Can an enterprise be the subject of a mortgage? Property that can be the subject of a mortgage. Can all residential property be subject to mortgage?

A mortgage is a pledge of real estate as a guarantee of fulfillment of obligations to the lender. The essence of mortgage lending is as follows: the borrower is provided long-term loan, which he undertakes to repay in the prescribed manner, and the guarantee of this fulfillment is his real estate. That is, the pledged property is not the property of the debtor, but remains in his use. In this case, the subject of the mortgage is both the real estate that the debtor already has and the one that he acquires through the mortgage.

Mortgages are mainly issued by banks. Each of them offers its own lending conditions and loan rates. Mortgage credit lending in Russia it is controlled by mortgage legislation. Also, special mortgage agencies are created for this purpose.

The most common mortgage lending is when purchasing apartments on credit. The collateral is most often the purchased apartment.

Thus, the subject of a mortgage is a property that:
1) is collateral for a mortgage;
2) acquired through a mortgage.

The collateral in mortgage lending is the object of the mortgage. If you are planning to take out a mortgage loan, it is worth keeping in mind that you can offer different options as collateral:
1) apartments;
2) private houses;
3) dachas;
4) garages;
5) land plots;
6) buildings and structures;
7) enterprises;
8) sea and air transport;
9) space rockets.

The list of mortgage objects is approved by law. Full list can be found in the first article of the law “On Mortgage” (clause 4). Both existing and under construction real estate is offered as collateral.

Banks that issue mortgage loans have their own requirements for the subject of the mortgage. IN different banks requirements may vary. But there are many similarities. For example, real estate with a high degree of wear and tear or wooden floors, as well as objects in which children and elderly people are registered, are not accepted as collateral. The amount of the loan and the down payment directly depends on the quality of the collateral (that is, its estimated value).

What you need to know about mortgaging residential buildings

There is one very important point, which is worth considering if you plan to use a residential building as collateral. Namely: residential buildings are considered objects of mortgage along with the land on which they are located. Unfinished construction can also be used as such objects. If your house is located on a rented plot, then the right to rent is transferred as collateral.

The subject of a mortgage can be not only the entire object, but also its part, element, share. For example, such an object may not necessarily be a house, but also its foundation, a separate room. Naturally, the property that you purchase with funds provided by the lender remains his property until the debt is repaid.

Mortgage as an increase in personal motivation

In our country, mortgage lending is most often used to solve housing problems. This has already become a tradition. The mortgage system has both its advantages and disadvantages. Be that as it may, but decide housing issue mortgages have helped many.

Mortgage is a pledge of real estate when receiving a loan in credit institution, giving the creditor the right to priority satisfaction of claims against the debtor for the amount of the pledged property.

Mortgage loan is a long-term loan issued by commercial or specialized banks, credit and financial institutions under the mortgage of real estate. In this case, one party - the mortgagee, who is a creditor under an obligation secured by a mortgage, has the right to receive satisfaction of his monetary claims against the debtor under this obligation from the value of the pledged real estate of the other party - the mortgagor, preferentially before other creditors of the mortgagor.

The mortgagor may be the debtor himself under the obligation secured by a mortgage, or a person not participating in this obligation (a third party).

The property on which the mortgage is established remains with the mortgagor in his possession and use.

Throughout the world, mortgage lending is developing and functioning as a form of long-term financing housing programs. Mortgage lending, on the one hand, contributes to solving a number of social and economic problems countries, and, first of all, the problem of providing housing, on the other hand, reducing inflation, taking over temporarily free cash citizens and enterprises.

Subject of mortgage

The subject of the mortgage may be the following property:

· land plots located in private property;

· enterprises, as well as buildings, structures and other Not movable property;

· residential buildings, apartments and parts residential buildings and apartments consisting of one or more isolated rooms;

· dachas, garden houses, garages and other consumer buildings;

· aircraft and sea vessels, inland navigation vessels and space objects

Mortgage subjects

The main subjects of the classic mortgage scheme are:

· Borrower

Lender (bank)

· Mortgage Agency

· Investors

Borrower - a person who takes out a loan secured by residential or commercial real estate. For getting mortgage loan it is necessary to have funds in the amount of at least 20-30 percent of the value of the property and have income that allows you to pay the principal and interest on it in equal monthly payments throughout the entire period.

Lender (bank) is an organization that, after analyzing the borrower’s creditworthiness, enters into a loan agreement with him and keeps records of his debt. A necessary condition issuance of a mortgage loan is a contribution by the borrower down payment. The borrower's obligations can be formalized in the form of a registered security - a mortgage, the rights to which the bank has the right to assign.

The mortgage agency is the main element of the self-financing mortgage lending system. The agency buys mortgages from the bank and issues securities backed by mortgage loans. Funds from the sale of securities are used to issue new loans, thus creating a refinancing system mortgage loans. The agency's tasks include repurchasing mortgages or claims on mortgage loans from lenders, forming primary mortgage assets, issuing and placing mortgage-backed securities on financial markets.

Issue-grade mortgage-backed securities are secured by specially formed pools of mortgages or mortgage loans.

Investors are buyers of mortgage-backed securities. These are mainly institutional investors such as mutual funds and pension funds, Insurance companies, banks, portfolio managers. Given that the rating of mortgage securities is close to the rating of sovereign debt, it can be assumed that this type financial instrument will become popular among Russian and Western investors.

The secondary subjects of the classic mortgage scheme are:

· Real estate company;

· Evaluating company;

· Insurance Company;

· State registrar;

· Notary;

· Passport services;

· Guardianship and trusteeship authorities.

A real estate company is a professional intermediary in the real estate market, providing services for searching for properties, drawing up contracts and preparing a package of documents required for submission to the bank.

An appraisal company is necessary to determine the market and liquidation value of real estate that is the subject of a pledge.

Insurance company - performs functions to reduce risks for investors and creditors by providing the following types of insurance:

· insurance against the risk of damage and destruction of an object

· insurance against the risk of loss of ownership of the mortgaged property

· insurance against the risk of loss of life and disability of the borrower

Expenses for annual insurance is borne by the borrower.

State registrar - authority state registration rights to real estate and transactions with it. Its functions include registration of purchase and sale transactions, registration of transfer of ownership rights, registration of mortgage agreements.

Notary - according to Russian law, a pledge of ownership of real estate and a purchase and sale agreement require notarization.

Passport services - register citizens at their place of residence.

Guardianship and trusteeship authorities - ensure the protection of the rights of minors when concluding real estate transactions.

The term "mortgage" means:

1) pledge of real estate owned by the pledgor (for example, land plots, buildings and structures) for the purpose of obtaining a mortgage loan;

2) receiving funds from a credit institution for the future purchase of real estate (apartment). Moreover, the loan is targeted, which is significant in terms of legal regulation arising legal relations, and the specified property is pledged to a credit institution.

In both cases, there is a pledge of real estate (land, enterprises, buildings, structures, apartments, etc.) to obtain funds (loan, credit).

Thus, a mortgage (from the Greek hypotheke - pledge) is a type of pledge in which the pledged property (this is real estate, usually land and buildings on it) remains in the possession of the mortgagor until the payment is due.

In the first case, this formal legal definition implies the following: you enter into a mortgage lending agreement with the bank of your choice, and on the basis of this agreement, it gives you the money you need to purchase an apartment (or other real estate).

The second form of collateral for mortgage lending is when, under the same agreement, you pledge not the new apartment you are purchasing, but the old one, which you already owned before the conclusion loan agreement.

For using the loan issued, you pay the bank the interest established in the loan agreement and return borrowed funds as monthly payments bank, also established by the loan agreement. Real estate (apartment) purchased on credit remains pledged (mortgage) with the bank until full repayment loan, although formally you will be the owner of the home.

However, if your financial situation, which, for example, will make it impossible for you to fulfill your loan obligations, the bank will sell the apartment and return its money.

This right is provided for in Art. 334 Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation), according to which the bank that issued the loan, as 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 from the value of the pledged property preferentially before other creditors of this person. And in cases and in the manner established by law, satisfaction of the creditor’s claim on the obligation secured by the pledge (pledgee) can be carried out even by transferring the subject of the pledge into the ownership of the pledgee.

Since new legal relationships arise as a result of registration of a mortgage, you need to pay attention to a number of legal issues. This must be done before signing the relevant agreement with the bank in order to know about all possible consequences one or another of their actions.

A pledge is a way of securing an obligation (along with a penalty, surety, bank guarantee and a deposit, which are not discussed in this case), i.e. A mortgage as a collateral option can be established to secure the main obligation:

1) under a loan agreement;

2) under a loan agreement;

3) other obligations, including those based on purchase and sale, lease, contract, other agreement, damage, unless otherwise provided by federal law.

Separate question- subject of mortgage. The list of property that can be pledged under a mortgage agreement is limited by law. Thus, the real estate specified in paragraph 1 of Art. 130 of the Civil Code of the Russian Federation, the rights to which are registered in the manner established for state registration of rights to real estate and transactions with it, including:

Buildings, including residential buildings and other structures and structures directly connected to the land, can be the subject of a mortgage, provided that a number of requirements are met. A mortgage on a building or structure (including residential) is allowed only with a simultaneous mortgage under the same agreement land plot, on which this building or structure is located, or part of the land plot that functionally provides the mortgaged object, or the lease right of this plot or its corresponding part belonging to the mortgagor. If the land plot on which the above-mentioned pledged items are located belongs to the pledgor with the right of permanent use of the land plot, the right of pledge does not apply to it. When foreclosure is applied to such objects, the person who acquires ownership of this property acquires the right to use the land plot on the same terms and to the same extent as the previous owner (mortgagor) of the real estate.

Mortgage of residential buildings and apartments has a number of features.

Mortgages of individual and multi-apartment residential buildings and apartments located in state or municipal property.

The mortgage of a residential building or apartment owned by minors, persons with limited legal capacity or incapacitated persons over whom guardianship or trusteeship has been established is carried out in a separate manner, provided for by civil legislation. Alienation of residential premises in which members of the family of the owner of this residential premises who are under guardianship or trusteeship or minor members of the owner’s family left without parental care live (which is known to the guardianship and trusteeship authority), if this affects the rights or legally protected interests of these persons, is permitted with the consent of the guardianship and trusteeship authority. Such consent may be given if the rights or legally protected interests of these persons are not affected.

The consent of the guardianship and trusteeship authorities to the alienation and (or) mortgage of the residential premises in which these persons live, or a reasoned decision to refuse such consent, must be submitted to the applicant in writing no later than 30 days after the date of filing the application with the request give such consent. Refusal to give consent may be challenged in court.

When mortgaging an apartment in a multi-apartment residential building, parts of which, in accordance with clause 1 of Art. 290 of the Civil Code of the Russian Federation are in general shared ownership of the mortgagor and other persons, the corresponding share in the right is considered mortgaged along with the residential premises common property for a residential building.

Unless otherwise provided by federal law or treaty, a residential building or apartment purchased or built in whole or in part using credit funds a bank or other credit organization or funds from a targeted loan provided by another legal entity for the purchase or construction of a residential building or apartment are considered pledged from the moment of state registration of the borrower's ownership of the residential building or apartment.

The pledgee of this pledge is a bank or other credit organization or legal entity that provided a loan or targeted loan for the purchase or construction of a residential building or apartment.

Unless otherwise provided by the agreement, the thing that is the subject of the mortgage is considered pledged together with accessories (Article 135 of the Civil Code of the Russian Federation) as a single whole. Part of the property, the division of which in kind is impossible without changing its purpose (indivisible thing), cannot be the subject of a mortgage.

An example is a situation where it became necessary to obtain a mortgage loan secured by part of the premises, for example, one floor in a building, although the ownership of this property was registered as the property as a whole. IN in this case a mortgage will be possible if the property is divided into parts and the rights to each of them are registered.

Since Art. 76 Federal Law“On mortgage (mortgage of real estate)” allows for the mortgage of residential buildings under construction; these norms are also applicable to the mortgage of unfinished real estate being built on a land plot in accordance with the requirements of the legislation of the Russian Federation.

A mortgage can be established on the previously specified property, provided that it belongs to the mortgagor on the right of ownership or on the right of economic management. As already mentioned, the rights to it must be registered in the manner established for the state registration of rights to real estate and transactions with it, and this fact must be confirmed by relevant documents.

Mortgages are not allowed:

1) property withdrawn from circulation,

2) property for which, in accordance with Art. 79 of the Federal Law of October 2, 2007 N 229-FZ “On enforcement proceedings" foreclosure cannot be applied (it is specified in Article 446 of the Code of Civil Procedure of the Russian Federation);

3) property in respect of which mandatory privatization is provided or the privatization of which is prohibited. This norm is applicable to residential premises provided to citizens under social tenancy agreements after March 1, 2005, as well as those in disrepair, in dormitories, in houses of closed military camps, as well as official residential premises, with the exception of housing stock state farms and other agricultural enterprises equated to them, and located in rural areas housing stock of stationary institutions for social protection of the population. These above premises cannot be privatized and therefore they cannot be the subject of a mortgage.

The subject of the mortgage may be real estate specified in paragraph 1 of Article 130 of the Civil Code Russian Federation, rights to which are registered in the manner established for state registration of rights to real estate. These are:

1) land plots, with the exception of land plots specified in Article 63 of this Federal Law, lands that are in state (federal and constituent entities of the Russian Federation) or municipal property, as well as lands of agricultural organizations, peasant (farm) farms and field land plots are not subject to mortgage personal subsidiary plots. In addition, land plots in a part are not subject to mortgage if this part is smaller in area than minimum size land plot corresponding intended purpose(this minimum size is established by regulatory legal acts of the Russian Federation and constituent entities of the Russian Federation).

2) residential buildings, apartments and parts of residential buildings and apartments, consisting of one or more isolated rooms. Non-insulated residential premises cannot be the subject of a mortgage.

3) enterprises, as well as buildings, structures and other real estate used in entrepreneurial activity. An enterprise means a non-legal entity - a subject of civil law (i.e. not a state or municipal unitary enterprise), and a property complex intended for entrepreneurial activity is an object of civil law (see also Article 132 of the Civil Code of the Russian Federation).

4) dachas, garden houses, garages and other buildings for consumer purposes. Under other consumer buildings in paragraphs. 4 paragraph 1 of the commented article should be understood summer kitchens, temporary buildings, sheds, stables for personal horses, etc.

5) aircraft and sea vessels, inland navigation vessels and space objects can be the subject of a mortgage regardless of the flag and home port, but only if the relevant transaction is completed in the territory falling under the jurisdiction of the Russian Federation. Otherwise may be provided for by special legislation on such objects.

Buildings, including residential buildings and other structures and structures directly connected to the land, may be the subject of a mortgage, subject to the rules of Article 69 of the Federal Law “On Mortgage”.

These rules apply to the pledge of unfinished real estate built on a land plot allocated for construction in established by law Russian Federation order, including buildings and structures, subject to compliance with the rules of Article 69 of this federal law.

A part of property, the division of which in kind is impossible without changing its purpose (indivisible thing), cannot be an independent subject of mortgage. A part of an indivisible thing cannot be an independent subject of mortgage. For indivisible things, see also Art. 133 Civil Code of the Russian Federation. Arbitrage practice, however, also considers various kinds of collections and services as indivisible things. Although the physical collection can be divided without damage to its constituent items, its artistic collection value will suffer significantly.

The thing that is the subject of a mortgage is considered pledged together with accessories (Article 135 of the Civil Code of the Russian Federation) as a single whole, unless otherwise provided by the agreement.

1. Under a mortgage agreement, real estate specified in paragraph 1 of Article 130 of the Civil Code of the Russian Federation may be pledged, the rights to which are registered in the manner established for state registration of rights to real estate and transactions with it, including:

1) land plots, with the exception of land plots specified in Article 63 of this Federal Law;

2) enterprises, as well as buildings, structures and other real estate used in business activities;

3) residential buildings, apartments and parts of residential buildings and apartments, consisting of one or more isolated rooms;

4) garden houses, garages and other buildings for consumer purposes;

5) aircraft and sea vessels, inland navigation vessels;

6) parking spaces.

Buildings, including residential buildings and other structures and structures directly connected to the land, may be the subject of a mortgage, subject to the rules of Article 69 of this Federal Law.

Lack of state registration of ownership of land plots, state property which is not delimited, is not an obstacle to the mortgage of such land plots in accordance with Article 62.1 of this Federal Law.

2. The rules of this Federal Law apply to the pledge of unfinished real estate constructed on a land plot in accordance with the requirements of the legislation of the Russian Federation, including buildings and structures, subject to the rules of Article 69 of this Federal Law.

3. Unless otherwise provided by the agreement, the thing that is the subject of the mortgage is considered pledged together with accessories (Article 135 of the Civil Code of the Russian Federation) as a single whole.

4. Part of the property, the division of which in kind is impossible without changing its purpose (indivisible thing), cannot be an independent subject of mortgage.

5. The rules on the mortgage of real estate accordingly apply to the pledge of the rights of a tenant under a lease agreement for such property (lease right), since otherwise is not established by federal law and does not contradict the essence of rental relations.

The rules on real estate mortgages also apply to the pledge of the rights of claim of a participant in shared construction arising from an agreement for participation in shared construction(hereinafter referred to as the rights of claim of a participant in shared construction) that meets the requirements of the Federal Law of December 30, 2004 N 214-FZ “On participation in shared construction apartment buildings and other real estate and on making changes to some legislative acts Russian Federation" (hereinafter referred to as the Federal Law "On participation in shared construction of apartment buildings and other real estate and on amendments to certain legislative acts of the Russian Federation").

As a result of studying this chapter, the student should: know

• essence and types of mortgage loans;
• list of normative and legal acts regulating mortgage lending;
• mortgage lending models;
• mortgage lending scheme and participants;
• methods of amortization of mortgage loans;
• concepts of “mortgage debt ratio”, “mortgage constant”; be able to
• distinguish a mortgage loan from other types of loans;
• determine different kinds mortgage loans;
• describe the main types of mortgage loans;
• determine the mortgage debt ratio, mortgage constant; own
• skills in calculating a standard annuity payment;
• information on the state of mortgage lending in the Russian Federation;
• special terminology and vocabulary of this topic.

Essence and types of mortgage loans

One of the forms of lending actively used economic entities currently, is a mortgage loan. Mortgage - This is a credit or loan provided for a period of three years or more by a bank (credit organization) or a legal entity (non-credit organization) to a legal entity or individual for the acquisition of real estate secured by the acquired property as security for an obligation. A mortgage loan is issued on the terms of payment, urgency and repayment, as well as with strict control over the use of loan funds. The exclusive property of a mortgage and the best guarantee of securing a loan is the right of the lender to dispose of the borrower’s real estate at its discretion in the event of his failure to fulfill his obligations to repay the loans.

Term mortgage first appeared in Ancient Greece at the beginning of the 6th century. BC. (it was introduced by Archon Solon) and was associated with ensuring the liability of the debtor to the creditor with certain land holdings. For this purpose, obligations were drawn up, and on the border of the land territory owned by the borrower, a pillar was placed with an inscription stating that the specified property serves as security for the creditor's claim in the named amount. On such a pillar, called “mortgage” (from the Greek. hypotheka - stand, support), all debts of the land owner were noted.

Later, special books called mortgage books began to be used for this purpose. Already in Ancient Greece, publicity was ensured, allowing every interested party to easily verify the state of this land ownership. The institution of mortgage received new development in the Roman Empire. In the 1st century AD Mortgage institutions were created that issued loans to individuals secured by property.

In our country, the concept of “mortgage” first appeared in Russian legislation in the Law of the Russian Federation of May 29, 1992 No. 2872-1 “On Pledge”. In Art. 42 of this Law provides the following definition of mortgage: “A mortgage is the security of an enterprise, buildings, building, building or other object, directly connected to the earth, together with the corresponding land plot or the right to use it.”

The next step in the development of legislation on mortgage lending was the adoption of the Civil Code of the Russian Federation, which came into force on January 1, 1995. The code established general rules securing loans with real estate collateral, provisions on ownership and other proprietary rights to residential premises, grounds for foreclosure on mortgaged residential property.

Subsequently, a special law was adopted regulating mortgage lending - Federal Law of July 16, 1998 No. 102-FZ “On Mortgage (Pledge of Real Estate)” (hereinafter referred to as the Mortgage Law). It defines mortgage agreement as an agreement under which the mortgagee, who is a creditor under an obligation secured by a mortgage, has the right to receive satisfaction of his monetary claims against the debtor under this obligation from the value of the pledged real estate of the other party - the mortgagor, preferentially before other creditors of the mortgagor, with exceptions established by federal law (p. . 1 art. 1).

The most important event in the development of the mortgage market in the Russian Federation was the Decree of the Government of the Russian Federation dated January 11, 2000 No. 28 “On measures to develop the housing mortgage lending system in the Russian Federation,” which approved the Concept for the development of the housing mortgage lending system in the Russian Federation. It defined the state strategy in the formation and development of the mortgage lending sector and described in detail the formation of the system and the organizational and economic mechanism for attracting credit resources to this area.

An attempt by the state to improve living conditions of its citizens was the Federal Program “Housing”, approved by Decree of the Government of the Russian Federation dated September 17, 2001 No. 675 “On the Federal Target Program “Housing” for 2002-2010”.

Based on the results of the first stage of implementation of the Federal Target Program “Housing”, taking into account the entry into force of a package of federal laws on the formation of an affordable housing market in connection with the implementation of the national project “Affordable and comfortable housing for Russian citizens” and the creation of the National Council housing policy corresponding changes were made to the specified Federal Target Program by Decree of the Government of the Russian Federation dated December 31, 2005 No. 865 “On additional measures for the implementation of the Federal Target Program “Housing” for 2002-2010,” which led to the modernization of the subprograms of the Federal Target Program “Housing”.

The second stage of implementation of the Federal Target Program “Housing” was carried out in 2006-2010. and provided for the continuation of the ongoing reforms in the housing sector and the implementation of a set of measures within the framework of the priority national project “Affordable and comfortable housing for Russian citizens.” This stage of implementation of the Federal Target Program “Housing” is aimed at implementing the subprograms “Providing land plots with communal infrastructure for the purpose of housing construction"; “Modernization of municipal infrastructure facilities”; “Providing housing for young families”; "Performance government obligations to provide housing for categories of citizens established by federal legislation.” These subprograms are measures aimed at implementing the main priority areas of the national project and are designed to solve one of the main tasks - to stabilize the balance of supply and demand in the housing market.

The implementation period of the Federal Target Program “Housing” and its subprograms has been extended for the period 2011-2015. At the same time, along with previously existing subprograms and activities federal program New areas of housing provision have been added.

The next step in the development of the mortgage lending system was the adoption in 2003 of the Federal Law of November 11, 2003 No. 152-FZ “On Mortgage Securities” (hereinafter referred to as the Law on Mortgage Securities). The presence of this Law is necessary for the normal development and functioning of a two-tier mortgage lending system.

A significant fact that influenced the development of the housing mortgage lending market is the Concept for the development of a unified system for refinancing housing mortgage loans in Russia, approved by the Government of the Russian Federation on June 30, 2005.

Thus, in our country, the procedure for mortgage lending is regulated by the Law on Mortgage, Part Two of the Civil Code of the Russian Federation and other legislative acts.

Mortgage- This is a form of providing a loan and collateral for real estate. The mortgage lending system includes two areas:

• 1) direct provision of mortgage loans to business entities and the population;
• 2) sale of mortgage loans on the secondary market (mortgage obligations).

In the first case, a mortgage loan is issued mortgage banks to cover large capital expenditures, new construction, acquisition of real estate. The second direction is being dealt with financial companies, funds that buy up the assets of mortgage banks, secured by a pledge of property, and then, on their own behalf, issue securities (bonds, participation certificates) on their basis to secure additional attraction resources for lending.

Credit relations are built on the principles of: targeted use, security, urgency, payment, repayment. Intended use loan is confirmed by documents provided by the borrower. The main types of loan security are: surety, guarantee, pledge, insurance of the borrower's liability for non-repayment of the loan. The mortgage loan is secured by the borrower pledging the property and property rights, serving as a guarantee for the creditor of the debtor’s full and timely return of the loan received and payment of the due interest. Confirmation of repayment is the provision by the borrower of documents on his solvency.

A mortgage loan does the following: functions".

• the function of a financial mechanism for attracting investment in the sphere of material production;
• function of ensuring the repayment of borrowed funds;
• the function of stimulating the turnover and redistribution of real estate when other methods (purchase and sale, etc.) are economically infeasible or legally impossible;
• the function of forming multi-level fictitious capital in the form of mortgages, derivative mortgage securities, etc.

Thus, from an economic point of view mortgage - This is a market instrument for the turnover of property rights to real estate, allowing to attract additional financial resources for the implementation of any projects, and from a legal point of view, a mortgage consists of encumbering the property rights of ownership of real estate objects when they are pledged.

Currently, many types of mortgage loans have been developed in the world, differing depending on the issuance, repayment and servicing schemes (Table 4.1).

Types of mortgage loans

Subject of mortgage may be the following property (Article 5 of the Mortgage Law).

• 1. Real estate specified in paragraph 1 of Art. 130 of the Civil Code of the Russian Federation, the rights to which are registered in the manner established for state registration of rights to real estate and transactions with it, including:
  • land;
  • enterprises, as well as buildings, structures and other real estate used in business activities;
  • residential buildings, apartments and parts of residential buildings and apartments, consisting of one or more isolated rooms;
  • dachas, garden houses, garages and other consumer buildings;
  • air and sea vessels, inland navigation vessels and space objects.
• 2. Unfinished construction of real estate erected on a land plot allocated for construction in the manner prescribed by law, including buildings and structures.

A pledge of land plots, enterprises, structures, apartments and other real estate can arise only insofar as their circulation is permitted by federal laws.

Part of the property, the division of which is impossible without changing its purpose (indivisible thing), cannot be an independent subject of mortgage. Mortgage is not allowed in relation to:

• part of a land plot, which, taking into account its size, cannot be used as an independent plot in compliance with the purpose of land of the corresponding category;
• living rooms that form part of the house or apartment of the owner of this house or apartment;
• an enterprise in respect of which bankruptcy proceedings have been initiated or a decision on liquidation or reorganization has been made.

A mortgage is established on property that belongs to the mortgagor on the basis of ownership or economic management. The property on which the mortgage is established remains with the mortgagor in his possession and use.

For property located in common joint ownership(without determining the share of each owner in the property right), a mortgage can be established with the consent of all owners. Consent must be given in writing.

The subject of the mortgage is determined in the agreement indicating its name, location and description sufficient to identify this subject.

According to Art. 43 of the Law on Mortgage, property pledged under a mortgage agreement to secure the performance of one obligation (previous mortgage) may be pledged to secure the performance of another obligation of the same or another debtor to the same or another mortgagee (subsequent mortgage). The priority of mortgage holders is established based on the data of the Unified state register rights to real estate and transactions with it on the moment of emergence of a mortgage.

A subsequent mortgage is permitted if it is not prohibited by previous mortgage agreements on the same property, which have not terminated by the time the subsequent mortgage agreement is concluded. If a previous mortgage agreement provides for the conditions under which a subsequent mortgage agreement may be concluded, the latter must be concluded in compliance with these conditions.

Individuals and legal entities and commercial banks can act as lenders and borrowers in mortgage lending.

By type of borrowers As lending entities, mortgage loans are divided into:

• loans provided to developers and builders;
• loans provided directly to the future owner of the property;
• according to the degree of affiliation of borrowers.

Participants mortgage lending: banks (check the borrower's solvency) and non-bank organizations; insurance companies (obliged to insure risks arising in the process of mortgage lending); appraisal companies (appraise market value apartments).

Depending on the method of depreciation, the following are distinguished: types of loans.

Permanent mortgage loan- the simplest form of credit. This loan characterized set deadline lending and fixed interest rate. It is typical for countries with low inflation, long loan terms and involves equal repayment payments (amortization) at regular intervals (for example, once a month). Therefore, such loans are classified as self-amortizing.

Standard annuity payment calculated by the formula

where P is the size of the monthly annuity payment; K - loan amount; i- interest rate for the period (month, year); P- number of payment periods (months, years).

Determine the size of the annuity payment. Interest rate - 20% per annum. Loan size - 1 million rubles. The loan term is 5 years. Payments are made once a year.

Solution.

Let's use formula (4.1):

Loans with variable payments are not self-amortizing and provide for different periods of repayment of principal and interest, as well as others additional conditions. Such loans include loans with balloon payment, involving a one-time final (balloon) payment or with a breakdown of a one-time payment. They are divided:

• interest-only loans are a type of loan with balloon payment, which provides for balloon payment of the principal amount at the end of the term, and payment of interest regularly throughout the entire loan term. Such a loan is also called a deferred mortgage;
• loans with freezing interest payments until the expiration of the loan term, which do not provide for any payments, both in repayment of the principal debt and interest. Repayment of the loan and capitalized interest on it is made at the end of the loan term. The use of such loans is quite expensive and therefore limited. They are resorted to mainly by land speculators who expect to sell a plot of land at the end of the term for an amount that allows them to pay off the loan, interest and make a profit from the sale;
• loans with partial amortization and a final balloon payment require partial periodic payments of both principal and interest, as well as a one-time payment of the remaining debt;
• loans with gradual payment of only the principal debt involve payments of the principal amount and a one-time payment, including the debt to pay interest.

Spring loans involve regular payments to repay the principal debt. For example, the first four years are interest-only, and the next three years are interest and principal payments.

Loans with participation used for financing profitable real estate. This loan is close to a self-amortizing loan, but assumes that the lender, regularly receiving the principal and interest on it, also participates in the income from the property. The lender's participation may vary: he may claim part of the excess rent, part of the excess net operating income (income-sharing loan), part of the capital gain or proceeds received from the sale of real estate (cost-sharing loan), etc. .

Loans with increasing payments(growing annuity) provide equal payments throughout the entire term and are used by owners of rental properties in the expectation that payments will increase annually or at other intervals. Similar loans are used for lending to young families who have less income at the beginning of the loan term than at the end.

Loans with reverse annuity, on the contrary, they imply a reduction in payments to the loan at the end of the term or their termination. In this sense, they are comparable to frozen loans. These loans are used to finance older landlords.

Loans with variable rates, usually “tied” to one of the money market indices, inflation, currency, etc., they allow you to pay a loan at a variable rate with restrictions on its minimum and maximum value. Changes in rates affect loan terms.

Canadian rollover characterized by variable interest rates at predetermined intervals (for example, every five years). A variation of this type of loan is a loan with a negotiated rate, which differs in that, in addition to the frequency of payments, maximum interest rates are agreed upon in advance.

Final Mortgages have several varieties and are themselves a special case of secondary (junior) financing. The essence of this type of lending is that a second loan is provided for already accredited real estate, payments on which are sent to repay the first loan. The rates on such loans are usually higher than on a first loan.

Loans with added interest rate provide for the attribution of interest to the principal debt, and the result is divided by the number of repayment periods to determine the amount of the next payment.

Depending on the method of providing credit in the history of the development of mortgages, there are two main models of the mortgage lending market: European and American.

European model - This is a one-level model of mortgage lending, the essence of which is that the bank, having issued a loan, independently refinances it by issuing its own securities (mortgages, long-term mortgage-backed bonds) of a standard structure with payment of the principal amount at the end of the payment period (Fig. 4.1). The issue and circulation of such securities are regulated by special legislation. Loans included in the mortgage coverage remain on the balance sheet of the issuing bank. The activities of issuers of mortgage notes, as a rule, are legally limited to the issuance of mortgage loans and other operations characterized by a low degree of risk. No other issuer other than those listed in the law may issue securities called “mortgage notes.” The activities of mortgage banks are strictly controlled by the state and banking supervisory authorities.

Rice. 4.1.

1 - savings deposit; 2 - the borrower obtains a mortgage loan; 3 - payment for housing under sales and purchase agreements or construction contracts (own and borrowed capital); 4 - return of the mortgage loan and interest on it; 5 - insurance of mortgaged housing; 6 - income from the sale of securities (mortgages); 7 - income but securities(mortgages) and their repayment

When implementing this model, the following main types of contracts are envisaged:

• between the borrower and the lender - a savings agreement housing contribution, and then - the loan agreement and the mortgage agreement;
• between the borrower and the insurance company - a mortgage insurance agreement;
• between the borrower and the seller (builder) - a housing purchase and sale agreement.

This model of mortgage lending has been operating for a long time in a number of Western European countries - Denmark, Germany, France, and more recently - in Poland, the Czech Republic, Slovakia, and Hungary.

The most striking example of the application of this scheme is German model. It is based on the savings and loan operating principle, like the German “private construction savings banks” - Bausparkasse, French Livret Epargne Logement, American Savings & Loans. The construction savings bank is closed financial structure and begins its activities with the formation authorized capital and based on it has its own source of funds (including housing stock) for issuing loans. All available cash funds (own and borrowed) are used only for the implementation of statutory activities, i.e. to finance housing construction and issue mortgage loans for the purchase of already built apartments. The investor gets the opportunity to accumulate the required contribution for the purchase of an apartment (for example, in the amount of 50% of its cost) over a long period, and then receive a mortgage loan for the purchase (construction) of a pre-selected apartment. In the German version, the role of a loan is not cash, but the housing itself - finished or unfinished (the so-called construction mortgage).

The disadvantages of the German model are: limited selection residential premises that are being built by a construction savings bank and can be offered by a participant)"; fixed price, which is determined by the bank itself; limited loan terms of three to five years; the impossibility of the borrower selling the apartment until the debt is settled.

Another mortgage lending model is American two-level model, which is common in countries of the Anglo-Saxon legal system. Its essence is that the bank, having issued a loan, refinances it by attracting long-term resources, by assigning claims on already issued mortgage loans to another financial institution (secondary market operator, specially created agencies).

In turn, financial institutions (secondary market operators, specially created agencies) can deal with received mortgage loans as follows:

• 1) assign them to secondary investors;
• 2) form pools from uniform mortgage loans and sell such indivisible pools of mortgages or participation rights (shares) in such pools to secondary investors;
• 3) issue and place mortgage-backed securities (these may be mortgage-backed bonds or mortgage participation certificates).

This system is very common in the USA. A simplified diagram of the American model of a two-level structure is shown in Fig. 4.2. Banks then assign issued mortgage loans to specialized mortgage agencies. Having purchased loans from banks at face value, mortgage agencies combine them into pools and issue their own loans secured by them. debentures. Borrowers deposit money with banks as payment for the loan received, and the banks transfer these funds, withholding commissions, to the mortgage agent, who pays income from them to the owners of mortgage-backed securities.

Rice. 4.2.

• 1 - loan agreement; 2 - mortgage agreement; 3 - insurance contract for mortgaged housing; 4 - purchase and sale agreement or contract;
• 5 - general agreement between the lender and the mortgage agency; b - agency agreement;
• 7 - assignment agreement; 8 - agreement on the procedure for carrying out transactions with valuable

mortgage agency papers; 9 - business risk insurance contract; 10 - contracts for the purchase and sale of securities

When implementing a two-tier mortgage lending model, the following conclusion is provided:

• loan agreement and mortgage agreement between the borrower and the lender;
• agreement for the purchase and sale of housing between the borrower and the seller (builder);
• mortgage insurance agreement between the borrower and the insurance company;
• business risk insurance agreement between the insurance company and mortgage agency;
• agreement on the assignment of the right to claim under mortgage loans between the lender and the mortgage agency;
• agreement trust management acquired rights of claim.

The choice of a two-level model is explained not only by state interests, but also by the peculiarities of the concept of property rights in the Anglo-Saxon legal system, which presupposes its splitting. It is possible to establish several titles of ownership for the same property and divide the content of ownership between different persons. The object of property rights in the Anglo-American countries legal system may be the right itself.

The concept of mortgage mongage) V civil law The US (and English civil law) does not completely coincide with the concept of mortgage in the civil law of continental European countries. In particular, the subject of a mortgage can be both real and movable property. But the main thing is that with a mortgage, ownership of the mortgaged property passes to the mortgagee. This is a fiduciary pledge in which the pledgee becomes the owner of the pledged property 1 .

The complexity of the mechanism of the two-level model of the secondary mortgage lending market predetermines an increase in the costs of its maintenance. This in turn entails an increase in the cost of credit funds for the borrower. Another drawback is the inability to clearly and effectively regulate the mortgage lending market, built on the Anglo-American model, within the framework of the continental system of morality.

At this stage Russian legislation on mortgage-backed securities, taking into account the changes adopted as part of the reform to create an affordable housing market, allows credit institutions to resort to all the above-described methods of developing mortgages, both through attracting resources from banks and through the use financial instruments secondary market operators.

Depending on availability early repayment There are loans with the right of early repayment and without the right of early repayment. According to Art. 45 of the Law on Mortgage, the mortgagor has the right at any time to fulfill the obligation secured by the mortgage in full at any time if the mortgage agreement excludes the possibility of subsequent pledge of the same subject of mortgage.

Depending on the type of interest rate The loan comes with a fixed interest rate and a variable interest rate. In the Russian Federation, the interest rate on a mortgage loan can be either fixed or variable. For example, mortgage bank CJSC KB DeltaCredit launched credit product in rubles with a floating interest rate linked to the indicative rate MosPrime Rate.

For borrowers who are able to officially confirm their income, DeltaCredit Bank sets a rate of 5.5% + three months MosPrime Rate, for borrowers with “gray” income - 6.5% + three months MosPrime Rate. The rate is recalculated quarterly.

By refinancing method - Mortgage lending is provided by various credit institutions. The peculiarities of their activities lie in the method of refinancing issued loans (Table 4.2).

Table 4.2

Methods for refinancing mortgage loans

By degree of security loans are divided depending on the size of the down payment, the amount of which can range from 0 to 100% of the value of the pledged property. Mortgage loans can be secured by first or subsequent mortgages (junior, senior mortgages).

Depending on the number of creditors, participating in the issuance of a loan, mortgage loans are: conventional and combined. Conventional loans are issued by a single lender, while combination loans are issued by several lenders.

Depending on the loan conditions distinguished: subsidized loan and loan issued for general conditions. Subsidized loans are issued to individuals and legal entities- groups of beneficiaries included in government programs. Funding is provided by both the state and credit institutions. Thus, in 2011, Sberbank of Russia implemented the following programs: “Mortgage with state support", "Mortgage plus maternal capital», « Military mortgage" and etc.; The Agency for Housing Mortgage Lending (AHML) opened the “Mortgage for Young Scientists” program; Globex Bank actively issued loans on mortgage program for military personnel. However, such programs are accessible to a limited number of people.

In addition, mortgage loans can be issued in the form of credit lines and on a one-time basis.

The advantages of a mortgage loan are:

• enough opportunity short time become a homeowner and move into new apartment;
• obtaining a loan for a long term, for which the amount of monthly payments will not change if the cost of the apartment increases;
• the opportunity to pay for your own apartment, rather than rent someone else’s property, while the interest on the loan is comparable to monthly rent for a similar apartment;
• the opportunity for the borrower and his family members to register in an apartment purchased with a mortgage loan;
• profitable investment funds (real estate prices are growing steadily);
• receiving tax benefit for the entire term of the mortgage from an amount within 2 million rubles, as well as from the amount paid on interest for the period of loan repayment (subclause 2, clause 1, article 220 of the Tax Code of the Russian Federation).
An indicator of the Russian money market, which is the average rate for providing ruble loans (deposits) in the Moscow money market and calculated by the National Monetary Association.
• Razumova I. A. Mortgage lending. 2nd ed. St. Petersburg: Peter, 2009. P. 14.