Welcome! Today we’ll talk about what a mortgage is by force of law. Many people associate the term mortgage exclusively with the procedure for obtaining housing on credit, but it is a common misconception. A mortgage is a pledge of real estate, which will be encumbered under a loan agreement, installment plan or other obligations provided for by law. There are two concepts - mortgage by force of law and mortgage by force of contract , the features and differences of these types of transactions will be discussed below.

Any type of mortgage requires the presence of a property collateral (encumbrance). The most common type of mortgage is the purchase of real estate using bank funds. Banks most often practice issuing mortgages by force of law. From a legal point of view, such a transaction is more reliable, since the presence of an encumbrance is guaranteed; in this case, the borrower will not be able to challenge the ownership.

This type of obligation is formed when real estate is registered in the Unified State Register. A mortgage by force of law arises when ownership rights are transferred; this may be a contract of sale, rent, or other type of transaction.

As a rule, citizens search for housing options with an already approved loan decision in hand.

Having made the choice, a loan agreement is signed and a purchase and sale transaction is concluded. Following the completion of the transaction, the bank transfers funds to the seller of the property. In this case, although the borrower officially becomes the owner, the housing was purchased with borrowed funds, and it also acts as collateral.

The described case is the most striking example of how a mortgage arises by force of law. If the debt is not paid, the collateral property is transferred to the ownership of the creditor.

A mortgage, by force of law, arises not only when applying for a loan at a banking institution.

For example, if the purchase and sale agreement provides for the payment of funds to a private person in installments (installments), in this case the real estate is also under the seller’s encumbrance. During registration in the Unified State Register of the Russian Federation, a corresponding mark is placed in the encumbrance column.

Important! The presence of collateral sometimes needs to be documented; for this purpose, a mortgage is drawn up. It is concluded with a notary or a bank. Termination of the mortgage is provided only upon fulfillment of obligations under the agreement, namely repayment of the debt. Changing the mortgage holder is permissible. Such an operation may occur when refinancing a mortgage with another bank or selling a mortgage. You can read more about it and why it is needed on our website.

How is it different from a mortgage by contract?

In a mortgage by contract, the pledge arises in accordance with a mutual agreement or a separately drawn up mortgage agreement. When drawing up a loan agreement, the rights and obligations of the mortgagor and the mortgagee are negotiated individually.

Today in the Russian Federation, few banks practice issuing mortgages by virtue of an agreement.

The law provides for all options for targeted lending, but there are conditions under which registration of ownership occurs when certain conditions are met. For example, when a site needs to be privatized. In this case, it is possible to draw up an agreement between the mortgagor and the mortgagee on the fulfillment of the conditions and transfer of ownership.

This type of targeted lending can be divided into several types:

• if no encumbrance is imposed and in fact there is no collateral;
• when the borrower already owns a property as collateral;
• when, after processing a loan, the borrower receives ownership rights, and only then provides this property to the bank as collateral.

Contract mortgages are not as popular because they are riskier for lenders and they do not have a guarantee of repayment. If we consider the example given above (the bank loan is approved, the client is looking for housing). After concluding a loan agreement, the borrower is given a certain period of time to re-register the property in his name, then he must register a mortgage for this housing. Accordingly, the property is not officially encumbered and the bank will not be able to prove the fact of issuing a mortgage loan; it will not be possible to sue for ownership.

The main differences between a contractual and legal mortgage:

1. Emergence. Here the main difference is seen in the name itself: one type of mortgage arises on the basis of law, the other - an agreement.
2. Registration. The mortgage, by force of law, is registered automatically when the new owner submits documents about the transaction to the Unified State Register. Documents can be submitted to the authority by both the mortgagee and the pledgor separately. The mortgage by virtue of the agreement is registered separately, and documents are submitted to the Unified State Register in the presence of the mortgagee and the mortgagor.
3. Type of collateral. With a mortgage, by force of law, a target loan is issued, which means that the purchased property automatically becomes collateral. A contractual mortgage does not require the presence of collateral, but the borrower’s existing property can also become an encumbrance.
4. Availability of state duty. There is no duty for a legal mortgage; for a contractual one, it is charged upon registration of the transaction.

A legal mortgage is also more profitable from a financial point of view; there is no fee for its registration and it does not require additional registration. On the other hand, the presence of an encumbrance has its drawbacks, since the collateral cannot be sold without the consent of the bank. In addition, in order to remove the encumbrance, you need to contact the bank and take documents about the successful repayment of the debt, and if the creditor has changed ownership over the years of its existence or was reorganized, then removing the encumbrance will be quite problematic.

Regulations

The main regulatory documents on this issue are:

• Federal Law “On state registration of rights to real estate and transactions with it” No. 122,

A legal mortgage arises:

1. When drawing up a rental agreement (transfer of real estate subject to the maintenance of a dependent).
2. A mortgage for the purchase or construction of real estate using borrowed funds.
3. The sale of goods (real estate) on credit, the presence of an encumbrance on the property is carried out in accordance with Article 448 of the Civil Code of the Russian Federation (Civil Code of the Russian Federation),

According to the norms of the law, the following types of property are defined that can be purchased with a mortgage: apartments in a new building or on the secondary market, houses (mansions), land plots, rooms (shared property), cooperatives, garages, industrial premises.

Important! The parties may come to a mutual agreement when the encumbrance is not imposed. In this case, the purchase and sale agreement must note that by agreement of the parties, in accordance with Article 488 of the Civil Code of the Russian Federation, no encumbrance is imposed. Thus, the borrower becomes the full owner of the property purchased on credit.

Registration of a mortgage by force of law

Now you need to understand the features of registration. Each property upon change of owner is registered in the Unified State Register. You can find out about the presence of an encumbrance yourself through Rosreestr, MFC or online on the Unified State Register website. The fastest and most convenient way to generate an extract from the Unified State Register of Real Estate is via the Internet; to do this, you only need to set the parameters about the existing real estate. The resulting statement will also show mortgage records.

Important! The preparation and collection of documents is carried out by the home seller or realtor. However, before executing the contract, the bank checks all documents for authenticity, so cases of fraud are excluded. If the property is already pledged, the loan will be denied.

The procedure for registering a mortgage by force of law:

1. The client applies for a loan from the bank and enters into a purchase and sale agreement.
2. To register in the Unified State Register of Real Estate, it is necessary to prepare all documents, including a purchase and sale agreement and a loan agreement. If a mortgage has been drawn up, then it must be provided; additional attachments (if any) and copies are also needed. The owner of the mortgage has the right to demand that his information be entered into the Unified State Register of Real Estate as a mortgagee of the property. The registration entry is made within 1 month from the date of application.
3. Registration is carried out automatically; a corresponding mark is placed in the encumbrance column. The registration period is 5 working days.
4. For third parties, the emergence of a mortgage is considered from the moment of its registration.
5. The encumbrance is removed after repaying the debt from the bank.

If the borrower does not have the opportunity to personally submit documents to the Unified State Register, then he can use the help of a notary who certified the mortgage agreement between the mortgagee and the mortgagor. Notary services, of course, are paid.

It is impossible to determine which transaction scheme is more convenient. These two schemes are used in completely different loan programs. If a legal mortgage is given strictly for the purpose of purchasing real estate, then with a contractual one, you can use the funds received at your own discretion.

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1. Collateral concept
2. Types of collateral
3. Grounds for the occurrence of a pledge (agreement and law; examples of the occurrence of a pledge on the basis of the law);
4. Subject of collateral
5. Cases when property and rights cannot be the subject of pledge: 1). property that is not subject to foreclosure; 2). claims are inextricably linked with the identity of the creditor; 3). property the pledge of which is limited or prohibited by law
6. Conditions of the pledge agreement (material terms of the pledge agreement; conditions on the procedure for the sale of pledged property: judicial or extrajudicial procedure);
7. Pledge agreement form
8. State registration and accounting of collateral
9. Pros and cons of collateral
10. Judicial practice and publications about collateral on the site

In other words, if the debtor (pledgor) fails to fulfill his obligation, the pledged item is sold at auction, and the funds received are transferred to the creditor (pledgee). The pledgee may receive the pledged item in kind in the event of improper fulfillment of the obligation only in cases provided for by law.

Mortgage - type of collateral, in which the pledged property is transferred by the pledgor into the possession of the pledgee. The concept of “mortgage” is absent in the Civil Code of the Russian Federation.

2. Types of collateral

The Civil Code of the Russian Federation provides for the following types of collateral:

• pledge of goods in circulation (clause 1 of Article 357 of the Civil Code of the Russian Federation);
• pledge of things in a pawnshop (Article 358 of the Civil Code of the Russian Federation);
• pledge of rights of obligation (Articles 358.1 - 358.8 of the Civil Code of the Russian Federation);
• pledge of rights under a bank account agreement (Articles 358.9 - 358.14 of the Civil Code of the Russian Federation);
• pledge of rights of participants of legal entities (Article 358.15 of the Civil Code of the Russian Federation);
• pledge of securities (Articles 358.16, 358.17 of the Civil Code of the Russian Federation).

Types of collateral are distinguished on the following grounds:

At the location of the pledged property(Article 338 of the Civil Code of the Russian Federation):

• firm pledge - without transfer of property. A type of firm pledge is the pledge of goods in circulation (Article 357 of the Civil Code of the Russian Federation);
• mortgage - with the transfer of the pledged property. A type of mortgage is a pledge in a pawnshop (Article 358 of the Civil Code of the Russian Federation).

On the subject of collateral:

• pledge of property;
• pledge of rights.

According to the degree of connection of the mortgaged property with the land:

• pledge of real estate (mortgage).

A special type of collateral is a subsequent pledge (Article 342 of the Civil Code of the Russian Federation).

3. Grounds for the emergence of a pledge

The grounds for the emergence of a pledge are established by Article 334.1 of the Civil Code of the Russian Federation.

As a general rule, a pledge between the pledgor and the pledgee arises on the basis agreement. At the same time, in cases established by law, a pledge arises upon the occurrence of circumstances specified in the law ( statutory bail).

Examples of the emergence of a pledge based on the law

In particular, the norms of the Civil Code of the Russian Federation and other federal laws establish the following circumstances under which a pledge arises:

Goods sold on credit are pledged to the seller until payment is made.

Unless otherwise provided by the purchase and sale agreement, from the moment the goods are transferred to the buyer and until payment is made, goods sold on credit are recognized as being pledged by the seller to ensure the buyer fulfills his obligation to pay for the goods (Clause 5 of Article 488 of the Civil Code of the Russian Federation).

Goods sold on credit with an installment plan are pledged by the seller

The rules provided for in paragraphs 2, 4 and 5 of Article 488 of this Code (clause 3 of Article 489 of the Civil Code of the Russian Federation) apply to an agreement for the sale of goods on credit with the condition of payment in installments.

The right of pledge of the rent recipient to the real estate transferred for rent payment

When transferring a plot of land or other real estate for payment of rent, the recipient of the rent, as security for the obligation of the rent payer, acquires the right of pledge over this property (clause 1 of Article 587 of the Civil Code of the Russian Federation).

The holder of the pledge certificate has the right to pledge the goods.

The holder of the pledge certificate, other than the holder of the warehouse receipt, has the right to pledge the goods in the amount of the loan issued under the pledge certificate and interest on it. When pledging goods, a note about this is made on the warehouse receipt (clause 3 of Article 914 of the Civil Code of the Russian Federation).

The developer's land plot and the real estate on it are pledged to the participants in shared construction

To ensure the fulfillment of the obligations of the developer (mortgagor) under the agreement, from the moment of state registration of the agreement, the participants in shared construction (mortgagors) are considered to be pledged for the construction (creation) of an apartment building and (or) other real estate object, which will include shared construction objects , a land plot owned by the developer, or the right to lease, the right to sublease the specified land plot and an apartment building and (or) other real estate object being built (created) on this land plot.

Pledge in the manner established by Art. Art. 13 - 15 of the Law “On Participation in Shared Construction”, the following obligations of the developer must be ensured under all contracts concluded for the construction (creation) of an apartment building and (or) other real estate on the basis of one construction permit:

• return of funds contributed by a participant in shared construction in cases provided for by the specified Law and (or) agreement;
• payment to a participant in shared construction of funds due to him in compensation for losses and (or) as a penalty (fine, penalty) due to non-fulfillment, delay in fulfillment or other improper fulfillment of the obligation to transfer the shared construction object, and other due to him in accordance with the agreement and ( or) federal laws of funds (Articles 13 - 15 of Law No. 214-FZ “On participation in shared-equity construction of apartment buildings and other real estate and on amendments to certain legislative acts of the Russian Federation”).

State and municipal property purchased in installments is pledged until payment is made.

“From the moment of transfer to the buyer of the property acquired in installments and until the moment of full payment, the specified property, by virtue of this Federal Law, is recognized as being pledged to ensure the buyer’s fulfillment of his obligation to pay for the acquired state or municipal property.

If the buyer violates the deadlines and procedure for making payments, foreclosure is applied to the pledged property in court" (clause 6, article 35 of the law of December 21, 2001 N 178-FZ "On the privatization of state and municipal property" (as amended on July 3. 2016)).

Pledge of land purchased with loan funds (mortgage)

Unless otherwise provided by federal law or an agreement, a land plot acquired using credit funds from a bank or other credit organization or funds from a targeted loan provided by another legal entity for the acquisition of this land plot is considered to be pledged from the moment of state registration of the borrower's ownership of this land plot. land plot (clause 1 of article 64.1 "On mortgage (mortgage of real estate)".

Pledge of residential premises purchased or built with loan funds (mortgage)

"Residential premises acquired or built in whole or in part using credit funds from a bank or other credit organization or funds from a targeted loan provided by another legal entity for the acquisition or construction of the specified residential premises are pledged from the moment of state registration of the mortgage in the Unified State Register of Real Estate" (Clause 1, Article 77 of the Law of July 16, 1998 N 102-FZ (as amended on July 3, 2016) “On mortgage (real estate pledge)".

The rules of law prohibiting foreclosure on the property of a debtor organization are contained, for example, in the following articles of federal laws:

Civil Code of the Russian Federation:

• . Property of a religious organization
• . Peculiarities of foreclosure on property according to requirements for the parties to the escrow agreement
• . Segregation of property under trust management
• . Exclusive right to a secret invention

2). Requirements are inextricably linked to the identity of the creditor

• Article 21. Preliminary permission of the guardianship and trusteeship authority affecting the exercise of property rights of the ward

As a general rule, a pledge agreement must be concluded in simple written form (Articles 160, 161 of the Civil Code of the Russian Federation), except if the law or agreement does not provide for a notarial form of a pledge agreement ().

Failure to comply with the established rules on the form of the pledge agreement entails its invalidity.

8. State registration and accounting of collateral

State registration and accounting of the pledge is carried out in order to ensure the rights of both the pledgee and third parties.

The mandatory state registration of a pledge agreement is established in the following cases ():

• if, in accordance with the law, the rights confirming the ownership of property to a certain person are subject to state registration (Article 8.1 of the Civil Code of the Russian Federation);
• if the subject of the pledge is the rights of a participant (founder) of a limited liability company (Article 358.15 of the Civil Code of the Russian Federation).

For other property pledged, different rules apply.

The relationship of pledge of securities is regulated by the provisions of Article 358.16 of the Civil Code of the Russian Federation (“Pledge of Securities”).

Information about the pledge of rights under a bank account agreement is taken into account in accordance with the rules of Art. 358.11 Civil Code of the Russian Federation.

The register of notifications about the pledge of movable property is maintained in the manner established by the legislation on notaries (see Chapter XX.1 “Registration of notifications about the pledge of movable property” of the Fundamentals of the legislation of the Russian Federation on notaries).

The pledgee, in relations with third parties, has the right to refer to the right of pledge belonging to him only from the moment of making an entry on the registration of the pledge, except in cases where the third party knew or should have known about the existence of the pledge earlier. The absence of an accounting record does not affect the relationship of the pledgor with the pledgee.

Amendments to the notice of pledge are permitted in the following cases:

• when information about the pledge changes (changes about the item, the value of the item, the deadline for fulfilling obligations, etc.);
• upon termination of the collateral relationship. The procedure for amending the notice of pledge or terminating the pledge is regulated in more detail by the provisions (Article 103.6 of the Fundamentals of the Legislation of the Russian Federation on Notaries).

9. Pros and cons of collateral

The pros and cons of collateral are as follows.

1. Certain guarantees that in the event of failure to fulfill obligations by the debtor, the creditor will receive satisfaction from the pledged property.

2. The subject of the pledge can be any property: movable and immovable, rights under a bank account agreement, property rights, exclusive rights, shares in the authorized capital, shares. We wrote about exceptions above.

3. The pledgee’s obligations are satisfied preferentially before other creditors (i.e., the pledgee’s claims are satisfied first, and only then the claims not secured by the pledge).

4. It is prohibited to dispose of property that is pledged without the permission of the pledgee, and if this prohibition is violated, the pledge does not terminate even in the event of alienation of the property to a bona fide purchaser.

5. The subject of the pledge may be things and property rights that the pledgor will acquire in the future. In this case, the right of pledge arises from the moment the pledgee acquires the relevant property or right.

6. The pledgor under a pledge agreement can be not only the debtor himself, but also a third party. That is, to secure the debtor’s obligation, any person can pledge his property.

7. A pledge (i.e. a pledge with the transfer of an item to the pledgee) provides more guarantees of ensuring the fulfillment of obligations, since the physically pledged property is located with the creditor-pledgee.

8. All expenses of the creditor are paid from the value of the pledged item - interest, penalties, losses caused by delay in execution, as well as the expenses of the pledgee necessary for the maintenance of the pledged item and collection (Article 337 of the Civil Code of the Russian Federation).

The disadvantages of collateral include the following circumstances:

1. If the pledged movable property is not transferred to the pledgee, there is a possibility of its alienation by an unscrupulous counterparty, which may lead to the impossibility of identifying its new owner and location and, as a consequence, the impossibility of selling this property at auction.

2. The procedure for foreclosure on pledged property and its sale at auction by bailiffs is quite labor-intensive and lengthy, which, of course, does not lead to the prompt restoration of the financial position of the creditor.

10. Judicial practice and publications about collateral for the site

• Apartments under an agreement for participation in shared construction cannot be pledged to a bank (clause 15 of the Review of Practice..., approved by the Presidium of the Supreme Court of the Russian Federation on December 4, 2013)
• If the loan agreement is secured by both a pledge and a guarantee, then the termination of one method of security does not terminate the validity of the other (clause 6 of the Review of Judicial Practice..., approved by the Presidium of the Supreme Court of the Russian Federation on May 22, 2013)
• Foreclosure of real estate pledged as security under a loan agreement (clause 12 of the Review of Judicial Practice..., approved by the Presidium of the Supreme Court of the Russian Federation on May 22, 2013)
• Objections to AHML's statement of claim for debt collection under a loan agreement, foreclosure of pledged property

An example of the emergence of a pledge by force of law is the rules establishing that:

1. Under a sales contract, from the moment the goods are transferred to the buyer and until payment, goods sold on credit are recognized as being pledged to the seller to ensure the buyer fulfills his obligation to pay for the goods (clause 5 of Article 488 of the Civil Code);

2. When transferring a plot of land or other real estate for payment of rent, the recipient of the rent, as security for the obligation of the rent payer, acquires the right of pledge over this property (clause 1 of Article 587 of the Civil Code);

3. When purchasing or constructing a residential house or apartment in whole or in part using borrowed funds from a bank or other credit organization or a targeted loan provided by a legal entity, the specified house or apartment is pledged to the bank (other credit organization) or legal entity that provided for for these purposes, funds from the moment of registration of the borrower’s ownership rights (clause 1, article 77 of the Federal Law of July 16, 1998 No. 102-FZ

4. When purchasing a land plot using credit funds from a bank or other credit organization or funds from a targeted loan provided by another legal entity for the acquisition of this land plot, such land plot is considered to be pledged from the moment of state registration of the borrower’s ownership of this land plot. If the corresponding land plot is leased, then a mortgage arises on the right to lease from the moment of state registration of the lease agreement (Clause 1, Article 64.1 of the Law on Mortgage) (otherwise may be provided by law or agreement);

5. When constructing a building or structure on a land plot using credit funds from a bank or other credit organization or funds from a targeted loan, such land plot is considered to be pledged from the moment of state registration of ownership of the acquired, constructed or under construction building or structure, or from the moment receipt by the body carrying out state registration of rights of notification of the mortgagor and mortgagee about the conclusion of a loan agreement (loan agreement with the condition of intended use) with the attachment of the specified agreement. The right to lease such a plot of land is also considered to be pledged (Clause 1, Article 64.2 of the Mortgage Law) (otherwise may be provided by law or agreement);

6. When the developer attracts funds from citizens and legal entities under agreements for participation in shared construction for the construction of an apartment building and (or) other real estate, then the land plot owned by the developer. Or the right to lease a land plot and an apartment building and (or) other real estate object being built (created) on this land plot are considered to be pledged to the participants in shared construction from the moment of state registration of the agreement for participation in shared construction (Article 13 of the Federal Law of December 30 2004 No. 214-FZ "On participation in shared construction of apartment buildings and other real estate and on amendments to certain legislative acts of the Russian Federation");

7. If, when pledging property rights, the debtor of the pledgor, before the pledgor fulfills the obligation secured by the pledge, fulfills his obligation, then everything received by the pledgor becomes the subject of the pledge, of which the pledgor is obliged to immediately notify the pledgee (Clause 1 of Article 58 of the Law of the Russian Federation of May 29 1992 No. 2872-I “On Pledge”).

The Civil Code distinguishes between two types of collateral:

1) pledge with the transfer of property to the pledgee (mortgage);

2) a pledge with the property remaining with the pledgor.

By agreement of the parties, the property may be left with the pledgor under lock and key and the seal of the pledgee or with the imposition of signs indicating a pledge (firm pledge).

The pledgee, who has or should have had the pledged property, has the right to reclaim it from someone else’s illegal possession, including from the possession of the pledgor; he can also protect his rights by filing a negative action.

The parties to a pledge relationship are the pledgor and the pledgee. The pledgor is the person to whom the pledged item belongs by right of ownership or right of economic management. These rights give him the opportunity to dispose of property. However, enterprises that own property under the right of economic management can pledge real estate only with the consent of the owner (Article 295 of the Civil Code). The pledgor can be either the debtor under the main obligation or a third party.

The pledgee is the person who owns the right of pledge; he is the creditor of the main obligation.

He has the right to transfer his rights under the pledge agreement to another person in compliance with the general rules on the assignment of claims (Articles 355, 382-390 of the Civil Code).

When transferring a debt to another person (that is, when replacing the debtor) under an obligation secured by a pledge, the pledge is terminated if the pledgor has not given the creditor consent to be responsible for the new debtor (Article 356 of the Civil Code).

According to paragraph 1 of Art. 336 of the Civil Code “the subject of pledge can be any property, incl. things and property rights (claims), with the exception of property withdrawn from circulation, claims inextricably linked with a person, in particular claims for alimony, compensation for harm caused to life or health, and other rights, the assignment of which to another person is prohibited by law.” Pledge of such things that may arise in the future is also allowed, for example, pledge of future harvest, livestock offspring, etc.

Reasons for the emergence of a mortgage - this phrase refers to factors as a result of which one of the following types of mortgage arises:

1. Mortgage by force of law.
2. Mortgage by virtue of an agreement.

Mortgage by force of law

A mortgage by force of law (legal mortgage) arises as a result of the occurrence of circumstances specified in the federal law (Article 1, paragraph 2 of the Federal Law of July 16, 1998 N 102-FZ “On Mortgages”) (hereinafter referred to as Law N 102-FZ) . Such a mortgage arises exclusively with a targeted loan for the purchase of housing, and therefore its registration is necessarily accompanied by a change in the owner of the property.

In simple words: a mortgage by force of law is when an apartment purchased with credit funds is registered as the property of the buyer-borrower and when the same apartment becomes collateral for the loan taken (which is a standard scheme for providing a mortgage loan).

Example: the borrower takes out a targeted loan from a bank to purchase an apartment, which becomes collateral for this loan.

Russian legislation provides for the following grounds for the emergence of a legal mortgage:

• Mortgage of residential houses and apartments. Residential premises (residential houses and apartments) purchased or built using loan funds from a bank (or any other credit organization) are pledged to the lender from the moment of state registration of the mortgage (Clause 1, Article 77 of Law No. 102-FZ). The same applies to the purchase of land (clause 1 of Article 64.1 of Law N 102-FZ), as well as the acquisition and construction of non-residential premises (Article 69.1 of Law N 102-FZ).
• Selling on credit. Unless otherwise provided by the purchase and sale agreement, the goods sold on credit from the moment of its transfer to the buyer and until payment are recognized as pledged by the seller (clause 5 of Article 488 of the Civil Code of the Russian Federation). The same rules apply to the sale of goods on credit, with the condition of payment in installments (clause 3 of Article 489 of the Civil Code of the Russian Federation).
• Annuity (lifetime maintenance with dependents). When transferring any real estate for payment of rent, the recipient of the rent, as security for the payer’s obligation, acquires the right of pledge on this property (clause 1 of Article 587 of the Civil Code of the Russian Federation).

Registration of a mortgage by force of law

State registration of a mortgage by force of law occurs simultaneously with the registration of a purchase and sale agreement. That is, in the certificate for the apartment you purchased, in the “encumbrances” section, it will already be indicated that the housing was purchased using credit funds and cannot be sold without the consent of the lender (bank).

A legal mortgage is registered on the basis of an application from the mortgagee (borrower) or the mortgagor (creditor), or a notary who certified the agreement that led to the emergence of this type of mortgage (Clause 2 of Article 20 of Law No. 102-FZ). Read more about mortgage registration.

Note! For state registration of a mortgage arising by force of law, no fee is charged (clause 6, clause 3, article 333.35 of the Tax Code of the Russian Federation).

Mortgage by agreement

A mortgage by virtue of an agreement (contractual mortgage) arises on the basis of a mortgage agreement (Article 1, paragraph 2 of Law No. 102-FZ). In other words, the emergence of such a mortgage becomes possible only if there is a special agreement between the parties on the pledge.

In simple words: mortgage by virtue of an agreement - this is when the buyer-borrower:

1. Prepares an apartment purchased with credit funds into your own property (while receiving a “clean” certificate, i.e., without encumbrance).
2. Collects a package of documents(this is usually given up to 3 months) precisely for the apartment that is expected to become the subject of collateral (i.e. in this case, the subject of mortgage collateral can be both the loan apartment and any other real estate owned borrower).
3. Together with the lender (bank) draws up and registers a separate mortgage agreement(only after this is an encumbrance placed on the property - that is, it is from this moment that the mortgage comes into force).

Example: The borrower takes out a targeted loan to purchase real estate secured by existing housing.

By agreeing to a negotiated mortgage, the bank takes a big risk. After all, until the mortgage agreement is registered, the lender (bank) will formally not have any rights to the property purchased under mortgage lending. Credit institutions find a way out of this situation in guarantors. For the period of time until the living space is pledged, they require the borrower to provide several individuals or legal entities ready to vouch for it. At the same time, for the same period of time, banks usually increase the interest rate on the loan.

Registration of a mortgage by virtue of an agreement

A mortgage by virtue of an agreement is not registered together with the apartment purchase and sale agreement, as is the case with a legal mortgage, but separately, on the basis of a separate mortgage agreement.

State registration of a mortgage by virtue of an agreement is carried out on the basis of a joint application of the mortgagee and the mortgagor. If the mortgage arose by virtue of a notarized mortgage agreement, then registration can be carried out on the basis of an application from a notary who certified this agreement (clause 1 of Article 20 of Law No. 102-FZ). You can find out more about registering a mortgage.

Mortgage: by force of law, by force of contract - differences

So, how does a mortgage by force of law differ from a mortgage arising by virtue of an agreement:

Civil Code, N 51-FZ | Art. 334 Civil Code of the Russian Federation

Article 334 of the Civil Code of the Russian Federation. The concept of collateral (current version)

1. By virtue of a pledge, a creditor under an obligation secured by a pledge (pledgee) has the right, in the event of non-fulfillment or improper performance by the debtor of this obligation, to receive satisfaction from the value of the pledged property (the subject of the pledge) preferentially before other creditors of the person who owns the pledged property (the pledgor).

In cases and in the manner provided by law, the pledgee's demand may be satisfied by transferring the pledged item to the pledgee (retaining it with the pledgee).

2. The pledgee, in preference to other creditors of the pledgor, has the right to obtain satisfaction of the claim secured by the pledge also at the expense of:

insurance compensation for loss or damage to the pledged property, regardless of whose benefit it is insured, unless the loss or damage did not occur for reasons for which the pledgee is responsible;

compensation due to the pledgor provided in exchange for the pledged property, in particular if the pledgor's ownership of the property that is the subject of the pledge is terminated on the grounds and in the manner established by law, due to seizure (redemption) for state or municipal needs, requisition or nationalization, as well as in other cases provided by law;

income due to the pledgor or pledgee from the use of the pledged property by third parties;

property due to the pledgor upon the fulfillment by a third party of an obligation, the right to demand the fulfillment of which is the subject of the pledge.

In the cases specified in paragraphs two to five of this paragraph, the pledgee has the right to demand the amount of money or other property due to him directly from the obligated person, unless otherwise provided by law or agreement.

3. Unless otherwise provided by law or contract, if the amount received as a result of foreclosure on the pledged property is insufficient to repay the claim, the pledgee has the right to satisfy his claim in the outstanding part at the expense of other property of the debtor, without taking advantage of the advantage based on the pledge.

If the amount received as a result of foreclosure on the pledged property exceeds the amount of the pledgee's claim secured by the pledge, the difference is returned to the pledgor. The agreement on the mortgagor’s renunciation of the right to receive the specified difference is void.

4. The general provisions on pledge apply to certain types of pledge (Articles 357 - 358.17), unless otherwise provided by the rules of this Code on these types of pledge.

The rules of this Code on real rights are applied to the pledge of real estate (mortgage), and to the extent not regulated by these rules and the law on mortgage, the general provisions on pledge.

5. Unless otherwise follows from the essence of the pledge relationship, a creditor or other authorized person in whose interests a ban on the disposal of property was imposed (Article 174.1) has the rights and obligations of the pledgee in relation to this property from the moment the court decision by which the requirements come into force such creditor or other authorized person has been satisfied. The order of satisfaction of these requirements is determined in accordance with the provisions of Article 342.1 of this Code according to the date on which the corresponding prohibition is considered to have arisen.

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Commentary to Art. 334 Civil Code of the Russian Federation

1. In contrast to the previously valid version of the commented article, this one provides the concept of pledge, its types, the main provisions of legal regulation separately from the grounds for the emergence of pledge, which are discussed in Art. 334.1 Civil Code of the Russian Federation.

The previous edition of the Civil Code of the Russian Federation contained the following definition of a pledge: “By virtue of a pledge, a creditor under an obligation secured by a pledge (pledgee) 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 the person who owns this property (the pledgor), with the exceptions established by law." An identical definition of a pledge was contained in the Law of the Russian Federation of May 29, 1992 N 2872-1 “On Pledge,” which lost legal force from July 1, 2014, as a method of securing an obligation in which the creditor-pledgee acquires the right, in the event of the debtor’s failure to fulfill the obligation, to receive satisfaction at the expense of the pledged property preferentially before other creditors, with exceptions provided by law (Article 1).

In the commented article, the definition of the term “pledge” indicates the right of the pledgee to receive satisfaction from the value of the pledged property (the subject of the pledge) not only for the debtor’s failure to fulfill the pledge obligation, but also in the event of improper fulfillment of such an obligation; the provision establishing special cases established by law, when the general rule on the foreclosure of the pledgee on the pledged property under the debtor's pledge obligation in priority order over other creditors, is excluded, i.e. the scope of legal regulation of the norms on pledge has been expanded.

Clause 1 of the commented article provides the following concept of pledge: by virtue of the pledge, the creditor under the obligation secured by the pledge (pledgee) has the right, in the event of non-fulfillment or improper performance by the debtor of this obligation, to receive satisfaction from the value of the pledged property (subject of pledge) preferentially before other creditors of the person to whom belongs to the pledged property (mortgagor).

Based on Art. 314 of the Civil Code of the Russian Federation, if a pledge secures an obligation that does not provide for a deadline for its fulfillment and does not contain conditions allowing to determine this period, or an obligation whose fulfillment period is determined by the moment of demand, the pledgee has the right to foreclose on the subject of the pledge if the debtor has not fulfilled the secured pledge of an obligation within seven days from the date the creditor presents a demand for its fulfillment (unless the obligation to fulfill it within another period of time does not arise from the law, other legal acts, terms of the obligation, business customs or the essence of the obligation. It is established that the subject of the pledge can be transferred to the pledgee (retained from the pledgee) in the manner and cases established by law (Civil Code of the Russian Federation and other laws) (paragraph 2, paragraph 17 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 17, 2011 N 10).

The Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 N 6/8 stated that when resolving disputes, it should be taken into account that in the event of a debtor’s failure to fulfill an obligation secured by a pledge, the pledgee has the right, preferentially over other creditors, to receive satisfaction from the value of the pledged property ( Articles 334, 349 of the Civil Code of the Russian Federation).

Moreover, this is precisely a right, but not an obligation. This is confirmed in judicial practice. Thus, the bank, instead of foreclosure on the collateral, went to court with a demand to collect the debt under the loan agreement in the usual manner. The bank was given as collateral the promissory notes issued by it as a drawer, maturing at sight. The borrower's application for set-off was not accepted by the court, since the borrower is not the bank's creditor on the pledged bills, and, thus, the requirements of Art. 410 of the Civil Code of the Russian Federation on termination of obligations by offset. The court concluded that when a promissory note is pledged to the creditor, for which he is the debtor-drawer, the obligations under the main agreement cannot be terminated by offset if the bill was pledged by a third party (clause 9 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 21 .2002 N 67).

At the same time, the following should be taken into account: the debtor’s transfer of his own bill of exchange as collateral is impossible (see Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated April 11, 2008 N A43-18947/2007-22-526).

At the same time, the Resolution of the Plenum of the Armed Forces of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 N 6/8 noted the following: the current legislation does not provide for the possibility of transferring property that is the subject of a pledge to the ownership of the pledgee. Any agreements providing for such a transfer are void, with the exception of those that can be qualified as compensation or novation of an obligation secured by a pledge (Articles 409, 414 of the Civil Code of the Russian Federation). Obviously, such a possibility is currently provided.

Judicial practice under Article 334 of the Civil Code of the Russian Federation:

• Decision of the Supreme Court: Determination N 304-ES17-14702, Judicial Collegium for Economic Disputes, cassation

  At the same time, the courts correctly noted that the provisions of paragraph 2 of Article 334 of the Civil Code of the Russian Federation as amended by Federal Law No. 367-FZ of December 21, 2013 were not applied to the legal relations under consideration, since the pledge in relation to the debtor’s property arose before July 1, 2014, that is, before the entry into force the said law...

• Decision of the Supreme Court: Determination N 301-ES17-9716, Judicial Collegium for Economic Disputes, cassation

  The bankruptcy trustee of the debtor submitted an objection to this demand of the bank. In resolving the dispute, the courts of the first and appellate instances proceeded from the fact that the lease agreements for the pledged property were concluded after the amendments to paragraph 2 of Article 334 of the Civil Code of the Russian Federation as amended by the Federal Law of December 21, 2013 No. 367-FZ “On Amendments to Part One” came into force Civil Code of the Russian Federation and the invalidation of certain legislative acts (provisions of legislative acts) of the Russian Federation" (hereinafter referred to as Law No. 367-FZ), in connection with which the proceeds from the rental of the collateral should be distributed primarily to the bank as the secured creditor. The district court agreed with the findings of the lower courts...

• Decision of the Supreme Court: Determination N 301-ES16-16279, Judicial Collegium for Economic Disputes, cassation

  Recognizing the status of a secured creditor for the company "CTK - Trans" within the framework of a debtor's bankruptcy case, the courts considered that the pledge arose by virtue of paragraph 5 of Article 334 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code) from the date the decision of the Arbitration Court of Vladimirskaya entered into legal force region dated March 19, 2015 in case No. A11-10247/2014...