Legal mortgage. Mortgage due to the law: what it is, features and requirements. Briefly about the differences between two mortgage forms

To begin with, it is necessary to deal with the legal aspects of such a phenomenon as a mortgage due to the law. This is how this term is explained by representatives of the Office of the Federal Registration Service for St. Petersburg and the Leningrad Region:

Question: What is a "mortgage due to the law"?

Answer: In accordance with paragraph 1, 2 of Art. 11 of the Federal Law "On State Registration of Rights to Real Estate and Transactions with Him" \u200b\u200bN 122-FZ dated July 21, 1997 (hereinafter - the Registration Law) State Registration of the Agreement, the emergence of the mortgage, by virtue of the law, is the basis for entering into a single state The register of rights to real estate and transactions with it record about the emergence of the mortgage by virtue of the law. With a mortgage, due to the mortgage law, as the burden of property arises from the moment of state registration of ownership of this property, unless otherwise established by the contract.

In accordance with clause 43 rules for conducting a unified state register of rights to immovable property and transactions with it approved by the Government Decree Russian Federation № 219 of 02/18/1998 (hereinafter referred to as the rules of maintenance of the USRP), records of restrictions (encumbrances) of ownership and other real rights to the object real Estate They are made to the unified state register of rights on the basis of subject to the obligatory state registration of contracts and other documents that serve as the basis for the occurrence of restrictions (encumbrances).

P. 1 Art. 77 of the Federal Law "On Mortgage (Property Pledge)" No. 102-FZ dated 07.16.1998 states that the apartment acquired using credit funds Bank or other credit organization, it is considered pledged from the date of state registration of the ownership of the borrower on a residential building or apartment.

According to paragraph 27 of the instructions on the procedure for state registration of the mortgage of real estate objects, approved by the Order of the Ministry of Justice of the Russian Federation No. 213 of June 15, 2006, in case of the guideline document and other state registration The rights (transition of the right) of documents it is impossible to establish that the object of real estate is the subject of a mortgage arising on the basis of the law (for example, in the contract of sale, it is not indicated that this object is acquired by credit or borrowed funds, etc.), state Mortgage registration by virtue of the law is carried out on the basis of a joint statement of the mortgagor and mortgagee with the application of documents confirming the emergence of the mortgage on the basis of the Law (a loan agreement, the loan agreement with the condition of the target loan).

It is also necessary to provide: a document certifying the applicant's identity. When contacting a representative - a document confirming its powers; Documents named in the mortgage agreement as applications. When identifying the rights of the mortgagee to the mortgage - the original mortgage and originals of documents named in the mortgage as applications; The original of the object of the property certified by the state body (organization), which carries out state accounting and technical inventory Real Estate Objects on the Registration District. On the land plot - the cadastral plan of the land plot.

Now, when everything has become completely clear, experts comment on the norms of legislation.

Commented on the lawyer Anton Lebedev :

In other words, mortgage due to the law arises in the case of the acquisition of real estate at the expense of a loan (loan) to the ownership of the borrower and, possibly, a minor. The determining point for the mortgage is precisely obtaining money In order to acquire the property and the acquisition of real estate in the property of a person who receives funds on a loan or a loan.

The provisions of the mortgage legislation by virtue of the law ensure the preferential regime of the mortgage: state registration of the mortgage by virtue of the law is carried out without the presentation of a separate application and without paying the state duty.

An exception to this rule is minors. This is due to the fact that minors cannot in most cases receive income sufficient to make payments on a mortgage loan. Moreover, minors are limited in legal capacity and cannot independently make transactions up to 14 years, and from 14 to 18 years old only with the consent of the legal representative - usually parents. Prior to reaching 18 years, the sale of the real estate of the minor should be coordinated with the guardianship authorities. Even reaching the age of 18, a person may not start making money for paying a mortgage loan, because He can go to the institute and continue to be dependent on the parents.

Confusion in this rule, in my opinion, make limits existing in themselves mortgage programsah, because The legislation treats a mortgage by virtue of the law much wider than that banks enjoy. Banks try to limit the participation of minors in mortgage programs. A significant part of mortgage programs does not allow to include a minor to the number of co-owners, if there is no need. This is due to the increased risks of banks to recover such property. The participation of a minor in a mortgage deal is allowed, provided that it sells the share of real estate, the money from which is used to purchase a new "mortgage" housing. This is due to the fact that the guardianship authority will not allow permission to simply sell the real estate of a minor without providing him with any other housing, and without the sale of the share of a minor transaction will be impossible. Cancellation of potential borrowers banks are not solved.

Separately, I want to say about the mortgage due to the contract. The rule is quite simple - everything that does not apply to the mortgage by virtue of the law is a mortgage due to the contract. Previously, non-residential real estate was an exception - pledge non-residential real estate carried out only on the basis of the mortgage agreement. Now it is fixed. In the case when mortgage It turns out on the security of already existing housing, the occurrence of mortgages is possible only on the basis of the contract. Even if the loan received one borrower, and two people should be the owners, including the borrower, it is necessary to conclude a mortgage agreement, because The emergence of the mortgage due to the law is immediately impossible for two.

Transactions related to buying and selling real estate, in lately increasingly drawn up through the bank with a mortgage loan. Favorable interest rates, minimum consideration time, the possibility of using maternal certificate and state programs Subsidations make them more accessible. Those who are first faced with banking servicesWhen you come to the office, you hear many new terms and expressions. One of them is a mortgage due to the law. What it is - so immediately and not understand. Therefore, it is necessary to separately consider this question so that the participants in the transaction have an understanding and awareness of what is happening.

Mortgage designation by virtue of the law

In the Civil Code and the Federal Law of the Russian Federation No. 102 "On Mortgage" the legislator consolidates that it is a mortgage due to the law. This lending direction always implies the existence of encumbrance or it is still called property pledge. Most often there is a design of real estate transactions through the use of the Bank's funds. Thus, the mortgage occurs. The most reliable option is to execute it by virtue of the law, since the borrower will not be able to challenge the ownership due to the guaranteed harassment.

As soon as the right to real estate is registered with the USRP (the Unified State Register of Rights), we can talk about the occurrence of obligations of this type of mortgage. The right of ownership is formed by issuing the contract of rent, purchase and sale, collateral of property rights.

Features of registration

Most customers first receive approval on the loan to the mortgage and only then begin to look for a suitable property of real estate. Deciding, they sign credit contract And only after the purchase and sale. As soon as the state registration of the mortgage due to the law occurred, the Bank lists credit funds to the real estate seller. Thus, customers cannot choose, in what form mortgage will be framed. If we are talking about buying real estate using borrowed funds, mortgage will automatically be considered framed by the law.

Documented the borrower becomes the owner of the property, but since it is purchased at the expense of borrowed funds, becomes at the same time collateral. The resulting cash borrower can spend only for the purchase of a real estate object, which subsequently goes as a collateral to a loan institution. Cash use credit money not provided.

Bases for registration

The legislative levels are enshrined the following types of real estate facilities that can be purchased within the mortgage: Apartment on the secondary market or new building, room, land, house (cottage, mansion), garage, cooperative, production room. If one of them is purchased using part banking funds, then the mortgage occurs due to the law. This includes the case when real estate is purchased in installments.

It can also be granted when making an account agreement or for building a house. In the construction of a structure or building on land plotwhich is in the burden of the credit institution, the mortgage will apply to these objects, including. The exception can draw up the rules prescribed in the mortgage agreement.

Responsibilities and Rights of the Borrower

After registration of the mortgage, by virtue of the law, the deposit should be saved in the same form in which it was initially transmitted. The responsibility of the borrower applies to cases of damage or loss of property integrity. If one of these items occurred, it is necessary to put the lender informant.

In the case when the mortgage is the subject of the mortgage vacation home, the borrower has the right to build a territory around him by any buildings that do not contradict the law. For this, it is not required to obtain the approval or consent of the bank.

If the parameters of the mortgage loan provides for the ability to transfer the pledged property to a third party, then it becomes a mortgagor and is responsible for fulfilling the conditions of the mortgage agreement. This may also include the obligations that the previous owner were violated.

Registration of rights

Deciding that it is a mortgage due to the law, it is necessary to understand how the order of registration occurs. Each case that is associated with the change in the owner is subject to state registration in the Unified State Register of Rights. Before issuing a deal, it is necessary to determine whether the object is in the burden of third parties. You can check the information through online services USRP or MFC, contacting Rosreestr.

To proceed to the registration process, you must take the following actions:

• Get approval on a bank credit, issue a sale agreement.
• Provide in state body These documents, as well as the mortgage for registration.

Registration is carried out within 5 business days. If we talk about such properties such as land, non-residential premises, building, building, then russian legislation There is a period of 15 working days.

Documenting

The official confirmation that the real estate object is in the encumbrance, performs the mortgage. As a rule, after registration of the mortgage, it is issued by a bank employee. However, there are also such cases when the NOTARY is drawn up.

Since the property object is in burden, it cannot be implemented without obtaining the bank's approval. In the certificate of registration of the right in the section "Explosion", a mark must be made that the object is acquired at the expense of credit funds. As soon as all debt is repaid, and the obligations to the Bank will be fully implemented, in the certificate of ownership, the registrar puts the stamp on the junction. The state duty for this procedure is not charged, the law provides for a three-day period for the implementation of this procedure.

Without the written consent of the pledgee, it is impossible to make seizure or alienation of real estate taken to the mortgage.

Is it possible to replace the mortgage due to the contract

To understand what it is - mortgage due to the law, it is necessary to distinguish between its other type - mortgage due to the contract. It is possible when making a transaction with an existing future borrower with the object of real estate, which he transmits as a collateral. An option is also possible when the borrower receives credit funds, issues the right of ownership and only then transfers real estate as a pledge to the bank. Without registration of the mortgage, due to the contract, it is also possible, in this case, the encumbrance does not occur.

This direction has certain risks, since there is a chance of not the repayment of cash issued. It is impossible to determine the type of mortgage yourself. It follows, based on the mortgage object and the method of disposal of the money received.

Briefly about the differences between two mortgage forms

If you summarize the differences, it will look like this:

• Registration procedure: Mortgage due to the contract is subject to registration separately, and documents must be submitted to the USRP together with the pledger and the pledgee. When making a mortgage agreement, due to the law, the registration process occurs simultaneously with the execution of rights to the USRP with the new owner. The mortgagee and the mortgagor can provide documents to the state body separately.
• Registration of the mortgage, by virtue of the law, implies the targeted use of funds, in which the acquired property of the property automatically becomes a key. At the contractual mortgage of the collateral may not be, but the immovable property of the owner can act as encumbrance.
• The process of making mortgages by virtue of the law does not provide for the need to pay for state duty, which cannot be said with its form.

Changing holder or termination of the mortgage

In the event that a mortgage of property due to the law is decorated, but the borrower does not fulfill its obligations, the mortgage can be transferred to the creditor to implement. As soon as the obligations under the mortgage loan agreement were fulfilled, the debt is redeemed, it (mortgage) ceases to act. We can safely talk about the removal of the mortgage by virtue of the law.

At the legislative level, a change in the mortgage holder is allowed, for example, when selling or refinancing a mortgage loan. If the owner of the certificate is necessary, in the field "Explosion" there were no marks about the loan, then it will be necessary to issue a new testimony. To receive it, the owner pays the state duty in the amount of 200 rubles.

Terms of consideration and necessary documents for lifting the burden

The maximum period, during which the state registration of the lifting of encumbrance is happening - three days. To implement the procedure, it is necessary to provide the following documents:

• Application from the mortgagor with the application of documents, testifying to the full performance of duties within the mortgage.
• The statement of a mortgage holder is usually drawn up on behalf of the bank.
• If the termination of the mortgage obligations was made on the basis of judicial decision, it must also be provided.

The application may be filed jointly by the owner of the property and the bank. In most cases, after the complete fulfillment of obligations, the client (former borrower) itself refers to the state authority. It is noteworthy that it can get the mortgage, by signing the act of acceptance and transfer in the bank's separation, where the mortgage loan was issued. There will also be required to certify the absence of debt indicating the date when the closing occurred mortgage contract.

If the bank is large, it can independently remove the burden, after the borrower fulfills the mortgage obligations.

The founding of the occurrence of the mortgage - the factors are understood under this phrase in a consequence of the onset of which one of the following types of mortgages occurs:

1. Mortgage due to the law.
2. Mortgage due to contract.

Mortgage due to law

Mortgage due to the law (legitimate mortgage) arises as follows the occurrence of the circumstances of the federal law (Article 1 of paragraph 2 of the Federal Law of July 16, 1998 N 102-FZ "On Mortgage") (hereinafter - the law N 102-ФЗ) . Such a mortgage arises exclusively at the targeted loan for the purchase of housing, and therefore its registration is necessarily accompanied by the change of the owner of the real estate object.

Simple words: mortgage due to the law - this is when the apartment purchased for credit funds is issued to the property of the buyer-borrower and when the same apartment becomes a key to a loan (which is standard scheme providing mortgage loan).

Example: The borrower takes a target loan in a bank to buy an apartment, which becomes a collateral on this loan.

Russian legislation provides for the following basis for the occurrence of legal mortgage:

• Mortgage of residential buildings and apartments. Residential premises (residential buildings and apartments) bought or built using bank credit funds (or any other credit institution) is pledged by the lender since the state registration of the mortgage (paragraph 1 of article 77 of the Law N 102-FZ). The same applies to the purchase land plots (paragraph 1 of Art. 64.1 of the Law N 102-FZ), as well as acquisition and construction not residential premises (Art. 69.1 of the Law N 102-FZ).
• Sale in credit. Unless otherwise provided for by the contract of sale, then the goods sold on the loan from the date of its transfer to the buyer and before its payment is recognized as pledged by the seller (paragraph 5 of Art. 488 of the Civil Code of the Russian Federation). The same rules apply to the sale of goods on credit, with a condition for installments of payment (paragraph 3 of Art. 489 of the Civil Code of the Russian Federation).
• Rent (lifelong content with dependency). When transmitted under the payment of rent of any real estate, the recipient of the rent as securing the obligations of the payer acquires the right of pledge to this property (paragraph 1 of Art. 587 of the Civil Code).

Registration of mortgages by virtue of the law

The state registration of the mortgage by virtue of the law takes place simultaneously with the registration of the contract of sale. That is, in the testimony of the apartment you bought, in the section "Explosions" it will already be indicated that the housing was acquired using credit funds and without the consent of the creditor (bank) to sell it.

The legal mortgage is registered on the basis of the application of the pledgee (borrower) or the pledger (creditor), or the notary of the identified agreement, which led to the emergence of this type of mortgage (paragraph 2 of Article 20 of the Law N 102-FZ). Read more about Mortgage registration.

Note! For the state registration of the mortgage that arose due to the law - the duty is not charged (paragraph. 6 of paragraph 3 of Art. 333.35 of the Tax Code of the Russian Federation).

Mortgage due to contract

Mortgage due to the contract (contractual mortgage) arises on the basis of a mortgage agreement (Article 1 of paragraph 2 of the Law N 102-FZ). In other words, the emergence of such a mortgage becomes possible only if there is a special agreement of the parties about the pledge.

Simple words: Mortgage due to contract - this is when the buyer-borrower:

1. Draws up an apartment purchased for credit funds In his property (at the same time, "clean" testimony, i.e. - without encumbrance).
2. Collects package of documents (It is usually given up to 3 months) it is on the apartment that is supposed to become a pledge (i.e., in this case, the subject of mortgage pledge can be both a credit apartment and any other real estate owned by property borrower).
3. Together with the lender (Bank) makes up and registers a separate mortgage agreement (Only after that an encumbrance is superimposed on property - i.e. it is from now on the mortgage that takes effect).

Example: The borrower takes a target loan for the purchase of real estate secured by the already available housing.

Agreeing to the contractual mortgage, the bank risks greatly. After all, until the moment until the mortgage agreement is registered, the lender (Bank) formally will not have any real estate purchased in the framework of mortgage lending. Exit such situation credit organizations are found in guarantors. For that period of time, while the living space is not transferred to the deposit, they require a borrower to provide several physical or legal entities to be ready to vouch for it. At the same time, on the same length of time, banks usually overestim interest rate on credit.

Mortgage registration due to contract

Mortgage due to the contract is registered not together with the contract of purchase and sale of the apartment, as it occurs during legal mortgage, and separately, on the basis of a separate mortgage agreement.

State registration of mortgages by virtue of the contract is carried out on the basis of a joint statement of the pledgee and the pledger. If the mortgage has arisen due to a notarized mortgage agreement, the registration can be implemented on the basis of a notary statement that has identified this agreement (clause 1 of Article 20 of the Law N 102-FZ). Details on the registration of mortgages can be found.

Mortgage: By virtue of the law, due to the contract - differences

So, the mortgage due to the law differs from the mortgage caused by the contract:

Registration of the mortgage agreement; be careful when making contracts; whether to make a mortgage?

Among the set of ways to take an apartment on a loan mortgage, due to the law, is the most ambiguous and risky method. But sometimes this method is the only possible for both the borrower and the lender.

What types of mortgages exist

If the property is purchased at the expense of credit funds, then there are two legislative variants of burdensome, two: mortgage due to the law and by force of the contract: the differences in these methods is small, but principled.

When decoring the property in a pledge under the mortgage procedure, due to the contract, information on the burden is made to the registry on the basis of a pledge agreement (mortgage) simultaneously with the registration of the Treaty on the acquisition of real estate. In this case, a mortgage agreement is always drawn up or the mortgage is made.

The mortgage, by virtue of the Law of the Civil Code of the Russian Federation, is defined as the state registration of a real estate acquisition agreement containing a mortgage obligation. This may be any type of agreement, but most often is a contract of sale. In an extract on the rights to such an object, existing limitations of the burden of law will be indicated: mortgage due to the law.

What does mortgage mean by force?

Legislative issues of mortgages regulate the Federal Law "On State Registration of Rights to Real Estate and Transfers" No. 122-ФЗ dated July 21, 1997, as well as the Federal Law "On Mortgage (Pledge of Real Estate)" No. 102-FZ dated July 16, 1998

The basis for creating an entry in the register of encumbrance is the state registration of the sales contract, which contains information that the purchase has passed through borrowed funds.

Speaking simple wordsThe mortgage obligation (encumbrance) contributes to the register when the new owner comes to the territorial separation of Rosreestra with the transfer agreement for the re-registration of purchased real estate on its name.

If the information specified in the property purchase contract is not enough to make burdens in the state register, then the mortgager and mortgagee can provide a joint statement to register a mortgage obligation. It is attached to the relevant loan agreement or a loan agreement.

By mutual agreement of the participants in the transaction, the registration of mortgage burden in Russia can not be applied. For this purpose, the appropriate item is prescribed in the contract of sale of property.

Scope of application

Mortgage with the force of law may arise in the following situations:

1. Acquisition of land, apartments, other real estate due to borrowed funds, bank loan, target credit legal entity.
2. Purchase, construction of real estate object with full or partial payment due to borrowed funds.
3. Rent or lifelong content. In this case, the mortgage right to property is drawn up on the recipient of the rent.
4. Registration of the collateral of property rights when buying a real estate under construction.

Always carefully read mortgage and loan agreements so as not to get into the hands of fraudsters. Real estate market, especially in major citiesis an illegal source of income for a huge number of criminal elements, so try to carry out transactions through well-known real estate agencies and respected notaries.

Features of the mortgage due to the law

Note the pros and cons of the occurrence of pledge into force of the law, because potential unforeseen circumstances may have as a negative, so positive color, depending on whose point of view is to take as a basis.

Consider the main underwater stones when making a mortgage obligation under the law.

1. Drawing up a unified real estate purchase agreement. The lack of a mortgage agreement reduces the financial costs of the buyer and the seller under the transaction, but is risks for the lender, which does not have collateral rights to register the contract in Russia.

In addition, there is a likelihood of the subsequent challenge of the acquisition of real estate in court, as a result of which the room is returned to the seller, and the loan, along with a record of mortgage, the USRP continues to remain on the buyer-borrower.

2. The risk of improperness of the mortgage record after repaying the loan. A situation may arise when the buyer fully paid the loan amount, but cannot confirm this fact due to the absence, the disappearance of the lender in combination with the shortage of confirming documents. As a result, the deposit can be "eternal", and to bypass the existing limitations of the burden of law (mortgage, by virtue of the law), it becomes almost impossible.

3. Termination of mortgage to full repayment all loan amount. This situation may arise if the real estate was sold, due to non-payment of the loan borrower.

After the implementation of the mortgage property, the obligations of the borrower in front of the bank is considered redeemed. However, the amounts reversed from the sale may not be enough to repay the loan balance. In this situation, the affected party becomes the Bank.

4. Clearing mortgage. In view of the low legal knowledge of the population, many do not understand the essence of the documents subscribed when buying real estate. As a result, people believe that the contract of sale is not the basis for the deposit of property and try to challenge his eligibility in court. As a result, unwanted legal proceedings for the lender.

Rules apply to the pledge of real estate (mortgage) Civil Code RF (hereinafter - the Civil Code of the Russian Federation) on real rights, and in the part not resolved by the indicated rules and federal law of 16.07.1998 No. 102-FZ "On mortgage (property pledge)" (hereinafter - the Mortgage Law), general provisions On the pledge (clause 4 of Art. 334 of the Civil Code of the Russian Federation).

The concept of a deposit agreement is given in Article 334 of the Civil Code of the Russian Federation, according to which "due to the pledge, the creditor on a secured pledge (mortgagee) has the right in case of non-fulfillment or improper fulfillment by the debtor of this obligation to obtain satisfaction from the value of the laid property (pledge items) mainly to other person lenders which owns the mortgaged property (pledger). "

Due to the pledge according to the norms of the Civil Code of the Russian Federation, the lender has the right in the event of non-fulfillment or improper execution by the debtor of a secured obligation to obtain satisfaction from the value of the laid property (paragraph 1 of Art. 334 of the Civil Code of the Russian Federation). Mortgage as a type of collateral provides satisfaction at the expense of the value of exclusively real estate.

According to paragraph 1 of Article 130 of the Civil Code of the Russian Federation, land plots, plots of subsoil and everything that is firmly associated with land, that is, objects, the movement of which is impossible without disproportionate damage to their purpose, including buildings, structures , objects of unfinished construction.

Mortgage agreement is an agreement on the pledge of real estate. The mortgage agreement contains provisions on the mortgage, market assessment of the mortgage object, being, the amount and implementation period of the obligation (essential conditions) provided by the mortgage, other conditions (paragraph 1 of Article 9 of the Mortgage Act). The lack of significant conditions in the mortgage agreement makes such a contract uncontucted (Art. 432 of the Civil Code of the Russian Federation).

The mortgage agreement is drawn up in a simple writing and a mandatory notarial certificate does not require (paragraph 1 of Art. 10 of the Mortgage Law ").

Any property, including things and property rights, can be transferred to the deposit. Exceptions are established by law (paragraph 1 of Art. 336, paragraph 1 of Art. 358.1 of the Civil Code).

The mortgaged property remains at the pledger, unless otherwise provided for by the Civil Code of the Russian Federation, another law or contract (paragraph 1 of Art. 338 of the Civil Code of the Russian Federation).

The pledger can be both the debtor himself and the third person (paragraph 1 of Art. 335 of the Civil Code of the Russian Federation). For a pledge, things are necessary for the pledger to have ownership of it. A person who has a different real law can transfer a pledge thing in cases provided for in the Civil Code of the Russian Federation (paragraph 2 of Art. 335 of the Civil Code of the Russian Federation). The pledger of law may be a person who is a creditor in the obligation, from which the law follows (copyright holder) (paragraph 1 of Art. 358.1 of the Civil Code of the Russian Federation).

The pledgee is pledged by a bank or other credit institution, or another legal entity provided a loan or a target loan for the acquisition of real estate (land plot or residential premises).

The contract of collateral should be concluded in simple writing, if the notarial form is not established by law or agreement of the parties.

The contract of collateral to ensure the fulfillment of obligations under the contract, which should be notarized, is subject to a notarial certificate.

Failure to comply with the shape of the deposit agreement implies its invalidity (paragraph 3 of Art. 339 of the Civil Code of the Russian Federation).

In accordance with paragraph 3 of Article 339 of the Civil Code of the Russian Federation and paragraph 1 of Article 19 of the Mortgage Law (as amended on the day of the contract), the mortgage is subject to state registration in the Unified State Register of Rights to Real Estate and Transactions with Him (hereinafter - the USRP) , established by the Federal Law of July 21, 1997 No. 122-FZ "On State Registration of Rights to Real Estate and Transactions with Him" \u200b\u200b(hereinafter - the Law on Registration).

As established by paragraph 1 of Article 11 of the Mortgage Act (as amended on the day of the contract), the State Registration of the Agreement, the emergence of the mortgage, by virtue of the law, is the basis for making a record to the occurrence of a mortgage into force into the EGRP.

With a mortgage, due to the mortgage law, as the burden of property arises from the moment of state registration of ownership of this property, unless otherwise determined by the agreement (paragraph 2 of Article 11 of the Mortgage Act).

The mortgage law and contract provided for by the Law on Mortgage and Agreement on the mortgage law (right of collateral) to property are considered to have emerged from the moment of making a mortgage entry to the USRP, unless otherwise established by law. If the obligation provided by the mortgage arose after the introduction to the EGRP record of the mortgage, the rights of the pledgee arise from the moment of the occurrence of this obligation (paragraph 3 of Article 11 of the Mortgage Act).

Clause 2 of Article 20 of the Mortgage Law provides that mortgage is subject to state registration by virtue of the law.

State registration of mortgages by virtue of the law is carried out simultaneously with the state registration of the property rights, whose rights are burdened by mortgage, unless otherwise established federal law. The rights of the mortgagee for mortgage due to law can be certified by the mortgage.

In accordance with paragraph 1 of Article 2 of the Law on Registration, state registration is the only proof of the existence of registered law.

An analysis of the standards set out of the norms allows us to conclude that any pledge of real estate, regardless of the basis of its occurrence, is subject to state registration, as state registration is the only proof of the existence of registered law.

Mortgage of real estate is two types: mortgage due to contract and mortgage due to law.

Mortgage due to the contract arises by the will of the parties, on the basis of a mortgage agreement concluded between them.

Mortgage due to the law is found in case:

- residential building or apartment acquired in whole or in part due to a bank loan or other credit institution is pledged from the moment of the state registration of the mortgage to the USRP (clause 1 of Article 77 of the Mortgage Act);

- residential premises, built completely or partially using accumulations for housing for military personnel provided under the Treaty Treaty housing loan In accordance with the Federal Law of August 20, 2004 No. 117-ФЗ "On the accumulative and mortgage system of housing systems of military personnel," is considered pledged since the state registration of ownership of a residential building (clause 4 of Article 77 of the mortgage law) ;

- Land acquired using bank credit funds or other credit institutions or target loan funds provided by another legal entity The acquisition of this land plot is considered pledged from the date of state registration of the ownership of the borrower on this land plot. If the appropriate land plot is leased, then the mortgage occurs due to the law on the right of lease, unless otherwise established by federal law or lease agreement (clause 1 of article 64.1 of the mortgage law);

- in the construction of a building or structure on the land plot, laid under the mortgage agreement, the mortgage applies to these buildings and structures, unless otherwise provided by the mortgage agreement (Article 65 of the Mortgage Act);

- a land plot on which using the bank's credit funds or a different credit organization, or the means of a target loan provided by another legal entity, has been acquired, built or built a building or structure, the right to lease of such a land plot is considered to be pledged since the state registration of ownership on acquired, built or under construction, or structure, unless otherwise provided by federal law or contract (Article 64.2 of the Mortgage Act);

- In the case of registration of ownership of the property completed by construction, the object of real estate, which was previously registered and transferred to the mortgage as an object of unfinished construction, mortgage remains strength, and its subject is the building (structure), erected as a result of the completion of construction (Article 76 of the mortgage law );

- when transmitted under the payment of rent of a land plot or other real estate, the recipient of the rent in ensuring the obligations of the rent payer acquires the right of pledge to this property (paragraph 1 of Art. 587 of the Civil Code of the Russian Federation);

- Mortgage due to the law arises if the property is purchased on credit or by installments (Article 488 and 489 of the Civil Code of the Russian Federation);

- land plot owned by the developer on the right of ownership (right of lease or sublease), and under construction (created) on this land plot apartment house and (or) another property object to ensure the execution of the obligations of the developer (mortgager) under the contract from the moment of state registration of the contract are considered to be pledged by participants shared construction (mortgagers).

To date, the period of state registration of mortgage of land plots, buildings, structures, non-residential premises is 15 working days, and mortgages of residential premises - 5 working days.

From 01.07.2014 A mortgage agreement or a loan agreement containing a secured mortgage obligation is not subject to state registration, but the mortgage itself must be registered in the manner prescribed by law. With respect to the mortgage of residential premises, an accelerated period of registration is provided - five working days from the date of submission necessary documents. For the state registration of the mortgage, due to the law, the state duty is not paid.

If the property transmitted to the mortgage is in joint ownershipThe written consent of all owners will be required. The consent of another spouse should be notarized (paragraph 1 of Art. 7 of the Mortgage Act, paragraph 3 of Art. 35 of the Family Code of the Russian Federation).

When a residential building or an apartment owned by minor citizens is transferred to a deposit, limitedly capable or incapacitated persons who are installed on which is established or guardianship, the transaction needs to be coordinated with the guardianship and guardianship authority (clause 5 of Article 74 of the Mortgage Act, paragraph 2 Art. 37 of the Civil Code of the Russian Federation).

With the termination of the loan commitment, the deposit is terminated. The termination of the mortgage should be made to the EGRP (Art. 352 of the Civil Code of the Russian Federation, Art. 25 of the mortgage law). By general rule To repay a mortgage record to the registration authority, it is enough to imagine:

- statement by the owner of the mortgage;

- or a joint statement of the pledger and the pledgee;

- or statement statement with the simultaneous submission of a mortgage containing the owner of the mortgage of the fulfillment of the fulfillment of the obligations provided in full. This mark should include words about the execution of the obligation and the date of its execution, and must also be certified by the signature of the owner of the mortgage and is certified by its printing (in the presence of a seal) (clause 2 of Article 25 of the Mortgage Act).

When repaying the mortgage registration record, the mortgage is canceled (clause 3 of Art. 25 of the Mortgage Act).

The mortgage registration record is repaid within three working days (paragraph 1 of Art. 25 of the mortgage law).

For the repayment of the registration record of mortgage, state duty is not paid.

Thus, under the mortgage traditionally it is a pledge of real estate remaining in the ownership of the debtor, but with the prohibition of the right of free disposal by this property. The qualifying signs of mortgages are the subject of the contract of deposit, which can be only a real-life thing, and the preservation of the pledger of the authorities of possession and use of this thing.

Natalia Shcherbinina,

chief Expert Specialist

Omsk department

Management of Rosreestra

in the Omsk region,

state registrar.