The Law on Mortgage (Pledge of Property) establishes that the parties entering into legal relations conclude a corresponding agreement. According to its terms, one participant, the creditor of the obligation, has the right to satisfy his monetary claims. Collection is carried out from the value of the object, which is the subject of a pledge. The property in respect of which such an agreement is signed remains with the debtor in use and possession. Let us consider in more detail the law on mortgage (mortgage of real estate).
Normative regulation
For mortgage relations arising in accordance with the above contract, the rules on collateral apply. General requirements are present in the Civil Code. A pledge of enterprises, land, apartments, structures and other immovable objects arises insofar as the circulation of this property is allowed in accordance with the Federal Law.
Commitment
Mortgages can be established to ensure compliance with the terms of the loan agreement, loan agreement. An obligation may come from the sale, contract, lease, harm, unless otherwise provided in regulatory enactments. The law on mortgages (pledges) prescribes to keep records of the creditor and the debtor, if they act as a legal entity.
Requirements
The federal law on mortgages stipulates that the subject of the contract provides for the repayment of the principal debt in full or in part, as specified in the agreement. When concluding a transaction, interest may be provided. In this case, the mortgage, which is established in fulfillment of obligations, ensures their payment. Unless otherwise specified in the contract, the Federal Law on Mortgages also provides for the establishment of payments, which shall:
- As compensation for damage or as a penalty (forfeit, fine) in case of non-performance, delay in performance or other violation of the terms of the contract.
- In the form of interest established for the misuse of other people's money.
- How reimbursement of legal expenses and other costs associated with recovery of foreclosed property.
- As compensation for the costs of the implementation of the facility
The mortgage law allows for the establishment of a fixed amount of claims. It should not exceed the obligations of the debtor. Otherwise, the claims will not be considered secured by a mortgage. The exceptions are situations provided for in paragraphs 3 and 4 (above), as well as those established in art. 4 Federal Law No. 102.
Mortgage Law: Securing Extra Costs
If the creditor under the terms of the contract or because of the need to maintain the integrity of the property is forced to cover the costs of its maintenance or protection, he shall be entitled to reimbursement of these costs. Compensation of expenses is also provided in the event that the specified entity repays the liabilities relating to taxes and fees for this facility, utility bills. Reimbursement is due to mortgaged property.
Property Description
The federal law on mortgages (pledges) establishes categories of objects that can act as the subject of an agreement. When determining property, the normative act refers to paragraph 1 of Art. 130 GK. In accordance with the norm, property can be mortgaged under a mortgage agreement, the right to which is registered in the manner prescribed for the state registration procedure. In addition, the subject of the agreement may be:
- Land plots, other than those specified in Art. 63 commented law.
- Buildings, structures, enterprises and other capital construction facilities operated in the course of business.
- Apartments, houses, their parts, including one or several isolated rooms.
- Garden houses, cottages, garages and other buildings for consumer use.
- Ships / aircraft, space objects, inland navigation ships.
Important point
Buildings, including residential buildings directly related to the land allotment, may be the subject of a mortgage agreement subject to the rules provided for in art. 69 commented law. The lack of state registration of rights to plots for which state property is not delimited does not act as an obstacle to the occurrence of the legal relationship under consideration.
rules
The current law on mortgages establishes that the thing that acts as the subject of the contract and its affiliation is a whole. It is provided for in Art. 135 GK. This means that the assets are laid together with the main object of the transaction. Other may be provided for in the contract. A thing, a natural section of which is impossible without changing its purpose, cannot act as an independent subject of the transaction. The Mortgage Act prescribes the application of these rules to a lease, equity participation in construction.
The right to provide property
The Mortgage Act requires a lender. It consists in the fact that the property that will become the subject of the contract must belong to him on the basis of ownership or economic management. It is not allowed to secure claims with property withdrawn from circulation, which cannot be levied, and also for which privatization is provided or prohibited. The Law on Real Estate Mortgage allows the use of lease rights as the subject of a contract. Moreover, for the conclusion of the agreement, the consent of the lessor is necessary. Such an assumption is possible if the regulatory enactments or the contract for the provision of property does not provide otherwise. In established in paragraph 3 of Art. 335 CC cases, the consent of the legal owner of the object or of the person using it for economic management law.
Common joint ownership
Mortgages for such property may be established with the consent of all legal owners. It must be provided in writing. With shared ownership, a participant has the right to pledge his property without the consent of other co-owners. When foreclosing upon the sale of this part of the object, the rules established in Art. 250 and Art. 255 CC on the preemptive right to purchase.
Contract
It is in accordance with the general rules of the Civil Code. The contract must contain information about the subject of the mortgage, its assessment, the due date and the amount of obligations. The parties have the right to provide conditions for the possible recourse to property out of court or the procedure and methods for its implementation in resolving a dispute in court. They can be made out as a separate agreement. The provisions on the form and state registration formulated in the law on the mortgage agreement apply to it.
Thing
The contract must indicate the name of the object, as well as its location. The document provides a description sufficient to identify the subject. The contract should also indicate the law according to which the object belongs to the creditor, as well as the name of the body authorized to carry out state registration of property that has registered it. If the subject is a lease, then its term should be indicated. 
Rating
It is determined on the basis of legislative acts by agreement of the creditor and the debtor. In the event that the subject of the contract is land, then the requirements of Art. 67 of the Federal Law under consideration. The valuation of the object is given in the contract in monetary terms.With a mortgage of municipal / state property, this procedure is carried out in accordance with the requirements established in the Federal Law. If the subject of the contract is an object of incomplete construction owned by the state or the Moscow Region, the valuation is carried out at market value. This paragraph is included in the law of November 13, 2001 (Federal Law No. 143).
Conditions
The obligation, which is secured by the mortgage, is called in the contract indicating the amount, the basis in accordance with which it arose, as well as the period established for its performance. If it proceeds from any agreement, its parties, place and date of signing must be named. If the contract provides that the amount of the obligation will be established subsequently, an indication of the procedure and other essential conditions for its determination is necessary. Fulfillment of requirements may be carried out partially. In this case, the contract should contain the frequency of the relevant payments, as well as their size. If specific amounts to be paid are not established, the conditions must be provided under which they can be determined.
Additionally
In the event that the rights of the pledge holder (creditor) are certified by a mortgage (according to Article 113 of the law under consideration), then indications of this must be present in the mortgage agreement. The regulatory document, however, provides for exceptions. They are represented by the issuance of a mortgage document with a mortgage under the law. This paragraph was supplemented by Federal Law No. 18 on February 14, 2002.
