What it is necessary to know about a mortgage? Part 1. Basic provisions of
the Mortgage (from Greek hypotheka - pledge, a mortgage) represents pledge of real estate for the purpose of providing the monetary requirement of the creditor (pawnbroker) to the debtor (depositor). If earlier pledge of real estate in Russia had no wide circulation, then recently the attention to a mortgage increased, both from the state, and from the citizens wishing to improve the living conditions.
Emergence of a mortgage and its regulation
In Russia a procedure of a mortgage is regulated by the Civil code, the Federal law “ About a mortgage (pledge of real estate) “ and also other regulations adopted according to them.
Subjects of mortgage legal relationship are the depositor and the pawnbroker. At the same time the depositor provides real estate as a deposit, and the pawnbroker accepts this property as a deposit.
It should be noted that as the pawnbroker can act only the creditor , and here the depositor can be both the debtor, and the person who is not participating in the obligation provided with a mortgage ( the third party ). At the same time the third party signs the contract of a mortgage from own name, but not on behalf of the debtor, and the relations between the third party (depositor) and the debtor according to the main obligation are not mortgage.
That is these relations can be governed by the separate contract in which the right of the third party (depositor) for receiving compensation in case of the address of collecting on a mortgaged property can be provided. If such contract between the last persons is absent, then the third party (depositor) in case of the address of collecting on a mortgaged property has the right to demand from the debtor of indemnification , being guided by rules about superficial enrichment.
The mortgage is among those kinds of pledge at which the property put by remains in possession and use of the depositor .
the Obligation provided with a mortgagethe Mortgage can be established to
in providing obligations under other contracts. The most widespread of them are the credit agreement and the loan agreement. The general sign for all these contracts is monetary character of the obligation . It means that with a mortgage obligations for performance of work, rendering services etc. cannot be provided.
of the Requirement, provided with a mortgage
of the Requirement, provided with a mortgage, the legislator subdivided into main amount of debt and the additional amounts which are due to the pawnbroker. The additional amounts in this case are understood as the interests on credit (borrowed funds) which are due to the creditor.
Also the contract on a mortgage usually provides by a penalty - a sum of money which the debtor is obliged to pay to the creditor in case of non-execution or inadequate execution of the obligation, in particular, in case of delay of its execution.
a mortgage Subject
Subject of the contract about a mortgage is real estate . Its indissoluble communication with the earth belongs to distinctive feature of real estate.
So, the legislator defines the following real estate which can be put under the contract on a mortgage:
“ - the land plots, except for the sites which are in the state or municipal ownership and also part of the land plot which area is less than minimum size established by regulations;
- the enterprises, and also buildings, constructions and other real estate used in business activity;
- houses, apartments and parts of houses and apartments consisting of one or several isolated rooms;
- dachas, garden houses, garages and other structures of consumer value;
- air and sea vessels, inland vessels and space objects “.
the Mortgage of the property which is in the general property
the Right of the general property is the property right to the same thing of several persons, each of which is an owner, and in common they are called as as joint owners . The general property happens as to definition of shares and the share property , and without definition of shares - joint property participants is called .
Respectively, distinguish the right of common ownership and the right of the general joint property .
The general property is called share in that case when each of its participants possesses the certain share expressed as arithmetic fraction (for example, 1/2).
At the general joint property of a share of participants are not defined. Participants of joint property together own and use the general property.
The current legislation allows to sign the contract on a mortgage for the property which is both in the general joint and in common ownership.
At the same time the participant of common ownership can put the share in the right of the general property without consent other owners. And here the participant of the general joint property, can put property only of in the presence of the written consent on it all owners.