting right away that mortgages on municipally owned residential premises are not allowed. The remaining objects have a number of features:

When alienating property in which minor children are registered, permission from the guardianship authorities is required.
When constructing a residential building, the mortgage can be secured by materials and equipment, but after construction, the finished house is pledged as collateral.
According to Article 77 of the law, residential premises purchased with credit money are pledged from the moment of registration of ownership rights.
With a “Military Mortgage,” the housing is pledged to the lender and the government agency that makes payments to repay the loan.

By the way, the Federation Council recently adopted amendments to the law “On the Savings Mortgage System”, according to which money is accrued for the “Military Mortgage”. More categories of military personnel are now eligible to have their account restored upon re-enlistment.

The most important point in this section is the clause on foreclosure of housing. This fact is grounds for eviction of tenants. It is carried out in accordance with legal requirements. This point is described in detail in Art. 78.

As you can see, this federal law gives a fairly clear picture of mortgages. This is an effective tool that regulates the mortgage transaction market in Russia. What is important is that this is a living document that, although not always with lightning speed, reacts to changes in the current situation and allows for the development of housing construction in the country.

Whatever we think about mortgages, getting a mortgage is only becoming easier every year. Much of the credit for this goes to mortgage legislation. you can find out further.

If you require qualified assistance from a mortgage lawyer, protecting your interests before the bank or your significant other during a divorce, we recommend that you sign up for a free consultation with our lawyer. He will provide professional assistance and suggest an effective way out of your situation.

Mortgage is one of the forms of collateral in which the pledged real estate remains in the possession of the debtor. If obligations under the loan agreement are not fulfilled, the lender has the right to satisfy the obligations by selling the borrower's property.

Description of the law on mortgages

Federal Law No. 102 “On Mortgages” was adopted by the State Duma on June 24, 1997, and approved by the Federation Council on July 9 of the same year. Last changes were made on November 25, 2017.

Summary of the Federal Law:

Chapter 1— Describes the main provisions.
Chapter 2— Reveals the process of concluding a mortgage agreement.
Chapter 3— Describes the concept of a mortgage.
Chapter 4— Lists state registration of mortgages.
Chapter 5— Ensures the safety of property that is pledged under a mortgage agreement.
Chapter 6— Describes the transfer of rights to property pledged under a mortgage agreement.
Chapter 7— Lists the client’s options when taking out a subsequent mortgage loan.
Chapter 8— Describes methods for assigning rights under a mortgage agreement, including the transfer and pledge of a mortgage.
Chapter 9— Reveals the procedure for foreclosure on property that is pledged under a mortgage agreement.
Chapter 10— Describes the sale of the mortgaged property, which is preliminarily stated in the contract.
Chapter 11— Lists the features of mortgage of land territories.
Chapter 12— Reveals the features of processing mortgage loans for buildings, enterprises, structures and non-residential premises.
Chapter 13— Describes the features of mortgages for apartments and residential buildings.

New amendments

The Federal Law “On Mortgage” was amended on November 25, 2017. In particular, the following articles and paragraphs have undergone changes:

P 2 st 1

If one of the parties to the transaction needs a mortgage, the parties are required to enter into an agreement between themselves that lists the conditions and requirements, as well as the extent of liability in case of failure to comply with the agreed points.

Article 4 of this law has been amended. It describes that the mortgagor in some cases is obliged to bear the costs for the mortgagee to insure specific real estate. Sometimes he must pay debts related to:

utilities;
property tax;
fees

However, reimbursement of such expenses is carried out at the expense of the mortgaged real estate.

P 1 st 5

In Article 5 of this law, paragraph 1 was amended. The term “space objects” was removed. Now only sea and air vessels, as well as inland navigation vessels, remain.

A mortgage is issued on the specified property in accordance with Article 5 of the law. It belongs to the pledgor as property. If based on the Civil Code of the Russian Federation and other federal laws, then such property can be owned on the basis of operational management or economic management.

P 3 Article 6

It describes that the subject of a mortgage is often property. To mortgage it, the consent/permission of the second owner (if any) is required. In the mortgage process, similar consent is required.

If real estate is used as collateral, which does not relate to operational management or has the right of economic management, it is accepted by the Government of the Russian Federation or the subject.

P 1.1 art. 9

If a mortgage is issued on the basis of the legislation of the Russian Federation, the agreement may list the methods for selling the mortgaged real estate, as well as the conditions that must be met. The conditions and procedure for the sale of the pledged property may be determined by the court.

P 2 st 9

By law, the mortgage agreement must contain the right on the basis of which the property belongs to the mortgagor. Additionally, you should indicate the name of the government agency that issued this right.

P 4 st 9

Paragraph 4 of Article 9 refers to the obligations secured by mortgage lending. The mortgage agreement specifies the amount, grounds for occurrence and execution period. If the amount is negotiable, the contract specifies the criteria for determining it.

P 3 st 20

Clause 3 of Article 20 describes the mortgage. The mortgage must comply with the requirements of Article 14 of the current Federal Law “On Mortgage”.

P 2 of Article 29

The mortgagee is obliged to receive funds first in comparison with other credit institutions if other people use the real estate, and for use they transfer funds to the mortgagor.

P 2 art 31

Clause 2 of Article 31 has been amended. The mortgage agreement must necessarily include insurance provisions. If there are no conditions, then the mortgagor is required by law to insure the real estate at his own expense. If this clause is not fulfilled, the mortgagee can independently insure the property in full value against the risks of damage and loss. If the full value of the property is higher than the obligation secured by the mortgage, in this case the mortgagee may require funds from the borrower in the amount of expenses incurred by him.

P 3 art 43

It describes the nuances of concluding a subsequent mortgage agreement, which is concluded despite the established prohibition. It may be declared invalid by the court in accordance with the contract.

P 1 st 44

If the mortgagee fails to fulfill his obligations, he has the right to claim damages unless it can be proven that he received information about previous mortgages.

P 3 art 44

A subsequent mortgage agreement may be concluded after the previous one in order to change the conditions and requirements in it. However, the second agreement must not violate the rights of the parties that were listed in writing in the first agreement.

P 4 st 46

If the mortgagor receives notice that a certain mortgagee requires a certain amount of money from him before transferring it, the mortgagor is obliged to notify other mortgagees of this real or movable property.

P 2 art 55

This paragraph describes the sale of mortgaged real estate in an out-of-court procedure. To implement it correctly, you need to follow the procedure outlined in Article 56 of this Federal Law.

The mortgage agreement may provide for the conditions for extrajudicial recovery of the pledged property if the parties to the agreement are legal entities or individual entrepreneurs. In this case, one of the ways to sell real estate or movable property is an independent procedure. When carrying out this procedure, the rules from the civil legislation on purchase and sale are taken.

If an individual entrepreneur is excluded from the unified state register, this is not a reason to cancel the conditions specified in the contract.

P 3 art 55

If the pledgee, in accordance with the terms of the agreement, retains movable or immovable property, it is included in the repayment of the mortgagor’s debt. Eg, the value of real estate cannot be lower than the market price.

To carry out the described procedure, the property is preliminarily assessed. If a client interested in purchasing does not agree with the estimated value, a secondary inspection can be carried out. If the property was sold below market value, then by law the mortgagor has the right to demand compensation from the mortgagee for damages in the amount of the difference between the appraised value and the sold price of the property.

P 5 st 55

This paragraph describes that residential premises can also become the subject of a mortgage if it is the only one suitable as a permanent place of residence. Mortgaged property is the subject of prior and subsequent mortgages that use different foreclosure procedures.

P 4 art 55.2

If it is planned to collect the pledged property, then in accordance with the provisions of the law it is sent to the location of the legal entity or individual.

Article 59.1

During the last edition of the law, Article 59.1 was completely stated in a new wording. It states that the mortgagee can keep the property or sell it to another person. As stated in paragraph 1.1. Article 9 of this Federal Law, in the manner established by a specific paragraph, the parties may retain the property of the pledged person both out of court and at the request of the court.

Thanks to the mortgage, the mortgagee is compensated for the risks of non-repayment of the debt or compensation for losses and legal costs (if necessary). The contract specifies a specific amount that must be paid by the debtor. If the amount of recovery received is higher than that stipulated in the document, the mortgagee has the right to return the balance to the mortgagee.

Download the latest edition of 102 Federal Law

A mortgage is established in the form of obligations that arise when drawing up a credit agreement or loan agreement. The obligations that arise as a result of obtaining a mortgage must be taken into account by the lender and the debtor. If the parties are legal entities, then the obligations under the agreement are established in the manner specified in the law of the Russian Federation on accounting.

All about mortgages Afonina Alla Vladimirovna

1.2. Legislation regulating mortgage lending to citizens (legal basis for mortgage lending)

Residential mortgages are regulated by civil and housing law.

The rules of the Civil Code of the Russian Federation that are subject to application in the event of legal relations arising under a mortgage are applied as follows:

1) as for the loan itself, it is regulated by the provisions of § 2 ch. 42 “Credit”, where the definition of a loan agreement is given and general provisions on its form are given;

2) since a mortgage is, in essence, a loan agreement, in security of which the borrower provides a property, then the provisions of § 3 of Chapter. 23 on ensuring the fulfillment of obligations. So, according to Art. 334 of the Civil Code of the Russian Federation, by virtue of a pledge, a creditor under an obligation secured by a pledge has the right, in the event of failure by the debtor to fulfill this obligation, to receive satisfaction before other creditors of the person who owns this property. This and other provisions on collateral comply with the Mortgage Law.

Taking into account the above, of course, the main legal document that regulates the grounds for the occurrence, the procedure for registration and the legal consequences of the emergence of the mortgage itself is the Mortgage Law itself. Thus, in accordance with paragraph 3 of Article 1 of this Law, the general rules on pledge contained in the Civil Code of the Russian Federation apply to relations under a mortgage agreement in cases where the specified Civil Code of the Russian Federation or directly by law does not establish other rules. This law, signed by the President of the Russian Federation in 1998, is recognized by experts as the first special law regulating the system of relations arising in connection with the pledge of real estate. It specifies the conditions for providing a loan for the acquisition of real estate with the further pledge of rights to it. The entire chain of legal relations between the parties in the event of a violation of obligations on the part of the borrower, as well as the procedure for foreclosure on the pledged property, are also considered.

These issues are also regulated by the norms of the Civil Procedure Code of the Russian Federation of November 14, 2002 No. 138-FZ.

Article 446 of the Code of Civil Procedure of the Russian Federation includes residential premises (parts thereof) as property that cannot be foreclosed on according to executive documents, if for the debtor citizen and members of his family living together in the premises owned, it is the only premises suitable for permanent residence , with the exception of the property specified in this paragraph, if it is the subject of a mortgage and can be foreclosed on in accordance with the legislation on mortgages.

In addition, all of these regulations regularly undergo certain changes. A comparison of the current version with the original edition is given in the table.

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