When a loan agreement is concluded with a bank for large sums and for a long period, the financial organization requires the borrower to pledge the right to the property. Why does the bank do this? The fact is that bankers insure themselves against non-payment of a loan if the borrower loses solvency. Then the debtor’s property, which is pledged, is put up for auction at a value below market value, and the bank returns the amount issued.
However, some programs assume that the purchased object (apartment, car, land) becomes the collateral until the borrower repays the loan. Then the client does not contribute his own property, but becomes the full owner of the purchased property after fulfilling the terms of the loan agreement. A collateral encumbrance agreement is not concluded in the case of consumer lending: express loans, short-term loans, credit cards - wherever the amounts are insignificant and are provided for a short period. In other cases, the bank will require you to enter into an agreement. The registration procedure is carried out by a government agency in accordance with the established procedure in full compliance with regulations. Otherwise, the document is considered invalid and has no legal force. Therefore, carefully study each point so as not to get into an unpleasant situation.
What property can become collateral?
Each lender, when working with a mortgage, has its own list of property that can be issued under a guarantee. At the same time, the bilateral agreement describes the provision procedure and the return mechanism for mutual consideration and acceptance.
According to the legislation of the Russian Federation, any individual can enter into a loan agreement. The regulations restrict some legal entities, LLCs and credit institutions that do not have a specialized license. Also, the mortgagee must be registered in the state register of microfinance organizations.
The following property may be used as security:
- Land plots with and without buildings. In this case, the possibility of working with an object of unfinished status is considered individually.
- Residential buildings, cottages, townhouses.
- Separate apartments in Moscow Railways.
- Owned rooms.
- Garage buildings.
Leased objects can theoretically be considered as a guarantee, but extremely rarely. The term of the agreement is limited to the duration of the leasing agreement.
A plot without buildings can act as collateral
However, not all real estate can be mortgaged. There are also certain restrictions. As a rule, the pledgee independently sets the requirements for the object of the guarantee, but there are standard restrictions that are present for all creditors.
According to this list, the following will not be considered as collateral:
- emergency buildings and dilapidated structures;
- buildings undergoing demolition;
- with shared participation – unallocated shares of property;
- state or municipal property;
- property that does not have documentary evidence of ownership rights;
- prohibited objects.
It is important to know! There is a possibility of replacing the collateral. Such a precedent is provided for by the Civil Code. The action is carried out on the basis of agreement of the parties.
Movable property is often used as collateral. In addition to the fact that a car is a guarantee when concluding a transport mortgage, it is also possible to use it as collateral when obtaining a consumer loan.
Minimizing risks
Borrowing with collateral in itself reduces many of the standard risks of such transactions to a minimum. In such a situation, collateral is an effective means of increasing the borrower’s responsibility, improving his payment discipline and guaranteeing the return of funds to the lender.
As for the borrower’s risks in relation to his own property, the following will help to significantly reduce the risk:
- Preliminary independent assessment of property.
- Adequate requirements for the conditions of safety and integrity of property.
- Obligations not to use the collateral by the parties to the transaction during the term of the loan agreement in order to avoid loss or damage.
Read what long-term loans are in the article: long-term loans in 2020. Read about filling out a sample interest-bearing loan agreement for a director in 2021 here.
How to correctly draw up a loan agreement between individuals with interest, read here.
A collateral when drawing up a loan agreement increases the borrower’s chances of receiving a substantial sum of money and reduces the lender’s risks. The main condition for a successful transaction is the correct assessment and planning of your financial capabilities.
How to register a mortgage
Registration of a pledge of real estate occurs in accordance with the requirements of the law. It is concluded that, according to the Civil Code and Federal Law No. 102, the event of registration of a collateral agreement is separate and is carried out, regardless of the state registration of the main loan agreement. The mandatory nature of the action comes from the creditor’s primary right to real estate, in comparison with real rights, which are also subject to state registration without fail.
When the guarantee is recorded in Rosreestr, the lender has the right to encumbrance, which minimizes the risk of losing the object, since it becomes possible to collect it due to late payments. Termination of encumbrance is initiated after full repayment of the debt.
All legal regulations must be complied with during registration
It is important to understand how real estate pledge is registered. The action algorithm is as follows:
- The state fee is paid.
- It is necessary to order an extract from the Unified State Register of Real Estate to obtain information about the subject of the mortgage and the existing rights to it.
- Submit a joint statement from the parties to the transaction to Rosreestr. The submission is accompanied by an addition in the form of written information necessary for state registration of the encumbrance.
Based on the law, it is permitted to delegate the rights to register an agreement to third parties. To implement this method, the representative must have a power of attorney that confirms his authority. A power of attorney must be certified by a notary.
The wording of the agreement is also subject to the requirements of the Civil Code, which are as follows:
- the place and date of drawing up the power of attorney are required;
- the form must contain the full details of the parties;
- since only actions prescribed in the editorial are permitted, sections of the paper must contain a complete list of powers permitted to the person;
- handwritten signature of the principal;
- information about the notary and his personal signature.
A guarantee is considered registered if it is made in accordance with the law in writing and with registration in Rosreestr. Failure to comply with the standards will result in the agreement being deemed void.
Registering a mortgage agreement
Experts continue to share their experience in resolving issues. Are pledge agreements for a land plot and a residential building owned by an individual subject to registration, as well as pledge agreements for industrial buildings?
In accordance with Art.
223 of the Civil Code of the Russian Federation, Article 2 of the Federal Law “On state registration of rights to real estate and transactions with it”, a pledge of real estate arises from the moment of state registration. This means that the rights and obligations under the pledge agreement arise not at the time of signing the agreement and not at the time of receiving the loan (credit), but only after making an entry in the Unified State Register of Rights (USRE). Considering that the residential building and land plot are owned an individual, industrial buildings - owned by a legal entity, both options can be used as collateral. However, it should be taken into account that the contracts will be different, since the registration conditions will also be different.
In the first case (when registering a residential building and land), according to clause 1 of Art. 74 of the Federal Law “On Mortgage (Pledge of Real Estate)” provides for the possibility of mortgaging individual residential buildings intended for permanent residence, owned by citizens or legal entities.
At the same time, simultaneously with the pledge of the building under the same pledge agreement, the rights of the owner of the building to the land plot on which the building is located must be pledged (Clause 3 of Article 340 of the Civil Code of the Russian Federation, Article 69 of the Federal Law “On Mortgage (Pledge of Real Estate)”).
In this case, entries about the mortgage must be made in both sections of the Unified State Register of Rights, generated for the land plot and for the building. Entries are made under one registration number, since one transaction is registered - one mortgage agreement. Accordingly, the registration fee is charged for registering one transaction.
In the second case (the mortgagor is a tenant of the land plot), the land lease agreement must first be registered. Information about such registration must be contained in the mortgage agreement (Article 9 of the Federal Law “On Mortgage (Pledge of Real Estate)”).
A plot plan must be provided for the leased land plot. If the right to part of a land plot is pledged, then the corresponding part must be reflected in the plan. According to para. 2 tbsp. 69 of the Civil Code of the Russian Federation, 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 lease right of this plot belonging to the mortgagor.
Based on the above, an agreement on the pledge of real estate (mortgage agreement) is subject to state registration.
Failure to comply with the rules on state registration of a mortgage agreement entails its invalidity and such an agreement is considered void.
Documents required for state registration of a mortgage agreement:
- application from the mortgagor;
— document confirming payment for registration (payment order);
— a notarized power of attorney for the representative (the head submits a passport, a copy of the appointment protocol or an extract);
— document on state registration of a legal entity;
— document on assignment of TIN;
— information letter of the State Statistics Committee;
— certificate of registration of changes in constituent documents;
— charter and constituent agreement with amendments and additions;
— notarized copies of the mortgagee’s constituent documents (registration certificate, charter and constituent agreement);
- for a building/structure - an extract from the BTI passport according to f. 1a, explication and floor plan not older than 1 year. For a land plot - cadastral plan of the land plot;
— originals of pledge agreements according to the number of participants and a notarized copy for Rosregistration;
— notarized copy of the loan agreement;
— a notarized copy of the certificate confirming the ownership rights to the mortgaged object;
— unitary enterprises submit a copy of the document from the Department of State and Municipal Property of Moscow or the Ministry of State Property authorizing the pledge;
— a notarized copy of a document confirming the owner’s rights to the land plot (certificate of ownership; lease agreement, perpetual use, etc.);
- joint-stock companies and limited liability companies - pledgors additionally submit documents confirming compliance with legal requirements when making a major transaction, namely:
1) a copy of the minutes of the general meeting or an extract from it, the accuracy of which is confirmed by the signature of the head and sealed with the seal of the organization
or
2) a certificate of the value of the subject of the pledge as a percentage of the book value of the assets of the joint-stock company or the value of the property of the limited liability company according to the financial statements for the last reporting period preceding the day the decision on the pledge was made. The certificate must be signed by the chief accountant and affixed with the seal of the company;
— protocols or extracts from them confirming the powers of the managers who signed the pledge agreement (copies certified by the organizations of the pledgor and the pledgee);
— an extract from the pledge book of the pledgor’s organization.
Legal department
Documents for registration of security
The question of whether a pledge agreement is registered or not is disclosed in the Civil Code and the Law “On Mortgage”. It is important to record this action correctly. For successful registration, the applicant must prepare a package of certificates, without which the event is impossible. The list of required papers, as a rule, is located on the information stand of the Rosreestr or MFC premises.
To register you will need to provide a number of documents
This list includes the following papers:
- A civil document confirming the identity of the borrower.
- Certificate of state registration, TIN of the initiator of the transaction.
- Information confirming ownership rights to the collateral.
- Data on the technical condition of the object, issued by the BTI in the form of a certificate.
- Marriage certificate of the mortgagor. This item includes all documents related to the spouses providing real estate under a guarantee. Written consent of the other half to carry out the investigation.
- In the case of shared ownership of surety items, the written consent of all co-owners of the property is required.
- A contract for obtaining a loan from a financial institution.
- Confirmation of payment of state duty.
- When carrying out redevelopment, which will separate the BTI certificates from the actual visualization - the originals of permitting documents for the restructuring.
- If the mortgage was purchased from the seller by barter or rent, then additional evidence of these transactions.
- Originals of the registered mortgage in triplicate.
Upon completion of the registration procedure, each party receives a copy with the original state registration mark.
Advice! To reduce the duration of the activities, the applicant should make sure that he has collected the entire set of documents necessary for registering the pledge agreement. At the same time, the papers have a usable, readable appearance.
How much should I pay to the state when registering a contract and for what?
The amount of state duty for individuals and organizations will be different.
For registration of a pledge agreement, ordinary citizens and individual entrepreneurs will pay one thousand rubles to the treasury, a legal entity will need to deposit fifteen thousand rubles into the treasury. However, there are cases when the state duty is not charged - if the property purchased with borrowed funds becomes the subject of collateral. The essence of the payment is that the state commission verifies the accuracy of the data. On the one hand, this insures participants against fraud or deliberately erroneous information that has no legal force. Legislative acts stipulate liability for submitting knowingly false data, so it is necessary to provide only reliable information. In terms of timing, registration of an agreement on the transfer of property as collateral takes no more than 2 weeks. During this time, experts check all the information and approve the transaction.
Contents of the real estate mortgage agreement
Since all formalities for registering a pledge are carried out under state control, the requirements for the contract are strict, having certain regulations, non-compliance with which leads to the cancellation of the document. This procedure is provided for in Article 339 of the Civil Code.
When mortgaging real estate, it is important to draw up the agreement correctly
In order to avoid misunderstandings of a property and monetary nature that may arise subsequently, it is necessary to strictly adhere to the requirements imposed by law on the contents of the document. The editorial regulations are as follows:
- the loan amount is reflected in the form of numbers and letters;
- the duration of the transaction is clearly stated;
- tariffication;
- full description of the collateral;
- methods for resolving conflicts are established;
- details of both parties.
According to the rules, a loan agreement is not subject to certification by a notary, but for reinsurance it is better to entrust the transaction support to a specialized specialist.
How to properly prepare documents
A loan agreement with the provision of collateral is a rather serious financial undertaking, and therefore requires the most accurate and scrupulous completion of several types of documents:
| Agreement | loan (in writing in free form or according to the lender’s sample) and pledge of property |
| The act of transferring collateral to the pledgee | and a receipt for receipt of funds or other material assets under the agreement |
State duty amount
All transactions carried out with the involvement of government agencies are subject to remuneration in the form of duties. Registration of a loan contract is no exception.
The mandatory payment fee is:
- for individuals – 1000 rubles;
- for legal entities – 15 thousand rubles.
But if the security is property purchased on credit, then payment of the contribution in this case is not provided. This is explained by the fact that money is paid for the fact that representatives of government agencies conduct data verification in order to avoid fraud or unreliable information when making a transaction.
Transfer of fees for Rosreestr is possible using the State Services portal and at any bank.
Payment of state duty is required
Registration procedure
The beginning of the registration process is considered to be the moment of submission of a mutual application to initiate formalities. In this case, it is necessary to attach a canceled receipt for the state duty. An application submitted without additional documents will also not be accepted for consideration.
The application is submitted on an approved form, which is provided by Rosreestr. If the MFC or regional public service center has a function for providing services for registration activities, then the required forms will be issued here.
You can download a template from the Internet, but in order to avoid any inaccuracies on such an electronic form, it is better to contact the government agency for a sample.
Since the registration process takes a long time and the likelihood of a queue at the registrar is high, it is better to make an appointment with a specialist in advance.
The procedure for state registration of a security agreement itself consists of the following set of measures:
- Preliminary assessment of the possibility of a transaction.
- Checking the set of required papers.
- Coordination of the timing of state registration.
- Legal assessment of information provided by the client for registration.
- If necessary, Rosreestr employees prepare requests and send them to government agencies.
- Carrying out a technical inventory in cases where there is a separate need for this action.
- Case formation.
- Complete the transaction by obtaining the registration number.
The execution of the security document must be carried out in accordance with the date of conclusion of the mortgage agreement
Sample loan agreement with collateral
A standard loan agreement with collateral is a standard document in which the main points are:
| Preamble | contains information about the title of the document, the date of its preparation and place. It also states who is the borrower and who is the lender (full name, name of the organization, who it is represented by, etc.) |
| Subject of the agreement | determines the exact amount of the loan, the size and procedure for provision, as well as an indication of interest-free status or, conversely, the presence of remuneration for the use of borrowed funds |
| Deadlines for fulfillment of obligations | data on the validity period (the deadline for repayment of the debt) is recorded, and the date of transfer of funds from the lender to the borrower is also determined |
| Mortgaged property | an entire paragraph dedicated to describing the collateral itself. Information about the possibility or impossibility of using the borrower’s property during the term of the agreement is also entered. |
| Dispute Resolution | the parties determine how disputes and conflicts that arise will be resolved (by filing a claim or statement of claim in court) |
| Force Majeure | a list of situations and circumstances due to which violation of the obligations of one of the parties to the transaction does not lead to the application of penalties or termination of the contract |
| Details of the parties | and space for signature and seal |
Between individuals
Despite the fact that the law allows individuals to carry out a borrowing transaction orally (for a loan amount of less than 10 minimum wages - 75,000 rubles), if the loan is planned to be secured with the borrower’s property, paperwork is mandatory (deed of transfer of collateral, etc.) . This will serve as additional insurance against possible risks for both parties to the transaction.
Read about the concept and nature of a loan agreement in the article: loan agreement. Read about concluding a targeted loan agreement between legal entities here.
Between a legal entity and an individual
A sample loan agreement between a legal entity and an ordinary citizen, in addition to the mandatory parameters of a civil document, must necessarily include:
| Information about the moment of transfer of the subject of the contract | and options for receiving funds from the lender, as well as available options for repaying the debt |
| Data on collateral and obligations | related to its preservation (description, list of documents, conditions of use, storage, procedure for loss of collateral, etc.) |
What information does it contain?
The loan agreement with collateral contains the following fundamental data about the transaction:
| Subject of the agreement | and the amount of the interest rate for the use of borrowed funds (when concluding an interest-free loan, this must be documented, because otherwise the loan will be calculated automatically with interest) |
| Date of transfer of money or things | and a description of the collateral, rules for its storage during the term of the agreement |
| Obligations of both parties | in case of loss of a partner’s property (borrowed item and collateral) |
What can be pledged
Russian legislation has determined that the subject of a pledge can be any property of individuals and legal entities, including things and property rights (Civil Code of the Russian Federation, Art. 336).
Let's define the most popular types:
| Real estate | is one of the borrower's most liquid assets. Documents for an apartment, private house, country house, country house, garage, land plot, etc. can be accepted as collateral under a loan agreement. |
| Transport | if the borrower is the owner of a car, truck or special purpose vehicle, he may well qualify to receive a substantial sum of money under the agreement. Some financial organizations execute transactions secured by a vehicle, water vehicle or snowmobile. |
| Securities | Shares, bonds, short-term treasury bills, bills of exchange, deposit and savings certificates can be accepted as collateral under the agreement. The main condition is that the estimated value of the documents provided must be equal to or exceed the loan amount |
| Precious metals | if you have at your disposal measured bars of gold, silver, etc., you can count on concluding a profitable deal |
Conditions of conclusion
In most secured borrowings, the parties to the transaction have the ability to influence the terms of the transaction.
The main points of the loan agreement with collateral in this case are:
| Subject of the agreement | This section contains information about the borrower and the lender, who are also the mortgagor (the owner of the property provided as collateral for the loan) and the mortgagee. It is mandatory to register the amount or quantity of goods or things in the case of an interest-free clothing loan. |
| Duties of the parties | If, when concluding a regular agreement, the main obligation to repay the debt falls on the borrower, then with collateral, no less serious responsibility falls on the shoulders of the lender - the safety of the collateral property. All the nuances of storage must be specified (guarantee of integrity, possibility of operation, prohibition on transfer of property to third parties, etc.) |
| Rights of the borrower and lender | in addition to the standard rights of the parties to the transaction, it is necessary to enter information about the rights of the mortgagor to the safety of his property and his ownership rights to it |
| Other conditions | this section usually contains information about the agreements of the parties reached at the preliminary stage of negotiations (size and number of payments during the term of the contract, etc.) |
In addition, do not forget that a loan agreement with collateral is regulated by the Civil Code of the Russian Federation, according to which it comes into force from the moment of transfer of money or other material assets.
Therefore, a prerequisite for concluding a transaction is to determine the date of transfer of the subject of the contract and reflect this information.
