1. Real estate specified in paragraph 1 of Article 130 of the Civil Code may be pledged under a mortgage agreement. 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 Article 63 of this Federal Law;

2) enterprises, as well as buildings, structures and other immovable property used in business activities;

3) residential buildings, apartments and parts of residential buildings and apartments, consisting of one or more isolated rooms;

4) garden houses, garages and other consumer buildings;

5) air and sea ​​vessels, inland navigation vessels;

6) parking spaces.

Buildings, including residential houses and other structures, and structures directly connected with land, may be subject to mortgage, subject to the rules of Article 69 of this Federal Law.

The absence of state registration of the right of ownership to land plots, the state ownership of which is not demarcated, is not an obstacle to the mortgage of such land plots in accordance with Article 62.1 of this Federal Law.

2. The rules of this Federal Law shall apply to the pledge of real estate construction in progress being built on a land plot in accordance with the requirements of the legislation of the Russian Federation, including buildings and structures, subject to the rules of Article 69 of this Federal Law.

3. Unless otherwise provided by the agreement, the thing that is the subject of mortgage is considered to be pledged together with accessories (Article 135 of the Civil Code of the Russian Federation) as a whole.

4. Part of the property, the division of which in kind is impossible without changing its purpose (an indivisible thing), cannot be an independent subject of mortgage.

5. The rules on the mortgage of immovable property shall accordingly apply to the pledge of the tenant's rights under a lease agreement for such property (the right to lease), unless otherwise established by federal law and does not contradict the essence of the lease relationship.

The rules on the mortgage of immovable property also apply to the pledge of the rights of claim of a participant in shared construction arising from an agreement on participation in shared construction(hereinafter referred to as the rights of claim of a participant in shared construction) that meets the requirements of the Federal Law of December 30, 2004 N 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" (hereinafter - the federal law"On Participation in Shared Construction of Apartment Buildings and Other Real Estate and on Amendments to Certain Legislative Acts of the Russian Federation").

In accordance with Article 5 of the Federal Law of July 16, 1998 N 102-FZ "On Mortgage (Pledge of Real Estate)", the subject of mortgage may be real estate specified in paragraph 1 of Article 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:

• Land plots, with the exception of land plots specified in Article 63 of the Federal Law of July 16, 1998 N 102-FZ.
• Enterprises, as well as buildings, structures and other real estate used in business activities.
• Residential buildings, apartments and parts of residential buildings and apartments, consisting of one or more isolated rooms.
• Dachas, garden houses, garages and other consumer buildings.
• Air and sea vessels, inland navigation vessels and space objects.

Buildings, including residential buildings and other structures, and structures directly connected with land, may be subject to mortgage subject to the rules of Article 69 of Federal Law No. 102-FZ of July 16, 1998.

The absence of state registration of ownership of land plots, state ownership of which is not delimited, is not an obstacle to the mortgage of such land plots in accordance with Article 62.1 of the Federal Law of July 16, 1998 N 102-FZ.

The subject of a mortgage may also be construction in progress of real estate being built on a land plot in accordance with the requirements of the legislation of the Russian Federation, including buildings and structures, subject to the rules of Article 69 of Federal Law No. 102-FZ of July 16, 1998.

Unless otherwise provided by the mortgage agreement, the thing that is the subject of the mortgage is considered to be pledged together with the accessories as a whole.

Part of the property, the division of which in kind is impossible without changing its purpose (an indivisible thing), cannot be an independent subject of mortgage.

The subject of the mortgage, the valuation of the mortgage, the nature, amount and term of performance of the obligation secured by the mortgage must be specified in the mortgage agreement. In this case, the mortgage agreement must contain the exact name of the subject of mortgage, its location and a description sufficient to identify this subject. In addition, the mortgage agreement must specify the right by virtue of which the property that is the subject of the mortgage belongs to the pledger, and the name of the body that carries out state registration of rights to real estate and transactions with it, which registered this right of the pledger.

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The legislation provides for certain requirements for the content of the mortgage agreement. According to Art. 9 of Federal Law No. 102-FZ of July 16, 1998 "On Mortgage", the document must indicate the subject of the mortgage, its assessment, the nature, size and deadline for fulfilling the obligation secured by the mortgage. The agreement may also provide for the possibility of foreclosing the pledged property out of court, specifying the conditions and procedure for its implementation when foreclosing the pledged property by a court decision.

The subject of pledge is defined in the agreement as follows: its name, location and description sufficient for its identification. In addition, the document must indicate the right (property, lease, etc.), by virtue of which the property that is the subject of mortgage belongs to the pledgor, and the state registration authority that registered this right.

The estimated value of the collateral is determined by the parties to the agreement and is indicated in the document in monetary terms.

An obligation secured by a mortgage must be named in the contract, indicating its amount, the grounds for its occurrence and the deadline for fulfillment. If such an obligation is to be fulfilled in installments, then the terms (periodicity) of the relevant payments and their amounts, or conditions that allow determining these amounts, must be indicated in the agreement. That is, the contract must contain information about who the lender and borrower are, the amount and term of the loan, the interest rate, the amount of monthly payments and the procedure for repaying the loan.

The mortgage agreement is concluded in writing and is subject to state registration. The Agreement comes into force from the moment of its registration. If the rights of the pledgee are certified by a mortgage, then this must be reflected in the document, otherwise it will not be registered.

The borrower has the right to use the subject of pledge during the entire term of the agreement. At the same time, he cannot, without the prior written consent of the bank, transfer the pledged property to a subsequent mortgage, encumber the subject of pledge with the property rights of third parties, register any persons (except those specified in the agreement) at its location address, rent it out, or otherwise encumber subject of mortgage. Reorganization and redevelopment are also carried out after obtaining such consent from the creditor.

The pledgor is obliged to take measures necessary to preserve the pledged property and maintain it in proper condition; timely pay taxes, fees, utility and other payments related to the use of the subject of mortgage; ensure, at the first request of the creditor, unimpeded access of bank representatives to the subject of pledge, etc.

The lender has the right, according to documents and in fact, to check the availability, layout, safety and quality of the subject of mortgage, demand early performance of the obligation secured by the mortgage or levy execution on the subject of pledge in cases provided for by the mortgage agreement and established by the legislation of the Russian Federation.

The mortgagee is obliged to notify the borrower of the transfer of rights under the mortgage, indicating the date of transfer of rights and the person to whom they are transferred.

After the borrower fulfills all obligations under the mortgage agreement, both parties to the agreement submit to the body that carries out state registration of rights to real estate and transactions with it, an application for removal of the mortgage encumbrance from the subject of pledge, i.e., the mortgage registration record is extinguished. In this case, the deposit will be cancelled.

With the beginning of Russia's transition to digital mortgages and the introduction of electronic mortgages, it is expected that in the near future mortgage agreements will be concluded online using smart contracts.

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Bank mortgage conditions

Today, obtaining a mortgage is a good solution for many in case an apartment is needed urgently, but there is no money. But before you take it, you need to carefully study the conditions of the mortgage in banks. One of the most favorable conditions is in Sberbank. This credit institution provides mortgages as part of a social program for certain groups of citizens. For example, for young families or the military. What are the conditions for a mortgage in Sberbank? If you do not belong to the above groups, then the conditions for a Sberbank mortgage will be as follows: an initial fee- 15%, mortgage rate - 13%, term of issue mortgage loan- up to 30 years. The conditions of the Young Family mortgage are more forgiving: the down payment is only 10%, repayment within a maximum of 30 years, and the interest rate is only 11.5%. " military mortgage"It also implies quite favorable conditions: the interest rate is only 10.5%, the down payment, like that of the Young Family, is only 10%, the term is up to 20 years. You should also find out in advance on what conditions the bank is ready to provide citizens with a mortgage. The basic requirement is that the age of the borrower should not be less than 21 years old at the time of application and more than 60-65 years old at the end of payments. The length of service at the last place of work is also taken into account: it must be at least six months.

As a result of studying this chapter, the student should: know

• essence and types mortgage loans;
• a list of normative and legal acts regulating mortgage lending;
• mortgage lending models;
• scheme and participants of mortgage lending;
• methods of amortization of mortgage loans;
• the concepts of "mortgage debt ratio", "mortgage constant"; be able to
• distinguish a mortgage loan from other types of loans;
• identify different types of mortgage loans;
• characterize the main types of mortgage loans;
• determine the mortgage debt ratio, the mortgage constant; own
• skills in calculating a standard annuity payment;
• information on the state of mortgage lending in the Russian Federation;
• special terminology and vocabulary of this topic.

Essence and types of mortgage loans

One of the forms of lending actively used by economic entities at the present time is a mortgage loan. Mortgage - this is a credit or loan granted for a period of three years or more by a bank (credit institution) or a legal entity (non-credit institution) to a legal entity or individual for the acquisition of a real estate object secured by the acquired property as security for an obligation . A mortgage loan is issued on the terms of payment, urgency and repayment, as well as with strict control over the use of credit funds. The exclusive property of a mortgage and the best guarantee of a loan is the right of the lender to dispose of the borrower's real estate at his own discretion in case of default by him on the repayment of loans.

Term mortgage first appeared in ancient Greece at the beginning of the VI century. BC. (it was introduced by Archon Solon) and was associated with ensuring the liability of the debtor to the creditor by certain land holdings. To do this, obligations were drawn up, and a pillar was placed on the border of the land belonging to the borrower with an inscription that the specified property serves as security for the creditor's claim in the named amount. On such a pillar, called "mortgage" (from the Greek. hypotheca- stand, support), all debts of the owner of the land were noted.

Later, special books called mortgage books began to be used for this purpose. Already in ancient Greece, publicity was provided, allowing each interested person to freely ascertain the state of a given landed property. The institution of mortgage received a new development in the Roman Empire. In the 1st century AD Mortgage institutions were created that issued loans to individuals secured by property.

In our country, the concept of "mortgage" first appeared in Russian legislation in the Law of the Russian Federation of May 29, 1992 No. 2872-1 "On Pledge". In Art. 42 of this Law, the following definition of mortgage is given: “A mortgage is recognized as a pledge of an enterprise, buildings, building, building or other object, directly connected to the ground, together with the relevant land plot or the right to use it.

The next step in the development of legislation on mortgage lending was the adoption of the Civil Code of the Russian Federation, which entered into force on January 1, 1995. The Code established general rules for securing loans with a pledge of real estate, a provision on the right of ownership and other real rights to residential premises, grounds for foreclosure on mortgaged residential property.

Subsequently, a special law regulating mortgage lending was adopted - Federal Law No. 102-FZ of July 16, 1998 "On Mortgage (Pledge of Real Estate)" (hereinafter referred to as the Mortgage Law). It defines mortgage agreements as an agreement under which the pledgee, who is a creditor under an obligation secured by a mortgage, has the right to receive satisfaction of his monetary claims against the debtor under this obligation from the value of the pledged real estate of the other party - the pledger, predominantly over other creditors of the pledger, with exceptions established by federal law (p. 1 article 1).

The most important event in the development of the mortgage market in the Russian Federation was Decree of the Government of the Russian Federation dated January 11, 2000 No. 28 “On Measures to Develop the System of Housing Mortgage Lending in the Russian Federation”, which approved the Concept for the Development of the System of Housing Mortgage Lending in the Russian Federation. She determined the strategy of the state in the formation and development of the sphere of mortgage lending and described in detail the formation of the system and the organizational and economic mechanism for attracting credit resources to this area.

State's attempt to improve living conditions of its citizens was the Federal program “Housing”, approved by the Decree of the Government of the Russian Federation of September 17, 2001 No. 675 “On the Federal Target Program “Housing” for 2002-2010”.

Based on the results of the first stage of the implementation of the FTP "Housing", taking into account the entry into force of a package of federal laws on the formation of an affordable housing market in connection with the implementation of the national project "Affordable and comfortable housing for Russian citizens" and the creation of the National Council on housing policy in the specified Federal target program by Decree of the Government of the Russian Federation of December 31, 2005 No. 865 “On additional measures to implement the federal target program“Housing” for 2002-2010”, appropriate changes were made, which led to the modernization of the subprograms of the FTP “Housing”.

The second phase of the implementation of the FTP "Housing" was carried out in 2006-2010. and provided for the continuation of the initiated reforms in the housing sector and the implementation of a set of measures within the framework of the priority national project "Affordable and Comfortable Housing for the Citizens of Russia". This phase of the implementation of the FTP "Housing" is aimed at the implementation of subprograms "Provision of land plots with communal infrastructure in order to housing construction»; “Modernization of public infrastructure facilities”; "Providing housing for young families"; "Fulfillment of state obligations to provide housing for categories of citizens established by federal law." These subprograms are measures aimed at implementing the main priority areas of the national project and are designed to solve one of the main tasks - to stabilize the balance between supply and demand in the housing market.

The term for the implementation of the FTP "Housing" and its subprograms has been extended for the period 2011-2015. At the same time, along with the previously existing subprograms and measures of the federal program, new areas of housing provision have been added.

The next step in the development of the mortgage lending system was the adoption in 2003 of the Federal Law of November 11, 2003 No. 152-FZ “On Mortgage Securities” (hereinafter referred to as the Law on Mortgage Securities). The presence of this Law is necessary for the normal development and functioning of a two-tier system of mortgage lending.

A significant fact that influenced the formation of the housing mortgage lending market is the Concept for the Development of a Unified System for Refinancing Housing Mortgage Loans in Russia approved by the Government of the Russian Federation on June 30, 2005.

Thus, in our country, the procedure for mortgage lending is regulated by the Mortgage Law, part two of the Civil Code of the Russian Federation and other legislative acts.

Mortgage is a form of granting a loan iod pledge of real estate. The mortgage lending system includes two areas:

• 1) direct provision of mortgage loans to business entities and the population;
• 2) sale of mortgage loans in the secondary market (mortgage obligations).

In the first case, a mortgage loan is issued mortgage banks to cover large capital expenditures, new construction, acquisition of real estate. The second direction is carried out by financial companies, funds that buy up the assets of mortgage banks, secured by a pledge of property, and then, on their own behalf, on their basis, issue securities(bonds, certificates of participation) to ensure additional attraction of resources for lending.

Credit relations are built on the principles of: targeted use, security, urgency, payment, repayment. The intended use of the loan is confirmed by documents provided by the borrower. The main types of loan security are: surety, guarantee, pledge, borrower liability insurance for non-repayment of the loan. A mortgage loan is secured by a pledge by the borrower of a real estate object and property rights, which serve as a pledge for the lender to fully and timely repay the loan received by the debtor and pay the interest due to them. Confirmation of repayment is the provision by the borrower of documents on his solvency.

A mortgage loan does the following functions".

• the function of the financial mechanism for attracting investments in the sphere of material production;
• the function of ensuring the return of borrowed funds;
• the function of stimulating the turnover and redistribution of real estate, when other methods (purchase and sale, etc.) are not economically feasible or legally impossible;
• the function of forming a multi-level fictitious capital in the form of mortgages, derivatives of mortgage-backed securities, etc.

Thus, with economic point vision mortgage - ego is a market instrument for the circulation of property rights to real estate objects, which allows attracting additional financial resources for the implementation of any projects, and from a legal point of view, a mortgage consists in encumbrance of property rights of ownership of real estate objects when they are pledged.

At present, many types of mortgage loans have been developed in the world, differing depending on the schemes for issuing, repaying and servicing (Table 4.1).

Types of mortgage loans

Classification sign	Loan types
	Real estate	Land; enterprises, as well as buildings, structures, etc.; residential buildings, apartments and their parts; air and sea vessels, inland navigation vessels and spacecraft
	Construction in progress real estate	Building; structures
Type of lender	By status	Bank; non-banking
	But accessories	State; private; public
	By degree of specialization	Universal; specialized
Type of borrower	Subject of lending	Loans provided to developers; loans provided directly to the future owner
	Degree of affiliation of borrowers	Loans provided: bank employees; employees of firms - customers of the bike; clients of real estate firms; people living in this region; everyone
Debt amortization method	Permanent mortgage loan
	Loan with variable payments	Loans with ball payment; spring loans; loans with participation (mortgage loans providing for the financial interest of the lender); loans with increasing payments; reverse annuity loans; variable rate loans; Canadian rollover; final mortgage; interest-added loans
Method of granting a loan	European model; american model

Classification sign	Loan types
Possibility early repayment	With the right of early repayment; without the right of early repayment; with the right to early repayment subject to payment of a fine
Type of interest rate	Loan with fixed interest rate; variable rate loan
Refinancing method	Issue of mortgage bonds; pre-savings of borrowers, government subsidies; own, borrowed and borrowed funds (including loans international organizations); selling mortgages to a mortgage agency or a large mortgage bank
Purpose of lending	Housing lending	Acquisition of finished housing in an apartment building; construction, reconstruction, overhaul; construction and purchase of finished housing for the purpose of investment
	Development land plot
	Agricultural development
	Production development
	Loans secured by existing real estate for various needs of the borrower
Terms and purpose of applying for a loan	Short term loan(current need for cash); long-term loan (financing capital construction, reconstruction, land development)

The subject of the mortgage may be the following property (Art. 5 Mortgage Law).

• 1. Real estate specified in paragraph 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:
  • land;
  • enterprises, as well as buildings, structures and other real estate used in business activities;
  • residential buildings, apartments and parts of residential buildings and apartments, consisting of one or more isolated rooms;
  • dachas, garden houses, garages and other consumer buildings;
  • air and sea vessels, inland navigation vessels and space objects.
• 2. Construction in progress of immovable property being built on a land plot allocated for construction in accordance with the procedure established by law, including buildings and structures.

Pledge of land plots, enterprises, structures, apartments and other immovable property may arise only in so far as their circulation is permitted by federal laws.

Part of the property, the division of which is impossible without changing its purpose (an indivisible thing), cannot be an independent subject of mortgage. Mortgages are not allowed in relation to:

• part of the land plot, which, taking into account its size, cannot be used as an independent plot in compliance with the designation of land of the corresponding category;
• living rooms that make up part of the house or apartment of the owner of this house or apartment;
• an enterprise in respect of which a bankruptcy case has been initiated or a decision has been made on liquidation or reorganization.

A mortgage is established on property that belongs to the pledgor on the basis of ownership or economic management. The property on which a mortgage has been established shall remain with the pledgor in his possession and use.

A mortgage can be established on property that is in common joint ownership (without determining the share of each of the owners in the ownership right), with the consent of all owners. Consent must be given in writing.

The subject of mortgage is determined in the agreement, indicating its name, location and description sufficient to identify this subject.

According to Art. 43 of the Mortgage Law, property pledged under a mortgage agreement to secure the fulfillment of one obligation (prior mortgage) may be pledged to secure the fulfillment of another obligation of the same or another debtor to the same or another mortgagee (subsequent mortgage). The sequence of pledgees is established on the basis of the data of the Unified state register rights to real estate and transactions with it about the moment of mortgage origination.

A subsequent mortgage is allowed if it is not prohibited by previous mortgage agreements on the same property, the validity of which has not ceased by the time the subsequent mortgage agreement was concluded. If the previous mortgage agreement provides for the conditions on which a subsequent mortgage agreement can be concluded, the latter must be concluded in compliance with these conditions.

Individuals and legal entities and commercial banks can act as lenders and borrowers in mortgage lending.

By type of borrower As subjects of lending, mortgage loans are divided into:

• loans provided to developers and builders;
• loans provided directly to the future homeowner;
• according to the degree of affiliation of borrowers.

Members mortgage lending: banks (check the solvency of the borrower) and non-bank organizations; insurance companies (obliged to insure the risks arising in the process of mortgage lending); appraisal companies market value apartments).

Depending on the method of depreciation, the following are distinguished: types of loans.

Permanent mortgage loan- the simplest form of credit. This loan is characterized by a fixed loan period and a fixed interest rate. It is typical for countries with low inflation, long loan terms and involves equal repayments (amortization) at regular intervals (for example, once a month). Therefore, such loans are classified as self-absorbing.

The standard annuity payment is calculated using the formula

where P - the amount of the monthly annuity payment; K - the amount of the loan; i- interest rate for the period (month, year); P- number of payment periods (months, years).

Determine the amount of the annuity payment. Interest rate - 20% per annum. The loan amount is 1 million rubles. Loan term - 5 years. Payments are made once a year.

Solution.

We use formula (4.1):

Loans with variable payments do not belong to the number of self-amortizing and provide for different periods of repayment of principal and interest, as well as other additional conditions. These loans include balloon payment loans, assuming a one-time final (ball) payment or with a breakdown of a one-time payment. They are subdivided:

• interest-only loans is a type of balloon payment loan that provides for a balloon payment of the principal at the end of the term, and regular payments of interest throughout the life of the loan. Such a loan is also called a deferred mortgage;
• loans with freezing of interest payments until the expiration of the loan term, which do not provide for any payments, both in repayment of principal and interest. Repayment of the loan and capitalized interest on it is made at the end of the loan term. The use of such loans is quite expensive and therefore limited. They are resorted to mainly by land speculators who are counting on the sale of a plot of land at the end of the term for an amount that allows them to repay a loan, interest and profit from the sale;
• loans with partial amortization and a final balloon payment involve partial periodic payments of both principal and interest, as well as a one-time payment of the remaining amount of the debt;
• Loans with a gradual payment of only the principal debt involve the implementation of payments of the principal amounts and a one-time payment, including the debt to pay interest.

Spring loans involve regular payments to repay the principal debt. For example, during the first four years, only interest is paid, and in the next three years, interest and principal are paid.

Loans involving used in the financing of profitable real estate. This loan is close to a self-absorbing loan, but it assumes that the lender, regularly receiving the principal and interest on it, also participates in the income from the object. The participation of the lender can be different: he can claim a part of the excess of the rent, a part of the excess of net operating income (loan with participation in income), part of the capital gain or proceeds received from the sale of real estate (loan with participation in capital appreciation), etc. .

Loans with increasing payments(with increasing annuity) provide for equally variable payments over the entire period and are used by owners of leased real estate in the expectation that payments will increase annually or at other intervals. Such loans are used for lending to young families who have less income at the beginning of the loan period than at the end.

Reverse annuity loans, on the contrary, they imply a reduction in payments but a loan at the end of the term or their termination. In this sense, they are comparable to frozen loans. Such loans are used to finance older landlords.

Variable rate loans, usually “pegged” to one of the money market indices, inflation, currency, etc., allow you to pay a loan at a variable rate with restrictions on its minimum and maximum values. Changes in rates affect the terms of loans.

Canadian rollover characterized by variable interest rates at predetermined intervals (for example, every five years). A variation of this type of loan is a loan with a negotiated rate, which differs in that, in addition to the frequency of payments, marginal interest rates are negotiated in advance.

Terminating mortgages have several varieties and are themselves a special case of secondary (junior) financing. The essence of this type of lending is that a second loan is provided for already accredited real estate, the payments on which are sent to repay the first loan. Interest rates on such loans are usually higher than on the first loan.

Loans with an added interest rate provide for the assignment of interest to the principal debt, and the result is divided by the number of repayment periods to determine the size of the next payment.

Depending on the method of providing a loan in the history of mortgage development, two main models of the mortgage lending market are distinguished: European and American.

European model - This is a one-tier model of mortgage lending, the essence of which is that the bank, having issued a loan, independently refinances it by issuing its own securities (mortgages, long-term mortgage-backed bonds) of a standard structure with the payment of the principal amount at the end of the payment period (Fig. 4.1). The issue and circulation of such securities are regulated by special legislation. Loans included in the mortgage coverage remain on the balance sheet of the issuing bank. The activities of issuers of mortgage bonds are, as a rule, limited by law to the issuance of mortgage loans and other operations characterized by a low degree of risk. No other issuer, except those listed in the law, can issue securities referred to as a "mortgage sheet". The activities of mortgage banks are strictly controlled by the state and banking supervisory authorities.

Rice. 4.1.

1 - savings deposit; 2 - obtaining a mortgage loan by the borrower; 3 - payment for housing under sales contracts or a work contract (own and borrowed capital); 4 - return of a mortgage loan and interest on it; 5 - mortgaged housing insurance; 6 - income from the sale of securities (mortgages); 7 - income from securities (mortgages) and their repayment

The implementation of this model provides for the conclusion of the following main types of contracts:

• between the borrower and the lender - an agreement on a savings housing deposit, and then - a loan agreement and a mortgage agreement;
• between the borrower and the insurance company - mortgaged housing insurance contract;
• between the borrower and the seller (builder) - a contract for the sale of housing.

This model of mortgage lending has been operating for a long time in a number of Western European countries - Denmark, Germany, France, and more recently - in Poland, the Czech Republic, Slovakia, and Hungary.

The most striking example of the application of this scheme is German model. It is based on the savings and loan principle of functioning, like the German "private construction savings banks" - Bausparkasse, French Livret Epargne Logement, American Savings & loans. The construction savings bank is a closed financial structure and begins its activities with the formation authorized capital and on its basis has its own source of funds (including the housing fund) for issuing loans. All available funds of the cash desk (own and borrowed) are used only for the implementation of statutory activities, i.e. to finance the construction of housing and the issuance of mortgage loans for the purchase of already built apartments. The depositor gets the opportunity to accumulate the necessary contribution for the purchase of an apartment (for example, in the amount of 50% of its value) for a long period, and then receive a mortgage loan for the purchase (construction) of a pre-selected apartment. In the German version, the role of a loan is not cash, and directly housing - finished or unfinished (the so-called construction mortgage).

The disadvantages of the German model are: a limited choice of residential premises, which are built by the construction savings bank and can be offered by the participant) "; fixed price, which is determined by the cash desk itself; limited lending terms for three to five years, the impossibility of selling the apartment by the borrower until the debt is settled.

Another mortgage lending model is american two-level model, which is common in the countries of the Anglo-Saxon system of law. Its essence is that the bank, having issued a loan, refinances it by attracting long-term resources, by assigning claims on already issued mortgage loans to another financial institution (secondary market operator, specially created agencies).

In turn, financial institutions (secondary market operators, specially created agencies) can deal with the received mortgage loans as follows:

• 1) assign them to secondary investors;
• 2) form pools of uniform mortgage loans and sell such indivisible pools of mortgages or participation rights (shares) in such pools to secondary investors;
• 3) issue and place mortgage-backed securities (such may be mortgage-backed bonds or mortgage participation certificates).

This system is very common in the USA. A simplified diagram of the American model of a two-level structure is shown in fig. 4.2. The issued mortgage loans are then assigned to specialized mortgage agencies. Having redeemed loans from banks at face value, mortgage agencies combine them into pools and issue their own debt obligations secured by them. Borrowers pay money to banks as payment for the loan received, and banks transfer these funds, withholding commissions, to the mortgage agent, who pays income from them to holders of mortgage securities.

Rice. 4.2.

• 1 - loan agreement; 2 - mortgage agreement; 3 - mortgaged housing insurance contract; 4 - contract of sale or contract;
• 5 - general agreement between the lender and the mortgage agency; b - agency agreement;
• 7 - assignment agreement; 8 - an agreement on the procedure for carrying out transactions with valuable

mortgage agency papers; 9 - business risk insurance contract; 10 - contracts for the sale of securities

When implementing a two-tier model of mortgage lending, a conclusion is provided:

• loan agreement and mortgage agreement between the borrower and the lender;
• contracts for the sale of housing between the borrower and the seller (builder);
• insurance contracts for mortgaged housing between the borrower and the insurance company;
• business risk insurance contracts between an insurance company and a mortgage agency;
• contracts for the assignment of the right to claim for mortgage loans between the lender and the mortgage agency;
• agreements trust management acquired claims.

The choice of a two-level model is explained not only by state interests, but also by the peculiarities of the concept of ownership in the Anglo-Saxon system of law, which involves its splitting. For the same property, it is possible to establish several titles of ownership and to divide the content of the ownership right between various persons. The object of property rights in the countries of the Anglo-American legal system can be the right itself.

The concept of mortgage mongage) in US civil law (and English civil law) does not quite coincide with the concept of a mortgage in the civil law of continental European countries. In particular, both immovable and movable property can be the subject of mortgage. But the main thing is that under a mortgage, the ownership of the mortgaged property passes to the mortgagee. This is a fiduciary pledge, in which the pledgee becomes the owner of the pledged property 1 .

The complexity of the mechanism of the two-level model of the secondary mortgage lending market predetermines the increase in the cost of its maintenance. This, in turn, increases the cost of credit funds for the borrower. Another drawback is the inability to clearly and effectively regulate the mortgage lending market built on the Anglo-American model within the framework of the continental system of law.

At this stage Russian legislation on mortgage-backed securities, taking into account the changes adopted as part of the reform to create an affordable housing market, allows credit institutions to resort to all the above methods of mortgage development, both through the attraction of resources by banks and through the use financial instruments secondary market operators.

Depending on the possibility early repayment allocate loans with the right of early repayment and without the right of early repayment. According to Art. 45 of the Law on Mortgage, the pledgor has the right at any time to early fulfill the obligation secured by the mortgage in full, if the mortgage agreement excludes the possibility of a subsequent pledge of the same subject of mortgage.

Depending on the type of interest rate The loan comes with a fixed interest rate and a variable interest rate. In the Russian Federation, the interest rate on a mortgage loan can be either fixed or variable. For example, the mortgage bank CJSC CB DeltaCredit launched a loan product in rubles with a floating interest rate pegged to the indicative rate MosPrime Rate .

For borrowers who are able to officially confirm their income, DeltaCredit Bank sets a rate of 5.5% + a three-month MosPrime Rate, for borrowers with "gray" income - 6.5% + three months MosPrime Rate. Rates are recalculated quarterly.

According to the method of refinancing - Mortgage lending is handled by various lending institutions. Features of their activities are in the method of refinancing the loans issued (Table 4.2).

Table 4.2

Ways to refinance mortgage loans

According to the degree of security loans are divided depending on the amount of the initial payment, the amount of which can range from 0 to 100% of the value of the pledged property. Mortgage loans can be secured by first or subsequent mortgages (junior, senior mortgages).

depending on the number of creditors involved in issuing a loan, mortgage loans are: conventional and combined. Ordinary loans are issued by a single lender, combined loans are issued by several lenders.

Depending on the loan terms distinguish: subsidized loan and loan issued for general conditions. A subsidized loan is issued to individuals and legal entities - groups of beneficiaries included in government programs. Funding comes from both government and credit institutions. Thus, in 2011, Sberbank of Russia implemented the following programs: Mortgage with State Support, Mortgage Plus maternal capital”, “Military mortgage”, etc.; The Agency for Housing Mortgage Lending (AHML) launched the Mortgage for Young Scientists program; Globex Bank actively issued loans for mortgage program for military personnel. However, only a limited number of people have access to such programs.

In addition, mortgage loans can be issued in the form of credit lines and on a one-time basis.

The benefits of a mortgage loan are:

• the opportunity to become the owner of housing in a fairly short time and move into new apartment;
• obtaining a loan for a long period, for which the amount of monthly payments will not change in case of an increase in the cost of the apartment;
• the ability to pay for your own apartment, and not rent someone else's property, while the interest on the loan is comparable to the monthly rent for a similar apartment;
• the opportunity to register in an apartment purchased on a mortgage loan, the borrower and his family members;
• profitable investment funds (real estate prices are growing steadily);
• obtaining a tax benefit for the entire period of the mortgage from an amount within 2 million rubles, as well as from the amount paid on interest for the period of loan repayment (subclause 2, clause 1, article 220 of the Tax Code of the Russian Federation).
An indicator of the Russian money market, which is the average rate for providing ruble loans (deposits) on the Moscow money market and calculated by the National Monetary Association.
• Razumova I. A. Mortgage lending. 2nd ed. St. Petersburg: Piter, 2009, p. 14.

Subject of mortgage (object)

Civil Code of the Russian Federation in paragraph 1 of Art. 334 determines that the subject of pledge is property. The term "property" should be understood as things, securities, claims, money.

A mortgage is a pledge, the subject of which is real estate, which, as a rule, has a higher value and is in demand on the market compared to other property.

The division of property into movable and immovable dates back to Roman law and is accepted by almost all modern legal systems. In modern law, real estate retains a special legal regime, which involves a special procedure for encumbrance and alienation, special registration of rights to real estate, some restriction of these rights and administrative (environmental, urban planning, etc.) control over their implementation.

The legislative definition of the concept of “real estate” is disclosed in Art. 130 of the Civil Code of the Russian Federation, according to which real estate includes land plots, subsoil plots, water bodies and everything that is firmly connected with the land, that is, objects that cannot be moved without disproportionate damage to their purpose, including forests, perennial plantings, buildings, structures , as well as aircraft, sea vessels, inland navigation vessels, space objects subject to registration

The concept given in Art. 130 of the Civil Code of the Russian Federation does not properly reflect such a complex civil legal object as real estate. The legislation does not disclose the exact content of the concept of "property", which is essential in relation to real estate.

Criticism of the legislative definition of the concept of "real estate" is associated with the inconsistency of classifying objects as immovable. Following paragraph 1 of article 130 of the Civil Code of the Russian Federation, a thing can be classified as immovable if it has a strong connection with the ground and the impossibility of its movement in space without some damage to it. Also, strength and non-consumability are indicated as necessary features of real estate in the theory of civil law.

An example that far from all the things listed in Article 130 of the Civil Code as real estate unquestioningly have all these features is an enterprise that includes things - products, raw materials, inventory, but the real estate regime is also established for them by law.

One of the most interesting is the problem of the turnover of mortgaged items. The legislator does not give a specific distinction between the “subject” and “object” of a mortgage, but the Law “On Mortgage” calls the real estate regulated by it “objects”, and the word “object” is appropriate to mention when designating the same real estate in the sense of an element of civil rights.

According to Article 5 of the Mortgage Law, the subject of a mortgage agreement may be: land plots, enterprises, as well as buildings, structures and other real estate used in entrepreneurial activities (hangars, workshops, etc.); residential buildings and apartments or parts of residential buildings and apartments, consisting of one or more isolated rooms; dachas, garden houses, garages and other consumer buildings. The subject of a mortgage may also be unfinished construction, which is considered as real estate being built on an allotted land plot. Thus, Article 76 of the Law on Mortgage explicitly states that when granting a loan for the construction of a residential building, the mortgage agreement may provide for the obligation to be secured by construction in progress and materials and equipment belonging to the mortgagor that are prepared for construction. Air and sea vessels, inland navigation vessels and space objects can also be subject to mortgage, because although they are not property that is inextricably linked with land, but, as it is specifically provided for in the Civil Code of the Russian Federation, they are classified as real estate due to their specifics. In addition to property, the subject of mortgage may be the right to lease belonging to the mortgagor. Naumov. M.: Wolters Kuver, 2008, - p. 868. The general norms on mortgages will apply to such pledge, unless otherwise provided by the Mortgage Law and does not contradict the essence of the lease relationship. Thus, the right to lease can be mortgaged only with the consent of the lessor. It is also not allowed to pledge such a right without the consent of the owner or a person having the right of economic management, if the law or the contract prohibits the alienation of such a right without the consent of these persons.

Judicial practice shows that if it is supposed to mortgage not the lands themselves, but the right to lease, the ban on the mortgage of these lands is explained by the fact that in the event of foreclosure on the pledged ownership right to it passes to other persons. The mortgage of the right of lease and the possible transfer of the right of lease in connection with this does not entail a change in the right of ownership. According to the plaintiff, the administration violated Art. 63 of the Mortgage Law. The court found that the disputed object is located on a land plot owned by the municipality, so the mortgage of such a land plot would not be lawful. In our opinion, until the ban on the mortgage of municipally owned land is lifted, it is impossible to pledge the right to lease it. We also believe that the pledge of the right to lease is impossible if, for example, the land plot has not passed the cadastral registration. This, in turn, will lead to the recognition of the contract as invalid due to an incorrect description of the leased object.

Real estate that is the subject of a mortgage agreement, as a rule, belongs to the pledgor on the right of private ownership or on the right of economic management.

There are a number of restrictions provided by law in relation to property that cannot be the subject of a mortgage.

Firstly, this property is withdrawn from circulation. According to the Civil Code, things withdrawn from circulation are those things that cannot be freely alienated or transferred from one person to another. Such things mainly include things that are in the exclusive ownership of the state (for example, resources, defense production facilities, etc.). Secondly, property, which, in accordance with federal law, cannot be foreclosed. The list of such property of citizens is contained in the Civil Procedure Code. Thirdly, property for which mandatory privatization is provided for in accordance with the procedure established by federal law, or whose privatization is prohibited, cannot be the subject of a mortgage. Also, a part of property, the division of which is impossible in kind without changing its purpose (an indivisible thing), cannot be an independent subject of a mortgage agreement. The Mortgage Law establishes the following restrictions on property subject to mortgage. So, if the subject of a mortgage agreement is property, the alienation of which requires the consent or permission of another person or body, then the same consent is necessary for the mortgage of this property. For example, a mortgage can be established on property that is jointly owned by the spouses only with the written consent of the other spouse who is not a party to the mortgage agreement See: Family Code of the Russian Federation. In accordance with paragraph 2 of Art. 62 of the Federal Law “On Mortgage” in case of common shared or joint ownership of land plots that may be the subject of pledge, a mortgage can only be established on property owned by a citizen or legal entity a land plot allocated in kind from lands that are in common shared or joint ownership.

The immovable property that is the subject of mortgage is considered to be pledged together with accessories as a whole, unless otherwise provided by the agreement (clause 3, article 5 of the Mortgage Law). The belonging of a thing is defined as intended for the service of another, main thing and the general purpose associated with it. For example, in case of a mortgage, enterprises are machine tools, equipment, utility rooms for temporary storage of products, etc. In close connection with this norm is the norm of paragraph 4 of Art. 5 of the Mortgage Law: a part of property, the division of which is impossible in kind (an indivisible thing), cannot be an independent subject of mortgage. A thing, the division of which in nature is impossible without changing its purpose, is recognized as indivisible (Article 133 of the Civil Code). The imperativeness of this norm is justified by the very essence of the mortgage as a pledge of real estate.

When an enterprise is mortgaged, the pledge also extends to property, including the right to claim and exclusive rights, including those acquired during the mortgage period (clause 2, article 340 of the Civil Code).

The opinion of M.M. Orlova, who points out that the rules of law governing the regime of ownership of enterprises in relation to movable property create certain technical difficulties and lead to deformation legal regulation movable things and immovable things, since individual things that are movable function in determining the property of the enterprise in the mode of immovable. We come to the conclusion that such a situation does not lead to a deformation of the legal regulation of things, since the movable and immovable things that are part of the enterprise form a single complex subordinate to a specific purpose and the isolation of separately movable things or immovable things does not correspond to the very essence of the enterprise.

An analysis of the current legislation allows us to conclude that the aggregate pledge (that is, a mortgage on several objects at once) is possible, but there are no exact instructions regarding this issue. In order to apply the legislation uniformly and accurately, it is necessary to supplement Art. 340 of the Civil Code of the Russian Federation with the provision that a mortgage agreement can be secured by several real estate objects, each of which is an independent subject of obligation security. At the same time, the main obligation must be divided into shares corresponding to the value of the pledge Kosenko, E. V. Pledge of real estate under Russian civil law. dissertation for the degree of candidate of legal sciences. -Saratov, 2004..

The mortgage extends to all inseparable improvements to the object, unless otherwise provided by the contract or law.

The Mortgage Law provides for certain requirements for individual mortgage items. So, land plots are not subject to mortgage if they are in state or municipal ownership, as well as agricultural land from the composition of the land of agricultural organizations, peasant (farm) farms and field land plots of personal subsidiary plots. In addition, it is not allowed to mortgage a land plot, the area of ​​which is less than the minimum size established by the regulations of the constituent entities of the Russian Federation and the regulations of local governments for lands of various purposes and permitted use. If the subject of the mortgage is an enterprise as a property complex, then all the property included in its composition is covered by the mortgage agreement, namely: material and intangible assets, including buildings, structures, equipment, inventory, raw materials, finished products, rights of claim, exclusive rights, unless otherwise provided by the contract. Mortgage of buildings and structures is allowed only with the simultaneous mortgage of the land plot on which this building or structure is located, or of a part of this plot that functionally provides the pledged object, or of the right to lease this plot or its corresponding part belonging to the pledgor.

Mortgage of individual and multi-apartment residential buildings and apartments in state or municipal ownership is not allowed See: Federal Law of July 16, 1998 N 102-FZ "On Mortgage (Pledge of Real Estate)" // SZ RF. 1998. N 29. Art. 3400. It is not allowed to conclude a mortgage contract for a residential house or apartment that is privately owned by citizens through a representative, with the exception of legal representatives of minor citizens, representatives of persons with limited legal capacity and legally incompetent persons. Mortgage of an apartment in an apartment building provides for the establishment of the right of pledge and for the corresponding part of the share in the common ownership of the residential building (common premises of the house, load-bearing structures of the house, mechanical, electrical, sanitary and other equipment outside or inside the apartment serving more than one apartment ).

At the end of consideration of this issue, we can conclude: the withdrawal of objects of civil rights from circulation or their restriction in circulation is aimed at protecting, first of all, public interests.

The very importance of certain real estate objects (for example, land plots, enterprises) for the functioning of the state and society can hardly be overestimated. In this regard, the desire of the state to limit the turnover of these objects is also understandable.

Norm Art. 129 of the Civil Code of the Russian Federation is of a reference nature and determines that objects withdrawn from circulation must be directly indicated in the law, and objects with limited circulation are determined in the manner prescribed by law. Thus, the Civil Code allows various restrictions on the transferability of objects of civil rights as a potential opportunity, which can be implemented in a variety of laws. From general rule there are exceptions: issues of the turnover of land and other natural resources regulated by land laws (clause 3 of article 129 of the Civil Code). The Mortgage Law (clause 4, article 1) establishes that a pledge of land plots, enterprises, buildings, structures, apartments and other real estate can arise only insofar as their circulation is allowed by federal laws. Consequently, here is a reference to a number of other special laws concerning, obviously, the legal status of individual real estate objects. Clause 4, Article 1 of the Law “On Mortgage” can be interpreted according to the principle “everything that is not directly prohibited is prohibited”. It seems that the mortgage of an object will be allowed only when its turnover is expressly permitted by some other federal law, although the Civil Code states that the pledge of land plots, enterprises, buildings, structures, apartments and other real estate (mortgage) is regulated mortgage law (clause 2, article 334).

Also noteworthy is paragraph 2 of Art. Mortgage of property withdrawn from circulation, property on which execution cannot be levied in accordance with federal law, as well as property in respect of which mandatory privatization is provided in accordance with the procedure established by federal law, or the privatization of which is prohibited, is not allowed. Here, a different approach is seen than the one reflected in paragraph 4 of article 1 See: Federal Law of July 16, 1998 N 102-ФЗ "On Mortgage (Pledge of Real Estate)" // СЗ RF. 1998. N 29. Art. 3400. In paragraph 2 of Art. 6 of the Mortgage Law presents a fairly clear list of restrictions. It follows from this provision that the Law on Mortgage nevertheless assumes the task of regulating the mortgage turnover of objects, albeit in a rather general form, which is reflected in contradiction with paragraph 4. article 1.

Paragraph 1 of Art. 6 of the Mortgage Law defines the mortgagor as the owner of the pledged property or as possessing it on the right of economic management. This list appears to be exhaustive. The right of ownership is a combination of three components - possession, use and disposal (Article 209 of the Civil Code). The absence of one of the components of the owner deprives him of such a status in the legal sense.

The pledge may apply to property that may become the property of the pledgor in the future (clause 6 of article 340 of the Civil Code).

Pledge by the owner of his share in the total fractional ownership does not require the consent of the other owners (clause 2, article 7 of the Mortgage Law), and the pledge of property that is in common joint ownership (that is, without determining the share of each of the owners in the ownership right) only with the consent of all owners. Moreover, in the event of foreclosure on such property (which is in common ownership), the rules of Articles 250 and 255 are applied. Civil Code of the Russian Federation on the pre-emptive right to purchase owned by other owners, and on foreclosure on a share in the right of common ownership, with the exception of cases of foreclosure on a share in the right of ownership of the common property of a residential building (Article 290 of the Civil Code).

We believe that the separation of real estate from the rest of the property is explained not only by the importance for the country's economy of the available natural resources, the close relationship with real estate, for example, with land, but also by the fact that real estate includes the most valuable and significant objects. This requires their special registration in civil circulation, which is reflected in the peculiarities of the content of many legal relations, the special procedure and form of concluding contracts, the subject of which is real estate. Some legal relations may have only real estate as an object, for example, a mortgage.

Another feature that should be clarified. The provisions of subparagraph 3 of paragraph 1 of Art. 351 of the Civil Code of the Russian Federation, which provides that in the event of the destruction of the pledged thing or the termination of the pledged right, if the pledgor did not use the right to replace the subject of pledge. (Clause 2, Article 345 of the Civil Code of the Russian Federation). The very rule of paragraph 2 of Art. 345 of the Civil Code of the Russian Federation. The death of the subject of pledge, apparently, always means the termination of the right of pledge. When the pledgor provides a new item as a pledge, new pledge legal relations will arise between the parties. According to the Concept for the Development of Legislation on Property Law, the Legislator needs to decide whether the parties should conclude a new pledge agreement due to the replacement of the subject of pledge, or whether the previous pledge agreement will apply to the new subject. and improvement of civil legislation / The draft was recommended by the Presidium of the Council for publication for the purpose of discussion (Minutes No. 3 dated March 18, 2009).

A similar question arises in the event of a change in the subject of pledge due to its natural properties or actions of third parties, leading to the emergence of a new object of turnover.