Federal Law on Mortgage as amended. Federal Mortgage Law New mortgage provisions

Mortgage tax

Notarization of transactions

Limitation of mortgage penalties

A mortgage is one of the types of long-term bank lending. Thanks to this loan, you can purchase residential and non-residential properties. The state carefully monitors the activities of lenders in the real estate sector, therefore mortgages are regulated by the Federal Law “On Mortgage (Pledge of Real Estate)” No. 102-FZ. Often this law is finalized and amendments are made to it. In addition, tax legislation and the rules of State Real Estate Registration are changing. Special programs are being created for certain categories of citizens and lending conditions are being expanded. Therefore, so that you know what to look for when getting a mortgage in 2016, we will tell you about the most important changes in the law on mortgages and related amendments in other areas.

Tax deduction for mortgage. One of the first innovations in 2016 was that from January 1, 2016, the rules for taxation of personal income received from the sale of real estate changed. Having previously purchased real estate, you did not pay tax on its subsequent sale if it was in your ownership for more than three years. Currently, the minimum period of ownership of real estate for which the seller is not subject to tax upon sale is 5 years. This change applies only to real estate purchased from January 1, 2016.

But there are also exceptions. Property that was received into ownership by inheritance, a gift agreement from close relatives, as well as as a result of the transfer of property to the payer under rent or under a lifelong maintenance agreement with a dependent - for these cases, the period of ownership of real estate, after which the tax will not be paid when selling the property, is , as before, only 3 years.

How does this change affect the mortgage market? First of all, this makes it difficult to choose an apartment, because many sellers do not want to pay the tax and will wait for the specified period to expire or ask you to pay an additional tax amount separately to the cost of the apartment. And if a new building is sold with a fresh certificate of ownership, then the total waiting period for the seller will become even longer. After all, at first he waited a year or two for the house to be built, and now another five years from the date of registration of the right.

Previously, it was possible to avoid tax by “understating” the value of real estate in the purchase and sale agreement. Now this is impossible.

Tax on the sale of real estate in 2016 is now calculated either from the contract price or from the cadastral value of the property (with a reduction factor), depending on which price is higher. A state cadastral valuation was carried out specifically for these purposes and it is practically equal to the market value of the property.

If the amount in the contract is greater than the cadastral value, then the tax will be 13% minus 1,000,000 rubles (tax deduction) or minus expenses for the previous transaction, at the choice of the seller. For example:

The cost in the DCT is 5,000,000 rubles and it is higher than the cadastral value.
Tax is calculated:
1. From 5,000,000 minus 1,000,000 (tax deduction) = 4,000,0000.
The tax will be 13% of 4,000,000, that is, 520,000 rubles.
2. If the apartment was purchased for say 3,500,000 rubles before, then:
From 5,000,000 minus 3,500,000 (previous consumption) = 1,500,000
The tax will be 13% of 1,500,000, that is, 195,000 rubles.

If in the contract you indicate an amount less than the value of the property according to the cadastral extract, then the tax will be calculated from the cadastral value multiplied by a reduction factor of 0.7. The tax will be 13% minus 1,000,000 rubles (tax deduction) or minus expenses for the previous transaction, at the choice of the seller. For example:

The cost in the monetary contract is 1,000,000 rubles and it is lower than the cadastral value (understatement).
The cadastral value is 6,000,000 rubles.
1. The tax is calculated from 6,000,000 multiplied by 0.7 = 4,200,000
Minus tax deduction 1,000,000 = 3,200,000
The tax will be 13% of 3,200,000, that is, 416,000 rubles.
2. If the apartment was previously purchased, say, for 3,500,000 rubles, then:
The tax is calculated from 6,000,000 multiplied by 0.7 = 4,200,000
4,200,000 minus 3,500,000 (previous consumption) = 700,000
The tax will be 13% of 700,000 rubles, that is, 91,000 rubles.

Essentially, the tax office calculates the amount from 70% of the cadastral value of housing, and also allows you to use 1,000,000 rubles as a tax deduction or deduct previous expenses. Therefore, at the moment it makes no sense to indicate the value in the purchase and sale agreement as less than 70% of the cadastral value.

Limitation of mortgage penalties. Another important change in the mortgage law was the adoption in June 2016 by the State Duma of a law limiting the maximum amount of penalties under mortgage agreements if the terms of the agreement are violated. Now the amount of the penalty under a mortgage loan agreement will not exceed the key rate established by the Central Bank of Russia on the day the loan agreement is concluded. If interest is not accrued under the loan agreement, the amount of the penalty should not exceed 0.6% of the amount of overdue debt for each day of violation of the terms of the loan agreement. Previously, banks themselves set the amount of the penalty and it happened that people who found themselves in a difficult situation ended up owing the bank amounts that far exceeded the original loan and interest on it.

Notarization of real estate transactions. In 2016, a law also came into force stating that all transactions for the alienation of real estate in common ownership are subject to notarization. Federal Law 172 regulates the notarization of all transactions with shares of real estate, even if all property owners are parties to the transaction. This service from a notary is not cheap; its cost consists of a set percentage of the sale price of real estate, plus a set tariff and related expenses.
That is, if you have not one seller, but several (husband and wife, relatives, etc.), then you can no longer conclude a purchase and sale agreement in simple written form at the bank. Be sure to go to a notary and conduct the transaction with him according to his form. Of course, this negatively affects the mortgage market. Firstly, it extends the time it takes to enter into a deal. Not every notary has the authority to certify such a transaction; this can only be done by a notary located territorially at the address of the property. First you need to find him and make an appointment. Next, the bank and the notary need to agree on an acceptable form of the agreement so that the wishes of the bank, notary, seller and buyer are taken into account. And this most often also takes several days. Secondly, these are additional costs (about 25,000 rubles), which will most likely fall on the buyer’s shoulders, because Sellers operate on the principle of “you buy, you pay.”

A military mortgage will not appear on your credit history. In the summer of 2016, the Ministry of Defense prepared a legislative initiative stating that data on military personnel who took out a “Military Mortgage” should be removed from their credit history. This legislative initiative was caused by the fact that military personnel do not participate in loan repayments, since Rosvoenipoteka does this for them. If this bill is passed, then data on “Military Mortgage” will no longer be transmitted to the credit bureaus. If this information has already been previously entered into the credit history, then any military personnel will be able to write an application demanding that the military mortgage be excluded from it.
These changes in mortgage legislation and related areas affect the mortgage market both positively and negatively. Some of them may still undergo modifications and become better. One way or another, all of them should be taken into account when applying for a mortgage. We hope that our article about changes in the law on mortgages in 2016 will help you

Federal Mortgage Law

A mortgage is a pledge of expensive large property with the right of ownership granted to the lender who lent the money. The debtor signs a mortgage agreement for his property and makes a promise to the creditor to repay the debt in money or with the pledged property if he cannot repay in cash. You can mortgage and buy housing, land, yacht, car and other property. From the moment the property is purchased with a mortgage, it becomes the property of the borrower. A common mortgage option is buying an apartment on credit. Often the purchased housing is used as collateral, but you can provide an existing apartment. Mortgage loans are issued by banks. Everyone's loan terms are different. The Federal Law on Mortgages regulates the provisions for the issuance and use of mortgages in Russia.

Mortgage law with latest changes: innovations in 2019

In 2019, the President of the Russian Federation introduced amendments to Federal Law 102 on mortgages. According to new data, the following points have appeared:

It became possible to register parking spaces as a mortgage. In this case, the mandatory registration of mortgages is cancelled. This function is implemented only when necessary.
The registration regulations, their terms and the possibility of suspension were cancelled. These issues have been regulated since this year by another Federal Law No. 218 of 2015.

In addition, according to the new mortgage legislation, several points have lost their validity. For example, paragraph 1 of article number 22, as well as paragraph 3 of article number 25. The meaning of articles 27 and 28 was also completely lost. They concerned regulatory issues in the process of challenging the registration of a mortgage loan. The latest changes were a legal reduction in the base interest rates on loans issued with government support. Starting from January 1, 2019, their size ranges from 9 to 11.4%. To achieve this, significant amendments were made regarding the collection of money from debtors. Now the amount of debt compensation directly depends on the interest rate of the Central Bank.

Also, changes to the mortgage law in 2019 affected a moratorium on early repayment of mortgage loans, but until now, this amendment has not been approved by the authorities. Currently, they allow borrowers to make payments on their official obligations earlier than the specified deadline, without imposing any penalties.

Also, fines and penalties for mortgage debtors, which previously amounted to about 20% per year, were softened. Now this penalty will need to be paid depending on the base rate from the Central Bank.

Features of the deadlines for formalizing the process specified in the new law

The Mortgage Lending Law considers this process, depending on what type of property is being purchased, what is the collateral. The differences in the procedure depend on these points. For residential real estate, up to 5 days are given; non-residential assets, including land areas of the building, commercial and industrial real estate, receive a period of up to 15 days. For other objects the period is up to 30 days. With notarized confirmation of the pledge agreement, the entire procedure can be reduced to 5 days, but no more.

Putin's order to reduce mortgage rates below 8%

The President of the Russian Federation introduced instructions to bring the rate on mortgage loans to a level of less than 8%. This decision must be put into effect before 2024; it is still considered as Putin’s new law on mortgages.

This is exactly what is discussed in the decree of the head of the country, entitled “National technical development objectives for the period until 2024.” This law was published on the official Kremlin resource.

The Government of the Russian Federation has instructed to provide affordable housing to many families whose income is equal to the average by 2024. That is why interest rates should not exceed 8% per year. It was also noted that in the current six months it is necessary to reach a level that would allow at least 5 million Russian families to improve their own living conditions every year. Earlier, the head of Sberbank stated that his bank is already ready to reduce mortgage rates to 7% for 2 years, he will try to do this earlier. According to experts, rates will decline to 6.2% by the end of this year.

Putin signed the law on mortgages, but for it to take effect, the client must first take out insurance, and after submitting a personal insurance agreement to the banking institution, sign an agreement to insure the home. We also note that subsidies can be offered by a country only when the borrower has fully complied with all requirements, and clients on the issued loan make payments in clearly indicated lines. This approach on the part of the Russian Federation will become an incentive for citizens to increase the birth rate in the country.

The current version of the Mortgage Law 2019: the reason for developing the program

The Federal Law on Mortgage Lending was put into effect because in 2018 it became clear that the work of construction companies and developers follows a clearly coordinated pattern, with their own preferences taken into account as guidelines. The buyer is left to decide whether to purchase apartments or not, solely based on their own capabilities. As a result, a situation has arisen in the Russian Federation where developers are unable to sell new multi-apartment buildings, and buyers are unable to become their owners due to their high cost. This led to a lose-lose situation for both sides, developers went bankrupt, banks did not return the money invested in construction, and citizens had no place to live, since bank interest rates did not allow families with small children to obtain mortgages. That is why a new mortgage law was adopted in 2019 . According to the ruling branches of the state, such a decision will be:

increase the birth rate in the country;
reduce the key interest rate of the Central Bank of the Russian Federation, which will make the mortgage offer as affordable as possible for the population;
revitalize the real estate market, register completed properties, apartment buildings that are still under construction;
return to banking institutions the funds used to finance projects;
help families purchase their own housing, this will mainly affect the economy class, this decision will occur due to a reduction in the interest that must be paid to the bank;
return to banking companies the difference in interest in the form of subsidies that they may lose on loans issued to citizens of the Russian Federation.

In addition, protection of citizens’ deposits will be ensured when purchasing new housing under the DDU.

To achieve all the goals set, the President, the Ministry of Finance and the Central Bank issue relevant decrees and revise legislation. For the President of the Russian Federation, regulation of the activities of banking systems became a priority issue. Therefore, he took up the problem of reducing the key rate when applying for a mortgage. The Mortgage Law guarantees that in the coming year mortgages, as well as other credit products, will become more accessible to average citizens of the Russian Federation.

Mortgage “by force of law” or “by force of contract”

The Real Estate Mortgage Law provides for the conclusion of the following mortgage agreements:

“By virtue of law” is the purchase, construction, sale of real estate on credit and rent. When buying a home, a person uses his own money or borrowed money. A credit or loan agreement is drawn up for the borrowed amount. The mortgage is legally registered at the time the purchase and sale agreement is drawn up. The owner of the property changes automatically. An additional statement from both parties is not necessary.
“By virtue of the contract” – the pledge agreement is drawn up by means of an application from both parties to the Registration Chamber. For home renovation, opening a business, education or other event, people can mortgage their own property.

indicates that each case must be registered in the Unified State Register, otherwise the contract is considered invalid. In both cases, the property is assigned to the person whose name appears on the Certificate of Title. The owner can use and live in the mortgaged housing and must take care of it. You cannot sell or provide collateral for other loans unless this is specified in the mortgage agreement. You can freely dispose of the property after full repayment of the loan.

If the debtor is unable to repay the loan, then the real estate mortgage law puts the lender first in line to collect the money from the borrower. This gives him an advantage over other creditors (if there are any) who want to receive money from the debtor. According to the law, the mortgaged apartment will be sold at public auction. The proceeds must cover the mortgage debt and the lender's losses (loan interest, auction costs, penalties, apartment maintenance costs). It happens that the amount received is not enough to cover all costs. In this case, federal mortgage law requires that the borrower still fulfill his mortgage obligations. The mortgaged property has been sold, which means the mortgage agreement has been implemented. The lender writes off the remaining debt and has no right to demand it from the borrower.

Mortgage under new legislation 2019 differs in several parameters. Let's look at the main differences. According to the legal type of mortgage, the collateral is the apartment being purchased, the one that the borrower decided to purchase. The subject of a contractual mortgage can be any other type of real estate that the buyer has.

Registration of a mortgage loan is carried out in parallel with the registration rights to residential real estate, and a contractual one - after the document of purchase and sale has been drawn up. Registration of a legal mortgage does not involve the collection of a state fee, unlike the one that enters into force in the contract.

Thanks to the new legislation of the Russian Federation, mortgages will become even more accessible to citizens of the country.

Procedure for registering a mortgage

From July 16, 1998 N102, the federal law on mortgages regulates the registration of mortgages. If it is based on an agreement, then in order to carry out state registration it is necessary to submit applications from both parties to the agreement. The borrower must provide a list of documents:

signed mortgage agreement;
documents accompanying the contract;
receipt of payment of state duty.

The Real Estate Mortgage Law also determines the timing of registration. Legislation limits them to one month. In order to register a mortgage in the Unified Register, you need to make a certain entry in it, which will certify the borrower’s right to receive property under the mortgage. The recorded date is considered the date of registration. Without this procedure, the transaction is considered incomplete and does not give the borrower rights to housing.

The mortgage agreement must contain:

subject of mortgage;
assessed value;
size and term of loan repayment;
right (ownership, lease, etc.), on the basis of which the mortgaged property is located with the borrower, indicating the state body where his right to real estate was registered.

Mortgage conditions

The Federal Law on Mortgage determines that the objects of a mortgage can be one real estate or several types of real estate based on the following conditions for issuing a mortgage loan:

if the property is owned by a creditor or has the right of economic ownership;
if the ownership of the real estate is registered as a separate object;
other real estate (can also be real estate under construction), which after concluding a mortgage agreement will become the property of the mortgagor;
real estate that is an object of a state or municipal enterprise on the basis of economic ownership;
share of the property.

The property is pledged with all its essential accessories. If a plot of land is pledged, the mortgage covers the buildings located on it. The terms of the mortgage provide that the value of the collateral property is determined by the consent of both parties with the help of an independent assessment by an expert of the mortgaged property.

The Real Estate Mortgage Law stipulates the conditions for obtaining a mortgage loan:

Annual interest rate.
Loan amount. It can be 70 or 80% of the total cost of the purchased home. The rest is considered as the down payment that the borrower makes when receiving a loan. The borrower will be able to increase the loan amount with the help of co-borrowers. This could be a husband or wife, relatives or other individuals. When calculating the amount of the mortgage loan, the bank will take into account their degree of relationship and income ratio. The responsibility of the co-borrower is governed by the mortgage agreement.
Calculation of payments. The remaining amount that the borrower will give to the lender depends on it. He has the right to choose the loan currency himself.
Confirmation of the borrower's income. The list of income and confirmation form vary from bank to bank. Many require a certain amount of work experience in one job.
Availability of guarantors.
Additional costs for obtaining a loan are generally 10% of the down payment amount. The borrower must be prepared for this.
Credit term.

How to get a mortgage at 6% under the new legislation

The Federal Mortgage Law states that if mortgage payments are already in progress, you will simply need to provide proof of the birth of your children. Then you need to draw up an application for a year. In this case, the bank will restructure the payment that remains. If you are just planning a mortgage, then you need to collect a standard package of documents to get a loan. These include:

a completed mortgage application;
passport, as well as its scanned version;
a photocopy of the work record;
notification of income levels drawn up in form 2NDFL;
if individual entrepreneur - a copy of the state registration and tax return;
scanned versions of children's birth certificates;
purchase and sale agreement or document on participation in shared construction.

If controversial situations arise or banks want confirmation of this or that information, additional documents may be required. They are issued at the request of the manager of a financial institution.

Refinancing a mortgage after the birth of a child

The current version of the Mortgage Law states that if the loan was issued after 2018, and then during the period up to 2022 inclusive, the family has a second or third child, they are given the opportunity to refinance the mortgage. Those who took part in the subsidy program, from the moment of the birth of their second child, are also offered a preferential mortgage, but upon the birth of the third.

What are the requirements for a loan?

Putin’s mortgage law in 2019 will be relevant for citizens whose loan agreements meet several parameters:

the loan is issued exclusively in rubles and no earlier than January 1, 2018;
the loan amount should not exceed RUB 3,000,000. for regions of the Russian Federation and does not exceed 8 million rubles. for Moscow and the region, as well as St. Petersburg;
the down payment must be at least 20% of the total cost of the apartment;
the interest rate will be 6% at the time of subsidization;
a mandatory condition is the availability of life insurance for the borrower and the object from the moment of completion of its construction.

Also keep in mind that mortgage repayments under Federal Law 102 are carried out using annuity payments.

Changes in mortgage risk ratios starting in 2019

Many citizens of the Russian Federation dream of getting their own home, but in most cases they do not have enough financial resources to buy it, so they are forced to take out a mortgage. When you take out a mortgage loan, the property you are purchasing is used as collateral. The new mortgage law of 2019, like the previous one, states that if it is impossible to pay off one’s own debt on a mortgage loan, the client will lose the purchased home. This outcome is not beneficial for either banks or borrowers. But when providing a mortgage loan, banks still want to assess their possible financial risks. For this purpose, certain analyzes and reports are carried out. In addition, it will be necessary to assess the financial condition of the client who wants to take out a loan, as well as analyze certain conditions that guarantee the financial institution insurance and stability.

Recently, changes have been made to mortgage laws regarding the risk factor for low down payment mortgages. Starting January 1, 2019, it increases from 150 to 200%. This decision has been updated to ensure financial stability. This change applies to loans that will be issued from January 1 of this year. The central bank also announced that this lending segment is the most risky. Therefore, increasing the ratio is a completely justified decision, given that these loans have recently begun to grow in quantity.

Of course, banking companies assess the level of solvency of their own borrowers before they provide a loan. In this case, the client’s monthly income level, the presence of guarantors, the composition of the family, and so on are necessarily considered. In any case, in order to obtain a mortgage, a financial institution will require the provision of many facts that will document its level of income.

Of course, many families require the opportunity to take advantage of mortgage lending in order to receive government support in this matter. Based on the characteristics of the modern market, it is unrealistic to immediately collect the required amount of funds to purchase a home. Therefore, the latest edition of Federal Law 102 on mortgages will make this type of loan an even more popular option among others.

In the Russian Federation, VTB 24 Bank and Sberbank are very active in mortgage lending. There are also many financial institutions that deal directly with mortgages, such as the Housing Finance Bank. UniCredit and Alfa can also provide favorable offers. The Mortgage Law 102 Federal Law stipulates that the client must choose a decision on cooperation directly after studying all proposals.

Proposal from banks in the latest edition of the Federal Law on Mortgage

Safety of the mortgaged property

Federal Law on Mortgage dated July 16, 1998 N102 obliges the borrower to maintain the mortgaged property in proper condition using his own funds. If necessary, he must carry out routine repairs and restore minor damage at his own expense. The borrower must notify the lender if the condition of the mortgaged property has deteriorated or been lost. When applying for a mortgage, the lender has the right to document and physically verify the condition of the mortgaged property. The law gives him this right for the duration of the mortgage agreement.

Underwater rocks

Real Estate Mortgage Law admits that the apartment can be mortgaged by a third party who is not in the loan agreement. If he is gone, the person for whom the money was borrowed will receive ownership of this housing, with the transfer of mortgage responsibilities to him by virtue of the contract. It is impossible to sell this apartment without the consent of the lending bank. If a husband or wife bought real estate while married, then in the event of a divorce, the federal mortgage law gives the spouses the right to divide the mortgaged apartment, even if they have not repaid the debt. No matter who the apartment is registered to, the second may demand 50% of the housing, even if he is not going to repay the loan to the bank in the future. To prevent such a situation, spouses enter into a prenuptial agreement at the stage of registering a mortgage. It indicates the sole owner of the property to whom the loan is issued.

Advantages and disadvantages of a mortgage

The main advantage of a mortgage is that instead of saving for many years the necessary amount to buy a home, the federal mortgage law allows you to move into a new apartment or house right now. In this case, the mortgaged housing becomes the property of the borrower. Family members of the borrower can be registered in the new apartment. For security purposes, the risks of loss of ownership of the apartment and its damage, as well as loss of the borrower’s ability to work, are insured. In addition, a mortgage also has a number of advantages:

The borrower is given a property tax deduction. He reduces the interest rate due to the fact that he does not have to pay income tax on the amount spent on the purchase of an apartment and on interest.
The long loan term keeps the monthly payments small, which means they are not too burdensome.
For certain categories of people, the existence of social mortgages in their region may come as a surprise.

The disadvantage of a mortgage is that you “overpay” for an apartment. It can reach 100%. The mortgage “overpayment” includes the annual costs of compulsory insurance and interest on the loan. Another disadvantage is that banks have many requirements for borrowers: registration, Russian citizenship, proof of income, length of service in one place, guarantors, etc.

To solve the housing problem with the help of a mortgage, it is important to find a compromise between the positive and negative aspects of a mortgage and choose a worthy partner (bank).

Today, many Russians enjoy the right to leave real estate as collateral. However, not everyone has studied the Federal Law “On Mortgages,” which directly regulates one of the areas of lending. This article will provide a brief description of the main points of this bill.

About mortgage

What exactly is a mortgage agreement? The current law “On Mortgage” states that one party to the transaction must be the mortgagee, that is, the creditor, and the other party must be the mortgagor, or simply the debtor. The mortgagor is secured by a mortgage, which gives him one important obligation: to satisfy the monetary demands of the mortgagee who provided the debtor with real estate.

The Mortgage Law states that real estate may include enterprises, buildings, apartments, land plots and some other elements. The circulation of these types of property must be regulated by appropriate law.

The requirements that are secured by a mortgage are not so great: it is the payment to the lender of the interest due to him for using the loan. As a rule, the mortgage agreement establishes a fixed amount of the principal and additional requirements of the mortgagee. Any such agreement must strictly comply with the Mortgage Law.

About the subject of the mortgage

What property can act as a legal subject of mortgage? According to the law under consideration, it is worth highlighting:

land plots whose area is greater than the established minimum size or corresponds to it;
buildings and enterprises used for business activities;
residential buildings and apartments with isolated rooms;
garages, garden houses and cottages;
aircraft, sea or space vessels;
parking spaces.

The Law “On Mortgage” states that the subject of the mortgage also includes accessories pledged along with the main property. In this case, 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 mortgage lending process is the competent conclusion of the contract. This must happen in accordance with the norms of the Russian Civil Code. The contents of the agreement should reflect the following:

directly the subject of the mortgage, its essence, size and evaluation characteristics;
name and location of the item (for accurate identification of the item being pledged);
an exact description of the obligation that is secured by the mortgage agreement, as well as the grounds for the occurrence and period of execution of the agreement;
the procedure and necessary conditions for determining the amount, if the amount is determined in the future;
payment periods and their amounts, if the subject of mortgage lending will be sold in parts;
an indication of the certification of the rights of the mortgage holder.

What exactly is a mortgage? What is this document and how does it relate to the mortgage agreement? The answers to all these questions are contained in the third chapter of the law “On Mortgage” (Federal Law No. 102).

About the mortgage

A mortgage is a registered security. Thanks to this document, the following rights of its owner are subject to certification:

right of pledge on property that is the subject of a mortgage agreement;
the right to fulfill monetary obligations under a mortgage.

Other forms of identification, 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. The mortgagor is always responsible for drawing up the mortgage.

In what cases can the issuance of mortgages not be carried out? The relevant federal law specifies the following conditions:

the subject of the mortgage is a property complex;
the amount of mortgage debt and there are no conditions that would help determine this amount.

A particularly important point is the content of the mortgage, which will be discussed below.

According to the current version of the Law “On Mortgage”, at the time of issuance to the original mortgagee, the mortgage must contain:

names and identification information of the pledgor and the pledgee (requirements for information will vary slightly depending on whether the parties to the agreement are individuals or legal entities);
the name of the agreement secured by the mortgage;
indication of the required mortgage amount, as well as the amount of interest;
indication of deadlines for 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 state registration of the mortgage agreement.

The drafter of the mortgage note is fully responsible for losses incurred in connection with the elimination of the mortgage note or due to its inconsistency with reality. It is also worth noting that it is also possible to cancel individual requirements of the document in question if inconsistencies were identified almost immediately after preparation.

State registration

Article 20 of the Federal Law on Mortgage as Security for Real Estate states the procedure for state registration of the entire process. As is known, a mortgage can come into force only after appropriate state registration. A notarized agreement signed by both parties to the transaction is the source of mutual obligations.

If there is a mortgage that would certify the rights of the mortgagee, the registration authority may require the mortgage itself, as well as the documents specified in it. Based on the results of registration, information about the new mortgagee 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 all income and fruits from the subject of the agreement, if this does not harm the property and cannot reduce its value. The creditor cannot restrict the mortgagor's rights to use the property. What else can a debtor do?

According to the law on foreign currency mortgages, the mortgagor is obliged to maintain the received property in good condition and promptly bear the costs of its maintenance - until the termination of the mortgage agreement. In fact, these two responsibilities are the main ones of the debtor. Additionally, it is worth noting the implementation of major and current repairs, 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 possible way.

Transfer of property

The sixth chapter of the bill under consideration talks about the possibility of transferring the right to property pledged under a mortgage agreement to other citizens. We are talking about the processes of donation, sale or exchange carried out by the pledgor. But how can something like this be planned? It's not all that complicated here.

The main point that is worth paying attention to is an indication of the possibility of transferring the property into 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 (with the exception of inheritance of property under a will).

A person who takes the place of a mortgagor acquires a number of responsibilities. Thus, a pledge of property remains valid until the debtor fulfills all obligations assigned to him.

Separately, it is worth noting the responsibility imposed on pledgors in case of violation of the rules. It is established by the Russian Civil Code.

Other provisions of the law

Is it possible to accept a subsequent mortgage as security for a previous, outstanding mortgage? The law, in particular its seventh chapter, regulates this possibility, subject to certain nuances.

Chapter nine talks about the right of the mortgagee to foreclose on the property to satisfy legal claims not fulfilled by the debtors. This must happen in court. Chapter ten regulates the sale of property by The decision on sale also belongs to the court. Finally, the eleventh chapter of the bill “On Mortgage” examines in detail the types of individual land plots that are and are not subject to mortgage.

Probably the most read among Russian mortgagors is Chapter 13, which talks about the features of mortgages for residential apartments and houses. This describes the requirements for these types of property. These are, 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 mortgage repayment as full fulfillment by the mortgagor of his obligations.

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.