Mortgage agreement

The word “mortgage” has Greek roots and came into use in the 6th century. BC. The Athenian reformer Solon in 594 BC implemented his famous reforms, as a result of which freedom of will was introduced and land debts were canceled.

Before that, in Athens, the pledge of such obligations was the personality of the debtor himself, who, if it was impossible to pay the debt, could fall into slavery. Archon Solon proposed a method for a very progressive conversion of personal responsibility into property. On the borderline of the debtor’s land plot, a post was installed with the inscription that this property serves as security for claims for a certain amount, the names of the debtor and the creditor were indicated, the time when the debt was to be returned. It was this pillar that was called the “mortgage” (stand). Such a pillar was erected on a plot of land as a sign of the prohibition of the borrower to take out from it all that was brought, brought and brought. Subsequently, this word began to be used to refer to any mortgage of real estate against a loan. Later, special books called mortgage books began to be used for this purpose..

In light of the approval by the Government of the Russian Federation of the Concept for the Development of the System of Housing Mortgage Lending in the Russian Federation * 1 and the increased interest of citizens and legal entities in mortgage lending, the problem of the correctness of the drafting, execution and state registration of mortgage agreements becomes relevant..

In accordance with paragraph 1 of Art. 1 of the Federal Law of July 16, 1998 N 102-FZ “On Mortgage (Pledge of Real Estate)” * 2 (hereinafter – the Law on Mortgages) under an agreement on pledging immovable property (agreement on mortgage) one party is the pledgee who is a creditor of the obligation secured by a mortgage has the right to receive satisfaction of its monetary claims against the debtor under this obligation from the value of the mortgaged real estate of the other party – the mortgagor, mainly to other creditors of the mortgagor, with the exceptions established by federal law.

By virtue of Art. 8 of the Mortgage Law, a mortgage agreement is concluded in compliance with the general rules of the Civil Code of the Russian Federation * 3 on the conclusion of agreements, as well as the provisions of the Mortgage Law.

1. CONCLUSION OF THE MORTGAGE AGREEMENT

In accordance with paragraph 1 of Art. 432 of the Civil Code of the Russian Federation, an agreement is considered concluded if between the parties, in the form required in appropriate cases, an agreement is reached on all the essential terms of the agreement. Essential are the conditions on the subject of the contract, the conditions that are named in the law or other legal acts as essential or necessary for contracts of this type, as well as all those conditions regarding which, at the request of one of the parties, an agreement must be reached.

The essential conditions of the mortgage agreement are provided by the legislator in paragraph 1 of Art. 9 of the Law on Mortgages. In particular, the mortgage agreement must indicate the subject of the mortgage, its valuation, the nature, the amount and the term for the fulfillment of the obligation secured by the mortgage. Similar provisions are contained in Art. 339 of the Civil Code of the Russian Federation, dedicated to the pledge agreement.

If the parties to the transaction do not agree on one of the specified conditions, or if it is absent in the mortgage agreement, the latter is recognized as not concluded. It should be noted that the recognition of the contract as not concluded in the absence of essential conditions in it or due to the failure of the parties to agree on these conditions entails the consequences of the invalidity of the transaction established by Art. 167 of the Civil Code of the Russian Federation.

Consider the essential terms of the mortgage agreement provided for by applicable law.

1.1. Subject of the mortgage agreement

The law on mortgages in paragraph 2 of Art. 9 provides that the subject of the mortgage is determined in the contract by indicating its name, location and a description sufficient to identify this subject.

Under a mortgage agreement, immovable property specified in clause 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:

1) land plots, with the exception of land plots specified in art. 63 of the Law on Mortgages;
2) enterprises, as well as buildings, structures and other immovable property used in entrepreneurial activity;
3) residential buildings, apartments and parts of residential buildings and apartments, consisting of one or more isolated rooms;
4) summer cottages, garden houses, garages and other buildings for consumer use;
5) air and sea vessels, inland navigation vessels and space objects.

It should be noted that the Law on Mortgages (Art. 63) does not allow mortgages of land plots that are in state or municipal ownership..

In addition, it is not allowed to mortgage a part of a land plot, the area of ​​which is less than the minimum size established by regulatory enactments of the constituent entities of the Russian Federation and regulatory enactments of local self-government bodies for lands for various purposes and permitted use. For example, in the Moscow region, the minimum size of land plots provided to citizens in the ownership of a peasant (farm) economy is 2.0 hectares, for gardening – 0.06 hectares, for truck farming – 0.04 hectares, and for summer cottage construction – 0 , 06 ha * 4.

By virtue of Art. 69 of the Law on Mortgages, the mortgage of a building or structure is allowed only with a simultaneous mortgage under the same contract of a land plot on which this building or structure is located, or a part of this plot that functionally provides the pledged object, or the right to lease this plot or its corresponding part owned by the pledgor. The provisions of this article must also be observed in the case of a mortgage of immovable property in progress being built on a land plot in accordance with the requirements of the legislation of the Russian Federation.

Part of the property, the division of which is impossible in kind without changing its purpose (indivisible thing), cannot be an independent subject of mortgage. This provision of the Law on Mortgage is explained in detail in clause 2 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 28, 2005 N 90 “Review of the practice of consideration by arbitration courts of disputes related to a mortgage agreement” (hereinafter – Information Letter N 90) * 5 … The subject of a mortgage can be a separate room, the rights to which, as an independent object of immovable property, are registered in the prescribed manner, and not part of the area of ​​such a room.

In addition, the rules on the mortgage of real estate are accordingly applied to the pledge of the tenant’s rights under the lease agreement for such property (lease right), since otherwise is not established by federal law and does not contradict the essence of the lease relationship.

In the mortgage agreement, you must specify a description of the subject of the mortgage. In particular, the agreement specifies the type of immovable property pledged under the mortgage agreement (building, structure, land plot, etc.). When describing real estate, you must specify:

– the name of the subject of the mortgage, which is indicated in the certificate of state registration of the immovable property;
– area of ​​the property;
– the address where the property is located;
– conditional or cadastral number of the property.

Paragraph 3, clause 2, Art. 9 of the Mortgage Law also provides that if the subject of the mortgage is a lease right belonging to the mortgagor, the leased property must be defined in the mortgage agreement in the same way as if it was itself the subject of the mortgage, and the lease term must be indicated.

When mortgaging a land plot, the provisions of clause 1 of Art. 18 of the Federal Law of July 21, 1997 N 122-FZ “On state registration of rights to real estate and transactions with it” * 6 (hereinafter referred to as the Registration Law), which provides that documents establishing the existence, occurrence, termination, transfer , limitation (encumbrance) of rights to real estate and rights submitted for state registration must comply with the requirements established by the legislation of the Russian Federation, and reflect the information required for state registration of rights to real estate in the Unified State Register of Rights (hereinafter – USRR). In addition, in accordance with paragraph 2 of Art. 8 of the Land Code of the Russian Federation in contracts, the subject of which is land, indicates the category of land. By virtue of paragraph 2 of Art. 7 of the Land Code, land plots are used in accordance with their designated purpose. The legal regime of lands is determined based on their belonging to a particular category and permitted use in accordance with the zoning of territories, the general principles and procedure for which are established by federal laws and the requirements of special federal laws.

Therefore, when mortgaging land plots, the contract must indicate the category of land and the type of permitted use of the land plot..

The mortgage agreement must also indicate the right (property, lease, etc.), by virtue of which the property that is the subject of the mortgage belongs to the mortgagor, and the name of the body that carries out state registration of rights to real estate and transactions with it (hereinafter – the Authority, carrying out state registration of rights), who registered this right of the pledger.

1.2. Assessment of the subject of the mortgage

In accordance with paragraph 3 of Art. 9 of the Law on Mortgages, the assessment of the subject of the mortgage is determined in accordance with the legislation of the Russian Federation by agreement of the pledger with the pledgee in compliance with the requirements of Art. 67 of the Mortgage Law and is indicated in the mortgage agreement in monetary terms.

The principle of assessing the subject of pledge by agreement of the parties seems to be quite appropriate, because only by agreement of the parties on this condition of the contract it is possible to achieve the maximum balance of interests of counterparties in this legal relationship * 7.

When mortgaging state and municipal property, its assessment is carried out in accordance with the requirements established by federal law, or in the manner determined by it..

In the case of a pledge of incomplete construction of immovable property, which is in state or municipal ownership, the market value of this property is assessed.

Sometimes in the agreement, the parties indicate several estimates of the subject of the mortgage: for example, the cost as estimated by the BTI, the cost as assessed by the board of directors of the pledger and the cost as assessed by the parties. In this regard, at one time there was a practice of recognizing the contract as not concluded due to the fact that the assessment of the subject of the mortgage was not determined. In our opinion, this practice is not entirely correct – it is necessary to take into account only the assessment by agreement of the parties, the rest of the information is indicated for reference. Now the practice of recognizing such contracts as not concluded is changing, but nevertheless it is better to indicate only one assessment in the contract – by agreement of the parties * 8.

It is possible to disagree with the author of this point of view, since the parties have the right to indicate several ratings, but subject to the presence of an assessment that the parties have agreed on. For example, when mortgaging land plots, the parties often indicate the standard value of the land plot, the market value as assessed by an independent appraiser, the book value, and finally indicate the amount at which the parties assessed the subject of the mortgage. The key point in this case is the phrase in the agreement: “The parties are evaluating the subject of the mortgage.” This point of view is also confirmed by Information Letter No. 90. In particular, its clause 19 states that if the parties indicate in the mortgage agreement several different assessments of the subject of the mortgage, such an agreement cannot be considered non-concluded, if it is possible to establish which of the assessments represents that , which the parties agreed on as an essential condition of the mortgage agreement.

1.3. Substance, size and duration of the obligation secured by the mortgage

According to paragraph 4 of Art. 9 of the Law on Mortgage, the obligation secured by the mortgage must be named in the mortgage agreement with an indication of its amount, the basis for its occurrence and the term of performance. In cases where this obligation is based on any agreement, the parties to this agreement, the date and place of its conclusion must be indicated. If the amount of the obligation secured by the mortgage is to be determined in the future, the procedure and other necessary conditions for its determination must be indicated in the mortgage agreement.

Thus, the mortgage agreement specifies all the essential conditions of the main obligation, in support of which the mortgage is provided.

If the obligation secured by the mortgage is subject to performance in parts, the mortgage agreement must indicate the terms (frequency) of the corresponding payments and their amounts or conditions that allow determining these amounts.

By virtue of paragraph 6 of Art. 9 of the Mortgage Law if the rights of the mortgagee are certified by a mortgage, this is indicated in the mortgage agreement, except for cases of issuing a mortgage in case of a mortgage by virtue of law.

Mortgage issues discussed in detail earlier * 9.

2. STATE REGISTRATION OF THE MORTGAGE AGREEMENT

According to paragraph 1 of Art. 10 of the Law on Mortgages, a mortgage agreement is concluded in writing and is subject to state registration. An agreement that lacks any of the data specified in the first chapter of this article, or violates the rules for drawing up and issuing a mortgage, provided for in paragraph 4 of Art. 13 of the Law on Mortgage, is not subject to state registration as a mortgage agreement.

The cited article has undergone changes in connection with the adoption of Federal Law No. 216-FZ of December 30, 2004, which abolished the mandatory requirement for notarization of a mortgage agreement. This fact reduced the costs of the parties to the contract and shortened the terms of its conclusion..

The requirement for notarization of mortgage agreements was recognized as unjustified, since the institution of notarization actually duplicated the functions of state registration. The imposition on the body carrying out state registration of rights, the obligation to verify the legality of the transaction subject to registration (clause 1 of article 13 of the Registration Law) coincided with the same function that lies with the notary (article 1 of the Fundamentals of the legislation of the Russian Federation on notaries of February 11 1993 N 4462-1 * 10).

In addition to material costs, participants in mortgage lending incurred significant time costs when going through two procedures at once (notarization and state registration). This circumstance increased the cost of mortgage lending, reduced its availability for the population and, as a result, held back the development of the mortgage lending market..

On the other hand, this novel sets additional requirements for the parties when concluding a contract. They must properly draw up a mortgage agreement so that no questions arise from the body that carries out state registration of rights. In the presence of a developed system of mortgage lending, when providing a loan to citizens and concluding mortgage agreements, the function of checking the legal capacity of the borrower and the absence of a vice of will on his side falls on credit and other organizations, since it is in their interests to ensure the proper execution of contractual relations * 11.

However, the parties can independently and voluntarily by virtue of cl. 2 p. 2 art. 163 of the Civil Code of the Russian Federation to make a decision on notarization of the mortgage agreement concluded by them. In this case, the notary rate will be: 200 rubles. – if the subject of the mortgage agreement is residential premises, and 0.3% of the amount of the mortgage agreement, but not more than 3000 rubles. – if the subject of the mortgage will be other real estate, with the exception of ships and aircraft, as well as inland navigation vessels.

Moreover, according to paragraph 1 of Art. 20 of the Law on Mortgages, the state registration of a mortgage arising from a mortgage agreement is carried out on the basis of a joint application of the pledger and the pledgee. State registration of a mortgage arising from a notarized mortgage agreement is carried out on the basis of an application from the pledger or pledgee.

Failure to comply with the rules on state registration of a mortgage agreement entails its invalidity. Such an agreement is considered null and void (paragraph 3, clause 1, article 10 of the Mortgage Law).

The mortgage agreement is considered concluded and comes into force from the moment of its state registration.

When a mortgage agreement is included in a loan or other agreement containing an obligation secured by a mortgage, the form and state registration of this agreement must comply with the requirements established for the mortgage agreement.

If it is indicated in the mortgage agreement that the rights of the pledgee are certified by the mortgage, together with such an agreement, the mortgage is submitted to the body carrying out state registration of rights. If the conclusion of the relevant agreement entails the emergence of a mortgage by virtue of the law, in the case of drawing up a mortgage, the corresponding agreement and mortgage are presented.

2.1. Procedure for state registration of a mortgage agreement

As mentioned earlier, state registration of a mortgage agreement concluded in a simple written form is carried out on the basis of a joint application of the pledger and the pledgee. If the mortgage agreement is made in notarial form, then the application of the pledgor or the pledgee is sufficient to carry out state registration.

What documents are required for state registration of a mortgage agreement?

According to paragraph 1 of Art. 20 of the Law on Mortgage for the state registration of a mortgage arising by virtue of a mortgage agreement, must be submitted:

– mortgage agreement and its copy;
– documents specified in the mortgage agreement as attachments;
– document confirming the payment of the state fee;
– other documents required for state registration of a mortgage in accordance with the legislation of the Russian Federation on state registration of rights to real estate and transactions with it.

Submission for state registration of a mortgage agreement

It should be noted that the provision of the Law on Mortgage regarding the number of copies of the mortgage agreement that must be submitted for state registration contradicts paragraph 5 of Art. 18 of the Registration Law. In particular, the specified norm of the Registration Law provides that the documents necessary for state registration of rights, expressing the content of transactions made in simple written form, and which are the basis for state registration of the presence, occurrence, termination, transfer, restriction (encumbrance) of rights, are not submitted in less than two original copies, one of which, after state registration of rights, must be returned to the copyright holder, the second is placed in the case of title documents.

In practice, this contradiction is resolved as follows. In the event that the mortgage agreement is made in notarial form, the provision of the Law on Mortgage applies, i.e. the original of the mortgage agreement and its notarized copy, which is placed in the case of title documents, are submitted for state registration. In the event that the agreement is drawn up in simple written form, the provision of the Registration Law applies, i.e. at least two original copies of the mortgage agreement are submitted for state registration, with one copy being placed in the case of title documents.

In a mortgage agreement, made in a simple written form, it seems appropriate to indicate the number of copies in which it is concluded, while it is necessary to indicate that one copy was drawn up for the body that carries out state registration of rights.

This recommendation is also applicable for a notarial mortgage agreement, but then at least two original copies of the agreement are submitted for registration, one of which is for the body carrying out state registration of rights, or in the agreement (in notarial form) it is indicated that the body carrying out state registration of rights a copy of the contract is submitted.

Submission for state registration of documents specified in the mortgage agreement as attachments

In this case, we are talking about the documents that are specified in the mortgage agreement, as an annex to the agreement. In practice, these can be a variety of documents: from a cadastral plan of a land plot to a report on the assessment of a real estate object.

When submitting documents for state registration, you must be guided by par. 4 p. 5 art. 18 of the Registration Law, which provides that other documents necessary for state registration of rights (except for acts of state authorities and acts of local self-government bodies, as well as acts of courts establishing rights to real estate) are submitted in at least two copies, one of which – the original after state registration of rights must be returned to the copyright holder.

In addition, copies of acts of state authorities and acts of local self-government bodies, as well as acts of courts establishing rights to real estate, are submitted for state registration of rights in at least two copies, one of which, after state registration of rights, must be returned to the copyright holder..

Submission for state registration of a document confirming the payment of the state fee

In accordance with paragraph 22 of Art. 333.33 of the Tax Code of the Russian Federation, the state duty is paid in the following amounts for state registration:

1) a mortgage agreement, including making an entry in the Unified State Register of Rights to Real Estate and Transactions with it about a mortgage as an encumbrance of rights to real estate:
individuals – 500 rubles; organizations – 2,000 rubles;

2) agreements on amending or terminating a mortgage agreement, including making appropriate changes to the entries in the Unified State Register of Rights to Real Estate and Transactions with It:
individuals – 100 rubles;
organizations – 300 rubles..

In the event that a mortgage agreement or an agreement including a mortgage agreement securing the fulfillment of an obligation, with the exception of an agreement entailing the emergence of a mortgage on the basis of the law, is concluded between an individual and a legal entity, the state duty for legally significant actions is charged in the amount established for individuals.

Taking into account the provisions of paragraph 4 of paragraph 5 of Art. 18 of the Registration Law, a document on payment of the state fee is submitted in at least two copies, one of which is the original after state registration of rights must be returned to the copyright holder.

Submission for state registration of documents required for state registration of a mortgage in accordance with the legislation of the Russian Federation on state registration of rights to real estate and transactions with it

By virtue of para. 3 p. 1 art. 13 of the Registration Law during state registration of rights, legal examination of documents and verification of the legality of the transaction is carried out. Considering the fact that the registering authority conducts a legal examination of the legality of the transaction, it is necessary to submit documents related to this transaction for state registration of the mortgage agreement.

For example, in accordance with paragraph 1 of Art. 78 of the Federal Law of December 26, 1995 N 208-FZ “On Joint Stock Companies” (hereinafter – the Law on Joint Stock Companies), a major transaction is a transaction (including a loan, credit, pledge, surety) or several interrelated transactions related to the acquisition , alienation or the possibility of alienation by the company, directly or indirectly, of property, the value of which is 25 or more percent of the book value of the company’s assets. In addition, by virtue of paragraph 1 of Art. 79 of the Law on Joint Stock Companies, a major transaction must be approved by the board of directors (supervisory board) of the company or the general meeting of shareholders. In this regard, for state registration it is necessary to submit documents on the approval of a major transaction or a document confirming that the mortgage is not a major transaction for the pledger.

If the pledgor is an individual, the consent of the pledgor to conclude a mortgage agreement or a document confirming that the pledgor is not married or did not exist at the time of acquiring ownership (lease rights) must be submitted for state registration. This requirement follows from clause 3 of Art. 35 of the Family Code of the Russian Federation, which provides that in order for one of the spouses to make a transaction for the disposal of real estate and a transaction that requires registration in the manner prescribed by law, it is necessary to obtain a notarized consent of the other spouse.

In addition, during state registration of a mortgage agreement, it is necessary to submit to the registering authority:

– constituent documents of the parties to the transaction (for legal entities) (clause 4 of article 16 of the Registration Law);
– powers of attorney and other documents that confirm the powers of representatives of the parties to the transaction who signed the mortgage agreement and loan agreement;
– technical passport for the real estate object (paragraph 10, clause 1 of article 17 of the Registration Law);
– cadastral plan of the land plot (paragraph 10, clause 1 of article 17 of the Registration Law);
– other documents required for state registration.

3. THE MAIN REASONS FOR THE SUSPENSION AND (OR) REFUSAL IN THE STATE REGISTRATION OF THE MORTGAGE AGREEMENT

The main reason that prevents the state registration of the mortgage agreement is the failure to submit all the necessary documents. For example, all powers of attorney confirming the powers of representatives of the parties to the transaction are not always submitted for state registration..

In practice, there are cases when, during a legal examination of the submitted documents, discrepancies in the description of the subject of the mortgage are revealed. It happens that after state registration of ownership of a real estate object, there have been changes in the description of the subject of the mortgage (for example, the inventory number or address of the real estate object has changed). In this case, it is necessary to make changes to the USRR.

It is not uncommon for cases when, during the state registration of a mortgage agreement, the subject of which is the right to lease a land plot, a legal examination reveals a violation of clause 1.1 of Art. 62 of the Law on Mortgages. In particular, according to this paragraph, if a land plot is transferred under a lease agreement to a citizen or a legal entity, the lessee of the land plot has the right to pledge the lease rights of the land plot within the term of the land plot lease agreement. In violation of this provision, the right to lease is transferred into a mortgage for a period exceeding the lease term. This means that in this case the loan agreement was concluded for a period exceeding the lease term.

Often, mortgage agreements are received for state registration that do not meet the requirements of the Mortgage Law. At the same time, the state registration of these contracts is suspended in accordance with the Registration Law. Subsequently, the parties to the agreement in order to eliminate the remarks of the state registrar to the mortgage agreement enter into an additional agreement. In this case, taking into account the provisions of paragraph 2 of Art. 10 of the Law on Mortgages, an additional agreement to a mortgage agreement cannot be considered as such, since the rights and obligations of the parties to the mortgage agreement arise from the moment of state registration of this agreement. Consequently, the legal relationship of the parties arises only from the moment of state registration of the mortgage agreement and it is not possible to make any changes to them. Thus, it is impossible to make any changes and additions to a mortgage agreement that is not registered by concluding an additional agreement.