The pledge arose and developed simultaneously with the emergence of elements of private property, as a financial and economic instrument that provides protection for creditors and contributes to the development of investment activity.

In its general sense, pledge can be defined as property or other valuables that serve as collateral for a loan. Those. a pledge is a certain way of securing an obligation in which the pledgee (a legal entity or individual who accepts the subject of pledge as security for a loan issued by him), in the event of failure by the mortgagor (a legal entity or individual who provided the subject of pledge to secure his debt) has a preemptive right before other creditors to satisfy their claim from the value of the pledged property.

A pledge arises by virtue of an agreement, as well as on the basis of the Law upon the occurrence of the circumstances specified therein, if the Law stipulates what property and to ensure the fulfillment of what obligation is recognized as being pledged.

The most common type of pledge is by agreement, when the pledgor (debtor) voluntarily pledges his property by concluding an appropriate agreement with the pledgee (creditor)

A pledge is a way of securing an obligation, and a pledge agreement is not independent in nature; it is always associated with another agreement (purchase and sale, contract, commission, storage, etc.) that it secures.

In addition, an agreement, an obligation secured by a pledge, is concluded in order to remove the pledged property from possible recovery by the claims of other creditors. A pledge agreement always stands behind another main agreement and is directly dependent on it.

It should be noted that the main provisions on pledge, as such, are determined, firstly, and secondly, by the Law of the Russian Federation of May 29, 1992 No. 2872 - 1 “On Pledge”. However, it must be borne in mind that the regulation of pledge in the Civil Code of the Russian Federation sometimes differs from its regulation in the above-mentioned law.

The concept of pledge cannot be fully established without defining what is the subject of the pledge.

Subject of collateral may be both movable and immovable property, as well as property rights, i.e. objective rights of participants in relationships, related to the ownership, use and disposal of property, as well as those material(property) claims that arise between participants in economic transactions regarding the distribution of this property and the exchange of goods, services, securities, etc.

The subject of the pledge can be not only an existing object or rights to it, but also property that does not exist in kind at the time of concluding the agreement, for example, a future harvest or a building to be built using a loan for which it serves as security.

Basic principles of collateral:

1. Publicity– availability of information about the collateral of property for all interested parties.

2. Specificity– the property pledged must, in terms of its characteristics (and in particular its functional purpose), exactly match the data that it has as an object of state registration.

3. Confidence– the value and liquidity of the property guarantees the repayment of the debt. The demands of the pledgee are fulfilled under the guarantee of the agreed property of the pledgor.

The pledgee has the right to receive, on the same basis, satisfaction from the insurance compensation for loss or damage to the pledged property, regardless of whose benefit it is insured, unless the loss or damage occurred for reasons for which the pledgee is responsible. There is a large number types of collateral

, which differ from each other in accordance with the characteristics that formed their basis. From point of view relations of the parties to the pledged property

The following main types of collateral are distinguished:

Classic pledge – the property remains with the pledgor;

Mortgage – the property is transferred to the mortgagee in possession;

The type of collateral also depends on the repayment terms of the loan received as collateral. There are different types of mortgages. Mortgage is a security that defines a claim in relation to the pledged property provided by the mortgagor for the purpose of securing a loan.

1. Fixed rate mortgages. The mortgagor is obliged to make monthly payments to repay the loan debt and pay interest. Such loans are classified as self-amortizing. Amortization in this case means the process of repaying the principal debt and interest on the loan.

2. Adjustable (or adjustable) rate mortgages. In this case, the interest rate is tied to another market interest rate and adjusted in accordance with its changes. As a rule, adjustments are made no more than once a year. At the same time, the interest rate on adjustable-rate mortgages is lower, on average, by 1.5-2 percentage points than on fixed-rate mortgages, which is due to the awareness of the risk taken by the owners of adjustable mortgages. The essence of this risk is that the adjustment raises the interest rate higher, and the volume of monthly payments increases.

3. Mortgages with differentiated payments. These mortgages provide for gradual increases or decreases in payments to repay the loan. Such loans can, for example, be used when lending to young families who have less income at the beginning of the loan term than at the end.

4. Guaranteed mortgages. In this case, a mortgage insurer is required.

The right of pledge arises from the moment of concluding a pledge agreement, and in relation to the pledge of property that is to be transferred to the pledgee, from the moment of transfer of this property, unless otherwise provided by the pledge agreement.

The pledge is terminated in the following cases:

When fulfilling obligations to secure collateral;

In case of gross violations of the pledgee's duties, entailing a threat of destruction of property and at the request of the pledgor;

Upon termination of the pledge right and destruction of the pledged property, unless otherwise provided in the pledge agreement;

If it is impossible to realize the collateral.

A pledge of real estate to secure the monetary claim of the pledgee against the mortgagor is called a mortgage .

However, there is a “but” here. We have given a general definition of mortgage, from which more detailed definitions of this concept can follow, based on the characteristics, state and development of mortgages in different countries.

For example, in the USA, mortgage refers to lending only in the housing sector. Therefore, although, to date, mortgage has a certain international character, it is difficult to give an indisputable definition of this concept, since a representative of a particular country and population group can adjust it in his own way.

Mortgage has two aspects: legal and economic. Legal content

mortgage consists of encumbering property rights of ownership of real estate objects when they are pledged. Economic content

mortgage is a market instrument for the turnover of property rights to real estate (in cases where other forms of alienation - purchase and sale, exchange - are inappropriate), allowing to attract additional financial resources for the implementation of any projects.

Legal regulation of mortgages occurs with the help of the Civil Code of the Russian Federation, as well as Federal Law No. 102 - Federal Law “On Mortgage” dated July 16, 1998.

The subject of the mortgage may be real estate objects specified in the Civil Code of the Russian Federation, the rights to which are registered in the manner established for state registration. This real estate includes:

1. Enterprises as unified property complexes used in business activities.

To transfer an enterprise into a mortgage, the consent of the owner of the above-mentioned real estate is required. The mortgagor, without the permission of the mortgagee, has no right to transfer property related to the enterprise as collateral, or to enter into transactions aimed at alienating property related to the enterprise, unless otherwise provided by the mortgage agreement.

An enterprise's mortgage can be used to secure an obligation in an amount that is at least half the value of all property that relates to the enterprise.(used in business activities) with a simultaneous mortgage under the same agreement of the land plots on which they are located, or parts of these plots that functionally provide these buildings and structures.

It is also necessary to say here that if the land plot on which the mortgaged object is located is leased, then simultaneously with the mortgage of the building or structure, the lease rights to this plot or part of it are necessarily pledged.

3. Residential buildings, apartments and parts of residential buildings and apartments, consisting of one or more isolated rooms.

4. Hotels, holiday homes, summer cottages, garden houses and other buildings and premises not intended for permanent residence.

5. Aircraft and sea vessels, inland navigation vessels and space objects. 6. Unfinished real estate properties , and

materials and equipment that are prepared for their construction.

7. Subsoil areas, isolated water bodies.

8. Forests, perennial plantings.

Since real estate objects that are firmly connected to it are located on the land, the pledge of buildings, structures, enterprises, separate water bodies and perennial plantings is practically impossible without the simultaneous pledge of the corresponding land plots (this has already been indicated above). This determines the special role of land in the sphere of collateral relations.

9. Land plots owned by citizens, their associations, legal entities and provided for gardening, livestock husbandry, individual housing, dacha and garage construction, household plots of personal subsidiary plots and land plots occupied by buildings, structures or structures, in the amount necessary for their economic maintenance (functional support). In accordance with the Law “On Mortgage”, as well as

the property that is the subject of the mortgage is considered pledged together with accessories as a single whole.

In accordance with Russian legislation, the subject of a mortgage cannot be:

Part of the property, the division of which in kind is impossible without changing its purpose;

State property: state and municipal lands, as well as agricultural lands, state and municipal individual and multi-apartment residential buildings, subsoil plots and specially protected natural areas;

Part of a land plot, an area that is less than the minimum size for various purposes and permitted uses;

Shares in the ownership of the common property of a residential building separately from the ownership of the apartment.

Legislative regulation of collateral relations is found in the laws of Manu in Ancient India (II century BC), and it was developed in detail in Roman law.

The term “mortgage” (from the Greek hypotheke - pledge), according to historians, first appeared in Greece at the beginning of the 6th century. BC, and even then was associated with ensuring the liability of the debtor to the creditor with certain land holdings. The history of the development of mortgages in Russia is given in appendix.

16.

This definition is legal for the Russian Federation.

For example, Art. 339, 340, 349, etc.

The features of mortgages for enterprises of buildings and structures are discussed in more detail in Chapter XII of the Law “On Mortgage”.

Previous RUSSIAN FEDERATION FEDERAL LAW ON MORTGAGE (REAL ESTATE PLEDGE) Chapter I. BASIC PROVISIONS Article 1. 1. Under an agreement on the pledge of real estate (mortgage agreement), one party - the pledgee, who is a creditor under the obligation secured by the 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 mortgagor, preferentially before others creditors of the pledgor, with exceptions established by federal law. The mortgagor may be the debtor himself under the obligation secured by a mortgage, or a person not participating in this obligation (a third party). The property on which the mortgage is established remains with the mortgagor in his possession and use. 2. To a pledge of real estate arising on the basis of a federal law upon the occurrence of the circumstances specified therein, the rules on a pledge arising by virtue of a mortgage agreement are correspondingly applied, unless otherwise established by federal law. 3. The general rules on pledge contained in the Civil Code of the Russian Federation apply to relations under a mortgage agreement in cases where the specified Code or this Federal Law does not establish other rules. 4. A pledge of land plots, enterprises, buildings, structures, apartments and other real estate can arise only insofar as their circulation is permitted by federal laws. Article 2. Obligation secured by a mortgage 1. A mortgage ensures payment to the mortgagee of the principal amount of debt under a loan agreement or other obligation secured by a mortgage in full or in part provided for by the mortgage agreement. A mortgage established to secure the execution of a credit agreement or a loan agreement with the condition of paying interest also ensures payment to the creditor (lender) of the interest due to him for using the loan (borrowed funds). Unless otherwise provided by the agreement, the mortgage also ensures payment to the mortgagee of amounts due to him: 1) in compensation for losses and/or as a penalty (fine, penalty) due to non-fulfillment, late performance or other improper performance of the obligation secured by the mortgage; 2) in the form of interest for the unlawful use of someone else’s money, provided for by the obligation secured by the mortgage or by federal law; 1. Under a mortgage agreement, the 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, may be pledged, 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 real estate used in business activities; 1. A mortgage may be established on the property specified in Article 5 of this Federal Law, which belongs to the mortgagor by right of ownership or by the right of economic management. 2. Mortgage of property withdrawn from circulation, property on which, in accordance with federal law, cannot be foreclosed on, as well as property in respect of which mandatory privatization is provided for in accordance with the procedure established by federal law or the privatization of which is prohibited is not permitted. 3. If the subject of the mortgage is property, the alienation of which requires the consent or permission of another person or body, the same consent or permission is necessary for the mortgage of this property. Decisions on the pledge of real estate that is state-owned and not secured by the right of economic management are made by the Government of the Russian Federation or the government (administration) of a constituent entity of the Russian Federation. 4. The right to lease may be the subject of a mortgage with the consent of the lessor, unless otherwise provided by federal law or the lease agreement. In the cases provided for in paragraph 3 of Article 335 of the Civil Code of the Russian Federation, the consent of the owner of the leased property or the person who has the right of economic management over it is also required. 5. A pledge of real estate is not the basis for the release of a person who acted as a mortgagor under a mortgage agreement from fulfilling the conditions under which he participated in an investment (commercial) competition, auction or otherwise in the process of privatization of the property that is the subject of this pledge. Article 7. 1. On 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, unless federal law provides otherwise. 2. A participant in common shared ownership may pledge his share in the right to common property without the consent of other owners. If, at the request of the mortgagee, foreclosure is applied to this share upon its sale, the rules of Articles 250 and 255 of the Civil Code of the Russian Federation on the pre-emptive right of purchase belonging to the remaining owners and on foreclosure on a share in the right of common ownership are applied, 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 of the Russian Federation) in connection with the foreclosure of an apartment in this building. Chapter II. CONCLUSION OF A MORTGAGE AGREEMENT Article 8. General rules for concluding a mortgage agreement The mortgage agreement is concluded in compliance with the general rules of the Civil Code of the Russian Federation on concluding agreements, as well as the provisions of this Federal Law. Article 9. 1. The mortgage agreement must indicate the subject of the mortgage, its valuation, essence, size and deadline for fulfilling the obligation secured by the mortgage. 2. The subject of the mortgage is determined in the agreement by indicating its name, location and a description sufficient to identify this subject. 5. If the obligation secured by a mortgage is subject to execution in parts, the mortgage agreement must indicate the terms (frequency) of the relevant payments and their amounts or conditions allowing these amounts to be determined. 6. If the rights of the mortgagee in accordance with Article 13 of this Federal Law are certified by a mortgage, this is indicated in the mortgage agreement. Article 10. Contents of the mortgage agreement 1. The mortgage agreement must be notarized and subject to state registration. An agreement that does not contain any data specified in Article 9 of this Federal Law, or violates the rules of paragraph 4 of Article 13 of this Federal Law, is not subject to notarization and state registration as a mortgage agreement. Failure to comply with the rules on notarization and state registration of a mortgage agreement entails its invalidity. Such an agreement is considered void. 2. The mortgage agreement is considered concluded and comes into force from the moment of its state registration. 3. When including a mortgage agreement in a loan or other agreement containing an obligation secured by a mortgage, the requirements established for a mortgage agreement must be met with regard to the form and state registration of this agreement. 4. If the mortgage agreement states that the rights of the mortgagee in accordance with Article 13 of this Federal Law are certified by the mortgage, the mortgage is submitted to the notary along with such an agreement. The notary makes a note on the mortgage about the time and place of notarization of the mortgage agreement, numbers and seals the sheets of the mortgage in accordance with part two of paragraph 3 of Article 14 of this Federal Law. Article 11. The emergence of the right of pledge under a mortgage agreement 1. The rights of the mortgagee to the property pledged under this agreement (the right of pledge) provided for by this Federal Law and the mortgage agreement arise from the moment the mortgage agreement is concluded, and if the obligation secured by the mortgage arose later, from the moment this obligation arises. 2. Property pledged under a mortgage agreement is considered encumbered with a mortgage from the moment the right of pledge arises. Article 12. Warning to the mortgagee about the rights of third parties to the subject of the mortgage When concluding a mortgage agreement, the mortgagor is obliged to warn the mortgagee in writing about all the rights of third parties to the subject of the mortgage known to him at the time of state registration of the agreement (rights of pledge, lifelong use, lease, easements and other rights). Failure to fulfill this obligation gives the mortgagee the right to demand early fulfillment of the obligation secured by the mortgage or change the terms of the mortgage agreement. Chapter III. MORTGAGE 1. The rights of the mortgagee under the obligation secured by a mortgage and under the mortgage agreement may be certified by a mortgage, unless otherwise established by this Federal Law. 2. A mortgage is a registered security that certifies the following rights of its legal owner: - the right to receive execution of a monetary obligation secured by a mortgage of the property specified in the mortgage agreement, without providing other evidence of the existence of this obligation; In the latter case, simultaneously with the application for making changes to the data of the unified state register of rights to real estate, the mortgagor transfers to the body that carried out the state registration of the mortgage a new mortgage, which is handed over to the mortgagee in exchange for the mortgage in his legal possession. Article 13. 1. The mortgage must contain: 1) the word “mortgage” included in the title of the document; A document called a “mortgage”, which nevertheless does not contain any data specified in subparagraphs 1 - 14 of this paragraph, is not a mortgage and is not subject to issue to the original mortgagee. 2. By agreement between the mortgagor and the mortgagee, the mortgage may also include data and conditions not provided for in paragraph 1 of this article. 3. If there is insufficient space on the mortgage itself for transfer inscriptions or notes on the partial fulfillment of the obligation secured by the mortgage, an additional sheet is attached to the mortgage, the inscriptions and marks on which are made in such a way that they begin on the mortgage and end on this sheet. Attachments to the mortgage Documents defining the terms of the mortgage or necessary for the mortgagee to exercise his rights under the mortgage may be attached to the mortgage. If the documents attached to the mortgage are not named therein with such precision as is sufficient to identify them, and the mortgage does not state that such documents are an integral part of it, such documents are not binding on the persons to whom the rights under the mortgage were transferred as a result its sale, pledge or otherwise. Article 16. Registration of mortgage holders 1. Any legal owner of a mortgage has the right to demand from the body that carried out the state registration of the mortgage to register him in the unified state register of rights to real estate as a mortgagee indicating his name and place of residence, and if the owner of the mortgage is a legal entity - his name and location . 2. The debtor under an obligation secured by a mortgage, who has received from the legal owner of the mortgage a written notice of the latter’s registration in the unified state register of rights to real estate with a duly certified extract from this register, is obliged to make interim payments on the specified obligation, without requiring the presentation of the mortgage to him each time . 1. When exercising his rights provided for by federal law or an agreement, the owner of the mortgage is obliged to present the mortgage to the obligated person (debtor or pledgor) in respect of whom the corresponding right is exercised, upon his request, unless when pledging the mortgage it is not transferred to the deposit of a notary. 2. The mortgagee, upon fulfillment of the obligation secured by the mortgage, is obliged to transfer the mortgage to the mortgagor in full, and in cases where the obligation is fulfilled in parts, to provide the debtor with the opportunity to make a note on the mortgage about the fulfillment of the relevant part of the obligation or to certify its fulfillment in another way sufficient for the mortgagor and obvious to possible subsequent owners of the mortgage. 3. The presence of a mortgage in the possession of the mortgagee or the absence on it of a mark or otherwise certifying the partial fulfillment of the obligation secured by the mortgage indicates, unless otherwise proven, that this obligation or, accordingly, part of it has not been fulfilled. 4. The debtor under an obligation secured by a mortgage shall repay his debt in full or in part by properly fulfilling his obligations under the mortgage in accordance with the plan for repaying the debt to its legal owner or a person authorized in writing by the legal owner of the mortgage to exercise rights under it. 5. In the case of transfer of the mortgage to the deposit of a notary when pledging the mortgage, the debtor under the obligation secured by the mortgage fulfills his obligation by depositing the debt into the deposit of the notary. 6. The person obligated under the mortgage has the right to refuse the holder of the mortgage to exercise his rights under the mortgage in the following cases: - the court has accepted for consideration a claim to invalidate the assignment of rights under this mortgage or to apply the consequences of the invalidity of this transaction; A person in possession of a mortgage is obliged to immediately notify other persons from among the above-mentioned persons. Such obligation of the debtor terminates upon receipt of written notice from this or another legal owner of the mortgage regarding the assignment of rights under the mortgage. 3. A registration entry about the legal owner of the mortgage must be made within one day from the moment the applicant applies to the body that carried out the state registration of the mortgage, upon presentation of the mortgage on the basis of: - an endorsement made in accordance with this Federal Law in the name of the applicant, if the person who made such inscription the person was the legal owner of the mortgage or the mortgagee of the mortgage, in whose name a special pledge endorsement was made and who sold the mortgage upon the expiration of the period specified in it (clause 4 of Article 49); 1. Restoration of rights under a lost mortgage is carried out by the mortgagor, and if he is a third party, also by the debtor under the obligation secured by the mortgage on the basis of: - an application addressed to them by a person listed in the unified state register of rights to real estate as a mortgagee, if according to the data entered into the said register in accordance with Article 16 of this Federal Law, it is possible to establish all the endorsements made on the lost mortgage; - a court decision made based on the results of consideration of a case in a special proceeding on the establishment of facts of legal significance in accordance with the procedural legislation of the Russian Federation. 2. The mortgagor, and if he is a third party, also the debtor under the obligation secured by the mortgage, are obliged, in the shortest possible time, to draw up a duplicate of the mortgage with the mark “duplicate” on it and submit it to the body that carried out the state registration of the mortgage. 3. A duplicate of the mortgage is issued by the body that carried out the state registration of the mortgage by handing it over to the person who lost the mortgage. 4. The duplicate mortgage note must fully correspond to the lost mortgage note. The maker of the duplicate mortgage note is liable for losses incurred in connection with the discrepancy between the duplicate mortgage note and the lost mortgage note. The persons obligated under the mortgage do not have the right to refuse the legal owner of the duplicate mortgage to exercise rights under it in connection with the specified discrepancy, if they are responsible for it. Chapter IV. STATE REGISTRATION OF MORTGAGE Article 19. 1. A mortgage is subject to state registration by justice institutions in the unified state register of rights to real estate in the manner established by the federal law on state registration of rights to real estate and transactions with it. 2. State registration of a mortgage is carried out at the location of the property that is the subject of the mortgage. Article 20. Procedure for state registration of mortgages 1. State registration of mortgages is carried out on the basis of an application from the mortgagor. 2. For state registration of a mortgage, the following must be submitted: - a notarized mortgage agreement and a copy thereof; - documents named in the mortgage agreement as attachments; 1. State registration of a mortgage may be refused in cases provided for by the federal law on state registration of rights to real estate and transactions with it. 2. State registration of a mortgage may be delayed for no more than one month if: - failure to submit to the body carrying out state registration of mortgages any of the documents specified in paragraphs 2 and 3 of Article 20 of this Federal Law; - non-compliance of the mortgage agreement, mortgage note and documents attached thereto with the requirements provided for by the legislation of the Russian Federation; 1. The registration record of a mortgage in the unified state register of rights to real estate must contain information about the original mortgagee, the subject of the mortgage and the amount of the obligation secured by it. If the mortgage agreement provides that the rights of the mortgagee are certified by the mortgage, this is also indicated in the mortgage registration record. 1. Correction of technical errors in the mortgage registration record is permitted on the basis of an application from the mortgagor or mortgagee with notification to the other party of the correction made and provided that the said correction cannot cause damage to third parties or violate their legitimate interests. 2. Changes and additions to the mortgage registration record are made on the basis of an agreement between the mortgagor and the mortgagee to change or supplement the terms of the mortgage agreement. Such an agreement must be notarized. Changes and additions to the mortgage registration record are not allowed if the rights of the mortgagee are certified by the mortgage, except for the case provided for in paragraph three of clause 6 of Article 13 of this Federal Law. Article 24. Costs for state registration of mortgages The costs of paying fees for state registration of a mortgage and making changes and additions to the mortgage registration record are borne by the mortgagor, unless otherwise established by agreement between him and the mortgagee. Article 25. Redemption of a mortgage registry The mortgage registration record is canceled on the basis of an application from the legal owner of the mortgage, a joint application from the mortgagor and the mortgagee, or based on a decision of a court, arbitration court or arbitration tribunal to terminate the mortgage. When the mortgage registration record is redeemed in connection with the termination of the mortgage, the mortgage is canceled in the manner established by this Federal Law. The canceled mortgage is transferred to the person previously obligated under it at his request. Article 26. Public nature of state registration of mortgages State registration of mortgages is public. Any person has the right to obtain from the body carrying out state registration of rights to real estate information about whether there is a registration record about the mortgage of the relevant property, and a certified extract from the registration record about the mortgage. Refusal of state registration of a mortgage or evasion by the relevant body from its registration or from issuing a mortgage to the original mortgagee, refusal to make corrections to the registration record of the mortgage, cancellation of the registration record of the mortgage in violation of the established rules, registration of a non-existent mortgage, refusal to exercise the rights provided for in Article 26 of this Federal Law, as well as other actions of the body carrying out state registration of rights to real estate that do not comply with federal law, may be appealed by an interested person to a court or arbitration court in accordance with the procedural legislation of the Russian Federation. Article 28. Responsibility of the mortgage registration authority The body that registered or should have registered the mortgage is obliged, in accordance with the Civil Code of the Russian Federation, to compensate the interested party for losses caused by its illegal actions (inaction), including: - unjustified refusal to state register the mortgage; - unjustified refusal to make corrections to the registration record;- delay in state registration of mortgages beyond the established period; - state registration of a mortgage in violation of the requirements imposed by the legislation of the Russian Federation for the content of the registration record, or with other errors; 1. The mortgagor retains the right to use the property pledged under the mortgage agreement. The mortgagor has the right to use this property in accordance with its purpose. The terms of the mortgage agreement limiting this right of the mortgagor are void. Unless otherwise provided by the agreement, when using the pledged property, the pledgor must not allow the property to deteriorate and its value to decrease beyond what is caused by normal wear and tear. 2. The mortgagor has the right to extract fruits and income from the property pledged under the mortgage agreement. The mortgagee does not acquire rights to these fruits and income, unless otherwise provided by the mortgage agreement. Article 30. Maintenance and repair of mortgaged property 1. Insurance of property pledged under a mortgage agreement is carried out in accordance with the terms of this agreement. 2. If there are no other conditions in the mortgage agreement on insurance of the mortgaged property, the mortgagor is obliged to insure at his own expense this property in full value against the risks of loss and damage, and if the full value of the property exceeds the amount of the obligation secured by the mortgage - in an amount not lower than the amount of this obligation. 3. The mortgagee has the right to satisfy his claim under the obligation secured by the mortgage directly from the insurance compensation for loss or damage to the pledged property, regardless of whose benefit it is insured. This requirement is subject to satisfaction preferentially before the claims of other creditors of the pledgor and persons in whose favor the insurance was carried out, with exceptions established by federal law. The mortgagee is deprived of the right to satisfy his claim from the insurance compensation if the loss or damage to the property occurred for reasons for which he is responsible. Article 32. Measures to protect pledged property from loss and damage To ensure the safety of the pledged property, including to protect it from attacks by third parties, fire, natural disasters, the pledgor is obliged to take measures established by federal law, other legal acts of the Russian Federation (clauses 3 and 4 of Article 3 of the Civil Code of the Russian Federation) and the agreement about the mortgage, and if they are not established - the necessary measures corresponding to the usually imposed requirements. 1. In cases where other persons present demands to the pledgor for recognition of their ownership or other rights to the pledged property, for its seizure (claim) or for the encumbrance of the specified property or other demands, the satisfaction of which may entail a decrease in the value or deterioration of this property, the pledgor is obliged to immediately notify the pledgee of this if he knows it. When a corresponding claim is brought against the pledgor in a court, arbitration court or arbitration court (hereinafter referred to as the court), he must involve such pledgee in participating in the case. 2. In the cases specified in paragraph 1 of this article, the pledgor must use methods appropriate to the circumstances to protect his rights to the pledged property, provided for in Article 12 of the Civil Code of the Russian Federation. If the pledgor has refused to protect his rights to the pledged property or does not exercise it, the pledgee has the right to use these methods of protection on behalf of the pledgor without a special power of attorney and demand from the pledgor compensation for the necessary expenses incurred in connection with this. 3. If property pledged under a mortgage agreement turns out to be in the illegal possession of third parties, the mortgagee has the right, acting on his own behalf, to reclaim this property from someone else’s illegal possession in accordance with Articles 301 - 303 of the Civil Code of the Russian Federation in order to transfer it into the possession of the mortgagor . Article 34. The right of the pledgee to inspect the pledged property The mortgagee has the right to check, using documents and in fact, the availability, condition and conditions of maintenance of the property pledged under the mortgage agreement. This right belongs to the pledgee even if the pledged property is temporarily transferred by the pledgor into the possession of third parties. The inspection carried out by the pledgee must not create unjustified obstacles to the use of the pledged property by the pledgor or other persons in whose possession it is located. Article 35. Rights of the pledgee in the event of inadequate security of the pledged property In the event of a gross violation by the mortgagor of the rules for the use of the pledged property (clause 1 of Article 29), the rules for the maintenance or repair of the pledged property (Article 30), the obligation to take measures to preserve this property (Article 32), if such a violation creates a threat of loss or damage to the pledged property, and Also, in case of violation of the obligations to insure the pledged property (clauses 1 and 2 of Article 31) or in case of an unjustified refusal to the mortgagee to inspect the pledged property (Article 34), the pledgee has the right to demand early fulfillment of the obligation secured by the mortgage. If satisfaction of such a requirement is refused or it is not satisfied within the period stipulated by the agreement, and if such a period is not provided, within one month, the mortgagee has the right to foreclose on the property pledged under the mortgage agreement. Article 36. Consequences of loss or damage to pledged property 1. The mortgagor bears the risk of accidental loss and accidental damage to the property pledged under the mortgage agreement, unless otherwise provided by such agreement. 2. If, due to circumstances for which the mortgagee is not responsible, the pledged property is lost or damaged to such an extent that, as a result, the security of the obligation by the mortgage has significantly deteriorated, the pledgee has the right to demand early fulfillment of the obligation secured by the mortgage, including at the expense of insurance compensation in accordance with paragraph 3 of the article 31 of this Federal Law. 3. The pledgee cannot exercise the rights provided for in paragraph 2 of this article if an agreement in writing has been concluded between him and the pledgor on the restoration or replacement of lost or damaged property and the pledgor properly fulfills the terms of this agreement. 1. Property pledged under a mortgage agreement may be alienated by the mortgagor to another person by selling, donating, exchanging, making it as a contribution to the property of a business partnership or company or a share contribution to the property of a production cooperative, or in any other way only with the consent of the mortgagee, if otherwise not provided for in the mortgage agreement. 2. In the case of the issuance of a mortgage, alienation of the pledged property is permitted if the mortgagor’s right to this is provided for in the mortgage, in compliance with the conditions established therein. 3. The pledgor has the right to bequeath the pledged property. The terms of the mortgage agreement or other agreement limiting this right of the mortgagor are void. Article 38. Preservation of a mortgage upon transfer of rights to the pledged property to another person 1. A person who acquired property pledged under a mortgage agreement as a result of its alienation or in the manner of universal legal succession, including as a result of the reorganization of a legal entity or by inheritance, becomes in place of the mortgagor and bears all the obligations of the latter under the mortgage agreement, including those that were not properly fulfilled by the original mortgagor. The new pledgor may be released from any of these obligations only by agreement with the pledgee. Such an agreement is not mandatory for subsequent purchasers of the mortgage if it is not certified by a notary and the rules of Article 15 of this Federal Law are not followed. 2. If property pledged under a mortgage agreement has been transferred on the grounds specified in paragraph 1 of this article to several persons, each of the legal successors of the original mortgagor shall bear the consequences of failure to fulfill the obligation secured by the mortgage arising from the mortgage relationship in proportion to the part of the pledged property transferred to it. If the subject of the mortgage is indivisible or for other reasons comes into the common ownership of the legal successors of the mortgagor, the legal successors become joint mortgagors. 3. The pledge of property under a mortgage agreement remains in force regardless of whether, during the transfer of this property to other persons, any rules established for such a transfer were violated. Article 39. When alienating property pledged under a mortgage agreement in violation of the rules of paragraphs 1 and 2 of Article 37 of this Federal Law, the mortgagee has the right, at his own discretion, to demand: - recognition of the transaction on alienation of the pledged property as invalid and the application of the consequences provided for in Article 167 of the Civil Code of the Russian Federation; - early fulfillment of the obligation secured by the mortgage and foreclosure on the mortgaged property, regardless of who owns it. 1. Unless otherwise provided by federal law or a mortgage agreement, the mortgagor has the right, without the consent of the mortgagee, to lease out the pledged property, transfer it for temporary free use and, by agreement with another person, grant the latter the right to limited use of this property (easement) under the conditions that : - the period for which the property is provided for use does not exceed the term of the obligation secured by the mortgage; - property is provided for use for purposes consistent with the purpose of the property. 2. If the mortgagee forecloses on the mortgaged property on the grounds provided for by federal law or the mortgage agreement, all lease rights and other rights to use this property granted by the mortgagor to third parties without the consent of the mortgagee after the conclusion of the mortgage agreement are terminated from the moment of entry into legal the force of a court decision to foreclose on the property, and if the mortgagee’s demands are satisfied without going to court - from the moment of notarization of the agreement between the pledgor and the mortgagee on foreclosure in accordance with Article 55 of this Federal Law. 3. The pledged property may be provided by the mortgagor for the use of third parties for a period exceeding the term of the obligation secured by the mortgage, or for purposes that do not correspond to the purpose of the property, only with the consent of the pledgee. In the case of the issuance of a mortgage, granting, under these conditions, to third parties the right to use the mortgaged property is permitted if the mortgagor’s right to this is provided for in the mortgage. 4. The provision by the mortgagor of the pledged property for the use of another person does not relieve the mortgagor from fulfilling obligations under the mortgage agreement, unless otherwise provided by this agreement. 5. Encumbrance of property pledged under a mortgage agreement with other pledges is regulated by the rules of Chapter VII of this Federal Law. Article 41. 1. If the mortgagor’s ownership of the property that is the subject of the mortgage is terminated on the grounds and in the manner established by federal law, as a result of the seizure (redemption) of property for state or municipal needs, its requisition or nationalization, and the mortgagor is provided with other property or appropriate compensation, the mortgage extends to the property provided in exchange, or the mortgagee acquires the right of priority to satisfy his claims from the amount of compensation due to the mortgagor. The mortgagee, whose interests cannot be fully protected by the rights provided for in part one of this paragraph, has the right to demand early fulfillment of the obligation secured by the mortgage and foreclosure on the property provided to the mortgagor in exchange for the seized property. 2. In cases where the property that is the subject of a mortgage is seized from the mortgagor by the state in the form of a sanction for committing a crime or other offense (confiscation), the mortgage remains in force and the rules of Article 38 of this Federal Law are applied. However, the mortgagee, whose interests cannot be fully protected by the application of these rules, has the right to demand early fulfillment of the obligation secured by the mortgage and foreclosure on the confiscated property. Article 42. Consequences of vindication of pledged property In cases where the property that is the subject of a mortgage is seized from the mortgagor in the manner prescribed by federal law on the basis that in reality the owner of this property is another person (vindication), the mortgage in respect of this property is terminated. After the relevant court decision has entered into legal force, the mortgagee has the right to demand early fulfillment of the obligation that was secured by the mortgage. Chapter VII. SUBSEQUENT MORTGAGE 1. Property pledged under a mortgage agreement to secure the performance of one obligation (preceding 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). 2. The mortgagor who has entered into a subsequent mortgage agreement must immediately notify the mortgagees of the previous mortgages and, at their request, provide them with information about the subsequent mortgage provided for in paragraph 1 of Article 9 of this Federal Law. 3. After concluding a subsequent mortgage agreement, a change to the previous agreement, entailing the provision of new claims of the previous mortgagee or an increase in the volume of claims already secured under this agreement (Article 3), is allowed only with the consent of the mortgagee under the subsequent agreement. 4. The rules of this article do not apply if the parties to the previous and subsequent mortgage agreements are the same persons. Article 45. Article 43. The concept of a subsequent mortgage and the conditions under which it is allowed Satisfying the requirements of mortgage holders for previous and subsequent mortgages 1. The claims of the mortgagee under the subsequent mortgage agreement are satisfied from the value of the pledged property, subject to the requirements that the mortgagee under the previous mortgage agreement has the right of priority to satisfy its claims. 2. In the event of foreclosure on the pledged property based on claims secured by a subsequent mortgage, foreclosure on this property may simultaneously be filed on claims secured by a previous mortgage, the deadline for filing which has not yet arrived. If the mortgagee under the previous mortgage agreement has not exercised this right, the property that is foreclosed on claims secured by the subsequent mortgage passes to its acquirer encumbered by the previous mortgage. 3. In the event of foreclosure on the mortgaged property on claims secured by a previous mortgage, simultaneous foreclosure on this property and on claims secured by a subsequent mortgage, the deadline for filing which has not yet arrived, is allowed. Claims secured by a subsequent mortgage are not subject to early satisfaction if foreclosure on part of the mortgaged property is sufficient to satisfy the claims secured by the previous mortgage. 4. Before foreclosure of property, the pledge of which secures claims under previous and subsequent mortgages, the mortgagee, who intends to present his claims for foreclosure, is obliged to notify in writing the mortgagee under another mortgage agreement on the same property. 5. The rules contained in this article do not apply if the mortgagee of the previous and subsequent mortgages is the same person. In this case, the claims secured by each of the mortgages are satisfied in the order of priority corresponding to the deadlines for fulfilling the relevant obligations, unless otherwise provided by federal law or agreement of the parties. Chapter VIII. ASSIGNMENT OF RIGHTS UNDER THE MORTGAGE AGREEMENT. TRANSFER AND PLEDGE OF MORTGAGE Article 47. Assignment of rights under a mortgage agreement 1. The mortgagee has the right to transfer his rights under the mortgage agreement to another person, unless otherwise provided by the agreement. 2. The person to whom the rights under the mortgage agreement are transferred takes the place of the previous mortgagee under this agreement. The rules of Articles 382, ​​384 - 386, 388 and 390 of the Civil Code of the Russian Federation on the transfer of the rights of the creditor by assignment of the claim apply to his relations with this mortgagee. 3. An assignment by the mortgagee of rights under a mortgage agreement to another person is valid if the rights of claim against the debtor under the obligation secured by the mortgage are assigned to the same person. Unless proven otherwise, the assignment of rights under a mortgage agreement also means an assignment of rights under the obligation secured by the mortgage. 4. The assignment of rights under a mortgage agreement in accordance with paragraphs 1 and 2 of Article 389 of the Civil Code of the Russian Federation must be notarized and subject to state registration in the manner established for state registration of transactions with real estate. 5. Assignment of rights under a mortgage agreement or an obligation secured by a mortgage, the rights of which are certified by a mortgage, is not permitted. When such a transaction is made, it is considered void. Article 48. Transfer of rights under a mortgage 1. The transfer of rights under a mortgage is carried out by making an endorsement on it in favor of another person (the owner of the mortgage) and transferring the mortgage to this person. The transfer note must accurately and completely indicate the name of the person to whom the rights under the mortgage are transferred. Endorsements on a mortgage that do not contain such an indication (blank endorsements) are considered void. The endorsement must be signed by the mortgagee indicated in the mortgage, and if this endorsement is not the first – by the owner of the mortgage named in the previous endorsement. 2. Transfer of rights under a mortgage to another person means transfer thereby to the same person of rights under the obligation secured by the mortgage. 1. A mortgage may be pledged by transferring it to another person (mortgagee) to secure an obligation under a loan agreement or another obligation arising between this person and the mortgagee originally named in the mortgage or its other legal owner (mortgagee). 2. In the event of failure to fulfill an obligation secured by a mortgage, the mortgage holder is obliged, at the request of the mortgage holder, to transfer to him his rights under the mortgage in the manner, on the conditions and with the consequences that are provided for in Article 48 of this Federal Law. In case of refusal to transfer these rights, the mortgage holder may demand in court the transfer of these rights to himself. 3. The mortgagee to whom the rights under the mortgage have been transferred or to whom the court has transferred the rights under the mortgage has the right to foreclose on the subject of the mortgage in accordance with the terms of the mortgage. The proceeds from the sale of the subject of the mortgage are used to repay the debt of the mortgage holder to the mortgage holder, and the remaining amount is transferred to the mortgage holder in repayment of the debt due to him under a loan agreement or other obligation secured by the mortgage, other creditors of the mortgagor and the mortgagor himself in accordance with Article 61 of this Federal Law. 4. The mortgage holder may make a special collateral endorsement on the mortgage, giving the mortgagee the right to sell the mortgage after a certain period in order to withhold from the proceeds the amount of the obligation secured by its collateral. Chapter IX. FORECLOSURE OF PROPERTY PLEDGED UNDER A MORTGAGE AGREEMENT Article 50. Grounds for foreclosure on mortgaged property 1. The mortgagee has the right to foreclose on the property pledged under a mortgage agreement in order to satisfy at the expense of this property the requirements named in Article 3 of this Federal Law caused by non-fulfillment or improper fulfillment of the obligation secured by the mortgage, in particular, non-payment or untimely payment of the debt amount in full or in parts, unless otherwise provided by the contract. If there is a discrepancy between the terms of the mortgage agreement and the terms of the obligation secured by the mortgage with respect to claims that can be satisfied by foreclosure on the mortgaged property, preference is given to the terms of the mortgage agreement. 2. Unless otherwise provided for in the mortgage agreement, foreclosure on property pledged to secure an obligation fulfilled by periodic payments is permitted in case of systematic violation of the terms for making payments, that is, if the terms for making payments are violated more than three times within 12 months, even if each the delay is insignificant. 3. For claims caused by non-fulfillment or improper fulfillment of an obligation secured by a mortgage, foreclosure on the mortgaged property cannot be made if, in accordance with the terms of this obligation and the federal laws and other legal acts of the Russian Federation applicable to it (clauses 3 and 4 of Article 3 of the Civil Code of the Russian Federation) the debtor is released from liability for such non-performance or improper performance. 4. In the cases provided for in Articles 35, 39 and 41 of this Federal Law, the mortgagee has the right to demand early fulfillment of the obligation secured by the mortgage, and if this requirement is not met, foreclosure on the pledged property, even if the obligation secured by the mortgage is fulfilled properly. Article 51. Judicial procedure for foreclosure on mortgaged property Foreclosure on the claims of the mortgagee is applied to the property pledged under the mortgage agreement by a court decision, with the exception of cases where, in accordance with Article 55 of this Federal Law, it is allowed to satisfy such claims without going to court. Article 52. Jurisdiction and jurisdiction of cases of foreclosure on mortgaged property A claim for foreclosure of property pledged under a mortgage agreement is brought in accordance with the rules of jurisdiction and subordination of cases established by the procedural legislation of the Russian Federation. Article 53. Measures to protect the interests of other mortgagees, absent mortgagor and other persons 1. When foreclosure on property pledged under two or more mortgage agreements, the mortgagee must submit to the court in which the corresponding claim is filed, evidence of fulfillment of the obligation provided for in paragraph 4 of Article 46 of this Federal Law. 2. If from the materials of the case on foreclosure of the mortgaged property it is clear that the mortgage was or should have been carried out with the consent of another person or body, the court in which the claim for foreclosure is filed notifies the relevant person or body about this and gives him the opportunity participate in this matter. 3. Persons who have the right to use the pledged property based on law or contract (tenants, tenants, family members of the owner of the residential premises and other persons) or a real right to this property (easement, right of lifelong use and other rights) have the right to participate in the consideration of the case on foreclosure on mortgaged property. Article 54. Issues resolved by the court when considering a case of foreclosure on mortgaged property 1. Foreclosure of property pledged under a mortgage agreement may be refused if the debtor’s violation of the obligation secured by the mortgage is extremely insignificant and the amount of the mortgagee’s claims as a result is clearly disproportionate to the value of the pledged property, except for the case provided for in paragraph 2 of Article 50 of this Federal Law. law. 2. When making a decision to foreclose on property pledged under a mortgage agreement, the court must determine and indicate in it: 1) the amounts payable to the mortgagee from the value of the pledged property, with the exception of the amounts of expenses for the protection and sale of property, which are determined upon completion its implementation. If the debtor, within the time granted to him by the deferment, satisfies the creditor's claims secured by the mortgage, the court, at the request of the mortgagor, cancels the decision to foreclose. 4. Delay in the sale of pledged property is not permitted if: - it may lead to a significant deterioration in the financial position of the pledgee; Extrajudicial foreclosure of pledged property 1. Satisfaction of the mortgagee's claims at the expense of the property pledged under the mortgage agreement, without going to court, is permitted on the basis of a notarized agreement between the mortgagee and the mortgagor, concluded after the emergence of grounds for foreclosure on the subject of the mortgage. 5. An agreement to satisfy the claims of the mortgagee out of court, concluded on the basis of paragraph 1 of this article, may be declared invalid by the court upon the claim of a person whose rights are violated by this agreement. Chapter X. SALE OF PLEDGED PROPERTY SUBJECT TO FORECLOSURE Article 56. Methods for selling pledged property 1. Property pledged under a mortgage agreement, which has been foreclosed upon by a court decision in accordance with this Federal Law, shall be sold through public auction, except for the cases provided for by this Federal Law. The procedure for holding public auctions for the sale of property pledged under a mortgage agreement is determined by the procedural legislation of the Russian Federation, since this Federal Law does not establish other rules. 2. When making a decision to foreclose on the pledged property, the court may, with the consent of the pledgor and the pledgee, establish in the decision that the property is subject to sale by sale at auction. The same method of selling the pledged property may be provided for by the pledgor and the pledgee in an agreement to satisfy the pledgee’s claims out of court, concluded in accordance with paragraph 1 of Article 55 of this Federal Law. 1. Public auctions for the sale of pledged property are organized and conducted by bodies that, in accordance with the procedural legislation of the Russian Federation, are entrusted with the execution of court decisions, unless otherwise established by federal law. 2. Public auctions for the sale of pledged property are held at the location of this property. 3. The organizer of a public auction notifies about the upcoming public auction no later than a month before it is held in a periodical that is the official information body of the executive authority of the relevant constituent entity of the Russian Federation, indicating the date, time and place of the public auction, the nature of the property being sold and its initial selling price. 4. Persons wishing to take part in public auctions make a deposit in the amount, terms and manner that must be indicated in the notice of public auctions. Article 58 The sale of pledged property by sale at auction is not permitted in cases where foreclosure on this property in accordance with paragraph 2 of Article 55 of this Federal Law cannot be applied out of court. 1. The organizer of public auctions declares them invalid in cases where: 1) less than two buyers came to the public auction; 2) at the public auction no premium was made against the initial sale price of the pledged property; 1. The organizer of an auction for the sale of pledged property is a specialized organization chosen for this purpose by the pledgee with the consent of the pledgor, which acts on the basis of an agreement with the pledgee and acts on his behalf or on its own behalf. 2. The sale of pledged property at an auction is permitted if the auction is open. The sale of pledged property at a closed auction is permitted only in cases provided for by federal law. 3. Within five days from the date of fulfillment of the requirement to pay for the property by the person who won the auction, the auction organizer concludes a purchase and sale agreement with him. This agreement and the protocol on the results of the auction are the basis for making the necessary entries in the unified state register of rights to real estate. Article 60. Termination of foreclosure on mortgaged property and its sale 1. The debtor under an obligation secured by a mortgage and the mortgagor, who is a third party, have the right to stop foreclosure on the mortgaged property by satisfying all the claims of the mortgagee secured by the mortgage, the failure of which served as the basis for foreclosure on the property, to the extent that these claims exist at the time of payment of the corresponding sums The amount of proceeds from the sale of property pledged under a mortgage agreement, after deducting from it the amounts necessary to cover expenses in connection with the foreclosure of this property and its sale, is distributed among the mortgagees who have submitted their claims for collection, other creditors of the mortgagor and the mortgagor himself. . The distribution is carried out by the body carrying out the execution of court decisions, and if foreclosure on the pledged property was made out of court - by a notary who certified the agreement on such collection procedure, in compliance with the rules of Article 319, paragraph 1 of Article 334 and paragraphs 5 and 6 of Article 350 of the Civil Code of the Russian Federation Federation, as well as Article 46 of this Federal Law. If the subject of the mortgage being foreclosed on is state or municipal property, the amounts to be transferred to the mortgagor in the order and priority determined by this article are credited to the appropriate budget. Chapter XI. FEATURES OF LAND MORTGAGE Article 62. Land plots that can be the subject of a mortgage 1. Under a mortgage agreement, land plots owned by citizens, their associations, legal entities and provided for gardening, animal husbandry, individual housing, dacha and garage construction, personal plots of personal subsidiary plots and land plots occupied by buildings may be mortgaged. buildings or structures, in the amount necessary for their economic maintenance (functional support). 2. In case of common shared or joint ownership of land plots specified in paragraph 1 of this article, a mortgage can only be established on a land plot owned by a citizen or legal entity, allocated in kind from lands that are in common shared or joint ownership. Article 63. 1. Mortgage of lands in state or municipal ownership, as well as agricultural lands from the lands of agricultural organizations, peasant (farm) farms and field land plots of personal subsidiary plots in accordance with this Federal Law is not allowed. 2. Mortgage of a part of a land plot is not allowed, the area of ​​which is less than the minimum size established by regulatory acts of the constituent entities of the Russian Federation and regulatory acts of local government bodies for lands for various purposes and permitted uses. Article 64. Mortgage of a land plot on which there are buildings or structures owned by the mortgagor 1. Unless otherwise provided by the mortgage agreement, when mortgaging a land plot, the right of pledge to the buildings and structures of the mortgagor located or being erected on this plot, including residential buildings, does not apply. If the agreement does not contain a condition stipulating that a building or structure located or being erected on a land plot, owned by the pledgor, is pledged to the same mortgagee, the pledgor, when foreclosure on the land plot, retains the right to this building or structure and acquires the right of limited use (easement) of that part of the site that is necessary for the use of the building or structure in accordance with its purpose. The conditions for using this part of the plot are determined by an agreement between the pledgor and the pledgee, and in case of a dispute, by the court. 2. The mortgagor of a land plot has the right, without the consent of the mortgagee, to dispose of buildings and structures belonging to him on this plot, to which, in accordance with paragraph 1 of this article, the right of pledge does not apply. If such a building or structure is alienated to another person and there is no agreement with the mortgagee otherwise, the rights that this person can acquire to the mortgaged land plot are limited to the conditions provided for in part two of paragraph 1 of this article. 3. If a building or structure belonging to the mortgagor of a land plot, located or being erected on this land plot, is mortgaged to the same mortgagee, the mortgagor’s right to dispose of this building or structure, the conditions and consequences of the transfer of rights to this building or structure to other persons are determined by the rules of Chapter VI of this Federal Law. Article 65. Construction by the mortgagor of buildings or structures on the mortgaged land plot 1. On a land plot pledged under a mortgage agreement, the mortgagor has the right, without the consent of the mortgagee, to erect buildings or structures in the prescribed manner, unless otherwise provided by the mortgage agreement. These buildings and structures are not subject to the right of pledge, and the pledgor may dispose of them, as provided for in paragraph 2 of Article 64 of this Federal Law. If the construction by the mortgagor of a building or structure on a mortgaged land plot entails or may entail a deterioration of the security provided to the mortgagee by the mortgage of this plot, the mortgagee has the right, in accordance with paragraph 2 of Article 450 of the Civil Code of the Russian Federation, to demand a change in the mortgage agreement, including, if necessary, by extending the mortgage to the erected building or structure. 2. The construction of buildings or structures on a mortgaged land plot, if the rights of the mortgagee are certified by a mortgage, is allowed only if the mortgagor’s right to this is provided for in the mortgage, in compliance with the conditions reflected in it. Article 66. Mortgage of a land plot on which there are buildings or structures owned by third parties If a mortgage is established on a land plot on which a building or structure is located that belongs not to the mortgagor, but to another person, when the mortgagee forecloses on this plot and sells it, the rights and obligations that the mortgagor had in relation to this person as the owner of the plot are transferred to the purchaser of the plot. . Article 67. Valuation of a land plot with a mortgage The valuation of a land plot cannot be established in a mortgage agreement below its standard price. 1. A land plot acquired through sale at a public auction, auction or competition is subject to permitted use requirements. A person who acquired a land plot during sale at a public auction, auction or competition has the right to change the purpose of the plot only in cases provided for by the land legislation of the Russian Federation, or in the manner prescribed by this legislation. 2. The sale and acquisition at public auctions, auctions or competitions of mortgaged land plots are carried out in compliance with the restrictions established by federal law regarding the circle of persons who can purchase such plots. Chapter XII. FEATURES OF MORTGAGES FOR ENTERPRISES, BUILDINGS AND STRUCTURES Article 69. Mortgage of enterprises, buildings or structures with the land plot on which they are located When mortgaging an enterprise as a property complex (hereinafter referred to as the enterprise), the right of pledge extends to all property included in its composition (clause 2 of Article 340 of the Civil Code of the Russian Federation). 1. The transfer of an enterprise to a mortgage is permitted with the consent of the owner of the property related to the enterprise or an authorized body. An enterprise mortgage agreement concluded in violation of this requirement is void. 2. If the subject of the mortgage is an enterprise and is not otherwise provided by the agreement, the mortgaged property includes tangible and intangible assets related to this enterprise, including buildings, structures, equipment, inventory, raw materials, finished products, rights of claim, exclusive rights. 3. The composition of the property related to the enterprise being mortgaged and the assessment of its value are determined on the basis of a complete inventory of this property. The inventory report, balance sheet and the conclusion of an independent auditor on the composition and value of property related to the enterprise are mandatory annexes to the mortgage agreement. Article 71. Obligations that can be secured by a company's mortgage 1. An enterprise mortgage can be used to secure an obligation the amount of which is at least half the value of the property related to the enterprise. 2. An enterprise mortgage secures a monetary obligation that is subject to fulfillment no earlier than one year after the conclusion of the mortgage agreement. If the agreement stipulates that the mortgage of an enterprise secures an obligation with a shorter period of performance, the right to foreclose on the subject of the mortgage for an unfulfilled or improperly fulfilled obligation arises with the mortgagee after a year from the date of conclusion of the mortgage agreement. Article 72. Rights of the mortgagor in relation to the pledged enterprise 1. The mortgagor has the right to sell, exchange, lease, lend property related to the enterprise mortgaged, and otherwise dispose of the specified property, as well as make changes to the composition of this property, if this does not entail a decrease in the amount specified in the agreement on mortgage of the total value of property related to the enterprise, and also does not violate other terms of the mortgage agreement. Without the permission of the mortgagee, the mortgagor does not have the right to transfer property related to the enterprise as collateral, or to enter into transactions aimed at alienating real estate related to the enterprise, unless otherwise established by the mortgage agreement. 2. If the mortgagor of the enterprise fails to take measures to ensure the safety of the pledged property, or inefficient use of this property, which may lead to a decrease in the value of the enterprise, the mortgagee has the right to apply to the court with a demand for early fulfillment of the obligation secured by the mortgage or the introduction of mortgage control over the activities of the mortgagor. By a court decision, the mortgagee, in the manner of mortgage control, may be authorized to: - require the mortgagor to regularly submit accounting and other reporting documents, to pre-coordinate issues related to the conclusion of transactions with property related to the enterprise; - contact the owner of property related to the enterprise, or the body authorized by him, with a request to terminate the contract with the head of the enterprise;- bring claims to court to declare transactions concluded by the pledgor invalid; - exercise other rights provided for by mortgage control over the activities of the mortgagor. Article 73. 1. The rules of this chapter apply to the mortgage of individual and multi-apartment residential buildings and apartments intended for permanent residence, owned by citizens or legal entities. 2. Mortgages of individual and multi-apartment residential buildings and apartments that are state or municipal property are not permitted. 3. Hotels, holiday homes, summer cottages, garden houses and other buildings and premises not intended for permanent residence may be the subject of a mortgage on a general basis. The rules established for mortgages of residential buildings and apartments do not apply to them. 4. In the case where the subject of the mortgage is a part of a residential building or part of an apartment, consisting of one or more isolated rooms, the rules of this Federal Law on the Mortgage of a Residential House and Apartment are respectively applied to such mortgage. 5. The mortgage of a residential building or apartment owned by minors, persons with limited legal capacity or incapacitated persons over whom guardianship or trusteeship has been established is carried out in the manner established by the legislation of the Russian Federation for transactions with the property of wards. ConsultantPlus: note. The procedure for transactions with the property of wards is regulated by Articles 37 and 38 of the Civil Code of the Russian Federation. 6. A mortgage agreement, the subject of which is a residential building or apartment owned by a citizen, cannot be concluded through a representative, except for the cases provided for in paragraph 5 of this article. Article 75. Mortgage of apartments in a multi-apartment residential building When mortgaging an apartment in a multi-apartment residential building, parts of which, in accordance with paragraph 1 of Article 290 of the Civil Code of the Russian Federation, are in the common shared ownership of the mortgagor and other persons, the corresponding share in the right of common ownership of the residential building is considered mortgaged along with the residential premises. Article 76. Mortgage of residential buildings under construction 1. Unless otherwise provided by federal law or an agreement, a residential building or apartment purchased with a loan from a bank or other credit organization in ownership shall be considered pledged from the moment of state registration of the purchase and sale agreement for a residential building or apartment. The pledgee of this pledge is a bank or other credit institution that provided a loan for the purchase of a residential building or apartment. 2. The rules on the pledge of real estate arising by virtue of an agreement are applied to the pledge of a residential building or apartment arising on the basis of paragraph 1 of this article. Article 78. 1. The foreclosure by the mortgagee of a mortgaged residential house or apartment and the sale of this property shall not constitute grounds for the eviction by the purchaser of a residential house or apartment of the mortgagor and members of his family living together in this premises, if it is the only premises suitable for them for permanent residence, with the exception of the case provided for in paragraph 2 of this article. Chapter XIV. FINAL PROVISIONS Article 79. Entry into force of this Federal Law 1. Put this Federal Law into effect from the date of its official publication. 2. The norms of the Law of the Russian Federation “On Pledge” from the date of entry into force of this Federal Law are subject to application to the pledge of real estate (mortgage) only to the extent that they do not contradict this Federal Law.

Until federal laws and other legal acts of the Russian Federation are brought into conformity with this Federal Law (clauses 3 and 4 of Article 3 of the Civil Code of the Russian Federation), these federal laws and other legal acts of the Russian Federation shall be applied to the extent that does not contradict this Federal Law. 3. The rules of this Federal Law apply to relations arising in connection with the pledge of real estate (mortgage) after its entry into force.

For relations that arose before the entry into force of this Federal Law, this Federal Law applies to those rights and obligations that arise after its entry into force. 4. To propose to the President of the Russian Federation to bring the legal acts issued by him into compliance with this Federal Law. 5. Instruct the Government of the Russian Federation to: - bring the legal acts issued by it into compliance with this Federal Law;

- adopt legal acts ensuring the implementation of this Federal Law. President of the Russian Federation B. YELTSIN

Comments-Methodology

According to paragraph 1 of Article 1 of Federal Law No. 102-FZ, under an agreement on the pledge of real estate (mortgage agreement), one party - 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 mortgagor, preferentially before other creditors of the mortgagor, with exceptions established by federal law.

The mortgagor may be the debtor himself under the obligation secured by a mortgage, or a person not participating in this obligation (a third party).

The property on which the mortgage is established remains with the mortgagor in his possession and use. He has the right to use the pledged objects in accordance with their purpose, without allowing the property to deteriorate and its value to decrease beyond what is caused by normal wear and tear.

The mortgagor has the right to extract fruits and income from the property pledged under the mortgage agreement. The mortgagee does not acquire rights to these fruits and income, unless otherwise provided by the mortgage agreement (clause 2 of Article 29 of Federal Law No. 102-FZ).

In accordance with paragraph 1 of Article 30 of Federal Law No. 102-FZ, the mortgagor is obliged to maintain the property pledged under the mortgage agreement in good condition and bear the costs of maintaining this property until the termination of the mortgage.

In addition, the mortgagor is obliged to carry out current and major repairs of the property pledged under the mortgage agreement within the time limits established by federal law, other legal acts of the Russian Federation (clauses 3 and 4 of Article 3 of the Civil Code of the Russian Federation), or in the manner prescribed by them, and if such no deadlines have been established - within a reasonable time (clause 2 of Article 30 of Federal Law No. 102-FZ). That is, the provisions of Article 30 of Federal Law No. 102-FZ provide the parties to the contract with freedom to resolve these issues. Having agreed on a different distribution of responsibilities, they must secure this in the mortgage agreement.

In cases where the mortgagee, in accordance with the terms of the mortgage agreement or due to the need to ensure the preservation of the property pledged under this agreement, is forced to bear the costs of its maintenance and/or security or to pay off the debt of the mortgagor for taxes and fees associated with this property or utility bills, reimbursement to the mortgagee for such necessary expenses is provided at the expense of the pledged property (Article 4 of Federal Law No. 102-FZ).

Subject of mortgage.

As a rule, obligations secured by a mortgage are monetary obligations arising from loan agreements for the purchase of real estate, so it is widely believed that only housing lending is secured by a mortgage. However, this is not so - a mortgage can secure the fulfillment of any monetary obligation. For example, Article 2 of Federal Law No. 102-FZ explains that a mortgage can be established to secure an obligation under a credit agreement, a loan agreement or other obligation, including an obligation based on the purchase and sale, lease, contract, other agreement, cause harm, unless otherwise provided by federal law.

In addition, paragraph 1 of Article 5 of Federal Law No. 102-FZ lists the property that can be the subject of a mortgage, these are:

1) land plots, with the exception of land plots specified in Article 63 of Federal Law No. 102-FZ;

2) enterprises, as well as buildings, structures and other real estate used in business activities;

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

4) dachas, garden houses, garages and other buildings for consumer purposes;

5) aircraft and sea vessels, inland navigation vessels and space objects.

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

The absence of state registration of ownership of land plots, 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 Federal Law No. 102-FZ.

We note that in paragraph 2 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 28, 2005 No. 90 “Review of the practice of consideration by arbitration courts of disputes related to the mortgage agreement” (hereinafter referred to as Information Letter No. 90), the Presidium of the Supreme Arbitration Court of the Russian Federation explained that the subject The mortgage may be a separate premises, the rights to which as an independent object of real estate are registered in the prescribed manner, and not part of the area of ​​such premises. For example, part of the warehouse area cannot be the subject of a mortgage.

As a rule, the object that is the subject of a mortgage is considered mortgaged together with all accessories as a single whole. A part of an indivisible thing cannot be an independent subject of mortgage. The mortgage applies to all inseparable improvements to the mortgaged property.

According to paragraph 1 of Article 6 of Federal Law No. 102-FZ, a mortgage can be established on property that belongs to the mortgagor by right of ownership or by right of economic management.

Let us note that a mortgage can be established on property that is in common joint ownership (without determining the share of each owner in the right of ownership) with the consent of all owners. Consent must be given in writing (clause 1 of Article 7 of Federal Law No. 102-FZ)

At the same time, according to paragraph 2 of Article 7 of Federal Law No. 102-FZ, a participant in common shared ownership may pledge his share in the right to common property without the consent of other owners.

It should also be taken into account that a mortgage of a building or structure is allowed only with a simultaneous mortgage under the same agreement of the land plot on which this building or structure is located, or the right to lease this plot belonging to the mortgagor (Article 69 of Federal Law No. 102-FZ).

The right of pledge does not apply to the right of permanent use of the land plot on which the enterprise, building or structure is located, which belongs to the pledgor. When foreclosure is applied to such an enterprise, building or structure, the person who acquires ownership of this property acquires the right to use the land plot on the same terms and to the same extent as the previous owner (mortgagor) of the real estate.

The Presidium of the Supreme Arbitration Court of the Russian Federation in paragraph 3 of Information Letter No. 90 indicated that if the owner of non-residential premises in a building owns a share in the ownership of the common property of this building and a share in the ownership of the land plot occupied by this building (or the rights of a co-tenant of such a plot), then, under an agreement on the mortgage of non-residential premises, the share in the ownership of the common property of the building and the share in the ownership of the land plot belonging to the owner of such premises and the share in the ownership of the land plot (the rights of a co-tenant of such a land plot) are considered simultaneously pledged.

Consequently, despite the fact that the object of the mortgage is only non-residential premises and in the mortgage agreement the shares in the right of ownership of the common property of the building and the land plot are not named, the mortgagee has the right to foreclose not only on the mortgaged non-residential premises, but also on the shares belonging to the mortgagor in the right of ownership of the common property of this building and land. Let us note that this conclusion of the judicial authorities is very important for the mortgagor, and it should not be forgotten when concluding an agreement.

Rights under a lease agreement for non-residential premises concluded for a period of up to one year may be the subject of a pledge. However, since a lease agreement for non-residential premises concluded for a period of up to one year is not subject to state registration, an agreement on the pledge of rights under such a lease agreement is not a mortgage agreement. In other words, the rights of a tenant arising from a lease agreement for real estate that is not subject to state registration cannot be the subject of a mortgage agreement. Therefore, an agreement on the pledge of the tenant’s rights arising from such a real estate lease agreement is not a mortgage agreement and is not subject to state registration (clause 10 of Information Letter No. 90).

The lender's claims secured by the mortgage.

According to paragraph 1 of Article 3 of Federal Law No. 102-FZ, a mortgage ensures payment to the mortgagee of the principal amount of debt under a loan agreement or other obligation secured by a mortgage in full or in part provided for by the mortgage agreement.

A mortgage established to secure the execution of a credit agreement or a loan agreement with the condition of paying 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:

1) as compensation 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;

2) in the form of interest for the unlawful use of someone else’s money, provided for by the obligation secured by the mortgage or by federal law;

3) for compensation of legal costs and other expenses caused by the foreclosure of the pledged property;

4) to reimburse expenses for the sale of the pledged property.

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 of Article 3 of Federal Law No. 102-FZ). That is, if the mortgagor has repaid part of the debt, then the mortgagee has every right to claim the funds received from the sale of the mortgaged property in an amount not exceeding the remaining amount of the obligation (taking into account the additional costs of the lender listed above).

If the mortgage agreement specifies the total fixed amount of the mortgagee's claims secured by the mortgage, then the debtor's obligations to the mortgagee in excess of this amount are not considered secured by the mortgage, with the exception of claims based on subparagraphs 3 and 4 of paragraph 1 of Article 3 or Article 4 Federal Law No. 102-FZ.

Mortgage agreement.

The mortgage agreement is concluded in compliance with the general rules of the Civil Code of the Russian Federation on concluding agreements, as well as the provisions of Federal Law No. 102-FZ.

According to paragraph 1 of Article 9 of Federal Law No. 102-FZ, the mortgage agreement must indicate the subject of the mortgage, its valuation, the essence, size and deadline for fulfilling the obligation secured by the mortgage.

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 name of the body that carries out state registration of rights to real estate and transactions with it, which registered this right of the mortgagor.

If the subject of the mortgage is a leasehold right owned by the mortgagor, the leased property must be defined in the mortgage agreement in the same way as if it were itself the subject of the mortgage, and the lease term must be indicated.

Paragraph 4 of Article 9 of Federal Law No. 102-FZ establishes that the obligation secured by a mortgage must be named in the mortgage agreement, indicating its amount, the basis for its occurrence and the deadline for fulfillment. In cases where this obligation is based on any agreement, the parties to this agreement, the date and place of its conclusion must be indicated. If the amount of the obligation secured by the mortgage is subject to determination in the future, the mortgage agreement must indicate the procedure and other necessary conditions for its determination.

Note that the mortgage agreement must be registered in the manner established for registration of transactions with the relevant property (clause 3 of Article 339 of the Civil Code of the Russian Federation).

According to paragraph 1 of Article 10 of Federal Law No. 102-FZ, a mortgage agreement is concluded in writing and is subject to state registration.

An agreement that does not contain any data specified in Article 9 of Federal Law No. 102-FZ, or violates the rules of paragraph 4 of Article 13 of Federal Law No. 102-FZ, is not subject to state registration as a mortgage agreement.

Failure to comply with the rules on state registration of a mortgage agreement entails its invalidity. Such an agreement is considered void.

The mortgage agreement is considered concluded and comes into force from the moment of its state registration (clause 2 of Article 10 of Federal Law No. 102-FZ).

The mortgage is subject to state registration in the Unified State Register of Rights to Real Estate and Transactions with It in the manner established by Federal Law No. 122-FZ of July 21, 1997 “On State Registration of Rights to Real Estate and Transactions with It.”

State registration of a mortgage is carried out at the location of the property that is the subject of the mortgage (Article 19 of Federal Law No. 102-FZ).

To do this, the pledgor and the pledgee submit a joint application to the registration authority (Article 20 of Federal Law No. 102-FZ). If the mortgage arose by virtue of a notarized mortgage agreement, then an application from one of the parties (mortgagor or mortgagee) is sufficient.

For state registration of a mortgage arising under a mortgage agreement, the applicant must submit:

• mortgage agreement and its copy;
• documents specified in the mortgage agreement as attachments;
• document confirming payment of state duty;
• other documents necessary for state registration of a mortgage, which the applicant, in accordance with the legislation of the Russian Federation on state registration of rights to real estate and transactions with it, is obliged to submit independently.

The body carrying out state registration of rights does not have the right to demand from the applicant documents necessary for state registration of a mortgage if such documents (information contained in them) are at the disposal of state bodies, local government bodies or organizations subordinate to state bodies or local government bodies, except for cases where such documents are included in the list of documents defined by Federal Law No. 210-FZ of July 27, 2010 “On the organization of the provision of state and municipal services.” The body carrying out state registration of rights independently requests such documents (information contained in them) from the relevant authorities, if the applicant has not submitted them on his own initiative.

A mortgage must be registered within one month from the date of receipt of the documents necessary for its registration by the body carrying out state registration of rights, and a residential mortgage - within five working days from the specified day (clause 5 of Article 20 of Federal Law No. 102-FZ).

With regard to mortgage agreements, the Presidium of the Supreme Arbitration Court in paragraph 19 of Information Letter No. 90 noted that when the parties indicate in a mortgage agreement several different assessments of the subject of the mortgage, such an agreement cannot be considered not concluded if it is possible to establish which of the assessments is the one on which the parties agreed as an essential condition of the mortgage agreement.

When analyzing the terms of a specific mortgage agreement, the court found that the parties indicated three different assessments of the subject of the mortgage: an assessment based on the conclusion of an independent appraiser, a collateral assessment and an assessment based on the documents of the technical inventory body. The court, having examined all the circumstances and materials of the case, came to the conclusion that the collateral assessment is the assessment of the mortgaged building that the parties, by agreement between themselves, gave to this subject of mortgage. Thus, the judges refused to recognize this mortgage agreement as not concluded.

Insurance of pledged property and borrower's liability for loan failure.

Insurance of the mortgaged property is one of the conditions of the mortgage agreement. Article 343 of the Civil Code of the Russian Federation provides that the pledgor or pledgee, depending on which of them has the pledged property, is obliged to insure the pledged property at the expense of the pledgor, unless otherwise provided by law or agreement. The same provisions are established by Article 31 of Federal Law No. 102-FZ, according to which insurance of property pledged under a mortgage agreement is carried out in accordance with the terms of this agreement. An insurance contract for property pledged under a mortgage agreement must be concluded in favor of the mortgagee (beneficiary), unless otherwise specified in the mortgage agreement or in the agreement giving rise to a mortgage by force of law, or in the mortgage.

If there are no other conditions in the mortgage agreement regarding insurance of the mortgaged property, the mortgagor is obliged to insure at his own expense this property in full value against the risks of loss and damage, and if the full value of the property exceeds the amount of the obligation secured by the mortgage - for an amount not less than the amount of this obligation.

The mortgagee has the right to satisfy his claim under the obligation secured by the mortgage directly from the insurance compensation for loss or damage to the pledged property, regardless of whose benefit it is insured. This requirement is subject to satisfaction preferentially before the claims of other creditors of the pledgor and persons in whose favor the insurance was carried out, with exceptions established by federal law.

The mortgagee is deprived of the right to satisfy his claim from the insurance compensation if the loss or damage to the property occurred for reasons for which he is responsible.

Paragraph 4 of Article 31 of Federal Law No. 102-FZ allows a borrower who is a mortgagor under a mortgage agreement to insure the risk of his liability to the lender for non-fulfillment or improper fulfillment of the obligation to repay the loan.

The borrower's liability insurance agreement must be concluded in favor of the mortgagee (beneficiary). When the rights of a creditor in an obligation secured by a pledge of real estate are transferred, the rights of the beneficiary under the insurance contract are transferred to the new creditor in full.

The insured amount under the borrower's liability insurance agreement should not exceed 20% of the value of the pledged property. The insurance premium is paid in one lump sum within the period established by the insurance contract. If the policyholder refuses the insurance contract, the insurance premium paid to the insurer is not returned.

An insured event under a borrower's liability insurance agreement is the fact that the lender presents a demand to him to repay the loan if the lender does not have enough funds, proceeds from the sale of the pledged property and distributed in the manner established by the legislation on mortgages.

Subsequent mortgage.

Under a mortgage agreement, to secure the performance of one obligation (preceding mortgage), it may be provided as a pledge to secure the performance of another obligation of the same or another debtor to the same or another mortgagee (subsequent 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.

The priority of mortgagees is established on the basis of data from the Unified State Register of Rights to Real Estate and transactions with it on the moment the mortgage arose.

Thus, the fulfillment of obligations arising from two or more loan agreements concluded between the same debtor and creditor can be ensured by one building mortgage agreement. The mortgagor and the mortgagee have the right, on the basis of one agreement on the mortgage of one real estate, to ensure the fulfillment of mutually independent obligations arising from several independent agreements. Such clarifications are contained in paragraph 8 of Information Letter No. 90.

Paragraph 1 of Article 46 of Federal Law No. 102-FZ establishes that the mortgagee under the previous mortgage agreement has the right of priority to satisfy his claims from the value of the pledged property. If foreclosure is applied to the pledged property on claims secured by a subsequent mortgage, then at the same time early fulfillment of the obligation may be demanded and foreclosure may be applied to this property also on claims secured by a previous mortgage, the deadline for submission of which for foreclosure has not yet arrived. If the mortgagee under the previous mortgage agreement did not exercise this right, then the property that is foreclosed on claims secured by the subsequent mortgage passes to its acquirer encumbered by the previous mortgage.

In the event of foreclosure on the mortgaged property on claims secured by a previous mortgage, it is permitted to simultaneously foreclose on this property and on claims secured by a subsequent mortgage, the deadline for filing for foreclosure has not yet arrived. Claims secured by a subsequent mortgage are not subject to early satisfaction if, to satisfy the claims secured by a previous mortgage, it is sufficient to foreclose on part of the mortgaged property (clause 3 of Article 46 of Federal Law No. 102-FZ).

According to paragraph 4 of Article 46 of Federal Law No. 102-FZ, before foreclosure of property, the pledge of which secures claims under previous and subsequent mortgages, the mortgagee who intends to present his claims for foreclosure is obliged to notify the mortgagee under another mortgage agreement about this in writing. the same property.

Assignment of rights under a mortgage agreement.

According to Article 47 of Federal Law No. 102-FZ, the mortgagee has the right to transfer his rights to another person under a mortgage agreement; on an obligation secured by a mortgage (principal obligation), unless otherwise provided by the mortgage agreement.

The assignment of a claim based on a transaction made in simple written or notarial form must be made in the appropriate written form (clause 1 of Article 389 of the Civil Code of the Russian Federation).

According to paragraph 2 of Article 389 of the Civil Code of the Russian Federation, the assignment of a claim under a transaction requiring state registration must be registered in the manner established for the registration of this transaction, unless otherwise provided by law.

Typically, the person who obtains rights under a mortgage or underlying obligation becomes the mortgagee under that agreement. In this case, the relationship between the mortgagee and the third party (to whom the rights are assigned) is regulated by Articles 382, ​​384 - 386, 388 and 390 of the Civil Code of the Russian Federation (clause 4 of Article 47 of Federal Law No. 102-FZ).

Belyaeva N.A.

The pledge arose and developed simultaneously with the emergence of elements of private property, as a financial and economic instrument that provided protection for creditors and contributed to the development of investment activity.

In a general sense, collateral can be defined as property or other valuables that serve as security for a loan. That is, a pledge is a certain way of securing an obligation in which the pledgee (a legal entity or individual who accepts the subject of pledge as security for a loan issued by him), in the event of failure by the mortgagor (a legal entity or individual who provided the subject of pledge to secure his debt ) has a priority right over other creditors to satisfy their claim from the value of the pledged property.

A pledge arises by virtue of an agreement, as well as on the basis of the Law upon the occurrence of the circumstances specified therein, if the Law stipulates what property and to ensure the fulfillment of what obligation is recognized as being pledged.

The most common type of pledge is by agreement, when the pledgor (debtor) voluntarily pledges his property by concluding an appropriate agreement with the pledgee (creditor).

A pledge is a way to secure an obligation, and a pledge agreement is not independent in nature; it is always associated with another agreement (purchase and sale, contract, commission, storage, etc.) that it secures. In addition, an agreement, an obligation secured by a pledge, is concluded in order to remove the pledged property from possible recovery by the claims of other creditors. A pledge agreement always stands behind another main agreement and is directly dependent on it.

The creditor retains the lien right even if the property is alienated by the owner in favor of third parties. However, a pledge does not provide ownership (possession or use) of the pledged property after the debtor has violated its obligations, but serves as a means of satisfying the creditor’s main claim from the value of the pledged property.

It should be noted that the main provisions on pledge, as such, are determined, firstly, by the Civil Code of the Russian Federation, and secondly, by the Law of the Russian Federation of May 29, 1992 No. 2872 - 1 “On Pledge”. However, it must be borne in mind that the regulation of pledge in the Civil Code of the Russian Federation sometimes differs from its regulation in the above-mentioned law.

Concept The pledge cannot be fully established without determining what is the subject of the pledge.

Subject The pledge can be both movable and immovable property, as well as property rights, i.e., objective rights of participants in relationships associated with the ownership, use and disposal of property, as well as with those material (property) claims that arise between participants in an economic turnover regarding the distribution of this property and the exchange of goods, services, securities, etc.

The subject of the pledge can be not only an existing object or rights to it, but also property that does not exist in kind at the time of concluding the agreement, for example, a future harvest or a building to be built using a loan for which it serves as security.

Basic principles collateral:

1. Publicity– availability of information about the collateral of property for all interested parties.
2. Specificity– the property pledged must, in terms of its characteristics (and in particular its functional purpose), exactly match the data that it has as an object of state registration.
3. Confidence– the value and liquidity of the property guarantees the repayment of the debt.

The demands of the pledgee are fulfilled under the guarantee of the agreed property of the pledgor. The pledgee has the right to receive, on the same basis, satisfaction from the insurance compensation for loss or damage to the pledged property, regardless of whose benefit it is insured, unless the loss or damage occurred for reasons for which the pledgee is responsible.

There is a large number species collateral, which differ from each other in accordance with the characteristics that formed their basis.

From the point of view of the relationship of the parties The following main types of collateral are distinguished for pledged property:

• classical pledge – the property remains with the pledgor;
• mortgage– the property is transferred to the pledgee in possession;
• solid pledge - the property remains with the pledgor with marks on it indicating the pledge.

The type of collateral also depends on the repayment terms of the loan received as collateral. There are different types of mortgages. Mortgage is a security that defines a claim in relation to the pledged property provided by the mortgagor for the purpose of securing a loan.

1. Fixed rate mortgages. The mortgagor is obliged to make monthly payments to repay the loan debt and pay interest. Such loans are classified as self-amortizing. Amortization in this case means the process of repaying the principal debt and interest on the loan.

2. Adjustable (or adjustable) rate mortgages. In this case, the interest rate is tied to another market interest rate and adjusted in accordance with its changes. As a rule, adjustments are made no more than once a year. At the same time, the interest rate on adjustable-rate mortgages is lower, on average, by 1.5–2 percentage points than on fixed-rate mortgages, which is due to the awareness of the risk that owners of adjustable mortgages assume. The essence of this risk is that the adjustment raises the interest rate higher, and the volume of monthly payments increases.

3. Mortgages with differentiated payments. These mortgages provide for gradual increases or decreases in payments to repay the loan. Such loans can, for example, be used when lending to young families who have less income at the beginning of the loan term than at the end.

4. Guaranteed mortgages. In this case, a mortgage insurer is required.

The right of pledge arises from the moment of concluding a pledge agreement, and in relation to the pledge of property that is to be transferred to the pledgee, from the moment of transfer of this property, unless otherwise provided by the pledge agreement.

Terminates deposit in the following cases:

• when fulfilling obligations to secure collateral;
• in case of gross violations of the pledgee's obligations, entailing the threat of destruction of property and at the request of the pledgor;
• upon termination of the pledge right and destruction of the pledged property, unless otherwise provided in the pledge agreement;
• if it is impossible to realize the collateral.

The pledge of real estate to secure the monetary claim of the pledgee against the mortgagor is called a mortgage.

However, there is a “but” here. We have given a general definition of mortgage, from which more detailed definitions of this concept can follow, based on the characteristics, state and development of mortgages in different countries. For example, in the USA, mortgage refers to lending only in the housing sector. Therefore, although, to date, mortgage has a certain international character, it is difficult to give an indisputable definition of this concept, since a representative of a particular country and population group can adjust it in his own way.

Mortgage

For example, in the USA, mortgage refers to lending only in the housing sector. Therefore, although, to date, mortgage has a certain international character, it is difficult to give an indisputable definition of this concept, since a representative of a particular country and population group can adjust it in his own way.

The legal content of a mortgage is to encumber the property rights of ownership of real estate objects when they are pledged.

The economic content of a mortgage is a market instrument for the turnover of property rights to real estate (in cases where other forms of alienation - purchase and sale, exchange - are inappropriate), allowing to attract additional financial resources for the implementation of any projects.

Legal regulation of mortgages occurs with the help of the Civil Code of the Russian Federation, as well as Federal Law No. 102 - Federal Law “On Mortgage” dated July 16, 1998.

Subject of mortgage there may be real estate objects specified in the Civil Code of the Russian Federation, the rights to which are registered in the manner established for state registration. This real estate includes:
1. Enterprises as unified property complexes used in business activities.

To transfer an enterprise into a mortgage, the consent of the owner of the above-mentioned real estate is required. The mortgagor, without the permission of the mortgagee, has no right to transfer property related to the enterprise as collateral, or to enter into transactions aimed at alienating property related to the enterprise, unless otherwise provided by the mortgage agreement (Shevchuk D.A. Mortgage: just about the complex. - M .: GrossMedia: ROSBUKH, 2008).

An enterprise's mortgage can be used to secure an obligation in an amount that is at least half the value of all property that relates to the enterprise.

2. Buildings and structures (used in business activities) with a simultaneous mortgage under the same agreement of the land plots on which they are located, or parts of these plots that functionally support these buildings and structures. It is also necessary to say here that if the land plot on which the mortgaged object is located is leased, then simultaneously with the mortgage of the building or structure, the lease rights to this plot or part of it are necessarily pledged.
3. Residential buildings, apartments and parts of residential buildings and apartments, consisting of one or more isolated rooms.
4. Hotels, holiday homes, summer cottages, garden houses and other buildings and premises not intended for permanent residence.
5. Aircraft and sea vessels, inland navigation vessels and space objects.
6. Unfinished real estate, as well as materials and equipment that have been prepared for their construction.
7. Subsoil areas, isolated water bodies.
8. Forests, perennial plantings.

Since real estate objects that are firmly connected to it are located on the land, the pledge of buildings, structures, enterprises, separate water bodies and perennial plantings is practically impossible without the simultaneous pledge of the corresponding land plots (this has already been indicated above). This determines the special role of land in the sphere of collateral relations.

9. Land plots owned by citizens, their associations, legal entities and provided for gardening, livestock husbandry, individual housing, dacha and garage construction, household plots of personal subsidiary plots and land plots occupied by buildings, structures or structures, in the amount necessary for their economic maintenance (functional support).

In accordance with the Law “On Mortgage”, as well as Art. 135 of the Civil Code of the Russian Federation, property that is the subject of a mortgage is considered pledged together with accessories as a single whole.

In accordance with Russian legislation The subject of a mortgage cannot be:

• part of the property, the division of which in kind is impossible without changing its purpose;
• property withdrawn from circulation, which cannot be foreclosed on, as well as property in respect of which mandatory privatization is provided or the privatization of which is prohibited;
• state property: state and municipal lands, as well as agricultural lands, state and municipal individual and multi-apartment residential buildings, subsoil plots and specially protected natural areas;
• part of a land plot, an area that is less than the minimum size for various purposes and permitted uses;
• shares in the ownership of the common property of a residential building separately from the ownership of the apartment.

However, there is a “but” here. We have given a general definition of mortgage, from which more detailed definitions of this concept can follow, based on the characteristics, state and development of mortgages in different countries. For example, in the USA, mortgage refers to lending only in the housing sector. Therefore, although, to date, mortgages have a certain international character, it is difficult to give an indisputable definition of this concept, since a representative of a particular country and population group can adjust it in his own way (Shevchuk D.A. Apartment on credit without problems . – M.: AST: Astrel, 2008).

For example, in the USA, mortgage refers to lending only in the housing sector. Therefore, although, to date, mortgage has a certain international character, it is difficult to give an indisputable definition of this concept, since a representative of a particular country and population group can adjust it in his own way.

Mortgage has two aspects: legal and economic. mortgage consists of encumbering property rights of ownership of real estate objects when they are pledged.

mortgage consists of encumbering property rights of ownership of real estate objects when they are pledged. mortgage is a market instrument for the turnover of property rights to real estate (in cases where other forms of alienation - purchase and sale, exchange - are inappropriate), allowing to attract additional financial resources for the implementation of any projects.

Legal regulation of mortgages occurs with the help of the Civil Code of the Russian Federation, as well as Federal Law No. 102 - Federal Law “On Mortgage” dated July 16, 1998.

The subject of the mortgage may be real estate objects specified in the Civil Code of the Russian Federation, the rights to which are registered in the manner established for state registration. This real estate includes:

1. Enterprises as unified property complexes used in business activities.

To transfer an enterprise into a mortgage, the consent of the owner of the above-mentioned real estate is required. The mortgagor, without the permission of the mortgagee, has no right to transfer property related to the enterprise as collateral, or to enter into transactions aimed at alienating property related to the enterprise, unless otherwise provided by the mortgage agreement (Shevchuk D.A. Mortgage: just about the complex. - M .: GrossMedia: ROSBUKH, 2008).

An enterprise's mortgage can be used to secure an obligation in an amount that is at least half the value of all property that relates to the enterprise.

An enterprise's mortgage can be used to secure an obligation in an amount that is at least half the value of all property that relates to the enterprise.(used in business activities) with a simultaneous mortgage under the same agreement of the land plots on which they are located, or parts of these plots that functionally provide these buildings and structures.