How to remove an encumbrance from an apartment? - this frightening question is familiar, fortunately, to few. But for those for whom it is acute, we recommend reading this article.
- The concept of encumbrance
- Remove the encumbrance from the apartment when paying off mortgage obligations
- Removing encumbrances in the form of real estate rental
- What to do if there is an encumbrance on housing?
Encumbrance - what is it?
Encumbrance involves restricting the owner’s freedom to exercise his powers.
Along with limiting the rights of the owner, an encumbrance presupposes the existence of rights of any third parties to this property, without whose consent the owner has no right to perform certain actions with his property.
In other words, the essence of the encumbrance is expressed in the specific rights of a third party to real estate and the obligations of its copyright holder.
There are various types of encumbrances (pledge, lease, arrest, ban on registration actions, etc.).
An encumbrance can arise either due to a direct indication of the law or by agreement of the parties (that is, from a contract).
When the owner of an apartment changes, encumbrances usually remain, so it is important to find out this information before purchasing such property.
Many types of encumbrances are subject to registration in the Unified State Register of Real Estate Rights. Therefore, this information can be viewed on the Rosreestr website. To collect information in a form certified by the government agency, order an extract from the Unified State Register of Real Estate for the object of interest. You can collect this information yourself. You can also seek help from a lawyer who will collect data as quickly as possible.
In this article, we will consider two cases of answering the question “how to remove an encumbrance from an apartment”:
- Removal of encumbrance when paying off mortgage debts;
- Removal of encumbrances in the form of real estate lease upon its termination.
Types of encumbrances on an apartment
An encumbrance is understood as a certain legal condition that limits the rights of the owner of a property. This means that the owner of the apartment loses the opportunity to dispose of it at his own discretion: transactions with it will require the consent of a third party.
If the apartment is sold, its new owner receives the property with an encumbrance. To prevent concealment of information about existing restrictions, such information is entered into the certificate of ownership and reflected in the extract from the Unified State Register of Real Estate.
Important! Currently, the following types of encumbrances are distinguished:
- mortgage. If a person who owns a mortgaged apartment does not repay the loan under the concluded agreement, he loses the right to dispose of it without the consent of the bank; it is the bank that gets the opportunity to determine the terms of further transactions with the apartment;
- rent. Disposal of the residential premises in which the rent recipient lives is permitted only with his consent; the rent payer cannot dispose of it at his own discretion;
- easement. This encumbrance means the right of third parties to use the property. At the same time, the owner of the property does not have the right to dispose of it without their consent;
- arrest. If utility debts exceed the established limit, the residential premises may be seized. In this case, the owner will not be able to dispose of the housing until the debt is fully repaid;
- emergency condition of the house. The sale of apartments located in such buildings is unacceptable;
- hiring The tenant and his family members occupy the residential premises for a certain period of time. During such a period, the owner of the premises does not have the right to dispose of it without the consent of the tenant and members of his family;
- the presence of residents who are registered in the residential premises. If the owner of an apartment intends to sell it, all persons registered in it are required to leave it within the appropriate period. If there is no voluntary deregistration on their part, the owner has the right to go to court to force a compulsory deregistration.
We can come to the conclusion that the sale of residential premises in a house that is recognized as unsafe is unacceptable. If the property is seized, the residential premises can be sold only after the debt is repaid. In other cases, the consent of third parties to carry out transactions will be required.
Attention! Our qualified lawyers will assist you free of charge and around the clock on any issues. Find out more here.
Removing encumbrances from an apartment when paying off mortgage obligations
When buying an apartment on credit, a pledge arises by force of law. When the loan is repaid, the collateral is terminated. To clear the mortgage record (i.e., to remove the encumbrance), you need to contact the registration authority (Rosreestr). You can apply through the MFC or through the Rosreestr website. The latter option is possible with a qualified electronic signature.
The package of documents provided depends on whether a mortgage is being issued (a document confirming the pledge).
How to find out if the encumbrance has been lifted?
You can use the free online help from Rosreestr. There is a caveat: the information on the site is not always up to date.
For reliability, it is better to order an electronic extract from the Unified State Register of Real Estate. If a mortgage was issued, then an application from the owner of the mortgage (or a joint application from the mortgagor and the legal owner of the mortgage) is submitted in accordance with the form specified by the Ministry of Economic Development. In addition to the application, you must provide a mortgage note or an account statement (if the mortgage note was issued electronically) with a note from the owner of the mortgage note that the debts have been fully repaid. The owner of the mortgage is the bank that issued the loan, so you need to receive a mortgage with the appropriate mark where the loan was issued.
If a mortgage was not issued when the loan was issued, it is sufficient to submit an application (joint from the mortgagor and the mortgagee or an application from the mortgagee). The assistance of a lawyer may be seriously required both when filling out the relevant application and when submitting documents to Rosreestr.
When the mortgage registry is redeemed, the mortgage is cancelled. There is no need to pay a state fee to pay off the mortgage registration record.
Removal of mortgage encumbrance - documents to Rosreestr
- A mortgage that states that there is no debt. Issued by the bank upon application (if previously issued).
- Papers confirming actions regarding the mortgage: deed of transfer, explanatory letter regarding the mark made.
- Certificate of loan repayment. It contains data on the terms and amount of the contract, the date of repayment and account closure.
- Power of attorney to represent the interests of the bank.
It is mandatory that the owner and bank employee submit a general application for the removal of the mortgage encumbrance, a sample of which is available at Rosreestr or at the institution itself. In this case, the owner can carry out the operation independently, having secured a power of attorney, or the bank. This procedure should be clarified with the lender. Many banks exempt clients from such a procedure and perform it themselves, almost automatically.
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Removing encumbrances in the form of real estate rental
The lease of real estate is subject to registration if the lease period is more than 12 months.
The need to remove the corresponding encumbrance arises upon termination of the lease agreement (for example, due to the expiration of its term, refusal of one of the parties to perform, etc.).
Documents are submitted in accordance with the general procedure provided for state registration of rights to real estate and transactions with it. You must also contact Rosreestr using the methods indicated above.
Either the landlord or the tenant can apply for the removal of the encumbrance (repayment of the record) separately or jointly.
To clear the rental registration record (i.e., terminate the encumbrance in the form of a lease), the general application form used for cadastral registration and (or) state registration of rights to real estate is used.
In addition to the application, you must submit to the registration authority a document justifying the removal of the encumbrance (for example, a notice of refusal to perform, sent by one of the parties to the contract), documents confirming the identity/authority of the applicant (passport, power of attorney).
In this case, the state duty is also not paid. You can check the presence/removal of an encumbrance on the Rosreestr website.
A lawyer will be able to provide assistance both in collecting information about the presence of encumbrances on real estate, and in preparing and submitting documents to clear encumbrance records.
In addition, you can resort to qualified legal assistance to support real estate transactions. This will help minimize risks: both for the buyer of the property and for its seller.
You may also be interested in: Foreclosure of mortgaged property Judicial practice: Risks in the real estate market Eviction of family members of the owner when foreclosure of mortgaged residential premises Foreclosure of the only home
There is an encumbrance on your property and you don’t know what to do?
Sample application for removal of encumbrance on real estate
application for state registration of the established form in accordance with Appendix 3 to this public service standard; 2) an identity card of the authorized representative of the service recipient and a document certifying the authority (the original is provided to identify the identity of the service recipient) to represent the service recipient (if the representative of the service recipient applies);
Legal advice: on the Rosreestr website there is an online service “Reference information on real estate”. By following the link. You can get background information about the apartment you are interested in without leaving your home. The procedure for removing the burden is simple and done quickly. But collecting documents takes a lot of time.
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Collateral relations
Often a citizen uses borrowed funds to purchase a particular property. The result is that the property becomes collateral. This is necessary so that the banking organization receives guarantees regarding the repayment of the issued loan. In a situation where a person stops paying the loan, this indicates that the bank has the right to sell the property.
The withdrawal procedure assumes that the citizen has an obligation to repay the entire debt that he has incurred to the banking organization. In particular, the existing debt is initially repaid, after which the citizen forms and sends an application to the banking organization stating that he needs a certificate to help remove the encumbrance. When the specified act is received, the person contacts the authorized body and removes the restriction. After completion of the process under consideration, the state body, when using a certificate issued from the Unified State Register, indicates that the restriction has been lifted.
In a situation where a banking organization refuses to issue the requested documentation, a citizen will need to defend his rights by appealing to the judicial authorities. He needs to collect documentary evidence that he has paid the pre-existing debt in full. Then a statement of claim is formed. The person attaches documentation to it, the use of which will be able to confirm his position.
Types of restrictions
Any type of encumbrance can be established through the court. Initially, you need to understand what each of them is. It is worth starting with such a restriction, which provides for the establishment of an easement on the territory. It is understood that the restriction is made due to the fact that the authority is limited by establishing the rights of another citizen to this property. This power implies the possibility of use. At the same time, the measure in question can be applied not only to the site, but also to structures and real estate.
The possibility of establishing a lease is also provided. It is envisaged that the powers of use will be limited due to the fact that an appropriate agreement is formed between the owner and another citizen. In a situation where the validity period of the act in question is one year or more, you will additionally need to go through the state registration process. To do this, you need to contact the Rosreestr office.
ATTENTION !!! A pledge may also be established, which implies that ownership of the property will be transferred to the person in full after payment to the seller of the funds that were borrowed from him. In this situation, the peculiarity is that in addition to registering the purchase and sale agreement, you will need to bring the loan agreement to the registration authority.
There is also such a variety as arrest. This means that the measure can be applied after a decision has been made by a judicial authority. In this case, the citizen loses the right to sell or donate the plot. This opportunity will return to him after paying the debt in full.
