The encumbrance of property rights - what is it? What options can be, what formalities should not be forgotten? You will learn about all of this below.
The concept of encumbrance
The encumbrance of the right of ownership relates primarily to real estate (land, apartments, houses and buildings connected with land). For example, a metal garage that is easy to move from one place to another is not real estate.
In general, an encumbrance is a prohibition to carry out transactions with the property or any actions that can reduce the value of an object or make it inaccessible to interested parties. Restrictions affect the rights of owners and are considered a certain guarantee for the second party to the transaction.
Most often they are imposed by the will of the owner, however, consent to the procedure is the only way to get what you want, for example, a mortgage in a bank.
Types of encumbrances
Restrictions can be offered in several options:
- mortgage;
- rent, rental, easement, life-long living;
- other forms of encumbrance of rights to housing;
- seizure of property.
What are the ways to encumber ownership?
- deal or contract;
- will;
- provision of law;
- judicial act.
Mortgage Features
Mortgages are characterized by a prohibition to make an exchange, sale, transfer to a new pledge of the object. Some banks even seek a ban on registering in a mortgaged apartment family members of the borrower not specified in the loan agreement.
The encumbrance of ownership is established for the duration of the debt between the bank and the client. As soon as the debt is paid, the deposit is withdrawn, and the owner can do whatever he wants with the apartment.
And one more thing: the bank is entitled to transfer the debt to another credit institution. Mortgage bonds are issued, which are resold. The terms of the loan agreement do not change. They may not report the change of the bank, which causes difficulties: it is not known to whom to pay now.
Mortgage applies only to immovable objects. It is governed by the Law on Mortgages. How the registration of encumbrance of ownership is carried out is described in the law on registration of real estate rights.
Rent
The essence of the agreement is the transfer of ownership of an apartment, house or other real estate to the payer of rent. He undertakes, in turn, to provide services or to make periodic cash payments according to the contract.
If the payer for some reason does not fulfill obligations, the former owner has the right to return his property. By law, the transfer of an encumbered land plot, enterprise to another person means the transfer of the obligation to pay rent. She will be the very burden.
The rent is terminated either after the expiration of the payment period according to the contract, or after the death of the recipient.
Transactions aimed at terminating the right of ownership, transfer to lease or use are possible only with the consent of the recipient of the annuity.
Rent
Lease is the transfer of property for the period prescribed in the contract for cash payments according to the schedule. Renting can have many options, but something remains the same.
A tenant who faithfully performs his duties has the right to maintain the contract. What does it mean? The new owner of the property cannot, at his will, terminate the contract concluded by the former owner prematurely. Moreover, he does not even have the right to change his conditions only at will.
The lease right is considered an asset: it can also be transferred to a third party in the bankruptcy process for the tenant's debts.
Selling property, the owner is obliged to inform that the property is on lease. Among the negative consequences may be damages and the requirement to terminate the contract.
Easement
The easement is peculiar to the sphere of land relations. The owner must provide part of the site for the passage or passage of other persons. One example would be the installation of a power pole or pipe laying. However, there are no restrictions on the establishment of an easement affecting a building or structure. The peculiarity of easement in its establishment is when it is impossible to otherwise provide other persons with access to their property or the benefits of civilization.
Encumbrances on the ownership of a dwelling
An example is the testament refusal. It represents the obligation of the heir to provide property or property to the person indicated in the will.
Restrictions and encumbrances of the right of ownership are that the refusal is implemented at the expense of the estate.
Real estate is provided from the estate left over from the deceased. If the property is bought, then at the expense of the funds remaining to the heirs after the deceased person.
The acquired property remains the property of the heir or the consignee, depending on the contents of the will.
The duration of the encumbrance is established by will (the right of residence, for example, is valid for life or for a limited time).
Another example: children living with parents. Even if the child is not a co-owner of the housing, without the permission of the guardianship authorities, he cannot be sold, exchanged or mortgaged.
Resettlement of a child without alienation of property is also not permitted without the approval of guardianship authorities.
The encumbrance of the right of ownership of the apartment may be established by the court at the suit of one of the former family members. For example, a husband and wife divorced, and the wife has nowhere to move. She can be given time to look for new housing, in practice - about six months. Selling an apartment to a third party does not invalidate the judgment.
A person who has refused privatization has the right to live in an apartment or house for life. A change of ownership in the future does not in any way affect his rights.
Arrest
The court applies arrest in order to enforce a future decision or sentence. After the judicial act is passed, the restriction continues to apply within the framework of enforcement proceedings.
If earlier the arrest was not applied to the property, it is imposed by the bailiff on his own initiative or by the claimant after the opening of the enforcement proceedings.
The arrest includes:
- inability to conduct a transaction;
- suspension of bidding;
- the prohibition to transfer property to unauthorized persons;
- the prohibition of any actions of third parties in relation to property.
Judicial restriction, encumbrance of the right of ownership of a dwelling is removed by the same or a higher court upon a complaint of the person concerned.
The bailiff withdraws the arrest only after the completion of the execution of the court decision. The bailiff's decision is canceled either by the court or by the head of the bailiffs department upon a complaint from the person concerned.
Arrangement of encumbrances
An encumbrance imposed by force of law is effective from the moment a legal fact arises, such as the purchase of a home by several owners. An agreement between the parties is enough for it to become effective.
The judge’s decision or the bailiff’s decision on the arrest is sent to Rosreestr, where notes are made in the record of rights to the object.
Mortgage encumbrance is part of the contract, in addition, a mortgage is issued, it is attached to the contract.
Along with the record of the transfer of ownership, the mortgage is automatically entered into the register. A registration fee of 2 thousand rubles is paid.
The state registration of encumbrance of the right of ownership, therefore, is not allocated to a separate procedure, but is associated with the registration of the contract.
Testament refusal obligations are recorded in the certificate of inheritance.
Today the certificate is issued on a simple paper sheet with the seal and signature of the registrar. Protected letterheads are not currently in use.
If the transaction affects the child, there are two options:
- the registrar will not complete the transaction if the child has a share and there is no consent of the guardianship authorities in the documents;
- the passport desk will refuse to write out the child without eviction to another place, especially since the list of documents for registration includes a certificate of the composition of the family, where the children are noted.
The provisions of the law lead to the fact that encumbrances in the certificate of ownership are not always present, although in reality they do occur.
The encumbrance of property rights is noted in the certificate of inheritance. The bottom section is devoted to their availability.
If the agreements are verbal in nature and have not been documented in any way, it is almost impossible to prove something. An example is real estate lease agreements that are not registered anywhere (refusal to register them is legal if the validity period is less than 12 months). Without documents, encumbrance is impossible.
The subtleties of removing the burden
State registration of restrictions, encumbrances of property rights is canceled either at the request of the parties, or by a court decision.
In a statement of claim challenging the rights of others, a request to cancel registration is required. Otherwise, then a new lawsuit will have to be filed to cancel the registration.
Having paid the mortgage, the person receives bank certificates, which are handed over to the Rosreestr, stating that the mortgage has been paid. The process of deregistration of an encumbrance is carried out with the mandatory participation of a bank representative.
Arrest in enforcement proceedings is removed automatically after payment of the debt.
The decision to close the proceedings and remove the arrest is sent to Rosreestr. Often, citizens themselves submit documents to remove the arrest, because bailiffs do not have time to do this because of workload.