A mortgage is a pledge of real estate as a guarantee of fulfillment of obligations to the lender. The essence of mortgage lending is as follows: the borrower is provided with a long-term loan, which he undertakes to repay in accordance with the established procedure, and his real estate is a guarantee for this. That is, the pledged property is not the property of the debtor, but remains in his use. In this case, the subject of the mortgage is both the real estate that the debtor already has and the one that he acquires through the mortgage.

Mortgages are mainly issued by banks. Each of them offers its own lending conditions and loan rates. Mortgage credit lending controlled in Russia mortgage legislation. Also, special mortgage agencies are created for this purpose.

The most common mortgage lending is when purchasing apartments on credit. The collateral is most often the purchased apartment.

Thus, the subject of a mortgage is a property that:
1) is collateral for a mortgage;
2) acquired through a mortgage.

The collateral in mortgage lending is the object of the mortgage. If you are planning to take out a mortgage loan, it is worth keeping in mind that you can offer different options as collateral:
1) apartments;
2) private houses;
3) dachas;
4) garages;
5) land;
6) buildings and structures;
7) enterprises;
8) sea and air transport;
9) space rockets.

The list of mortgage objects is approved by law. Full list can be found in the first article of the law “On Mortgage” (clause 4). Both existing and under construction real estate is offered as collateral.

Banks that issue mortgage loans have their own requirements for the subject of the mortgage. IN different banks requirements may vary. But there are many similarities. For example, real estate with a high degree of wear and tear or wooden floors, as well as objects in which children and elderly people are registered, are not accepted as collateral. The amount of the loan and the down payment directly depends on the quality of the collateral (that is, its estimated value).

What you need to know about mortgaging residential buildings

There is one very important point, which is worth considering if you plan to use a residential building as collateral. Namely: residential buildings are considered objects of mortgage along with the land on which they are located. Unfinished construction can also be used as such objects. If your house is located on a rented plot, then the right to rent is transferred as collateral.

The subject of a mortgage can be not only the entire object, but also its part, element, share. For example, such an object may not necessarily be a house, but also its foundation, a separate room. Naturally, the property that you purchase with funds provided by the lender remains his property until the debt is repaid.

Mortgage as an increase in personal motivation

In our country, mortgage lending is most often used to solve housing problems. This has already become a tradition. Mortgage system has both its advantages and disadvantages. Be that as it may, but decide housing issue mortgages have helped many.

Under mortgage in accordance with clause 2 of Article 334 of the Civil Code of the Russian Federation in civil law, clause 2 of Article 334 of the Civil Code of the Russian Federation is understood as follows: “Pledge land plots, enterprises, buildings, structures, apartments and other real estate. The general rules on mortgage contained in the Civil Code apply to mortgages in cases where other rules are not established by this Code or the law on mortgages.”

In Article 42, Federal Law of May 29, 1992 N 2872-1 “On Pledge,” a mortgage is recognized as a pledge of an enterprise, structure, building, structure or other object directly related to land, together with the corresponding land plot or the right to use it.

The word “Mortgage” is of Greek origin (from the Greek hypoteka - stand, support). The concept of “mortgage” is based on the ancient Roman principles of collateral, being its more advanced form. Over time, only the terms of provision, volumes and goals have changed mortgage loan, reliability of its provision, credit relations related to mortgages.

A mortgage is one of the forms of property security for the debtor’s obligations, in which the real estate remains the property of the debtor, and the creditor, in the event of the latter’s failure to fulfill his obligation, acquires the right to receive satisfaction through the sale of this property. The debtor’s obligation can be not only a banking one, but also an obligation based on purchase and sale, lease, other agreement, or damage.

The law includes land plots as real estate, in particular, plots of agricultural land, subsoil plots, isolated water bodies and all objects that are connected to the land in such a way that their movement without disproportionate damage to their purpose is impossible, including buildings, structures, residential and non-residential premises, forests and perennial plantings, condominiums, enterprises as property complexes, as well as subject state registration air and sea ​​vessels, inland navigation vessels and space objects.

In the draft law on mortgages, the property that can be the subject of a mortgage also includes buildings for consumer purposes, including summer houses, garden houses, and garages. Also, the subject of a mortgage may be the rights of a tenant under a real estate lease agreement, subject to the consent of its owner or the person who has the right of economic management, unless otherwise provided by law or agreement.

In accordance with paragraph 2 of Decree No. 293 of February 28, 1996, only real estate that belongs to the mortgagor by right of ownership or by right of economic management and the rights to which are registered in the manner established for state registration of rights to real estate can be pledged under a mortgage agreement and transactions with him. If the subject of the mortgage is real estate, the alienation of which requires the consent or permission of another person or body, then the same consent or permission is required for the mortgage of this property (Part 7, Clause 3 of Decree No. 293 of 28.02.96). If a mortgage is established on property located in the common joint ownership(without determining the share of each owner), including apartments and non-residential premises in residential buildings, a written, notarized consent of all owners is required.

Unless otherwise provided by the contract, the thing that is the subject of the mortgage, in accordance with Article 135 of the Civil Code of the Russian Federation, is considered pledged together with accessories as a single whole. A part of real estate, the division of which in kind is impossible without changing its purpose (indivisible thing), except for apartments in multi-apartment residential buildings, cannot be an independent subject of mortgage. When mortgaging an apartment in a multi-apartment residential building, parts of which are located in a common shared ownership the mortgagor and other persons, along with the apartment, the corresponding share in the right of common ownership of the residential building is also considered mortgaged. By right of common shared ownership, the owners of apartments in a multi-apartment residential building own common areas houses, their supporting structures, mechanical, electrical, sanitary and other equipment outside or inside the apartment, serving more than one apartment (Article 290 of the Civil Code of the Russian Federation). With a share in the ownership of common property of a residential building, the owner of the apartment does not have the right to take actions that could lead to its transfer separately from the ownership of the apartment.

It is not permitted to mortgage subsoil plots, specially protected natural areas, or other property withdrawn from circulation, for which, in accordance with federal law foreclosure cannot be applied to multi-apartment and individual residential buildings and apartments that are in state or municipal ownership, as well as property in respect of which privatization is prohibited in accordance with the procedure established by federal law (part 5, clause 3 of Decree No. 293 of 02.28.96 ).

The basis for the emergence of a mortgage is an agreement. A mortgage may also arise on the basis of law upon the occurrence of the circumstances specified therein, if the law stipulates what property and to secure what obligation is recognized as being pledged. Thus, according to paragraph 1 of Article 587 of the Civil Code of the Russian Federation, when transferring a plot of land or other real estate for payment of rent, the recipient of the rent, in order to secure the obligation of the rent payer, acquires the right of pledge on this property. The payer of the rent, with the prior consent of its recipient, has the right to pledge real estate transferred to him to ensure lifelong maintenance.

The scope of application of mortgages is quite wide. This is security for obligations under a credit agreement (loan agreement), as well as obligations based on a purchase and sale agreement, lease, contract, transportation of goods, or other agreement.

The mortgage is characterized by the following distinctive features:

• - Firstly, a mortgage, like any pledge, is a way of ensuring the proper fulfillment of another (principal) obligation - a loan or loan agreement, lease agreements, etc. Consequently, the mortgage is based on the main obligation, since without it it loses its meaning.
• - Secondly, real estate is always the subject of a mortgage. Real estate includes land plots and everything that is firmly connected with them: enterprises, residential buildings, other buildings, structures.

The Federal Law “On Mortgages (Pledge of Real Estate)” specifies that the subject of a mortgage agreement may be:

• - land plots, with the exception of land plots in state or municipal ownership, as well as land plots whose size is smaller minimum size, installed regulations subjects Russian Federation or organs local government for the lands of one or another intended purpose and permitted use;
• - enterprises, buildings, structures and other real estate that is used in entrepreneurial activity;
• - residential buildings, apartments, isolated parts of residential buildings and apartments;
• - dachas, garden houses, garages and other consumer buildings;
• - aircraft and sea vessels, inland navigation vessels and space objects.
• - Thirdly, the subject of the mortgage is always in the possession of the debtor. He remains the owner, user and actual possessor of this property, but is deprived of the right to dispose of it, at least without the consent of the creditor, for the duration of the pledge period.
• - Fourthly, the agreement between the creditor and the debtor to establish a mortgage is drawn up a special document- a mortgage, which is accompanied by state registration. Notarization has now been cancelled.
• - Fifthly, if the value of the collateral significantly exceeds the amount of the loan issued, a mortgage makes it possible to obtain additional mortgage loans secured by the same property (second, third mortgage). The rights of mortgage creditors for the same real estate are satisfied in the manner of registering the mortgage, i.e., making an entry about the registration of the mortgage in special mortgage books.
• - And finally, in the event of failure to fulfill the obligation secured by the mortgage, the creditor has the right to demand the sale of the mortgaged property at public auction. When selling property pledged under a mortgage agreement, the mortgage lender has advantages over other creditors in the amount specified in the mortgage.

From the above it follows that the following principles of mortgage can be distinguished:

• 1) openness, or publicity - access of every interested person to the information contained in the mortgage book;
• 2) specialty - the possibility of establishing a mortgage only for certain real estate and in a certain volume;
• 3) reliability - entries in public books mean that in relation to this property there are no rights and legal restrictions other than those indicated;
• 4) seniority - the advantage of one mortgage right over another depending on the time it was entered into the mortgage book;
• 5) irrevocability - the mortgage is terminated only in cases expressly provided for by law or agreement;
• 6) the inapplicability of the expiration statute of limitations to the rights entered in the mortgage book.

The beginning of mortgage lending in Russia can be attributed to the reign of Empress Elizabeth Petrovna. At this time (1754) noble banks were opened in Moscow and St. Petersburg. But, in its unorganized form, the mortgage loan existed much earlier. For example, back in the 15th century, a secondary mortgage of the estate into other hands appeared, and clauses also appeared stating that the estate was not mortgaged into other hands. When considering the issue of residential mortgage lending, one should distinguish between the concepts of the object of collateral and the object of lending.

The object of collateral is real estate (residential premises - house, apartment, etc.), which serve as security for the borrower’s obligation.

The object of lending is a specific goal for which a loan is provided. The subject of the mortgage is determined in the agreement by indicating its name, location and a description sufficient to identify this subject. Also, the mortgage agreement must indicate the right by virtue of which the property that is the subject of the mortgage belongs to the mortgagor, and the state registration authority that registered this right of the mortgagor.

The estimated value of the subject of the mortgage is determined by agreement between the mortgagor and the mortgagee and is indicated in the agreement in monetary terms. The assessment can be assigned and commercial organization appraisers. This aspect of the issue should be regulated by the Law “On appraisal activities in the Russian Federation.” In practice, banks involved in mortgage lending cooperate with large real estate companies that have their own real estate appraisal departments. It is worth noting that today, when evaluating the same apartment in different companies, the difference can reach 10 - 15 thousand dollars.

If the amount of the obligation secured by the mortgage is subject to determination in the future, the procedure and other necessary conditions for its determination must be indicated (part 7, paragraph 5 of Decree No. 293 of 02.28.96). In the case where the obligation is subject to execution in parts, the mortgage must indicate the terms of the relevant payments and their amounts or conditions allowing for the determination of these amounts.

Over the past few years, mortgage lending has remained one of the most rapidly developing areas of activity of Russian credit institutions. One of the fundamental concepts of credit relations is the subject of mortgage, the issues of which today are clearly regulated by current legislation.

What does the legislation say?

Issues of mortgage lending today are legally regulated by Federal Law No. 102-FZ “On Mortgage”. Today, the legislator has established equality between mortgages and collateral, which is reflected in the full title of this law.

According to generally accepted concepts, the object and subject of lending are distinguished, which do not represent equivalent terms. The generally accepted interpretation is the following:

• subject of mortgage- this is a residential premises, the right of ownership of which is registered in accordance with legally established rules with mandatory registration with the authorized body;
• under object of mortgage refers to the right of ownership of real estate classified as a housing group.

In accordance with current regulations, only the real estate category can be the subject of mortgage lending. Agreement in mandatory contains information related to the subject of mortgage relations, the results of real estate assessments, the essence of agreements, and the deadlines for fulfilling loan obligations.

What can act as the subject of a mortgage?

The list of objects that have the right to act as the subject of a mortgage is clearly defined by federal laws. What can be the subject of a mortgage:

• private houses;
• apartments in multi-storey buildings;
• a certain share of the premises;
• objects at the stage of construction;
• the right to claim when drawing up an agreement on the option of shared construction.

All existing species Mortgage residential property can be divided into two types - individual buildings and multi-apartment buildings. When participating in mortgage lending apartment building, certain parts of which belong individuals in the form of shared ownership, the mortgaged amount is considered to be the corresponding amount in the right of common ownership.

An individual type includes a residential building intended for one family to live in accordance with all established standards. Such a structure can consist of either one room or several separated rooms. If it is laid a private house, then the land plot that functionally supports the structure also acts as the subject of a mortgage.

The current rules make it possible to consider the following objects as the subject of a mortgage:

• hotel;
• dacha;
• garden houses;
• premises not intended for permanent residence.

At the same time, the rules that are established regarding apartment buildings, do not apply to such buildings.

Special nuances

In most cases, the collateral for the loan is residential property, but according to current rules other options are acceptable. The Bank has the right to accept the following objects as collateral:

• land plots, the status of which allows the conclusion of loan agreements;
• industrial buildings, property used for business activities;
• multi-room residential premises;
• consumer structures, including garden structures;
• air vehicles, watercraft;
• machine places.

The collateral may be Residential Properties, which is purchased with loan funds, and there are no restrictions on the degree of readiness of the premises. Participation in the lending process for finished and under construction housing is allowed. In the latter case, credit institutions often put forward a requirement in the form of a certain percentage of the construction of the structure (not less than 30%). Common today credit offers, under which the bank is not only the mortgagee of the property under construction, but also participates in the construction financially, providing loans to developers. This allows them to ensure the safety of allocated funds. Most often, the following interaction model is used: the bank accredits certain developers and offers borrower clients the most profitable terms lending in the houses under construction of their partners.

Housing that is owned by the borrower is often used as collateral. It is not prohibited to use a share in the premises as collateral, but in most cases banks are ready to make a deal if the part of the apartment purchased with loan funds is the last one.

If the borrower fails to repay the loan on time, the bank has the right to impose a foreclosure on the collateral property. The alienation procedure is carried out only on the basis of a decision judicial authority in the form of sale at auction or sale.

Mortgages on which properties are not allowed?

Despite the fact that real estate can be the subject of a mortgage, there are a number of restrictions regarding possible residential properties. This circumstance must be taken into account and it is necessary to understand which of the listed objects cannot be mortgaged.

The following types of real estate cannot act as such:

• state-owned;
• being municipal property;
• premises classified as service premises;
• housing classified as specialized housing stock.

According to the current rules, it is not allowed to pledge a small part of a plot of land whose area is less than the minimum established regulatory documents mortgage lending to a specific subject of the Russian Federation.

Can all residential property be subject to mortgage?

Along with legislative restrictions regarding what can act as the subject of a mortgage, there are a number of specific requirements of banks. This situation is due to the fact that creditors want to receive liquid property and, if necessary, be able to quickly sell collateral real estate. Lending rules may vary slightly among different credit institutions.

The bank's main requirements for residential real estate are as follows:

• compliance of the year of construction with the rules of the credit institution;
• satisfactory condition of housing, its absence from the list of emergency real estate;
• absence of unregistered redevelopments;
• a sufficient degree of liquidity of the object throughout the entire loan period;
• requirement for the design of the premises in the form of the absence of wooden floors, walls made of brick, stone or reinforced concrete;
• absence of obstacles to property transactions in the form of encumbrances.

Some credit institutions require that the premises have a separate kitchen and bathroom. In most cases, the loan rules stipulate the presence of working water supply, sewerage, electricity and other engineering structures.

It is desirable for a bank to have no other owners. If desired, provide as collateral communal apartment, premises with registered minor children, disabled people, with a high degree of probability the bank will not accept such collateral for the loan.

Conclusion

The concept of the subject of a mortgage today is clearly enshrined in law, and the list of such objects is clearly regulated. Credit institutions put forward certain specific requirements regarding items acceptable for mortgages, which may differ slightly from bank to bank.

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

• essence and types mortgage loans;
• list of normative and legal acts regulating mortgage lending;
• mortgage lending models;
• mortgage lending scheme and participants;
• methods of amortization of mortgage loans;
• concepts of “mortgage debt ratio”, “mortgage constant”; be able to
• distinguish a mortgage loan from other types of loans;
• determine different kinds mortgage loans;
• describe the main types of mortgage loans;
• determine the mortgage debt ratio, 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 economic entities currently, is a mortgage loan. Mortgage - This is a credit or loan provided for a period of three years or more by a bank (credit organization) or a legal entity (non-credit organization) to a legal entity or individual for the acquisition of real estate 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 credit funds. The exclusive property of the mortgage and the best guarantee Loan collateral is the right of the lender to dispose of the borrower's real estate at its discretion in the event of its failure to fulfill its obligations to repay the loans.

Term mortgage first appeared in Ancient Greece at the beginning of the 6th century. BC. (it was introduced by Archon Solon) and was associated with ensuring the liability of the debtor to the creditor with certain land holdings. For this purpose, obligations were drawn up, and at the border belonging to the borrower land territory a post was placed with an inscription stating 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. hypotheka - stand, support), all debts of the land owner were noted.

Later, special books called mortgage books began to be used for this purpose. Already in Ancient Greece, publicity was ensured, allowing every interested party to freely verify the condition of a given land property. The institution of mortgage received 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 provides the following definition of mortgage: “A mortgage is the security of an enterprise, buildings, building, building or other object, directly connected to the earth, together with the corresponding 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 came into force on January 1, 1995. The code established general rules securing loans with real estate collateral, provisions on ownership and other proprietary rights to residential premises, grounds for foreclosure on mortgaged residential property.

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

The most important event in the development mortgage market in the Russian Federation became the Decree of the Government of the Russian Federation dated January 11, 2000 No. 28 “On measures to develop the housing mortgage lending system in the Russian Federation,” which approved the Concept for the development of the housing mortgage lending system in the Russian Federation. It defined the state strategy in the formation and development of the mortgage lending sector and described in detail the formation of the system and the organizational and economic mechanism for attracting credit resources to this area.

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

Based on the results of the first stage of implementation of the Federal Target Program “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 national project“Affordable and comfortable housing for citizens of Russia” and the creation of the National Council on Housing Policy were included in the specified Federal target program by Decree of the Government of the Russian Federation of December 31, 2005 No. 865 “On additional measures for the implementation of the federal target program “Housing” for 2002-2010” corresponding changes that led to the modernization of the subprograms of the Federal Target Program “Housing”.

The second stage of implementation of the Federal Target Program “Housing” was carried out in 2006-2010. and provided for the continuation of the ongoing transformations in housing sector and the implementation of a set of measures within the framework of the priority national project “Affordable and comfortable housing for Russian citizens.” This stage of implementation of the Federal Target Program “Housing” is aimed at implementing the subprograms “Providing land plots with communal infrastructure for the purpose of housing construction"; “Modernization of municipal infrastructure facilities”; “Providing housing for young families”; “Fulfillment of state obligations to provide housing to categories of citizens established by federal legislation.” 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 of supply and demand in the housing market.

The implementation period of the Federal Target Program “Housing” and its subprograms has been extended for the period 2011-2015. At the same time, along with previously existing subprograms and activities 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 two-tier system mortgage lending.

A significant fact that influenced the development 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 Law on Mortgage, Part Two of the Civil Code of the Russian Federation and other legislative acts.

Mortgage- This is a form of providing a loan and collateral for 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 on 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 being dealt with financial companies, funds that purchase the assets of mortgage banks, secured by a pledge of property, and then, on their own behalf, issue securities (bonds, certificates of participation) on their basis to ensure additional attraction of resources for lending.

Credit relations are built on the principles of: targeted use, security, urgency, payment, repayment. Intended use loan is confirmed by documents provided by the borrower. The main types of loan security are: surety, guarantee, collateral, insurance of the borrower's liability for non-repayment of the loan. The collateral for a mortgage loan is the borrower's pledge of real estate and property rights, which serve as a guarantee for the lender of the debtor's full and timely repayment of the loan received and payment of the interest due. Confirmation of repayment is the provision by the borrower of documents on his solvency.

A mortgage loan does the following: functions".

• the function of a financial mechanism for attracting investment in the sphere of material production;
• function of ensuring the repayment of borrowed funds;
• the function of stimulating the turnover and redistribution of real estate when other methods (purchase and sale, etc.) are economically infeasible or legally impossible;
• the function of forming multi-level fictitious capital in the form of mortgages, derivative mortgage securities, etc.

Thus, with economic point vision mortgage - This is a market instrument for the turnover of property rights to real estate, allowing to attract additional financial resources for the implementation of any projects, and from a legal point of view, a mortgage consists of encumbering the property rights of ownership of real estate objects when they are pledged.

Currently, many types of mortgage loans have been developed in the world, differing depending on the issuance, repayment and servicing schemes (Table 4.1).

Types of mortgage loans

Classification feature	Types of loan
	Real estate	Land; enterprises, as well as buildings, structures, etc.; residential buildings, apartments and parts thereof; aircraft, sea vessels, inland navigation vessels and spacecraft
	Unfinished real estate construction	Building; structures
Type of creditor	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 companies that are clients of the bike; clients of real estate firms; persons living in this region; for everyone
Debt amortization method	Permanent mortgage loan
	Loan with variable payments	Loans with balloon payment; spring loans; participation loans (mortgage loans that include a financial interest of the lender); loans with increasing payments; reverse annuity loans; variable rate loans; Canadian rollover; final mortgage; loans with added interest
Method of providing a loan	European model; American model

Classification feature	Types of loan
Opportunity early repayment	With the right early repayment; without the right of early repayment; with the right of 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; preliminary savings of borrowers, government subsidies; own, attracted and borrowed funds(including loans international organizations); sale of mortgages to a mortgage agency or a large mortgage bank
Purpose of lending	Housing lending	Purchase of finished housing in apartment building; construction, reconstruction, major renovation; construction and acquisition of finished housing for investment purposes
	Land development
	Agricultural development
	Production development
	Loans secured by existing real estate for various needs of the borrower
Duration and purpose of applying for a loan	Short term loan(current need for funds); long-term loan (financing capital construction, reconstruction, development of land)

Subject of mortgage may be the following property (Article 5 of the 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. Unfinished construction of real estate erected on a land plot allocated for construction in the manner prescribed by law, including buildings and structures.

A pledge of land plots, enterprises, structures, apartments and other real estate can arise only insofar as their circulation is permitted by federal laws.

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

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

A mortgage is established on property that belongs to the mortgagor on the basis of ownership or economic management. The property on which the mortgage is established remains with the mortgagor in his possession and use.

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

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

According to Art. 43 of the Law on Mortgage, property pledged under a mortgage agreement to secure the performance of one obligation (previous mortgage) may be pledged to secure the performance of another obligation of the same or another debtor to the same or another mortgagee (subsequent mortgage). The priority of mortgage holders is established based on the data of the Unified state register rights to real estate and transactions with it on the moment of emergence of a mortgage.

A subsequent mortgage is permitted if it is not prohibited by previous mortgage agreements on the same property, which have not terminated by the time the subsequent mortgage agreement is concluded. If a previous mortgage agreement provides for the conditions under which a subsequent mortgage agreement may 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 borrowers As lending entities, mortgage loans are divided into:

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

Participants mortgage lending: banks (check the borrower’s solvency) and non-banking organizations; Insurance companies(obliges to insure risks arising in the process of mortgage lending); appraisal companies(evaluate 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 characterized set deadline lending and fixed interest rate. It is typical for countries with low inflation, long loan terms and involves equal repayment payments (amortization) at regular intervals (for example, once a month). Therefore, such loans are classified as self-amortizing.

The standard annuity payment is calculated using the formula

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

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

Solution.

Let's use formula (4.1):

Loans with variable payments are not self-amortizing and provide for different periods of repayment of principal and interest, as well as others additional conditions. Such loans include loans with balloon payment, involving a one-time final (balloon) payment or with a breakdown of a one-time payment. They are divided:

• interest-only loans are a type of loan with balloon payment, which provides for balloon payment of the principal amount at the end of the term, and payment of interest regularly throughout the entire loan term. Such a loan is also called a deferred mortgage;
• loans with freezing interest payments until the expiration of the loan term, which do not provide for any payments, both in repayment of the principal debt 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 expect to sell a plot of land at the end of the term for an amount that allows them to pay off the loan, interest and make a profit from the sale;
• loans with partial amortization and a final balloon payment require partial periodic payments of both principal and interest, as well as a one-time payment of the remaining debt;
• loans with gradual payment of only the principal debt involve payments of the principal amount and a one-time payment, including the debt to pay interest.

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

Loans with participation used when financing income-producing real estate. This loan is close to a self-amortizing loan, but assumes that the lender, regularly receiving the principal and interest on it, also participates in the income from the property. The lender's participation may vary: he may claim part of the excess rent, part of the excess net operating income (income-sharing loan), part of the capital gain or proceeds received from the sale of real estate (cost-sharing loan), etc. .

Loans with increasing payments(growing annuity) provide equal payments throughout the entire term and are used by owners of rental properties 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.

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

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

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, maximum interest rates are agreed upon in advance.

Final 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, payments on which are sent to repay the first loan. The rates on such loans are usually higher than on a first loan.

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

Depending on the method of providing credit in the history of the development of mortgages, there are two main models of the mortgage lending market: European and American.

European model - This is a one-level 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 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 notes, as a rule, are legally limited to the issuance of mortgage loans and other operations characterized by a low degree of risk. No other issuer other than those listed in the law may issue securities called “mortgage notes.” The activities of mortgage banks are strictly controlled by the state and banking supervisory authorities.

Rice. 4.1.

1 - savings deposit; 2 - the borrower obtains a mortgage loan; 3 - payment for housing under sales and purchase agreements or construction contracts (equity and borrowed capital); 4 - return of the mortgage loan and interest on it; 5 - insurance of mortgaged housing; 6 - income from the sale of securities (mortgages); 7 - income but securities(mortgages) and their repayment

When implementing this model, the following main types of contracts are envisaged:

• 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 - a mortgaged home insurance agreement;
• between the borrower and the seller (builder) - a housing purchase and sale agreement.

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 operating principle, 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 based on it has its own source of funds (including housing stock) for issuing loans. All available cash funds (own and borrowed) are used only for the implementation of statutory activities, i.e. to finance housing construction and issue mortgage loans for the purchase of already built apartments. The investor gets the opportunity to accumulate the required contribution for the purchase of an apartment (for example, in the amount of 50% of its cost) over 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, but the housing itself - finished or unfinished (the so-called construction mortgage).

The disadvantages of the German model are: a limited selection of residential premises that 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 of 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 countries of the Anglo-Saxon legal system. 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 its turn financial institutions(secondary market operators, specially created agencies) can deal with received mortgage loans as follows:

• 1) assign them to secondary investors;
• 2) form pools from 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 (these may be mortgage-backed bonds or mortgage certificates participation).

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. Banks then assign the issued mortgage loans to specialized mortgage agencies. Having purchased loans from banks at face value, mortgage agencies combine them into pools and issue their own debt obligations secured by them. Borrowers deposit money with banks as payment for the loan received, and the banks transfer these funds, withholding commissions, to the mortgage agent, who pays income from them to the owners of mortgage-backed securities.

Rice. 4.2.

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

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

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

• loan agreement and mortgage agreement between the borrower and the lender;
• agreement for the purchase and sale of housing between the borrower and the seller (builder);
• mortgage insurance agreement between the borrower and the insurance company;
• business risk insurance agreement between the insurance company and the mortgage agency;
• agreement on the assignment of the right to claim under mortgage loans between the lender and the mortgage agency;
• agreement trust management acquired rights of claim.

The choice of a two-level model is explained not only by state interests, but also by the peculiarities of the concept of property rights in the Anglo-Saxon legal system, which presupposes its splitting. It is possible to establish several titles of ownership for the same property and divide the content of ownership between by various persons. The object of property rights in the Anglo-American countries legal system may 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 mortgage in the civil law of continental European countries. In particular, the subject of a mortgage can be both real and movable property. But the main thing is that with a mortgage, 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 an increase in the costs of its maintenance. This in turn entails an increase in the cost of credit funds for the borrower. Another drawback is the inability to clearly and effectively regulate the mortgage market, built on the Anglo-American model, within the framework of the continental system of morality.

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-described methods of developing mortgages, both through attracting resources from banks and through the use financial instruments secondary market operators.

Depending on availability early repayment There are loans with the right of early repayment and without the right of early repayment. According to Art. 45 of the Law on Mortgage, the mortgagor has the right at any time to fulfill the obligation secured by the mortgage in full at any time, if the mortgage agreement excludes the possibility of 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, mortgage bank CJSC KB DeltaCredit launched credit product in rubles with a floating interest rate linked to the indicative rate MosPrime Rate.

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

By refinancing method - Mortgage lending is provided by various credit institutions. The peculiarities of their activities lie in the method of refinancing issued loans (Table 4.2).

Table 4.2

Methods for refinancing mortgage loans

By degree of security loans are divided depending on the size of the down 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, participating in the issuance of a loan, mortgage loans are: conventional and combined. Conventional loans are issued by a single lender, while combination loans are issued by several lenders.

Depending on the loan conditions distinguished: subsidized loan and loan issued for general conditions. Subsidized loans are issued to individuals and legal entities- groups of beneficiaries included in government programs. Funding is provided by both the state and credit organizations. Thus, in 2011, Sberbank of Russia implemented the following programs: “Mortgage with state support”, “Mortgage plus maternal capital», « Military mortgage" and etc.; Mortgage agency housing lending(AHML) launched the “Mortgage for Young Scientists” program; Globex Bank actively issued loans on mortgage program for military personnel. However, such programs are accessible to a limited number of people.

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

The advantages of a mortgage loan are:

• enough opportunity short time become a homeowner and move into new apartment;
• obtaining a loan for long term, for which size monthly payments will not change if the price of the apartment increases;
• the opportunity to pay for your own apartment rather than rent someone else’s property, while the interest on the loan is comparable to the monthly rent for a similar apartment;
• the opportunity for the borrower and his family members to register in an apartment purchased with a mortgage loan;
• profitable investment funds (real estate prices are growing steadily);
• receiving tax benefit for the entire term 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) in the Moscow money market and calculated by the National Monetary Association.
• Razumova I. A. Mortgage lending. 2nd ed. St. Petersburg: Peter, 2009. P. 14.

O.P. Kazachenok, 2005

BRIEF SCIENTIFIC COMMUNICATIONS

SUBJECT OF THE MORTGAGE AGREEMENT

O. P. Kazachenok

In accordance with Art. 334 of the Civil Code of the Russian Federation, a mortgage is recognized as a pledge of land, enterprises, buildings, structures, apartments and other real estate. In this case, the property on which the mortgage is established remains with the mortgagor in his possession and use (Clause 1, Article 1 of the Federal Law “On Mortgages”).

In Art. 5 of the Federal Law “On Mortgage” defines the property that can be the subject of a mortgage. First of all, these can be immovable things (real estate, real estate) specified in Art. 130 of the Civil Code of the Russian Federation, namely: land plots, subsoil plots, isolated water bodies and everything that is firmly connected with the land, to which rights are registered in the manner established for state registration of rights to real estate. Clause 1 of Art. 5 of the Federal Law “On Mortgage” specifies the property that can be the subject of a mortgage. These are, firstly, land plots, with the exception of the plots specified in Art. 63 Federal Law “On Mortgage”. Secondly, enterprises, buildings and structures and other real estate used in business activities. Thirdly, residential buildings, apartments and parts of residential buildings and apartments, consisting of isolated rooms (one or more). Fourthly, dachas, garden houses, garages and other buildings for consumer purposes. Fifthly, aircraft and sea vessels, inland navigation vessels and space objects.

The definition of real estate is contained in Art. 130 Civil Code of the Russian Federation. These are objects firmly connected to the ground, the movement of which is impossible without disproportionate damage to their purpose.

It is obvious that the division of property into movable and immovable is not accidental. In practice, its significance is manifested in the greater limitation of domination over real estate and in the strength of strengthening rights to various types of this property compared with movable property.

Clause 1 of Art. 1 of the Federal Law “On Mortgage” determines that the property for which it is established

on a mortgage remains with the mortgagor in his possession and use. This actually means the withdrawal from the mortgagor of the right to dispose of the collateral, the most important power of ownership (Clause 1 of Article 209 of the Civil Code of the Russian Federation). According to A. Smolyannikov, this contradicts the traditions of mortgage of classical Romano-German law, which are adhered to throughout continental Europe and many other countries, and goes against the traditions of Russian civil law. In accordance with this provision, he continues, “when establishing a mortgage, the mortgagor is obliged to actually alienate his ownership of the mortgaged property in favor of the creditor, which does not correspond to clause 2 of Art. 209 of the Civil Code of the Russian Federation, according to which the owner has the right, at his own discretion, while remaining the owner, to pledge property and encumber it in other ways”1. In this regard, it seems necessary to paragraph 3 of paragraph 1 of Art. 1 of the Federal Law “On Mortgages” should be supplemented with a rule according to which the property on which the mortgage is established remains with the mortgagor not only in his possession and use, but also at his disposal, with the restrictions established by federal law.

Subject of mortgage in accordance with Art. 9 of the Federal Law “On Mortgage” is subject to assessment by agreement of the parties in accordance with the legislation of the Russian Federation. A.A. correctly notes. Kiselev that “the principle of assessing the subject of pledge by agreement of the parties seems quite appropriate, because only by agreement of the parties this condition agreement, it is possible to achieve maximum balance of interests of counterparties in a given legal relationship”2. It seems that the assessment of the subject of pledge by a third party, proposed by A. Smolyannikov3, although it will be of the most independent nature, can nevertheless lead to irresolvable contradictions between the parties and ultimately force them to choose a different method of securing the main obligation or go to court for settlement of a dispute regarding the valuation of the subject of mortgage. These paths are seen as too burdensome and therefore unacceptable.

Bulletin of VolSU. Series 5. Issue. 7. 2005

BRIEF SCIENTIFIC COMMUNICATIONS

A mortgage may be established to secure an obligation under a credit agreement, a loan agreement or another obligation, including an obligation based on purchase and sale, lease, contract, other agreement, damage, unless otherwise provided by federal law.

Like a pledge of movable property, a mortgage ensures payment to the mortgagee of the principal amount of the debt under a loan agreement or other obligation secured by the mortgage, in full or in part, as provided for in the mortgage agreement.

A mortgage established to secure the execution of a credit agreement or loan agreement with the condition of payment of interest also ensures payment to the creditor (lender) of the interest due to him for using the loan (borrowed funds).

In addition, unless otherwise provided by the agreement, the mortgage also ensures payment to the mortgagee of the amounts due to him:

To compensate for losses and (or) as a penalty (fine, penalty) due to non-fulfillment, delay in fulfillment or other improper fulfillment of an obligation secured by a mortgage;

In the form of interest for the unlawful use of others' in cash provided for by the obligation secured by the mortgage or federal law;

To compensate for legal costs and other expenses caused by the foreclosure of the mortgaged property;

To reimburse expenses for the sale of pledged property (this corresponds to Article 337 of the Civil Code of the Russian Federation).

A mortgage secures the mortgagee's claims to the extent that they are at the time of their satisfaction at the expense of the pledged property, unless otherwise provided by the agreement (Clause 2, Article 3 of the Federal Law “On Mortgage”). At the same time, the legislator provides an exception to the rules on securing obligations with a mortgage. If the mortgage agreement specifies a general fixed amount claims of the mortgagee secured by a mortgage, the obligations of the debtor to the mortgagee in excess of this amount are not considered secured by the mortgage, with the exception of claims based on:

Compensation for legal costs and other expenses caused by the foreclosure of the pledged property;

Reimbursement of expenses for the sale of pledged property (Article 3 of the Federal Law “On Mortgages”).

The Federal Law “On Mortgages” provides that a mortgage can also cover other additional expenses of the mortgagee.

It should be borne in mind that in accordance with paragraph 3 of Art. 5 of the Federal Law “On Mortgage”, the thing that is the subject of the mortgage is considered pledged together with accessories as a single whole, unless otherwise provided by the agreement. Meanwhile, part of the property, the division of which in kind is impossible without changing its purpose (indivisible thing), cannot be an independent subject of mortgage (Clause 4, Article 5 of the Federal Law “On Mortgage”),

Appendix No. 1 to the Code of Civil Procedure of the RSFSR of 1964 contains a list of types of property of citizens that cannot be foreclosed on. According to the Civil Code of the Russian Federation, property contained in this list cannot be the subject of a pledge (clause 2 of Article 336 of the Civil Code of the Russian Federation). The only one real estate indicated in the application is a residential building with outbuildings or its individual parts - from persons whose main occupation is Agriculture, - in which the debtor and his entire family permanently reside.

In Art. 6 of the Federal Law “On Mortgage” establishes a ban on mortgaging property in respect of which mandatory privatization is provided for in the manner prescribed by this law, or the privatization of which is prohibited. This provision at the legislative level finally solved a problem that had hitherto been solved only by judicial practice.

Thus, according to the main purpose of mortgaged items, they are distinguished:

Mortgage of residential houses and apartments;

Mortgage of land plots;

Mortgage of enterprises, buildings, structures, structures and other real estate.

NOTES

1 Smolyannikov A. Mortgage: theory through the prism of lawmaking // Questions of Economics. 1997. No. 7. P. 115.

2 Kiselev A.A. Subject of the mortgage agreement // Notary. 2003. No. 2. P. 18.

3 Smolyannikov A Decree. op. P. 116.

O. P. Kazachenok. Subject of the mortgage agreement