Article 22. Registration record of mortgage and certificate of state registration of mortgage

• 4.9.2018
• 23194

Federal Law N 338-FZ, published on August 8, 2021, makes the notary perhaps the main figure in the real estate market. Notaries will now not only endorse transactions with “shared” real estate, but also check their legality, certify mortgage agreements, and will also take on some of the functions of the MFC.

Starting from 2021, all real estate transactions involving minors, as well as transactions with objects that are in shared ownership, are required to be notarized in Russia. Moreover, if initially only transactions of purchase and sale of shares in real estate were necessarily carried out through a notary, then soon notarization of such transactions with shares as exchange and donation became mandatory. In August 2021, Law 338-FZ was released, which further expanded the list of real estate transactions requiring mandatory notarization. Now it's also a mortgage.

Most of the provisions of the mentioned law 338-FZ come into force in 2021 and 2021. And these provisions have already been repeatedly commented on by lawyers and politicians. However, the norms that have already entered into force remained almost unnoticed by the expert community. In particular, we are talking about mandatory notarization of mortgage agreements for shares in the right of common ownership of a real estate property. Law 228-FZ amended Part 1 of Art. 42 of the Law “On State Registration of Real Estate”. Now it contains the phrase: “Alienation transactions or mortgage agreements for shares in the right of common ownership of real estate... are subject to notarization.”

Irina Khalikova

mortgage department expert

Usually, when buying an apartment with a bank loan, a mortgage arises by force of law, that is, a separate mortgage agreement is not concluded for such a transaction. A purchase and sale agreement (or equity participation agreement) and a loan agreement are sufficient. If the purchased apartment is in shared ownership or the new owners will own shares in it, then the purchase and sale agreement is certified by a notary. At the same time, the loan agreement - as a result of which the apartment goes to the bank as collateral - is concluded with the bank and, of course, they do not go to the notary with it.

The rule on notarization of a mortgage agreement mentioned in 338-FZ applies only to cases when a mortgage (mortgage of housing) arises when a special mortgage agreement . Experts have counted four common situations in which it is necessary to sign a mortgage agreement. If in any of these situations shared ownership appears, then the mortgage agreement is now mandatory to be registered with a notary.

Situation 1. Mortgage refinancing

When applying for a new mortgage loan to refinance an old one, a mortgage does not arise by force of law, since at the time the new loan is issued, the apartment is still pledged to the “old” bank. Therefore, after the old loan is repaid, a separate mortgage agreement is drawn up. If the apartment is in shared ownership (for example, spouses), then according to the new rules, the mortgage agreement is endorsed by a notary.

Situation 2. Loan secured by existing housing

Using the security of existing housing, a person can receive a loan to purchase real estate or for any purpose. Since the loan is not issued for the purchase of an object used as collateral, the mortgage does not come into force by law and a separate mortgage agreement is required. If the apartment being mortgaged has several shared co-owners, then the mortgage agreement is notarized.

Situation 3. New apartment secured by old one

This is one of the trade-in options sometimes offered by developers. The client enters into an equity participation agreement, and to pay for it takes out a loan secured by his existing apartment (with the execution of a mortgage agreement). If the apartment has several shared co-owners, then the mortgage agreement is registered by a notary... During construction, the client continues to live in his apartment. After construction is completed, the old apartment is sold, and the funds received are used to repay the previously taken loan.

Situation 4. Redemption of the last share in the apartment

If an apartment has two co-owners, then one of them can buy out someone else’s share and become the sole owner of the apartment. You can use a mortgage loan for redemption. Usually, when applying for such a loan, a mortgage does not arise by force of law, since only part of the apartment (share) is purchased with the loan proceeds, and the whole apartment is issued as collateral. In such a situation, a mortgage agreement is drawn up, but since the subject of sale and purchase is a share, the agreement must be drawn up by a notary.

Vlada Pavlova

real estate specialist at Link Academy of Sciences

The most common of these situations is mortgage refinancing. However, the other three are also quite common. After Law 338-FZ comes into force, mortgage agreements must be certified by a notary. We already have to deal with the fact that the bank’s conditions and the notary’s requirements do not coincide and the bank is not ready to adjust its conditions to the notary’s requirements.

In turn, Natalya Mikhailyukova, , notes that even before Federal Law 338 came into force, mortgage agreements in transactions with shared ownership were, as a rule, notarized. However, this rule was not formally stated, and there could be cases when the mortgage agreement passed by the notary.

Previously, the METRTV.ru portal talked about housing transactions executed through a notary. Notarization of an apartment purchase and sale agreement costs 0.5% of the value of the property (or the cadastral value if it is higher than the contract price), plus 5.1 thousand rubles. for "technical work". The maximum cost of notarization of a contract should not exceed 25.1 thousand rubles. Notarization of a mortgage agreement for shares in the common ownership of an apartment or residential building will cost 8.2 thousand rubles.

What is a property division agreement

According to Art. 38 of the RF IC, common property can be divided between spouses by agreement. Any real estate acquired during marriage, including a mortgaged apartment, is considered common property.

But there are several features:

1. If the down payment was transferred before marriage, this amount is not divided.
2. If you bought an apartment in a new building and the ownership was registered before the divorce, everything will be divided between the spouses.
3. If the parties have entered into a marriage contract, common property is divided according to its terms. There is no need to enter into an agreement. If the conditions change, an additional agreement to the contract is drawn up.
4. The division agreement must be certified by a notary.

Note! By agreement, the property can be divided as desired. But when it comes to a mortgaged apartment, you will need the bank’s permission, since its interests are affected. The procedure must be agreed upon with him.

Mortgage and pledge agreements

If you intend to sell or buy an apartment, house, room or land, or take out a loan to purchase property, then most likely you will think about whether it is necessary for a notary to participate in such a transaction? Today, it is not at all necessary to notarize the purchase and sale agreement itself. But, nevertheless, for example, when buying and selling real estate, situations may still arise in which it is simply necessary to contact a notary. Certification of mortgage and pledge agreements is a legal confirmation of the obligations of the parties to the agreement.

The law provides for the duty of a notary to check the identities of those who apply for the service, that is, to examine their capacity and legal capacity, to explain to them the meaning and significance of the contract. The notary must also determine whether the content of the agreement corresponds to the actual and present intentions of the parties, and whether there are any contradictions with the requirements of the law. The certification of the pledge agreement can be drawn up either by the notary himself or prepared by the parties. For example, when confirming a purchase and sale agreement, a notary checks the documents certifying the parties’ ownership of real estate and draws up a certificate of the pledge agreement

Pledge is a way of securing obligations. It arises as a result of the conclusion of an agreement; notarized, it looks like certification of a pledge agreement. A pledge agreement is concluded between the creditor, on the one hand, and the debtor or his property guarantor, on the other. Based on the agreement and notarization of the pledge agreement, provided that the debtor fails to fulfill his obligations, the creditor, in order to satisfy his claims, may foreclose in the manner prescribed by law or agreement on the seized property or property rights.

Applying for a mortgage currently causes many problems and difficulties, as it is a rather cumbersome and complex procedure. The Law “On Pledge” provides for the presence of a legal structure as the basis for the emergence of a pledge legal relationship regarding real estate. Such a system consists of the conclusion of an agreement in writing, notarization of the pledge agreement and state registration of the pledge.

The form of certification of the pledge agreement is determined by the legislation of the place where it was concluded. But an exception to this rule is established for buildings, structures, enterprises, land plots, the pledge of which is determined by the legislation of the Russian Federation, if they are located on the territory of Russia. Russian legislation determines the form of the pledge agreement for civil, sea, and river vessels, railway rolling stock, and space objects registered in the Russian Federation.

The legislation of the Russian Federation defines in detail the content of the mortgage agreement. The significance of the terms of any agreement is that the agreement cannot be considered concluded if the parties do not reach an agreement on each of them (Article 432 of the Civil Code of the Russian Federation). The essential conditions for notarization of a pledge and mortgage agreement include: the subject of the pledge, its estimated value, the essence, size and deadline for fulfilling the obligation secured by the mortgage.

In cases where the mortgagor is the debtor in the main obligation, the conditions on the essence, size and timing of the fulfillment of the obligation secured by the pledge should be recognized as agreed if the notarization of the pledge agreement contains a reference to the agreement governing the main obligation and containing the corresponding conditions.

Unlike other collateral agreements, a mortgage requires mandatory notarization of the mortgage agreement (Article 339 of the Civil Code). Notarization of a mortgage agreement is one of the most important conditions for its conclusion. With the entry into force of the Federal Law “On State Registration of Rights to Real Estate and Transactions with It,” the general rule on mandatory notarization of a pledge agreement and notarization of a mortgage agreement has become invalid. It is mandatory only in cases established by law, one of which is recorded in paragraph 2 of Art. 339 of the Civil Code is a mortgage agreement.

According to this article, a mortgage agreement, as well as an agreement on the pledge of movable property or rights to property to secure obligations under the agreement, which must be notarized, is subject to notarization, i.e. notarization of the pledge agreement and notarization of the mortgage agreement.

A power of attorney to conclude a mortgage agreement is issued on behalf of an individual (citizen) or legal entity (anyone, including Sberbank, other banks, credit institutions, insurance companies, etc.), requires a notarized form of certification of the mortgage, which corresponds to clause 2 of Art. 185 Civil Code. Exceptions to this rule are allowed, again, in cases provided by law. However, at present, such cases are not established by current federal laws for legal entities. The provision on who can issue a power of attorney from a legal entity, the procedure for its execution, and the signing procedure are regulated by clause 5 of Art. 185 of the Civil Code, with the exception of paragraph 2 of Art. 185 of the Civil Code is not at all. According to Art. 160 of the Civil Code, by law, other legal acts and agreement of the parties, additional conditions (requirements) may be introduced that the form of power of attorney of a legal entity, as well as any other transactions, must comply with - execution on a certain form, sealed, signed by an official. Consequently, paragraph 5 of Art. 185 of the Civil Code does not concern the form of power of attorney of a legal entity, but additional requirements for it, the procedure and mechanism for issuing it. Federal legislation, including the Civil Code, does not contain any instructions or restrictions regarding the place of notarization of the mortgage agreement. As long as the alienation of property does not occur, by agreement of the parties it can be registered with any notary, both at the location of the property and elsewhere in the form of certification of a mortgage. However, in practice it is usually certified at the location of the real estate. Only the place of state registration of the mortgage agreement is determined in a centralized manner. According to Art. 19 of the Law on Mortgage, registration of a mortgage agreement is carried out at the location of the property within the district (city). The certification of the pledge agreement has legal force. The form of the note on certification of the pledge agreement is arbitrary.

Division of a mortgaged apartment by agreement

In reality, dividing real estate is difficult, and in cases of dividing a mortgaged apartment, the problems increase many times over.

There are several options for dividing such real estate:

1. The ownership right is re-registered in favor of one of the spouses. At the same time, an additional agreement is concluded to the mortgage agreement, according to which the spouse who received the apartment becomes the borrower. The second party, by agreement, can receive monetary compensation for its share.
2. The parties pay off the balance of the debt on their own, then sell the apartment and divide the proceeds according to the terms of the agreement.
3. The couple finds a buyer willing to make an advance payment equal to the balance of the debt. The encumbrance is removed, the property is sold, and the money is divided between the parties.
4. Shares in the property rights are allocated for each person, and the mortgage is divided in proportion to the allocated shares. This is unlikely, and not all banks agree to this. In addition, the allocation of shares implies the possibility of living together, and both spouses become borrowers.

It is important to consider that not every bank will agree to divide the mortgage between former spouses. To do this, you will have to renegotiate the mortgage agreement. In addition, the second spouse must meet all the lender’s requirements in terms of credit history, workload, and salary level. If these requirements are not met, the chance of allocating shares and subsequently concluding two mortgage agreements is very small.

Division of an apartment with a paid off mortgage

If the mortgage has already been paid off, dividing the apartment is much easier: you do not need to coordinate the deal with the bank. The parties can dispose of the property as they wish:

1. Sell, divide the money among yourself.
2. Allocate shares to each other.
3. Re-register only for one spouse, while the second indicates in the agreement the renunciation of his share in favor of the husband or wife.

Important! If maternity capital was used to purchase an apartment or pay off a mortgage, the owner of the certificate is obliged to allocate shares to all family members. The size of such shares is not determined by law. In the future, the children's shares are not subject to division, but the second spouse's share can be redeemed.

Notary verification of an apartment will become deeper

It is worth mentioning a few more innovations that Law 338-FZ brought to the real estate sector. They do not expand the notary's presence on the market, but clarify his functions when certifying real estate transactions. In particular, the amendments introduced by 338-FZ to the law on notaries provide for an in-depth audit of a transaction certified by a notary. In particular, paragraph 5 of Art. 1 of Law 338-FZ contains the phrase: “A notary engaged in private practice... is paid for legal and technical services, including a legal analysis of submitted documents, draft documents, information received...”.

In February 2021, several more paragraphs of 338-FZ will come into force, which talk about notary verification of real estate transactions. As explained in the "Commonwealth of Land Lawyers", if today a notary, when certifying a transaction, checks only the ownership of the property, then according to the new rules, the notary must additionally check the circumstances that may interfere with the transaction, for example, encumbrances or restrictions.

It should be noted that all the above points (property ownership, restrictions, etc.) can be checked by the buyer of the apartment himself (and at minimal cost) using the instructions for checking the apartment for cleanliness posted on the METRTV.ru portal. However, the participation of a notary in a transaction can be useful, since he bears full property liability for damage caused through his fault. Although you shouldn’t delude yourself either. The insurance company that insures the notary's professional liability will try to recognize the problematic transaction as an uninsurable event. Then the person who has suffered damage as a result of a notarial transaction will have to sue the insurance company, and possibly the notary.

Is it possible to allocate shares in an apartment in kind?

The allocation of shares in kind is allowed only if it is technically possible and two separate inputs can be made. This is very problematic for an apartment, and such redevelopment is unlikely to be approved.

If, nevertheless, the shares can be allocated in kind, the apartment is actually divided into two different living spaces. Spouses become the owners of the shares, and they exist independently of each other, as if they were originally two different apartments. In this case, the mortgage agreement is reissued for everyone. But in practice this is almost impossible.

How to draw up an agreement: step-by-step instructions

First you need to draw up a draft agreement and contact the bank for approval. This is not required only if the spouses pay off the debt in advance, wait until the encumbrances are removed and sell the apartment: in this case, the creditor’s permission will not be needed.

In other cases, the step-by-step procedure looks like this:

1. The parties agree on the terms on which the property will be divided.
2. A draft agreement is being drawn up. With it, the borrower applies to the bank to obtain permission. Without this document, the notary will not certify the agreement.
3. If the creditor agrees to make concessions, the spouses turn to a notary to certify the final agreement.
4. The document is signed, leaving one copy for each spouse. The third is given to the notary for safekeeping, the fourth is given to the bank.
5. If necessary, the mortgage agreement is reissued based on the agreement. Both spouses become borrowers, or an agreement is concluded with only one of them if the apartment becomes his property.

Note! The agreement can be drawn up before the dissolution of the marriage, during the divorce process, or after the divorce. The terms are not limited by law; property is divided at any time.

Contents and sample agreement

The form of the agreement is not regulated by law. But the notary will not certify it if it does not contain all the information about the property, bank, mortgage and spouses:

• Full name, registration addresses, passport details of husband and wife;
• Address, cadastral number, value of the property being divided, area, number of rooms;
• Information about the allocated shares (if allocated);
• Mortgage agreement number, debt balance, to whom the debt is transferred;
• The amount of compensation that must be paid to one of the spouses upon renunciation of a share in real estate in favor of the other;
• Date of conclusion and signatures of both spouses.

Documents when drawing up an agreement

When contacting a notary, you will need the passports of both parties, as well as other documents:

1. Agreement in four copies.
2. Extract from the Unified State Register of Real Estate.
3. Mortgage agreement.
4. Certificate of outstanding balance from the bank.

Costs for completing the agreement

For notarization of the agreement, you will have to pay a state fee - 0.5% of the value of the property, but not more than 20,000 rubles. (Article 333.24 of the Tax Code of the Russian Federation). Even if after calculation the amount turns out to be greater, only 20,000 rubles are paid. according to restrictions. For the calculation, cadastral or market value is used at the discretion of the parties.

If spouses, in addition to the certificate, need to draw up a document, this is paid separately and is not included in the state fee. Here everything depends on the notary’s prices, but in total, on average, 20,000-30,000 rubles are paid.

Form and content of the mortgage agreement

The mortgage agreement is concluded in writing and must be registered with Rosreestr. Notarization is carried out voluntarily and by agreement of the parties.

In accordance with Art. 5 Federal Law “On Mortgage” the subject of the agreement may be:

• apartments and residential buildings or parts thereof;
• cottages, garages, garden houses;
• unfinished buildings;
• land;
• structures, buildings;
• enterprises, workshops, hangars and other real estate.

Parties to the agreement:

• borrower/mortgagor;
• bank/mortgagor.

If the borrower is a legal entity, its constituent documents should not contain conditions prohibiting the right to transfer real estate under mortgage.

Among the data on the subject of the contract, the following should be indicated:

• name (house, apartment and other real estate);
• the exact address;
• detailed description (area, number of rooms, etc.).

When a residential building is transferred to a mortgage, the land plot on which it is located also becomes collateral. Therefore, the mortgage agreement must contain all the data of the plot: address, area, number in the land registry, etc.

Property owned by state bodies, as well as property that is not subject to privatization, cannot be pledged.

Cost of the mortgaged item

In this section of the agreement, the parties indicate the specific value of the subject of the mortgage. If the estimated value of the collateral decreases as a result of its wear and tear, as well as other reasons, the mortgagor must pledge additional property to the bank, commensurate with the lost value.

Rights and obligations of the parties

This section should include a detailed description of the rights and responsibilities of both parties. So, for example, the pledgor has the right:

• Use the mortgaged item only for its intended purpose.
• Before the sale of real estate, at any time, stop foreclosure on it by fulfilling the obligation secured by the mortgage.
• In the event of loss or damage to the subject of the mortgage, restore or replace it with other property of equal value.

The mortgagor undertakes the following responsibilities:

• Ensure the safety of the mortgaged property (including repairs) and its maintenance in proper condition.
• Do not commit unlawful actions in relation to the collateral property.
• Immediately notify the mortgagee of the threat of damage or loss of the mortgaged item.
• Insure the property for its full value within 5 days from the date of signing the contract.
• Do not interfere with the pledgee's control over the pledgor's compliance with the terms of the agreement.
• Provide documents upon the first request of the mortgagee about their financial, production, economic and other activities.

The pledgee has the right:

• Check the condition of the mortgaged item and the conditions of its operation.
• Submit demands from the mortgagor for the safety of the mortgaged property.
• Demand the cessation of attacks on the mortgaged property that threaten damage or destruction.
• Transfer your rights to another person in compliance with the legal procedure for transferring rights.
• Require early fulfillment of obligations if the subject of the mortgage for any reason is out of the possession of the mortgagor.

The pledgee is obliged:

• At the request of the pledgor, present a document indicating full or partial fulfillment of obligations to secure the subject of pledge.
• Clear the residential premises from the residence of third parties, etc.

Termination of the contract

The mortgage agreement may be terminated:

• in connection with the termination of mortgage obligations;
• upon the destruction or sale of the subject of the mortgage;
• in other cases provided for by the current legislation of the Russian Federation.

The agreement comes into force from the moment of its registration in Rosreestr . The agreement lasts until the obligations assumed by the parties are fulfilled or until grounds for termination of the mortgage arise.

All amendments to the agreement are valid if they are in writing, signed by the parties and registered.

The agreement is drawn up in 4 copies, 2 of them are received by the mortgagee, 1 by the mortgagor and 1 remains with the body that registers real estate transactions.

The contract must indicate the actual and legal addresses of the parties, current accounts and other necessary data.

Insurance

Any mortgage loan requires the following types of insurance:

• life and health of the borrower;
• property (is a prerequisite);
• title (loss of property rights).

State cadastral registration is free of charge for the applicant. There is a state duty for registration of rights.

The bank's consent to the division of the mortgage

Sometimes during a divorce, people agree that they will draw up an agreement, but they will not coordinate this with the bank. After this, both contribute their shares to pay the obligatory payments, and formally the creditor cannot have any claims. But according to the law, he has the right to challenge the agreement.

The second option is not to enter into an agreement, but to verbally distribute who will repay the mortgage and in what amount. Everything here is legally clear: the deal has not been concluded, which means that the interests of the bank have not been violated. But for one of the spouses, this is fraught with the fact that the other will sooner or later refuse to pay, and will still have to return to resolving this issue officially.