The rapid development of market relations in Russia allowed to gradually expand the scope of such an operation as a pledge of real estate. What is this method? How to get it right? Answers to these and other questions will be provided below.
Real estate pledge: concept
On the territory of the Russian Federation, one after another, economic reforms are being carried out. The market is becoming unstable, and therefore more and more debtors are becoming unable to timely fulfill their obligations. In this situation, any creditor would like to receive as many guarantees as possible. As a result of this, a logical question arises as to what kind of guarantees this may be. How to arrange and secure them? There are actually a lot of options. One of them is worth telling in more detail: this is a pledge of real estate.
Real estate pledge is the most important procedure in the market sphere. It helps to qualitatively intensify the investment activities of all parties to entrepreneurship. In addition, it effectively protects the interests of the lender. At the same time, a pledge of real estate is just a tool to help meet the basic requirements of the lender.
Almost the entire civilized world has long been using and practicing a loan agreement with a pledge of real estate. Russia does not lag behind here, despite the fact that there is a high complexity and length of processing of the presented procedure. Moreover, real estate collateral is very beneficial for lenders. Here are a few reasons:
- the price of real estate grows with time;
- the price of real estate is very high, and there is also a risk of loss;
- real estate is unlikely to disappear or get lost somewhere.
Mortgage concept
If we are talking about the economic sphere, then a loan secured by real estate is called a mortgage. There are two main concepts of mortgages:
- Mortgage relationship. This is the guarantee of real estate (land, houses, apartments, etc.), the purpose of which is to take a lender from a lender.
- Mortgage as a security. In this case, we are talking about a special mortgage - a debt instrument that satisfies the lender's rights to property that is secured.
At present, Russia has two bills that regulate actions with mortgaged real estate. The first law is the Federal Law "On the pledge of real estate", the second is the law "On the mortgage". Both documents indicate the need to comply with a number of guidelines set forth in a loan or hiring agreement. These settings include rent, inadmissibility of causing damage to property, the order of sale, etc. The main elements that may be involved in the mortgage agreement are also indicated. This includes all kinds of enterprises, land, apartments or houses, garages, as well as ships (sea or air).
It is worth telling about the main features of mortgage relations. Civil Code of the Russian Federation, Federal Law "On the pledge of real estate", as well as mortgage laws highlight the following points:
- A mortgage (as a legal relationship) is recognized as a pledge of property.
- A loan under the mortgage system is issued for a clearly defined period - usually from 15 to 35 years.
- A pledge of real estate by the debtor must exist for the entire mortgage term.
- The entire process of property pledging should be made out only on the basis of a security right (Civil Code of the Russian Federation).
- The entire mortgage procedure is carried out by special banks specializing in mortgages.
Real Estate Pledge Agreement
What should be included in a mortgage loan agreement? The answer to this question can again be provided only by the Russian Civil Code.
Mortgage Bank agrees with a citizen loan. All the necessary mortgage documentation is drawn up, including the most important document - a pledge agreement. The first thing to note is the subject of the submitted document. The subject can be any real estate legally executed and corresponding to all points of the Russian Civil Code. The pledge of real estate, among other things, involves special assessment procedures. We are talking about objects listed in the contract, which must have a special financial assessment. Only thanks to this the facilities will be liquid. The last thing worth noting here is the need for constant financial supervision of the borrower.
As soon as the contract is concluded and takes effect, it becomes impossible to amend it. A similar rule is established by the "Law on the pledge of real estate", as well as a special credit committee. At the same time, the document can still be slightly changed during the execution period. To do this, you need to draw up a special agreement (the details will be provided by the credit committee itself).
The contract must be drawn up in four copies: for the bank, notary, mortgagor and other registration authorities. Finally, the content of the document should look like this:
- information on property pledged;
- property valuation;
- terms, prices, executive sizes;
- information about the debtor and creditor;
- information on further use of the mortgaged object.
As soon as the registration of the contract is completed, the mortgage relationship will take effect.
Real Estate Pledge Act
Today's Russian legislation defines all the necessary provisions, guidelines and rules regarding the collateral system. All the nuances are regulated both in the Civil Code and in various federal laws and by-laws. According to part 4 of Article 15 of the Constitution of the Russian Federation, in case of possible contradictions of the Russian legislation with international treaties, international treaties will be a priority.
The law must contain an indication of the commencement of an obligation. In addition, the main property under bail must be clearly listed. In the case of mortgage lending, this is usually any type of property that can be disposed of in accordance with applicable law. Property that is in group (common) ownership can be transferred on bail only with the consent of all its owners.
The Civil Code of the Russian Federation states that it is possible to satisfy the requirements of a creditor only by a court decision, as well as the full repayment of debt for the entire value of the collateral. It is also worth noting that with an equity deposit, collection from the debtor can be carried out only in court. This also includes cases where the location of the debtor is not established: in this case, the creditor sends a notice to the court, and the relevant authorities begin search operations.
The last thing worth noting here is the possibility of litigation for both parties to the contract. The reasons here can be very different: for example, if the term of the pledge of real estate has expired, there are problems with the documentation, etc.
Collateral Requirements
The conclusion of a real estate pledge agreement between individuals is always a special case of a mortgage agreement. Such a document is concluded to ensure fulfillment of obligations under any transaction. Most often this is a loan agreement. What does this whole circuit look like? Most often in a similar way:
- Two citizens enter into a loan agreement after one of them receives a certain amount of money.
- The debtor gives the creditor a pledge in the form of real estate.
- Ultimately, the debt is either repaid or the lender collects the mortgaged property.
If it comes to legal entities, then it is worth moving away from the mortgage "framework". Here, the source may be some kind of financial transaction, a certain type of property, etc. It is immediately worth noting that the contract of pledge of real estate between legal entities always differs only in the cost of state registration. Therefore, in 2017, an individual will give 2 thousand rubles. But for a legal entity, registration of a pledge of real estate (state duty) will cost almost 23 thousand rubles.
The requirements for mortgaged property are for individuals and for legal entities almost always the same. The following points are highlighted here:
- Pledged property gives the lender the right to receive a timely repayment of the debt from the proceeds generated by the sale of the pledged item.
- A pledge may also be provided by a third party not directly participating in the contract. Nevertheless, this person must guarantee the fulfillment of his obligations as a borrower.
- The possession and use of the mortgaged property is carried out only by the borrower.
Real estate foreclosure
The information on the pledge of real estate given above already indicated the possibility of the pledgor to foreclose property on the security. Now it’s worthwhile to illustrate this situation in a little more detail.
The first thing worth noting is the lender's right to recover using both the judicial and non-judicial methods. In any case, the grounds for recovery in both cases will be the same. These include the following situations:
- Non-fulfillment by the debtor (pledger) of his obligations within the established time limits or incomplete fulfillment of his obligations.
- If the debtor did not notify the pledge holder of the possession of the pledged property of third parties (for example, rent, life or hereditary use, easement, etc.). In principle, if the debtor did not consider it necessary to notify the creditor of something important, and concealed some point, then the pledge holder has the right to begin the process of legal recovery.
- If the debtor has violated any rule on the use of property, he has not taken the necessary measures to preserve it; if there is a risk of losing the subject of collateral relations - it is precisely through the fault of the mortgagor.
As already mentioned, the mortgagee can begin the recovery and extrajudicial way. However, in this case we are talking about a real estate pledge agreement between legal entities. An individual must file an application with the courts (as a rule, with the district court at the location of the property). Only in this case will the principle of exclusive jurisdiction enshrined in the Code of Civil Procedure of the Russian Federation be qualitatively respected.
Collection lawsuit
The district court, taking the necessary documentation, makes an appropriate decision on the recovery of mortgaged property. The following points should be clearly reflected in this decision:
- Amount to be paid by the debtor to his mortgagee.
- Full identification of immovable property secured by the foreclosure (this is the address, cadastral number, area, state registration of the real estate pledge agreement, etc.).
- The procedure for the sale of mortgaged property.
- The minimum initial recovery price.
- A list of methods and measures to preserve real estate or to effectively conduct tenders.
Can a court grant a debtor a grace period? The answer is yes. The delay may be a maximum of one year. In this case, the pledge should not be somehow connected with the entrepreneurial activity of the debtor. During the postponement period, the pledgor will be able to fulfill all his obligations as a debtor: repay the loan, interest and penalties (which, incidentally, will only accumulate during the postponement period). A deferment cannot be granted if the creditor is in financial distress or in the event that one of the parties to the contract declared bankrupt.
It is worth telling about the main reasons why the court may refuse to recover the mortgagee. These include the following cases:
- The cash amount of an overdue obligation is less than five percent of the total value of property pledged on bail.
- The delay is less than three months.
And what is an extrajudicial process of foreclosure? Its use is possible only in the following cases:
- The parties entered into a notarial contract for pledging real estate.
- The foreclosure on the mortgaged property is carried out by a notary, not a court.
Extrajudicial execution is not allowed in the following cases:
- the owner of the mortgaged property is an individual;
- no one can find the debtor;
- drawn up several mortgage agreements;
- Real estate is mortgaged to several mortgagees at once;
- the subject of the pledge is an agricultural land plot;
- the subject of the pledge is cultural property.
Pledge of land
The laws of the Russian Federation state that absolutely any real estate - whether it be a house, structure or building - should be given on bail only together with the land. This is necessary, of course, for the full ownership of land by the creditor, if the property is still "leaking" from the debtor. At the same time, there is a right to the so-called "limited use" by the pledger of that part of the land that is given for servicing by the pledge holder (creditor). But for this the debtor is obliged to persuade the creditor to include in the contract only certain plots of land.
In this situation, tenants will not have to worry: they will all have the full amount of property rights after the complete transfer of the mortgaged property to the lender.
Mortgage of land
Finally, it is necessary to turn to the Federal Law No. 102 "On Mortgage" itself, namely, its ninth chapter. The information provided in this bill will help create the most holistic and complete picture of collateral relations.
Article 62 describes a number of territorial plots acting as the subject of a mortgage relationship. So, we are talking, in particular, about the plots owned by municipal or federal state authorities. Such territories are recognized as collateral relations only with the permission of local authorities.
And when the provision of a loan secured by real estate is not possible? Article 63 cites as an example a number of land plots that are not subject to mortgage relations. These are any state or municipal territories (an exception is given in article 62). In addition, plots whose area is less than the minimum established by law cannot be the subjects of a mortgage relationship.
Article 65 governs the possibility of the pledger erecting various kinds of buildings, structures or buildings in the territory pledged. So, the debtor has the right to do what he wants in the pledged territory, but only if this is not prohibited by the concluded agreement. But there is one important addition. So, if the mortgagor erects something on the pledged land that will significantly interfere with the lender, the latter will have the right to demand amendments to the mortgage agreement.
Getting Passive Income
The main points have already been indicated above when, with the help of mortgaged real estate, citizens get the opportunity to receive passive income. Now it’s worthwhile to illustrate such situations in a little more detail.
The most popular option for making a profit with a mortgaged property is rent. But here it is extremely important to ensure that the rent received can fully cover the mortgage, taxes and service costs. Do not forget that in the end there must also be profit. How to develop in such conditions? Still, the situation is extremely difficult. The best option here is registration on the security of real estate. This technique can significantly increase the number of investments; in this case, profit will increase. If the value of investments increases, then they borrow money on a mortgage, and additional property is acquired. In the future, you can increase the size of your own contributions. The problem here can be only one - the opportunity to get carried away and "go too far." So, you need to correctly calculate all the options and risks. Still, the chance to go broke by investing in real estate remains very great in such situations. Things become especially bad when the cost of mortgage investments falls. In this case, the debts begin to grow significantly, and it is dangerously possible if they exceed the value entrusted to bail property.
What conclusion can be drawn here? Works on obtaining passive income from mortgaged real estate are incredibly complex and voluminous. , .