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Practical Aspects of Mortgage State Registration
Piskunova M.G., chair Russian Institute of State Registrars at the Ministry of Justice of the Russian Federation
The federal act from July 16, 1998 ¹102-FL "On the hypothecation (deposit of the real estate)" (further — the Law on the hypothecation) contains the laws of procedure that define the order of operations necessary for making agreements on the hypothecation, —the notarial certification and state registration.
The governmental order of Russian Federation from January 11, 2000 ¹28 "On the measures of development of housing hypothecary crediting in Russian Federation" favors the Concept of development of the system of housing hypothecary crediting (further - Concept). In the Concept the measures on the organization of conditions for efficient operation of credit organizations on the market of housing hypothecary credits are offered, including the improvement of procedures of registration of the rights and agreements of the housing hypothecation; for what the Ministry of Justice of Russian Federation needs to prepare methodical materials on the order of registration of the hypothecation that appears by virtue of a law or an agreement, and also on the order of registration of change of the pledgee because of the transition of the incorporeal rights of the hypothecary credits. Law enforcement practice of the justice establishments of state registration of rights on the real property and agreements with it (further — justice establishments) has revealed a series of problems, which should be solved not only by methodical materials of Minust of Russian Federation, but also by normative acts on state registration.
Main problem of state registration of the hypothecation is the definition of the subject of registration. What needs registration: the pledge contract, right of the deposit or encumbrance of real rights of the pledger?
As an article 131 CC of Russian Federation establishes it: the state registrates the following subject: real rights on the real property, limitation (encumbrance) of these rights, and also transactions with the real estate. The limitation of real rights is the legal relation, when to the right of the subject, for the benefit of which the limitation is set, or unrestricted circle of persons a duty of the subject of real right (the landholder) is added. The limitations (encumbrance) can have different legal derivation.
The limitations of rights generate real rights of other subjects on the real estate (easement, right of use of living premises by the family of the owner), transactions (rent, the hypothecation, trust control), authoritative acts (arrest, exclusion to use the asset), and also other juridical facts, which are linked with limitation (encumbrance). The example of such facts can be the appearing of the deposit by virtue of law on the circumstances, indicated in it.
Despite of the indicating in paragraph 1 article 131CC of Russian Federation on the necessity of state registration of the hypothecation in a series of real rights, and also on a controversy about the proprietary nature of the deposit, the hypothecation as the deposit of real estate, in the opinion of the authoritative scientists, is the law of obligations. The right of the deposit gives the creditor a possibility to satisfy the demands from the cost of pledged asset, but to not receive immediately the subject of the deposit in possession. The main arguments for the benefit of the obligatory of the hypothecation is that the real estate remains in use and possession of the pledger (paragraph 1 article 338 CC of Russian Federation), the pledgee does not receive the right of possession of a thing, and at the loss of a subject of the deposit the right of the deposit does not cease (paragraph 2 article 345 CC of Russian Federation) 1.
As it is known, the deposit arises by virtue of the agreements or by virtue of the law (paragraph 3 article 334 CC of Russian Federation). There is no necessity in the registration of "the deposit right" of the pledgee, as the right to convert penalty occurs for him only in the case of non-execution of the bond, provided with the hypothecation. But the pledgee can not take advantage of this right if he wishes. But from the moment of appearance, the hypothecation is a limitation and encumbrance of real right of the pledger. The limitative character of the hypothecation consists in the impossibility of the exploitation of the pledged asset without the consent of the pledgee, and burdensome character — in conservation of the hypothecation during the transition of the rights for pledged asset to another subject (paragraph 1 article 37, article 38 of the Law about the hypothecation). That is why outgoing from an article 131 CC of Russian Federation, independently of the foundation of the appearance, the hypothecation should be registrated as the limitation (encumbrance) in the Unitary state registry of the rights on the real property and transactions with it (further — the Unitary registry).
At the same time, the paragraph 3 article 339 CC of Russian Federation says that the agreement on the hypothecation should be recorded in the order established for registration of the transactions with appropriate asset. The paragraph 10 of the Law on the hypothecation also establishes the necessity of state registration of the agreement as a necessary condition of its inference. In chapter IV of the Law is spoken about the state registration of the hypothecation without the indication of the subject of registration (transaction or encumbrance). The registration of the hypothecation is realized by recording by the Rules of support of the Unitary state registry the rights on the real property and transactions with it, affirmed by the order of the Government of Russian Federation from February, 18, 1998 ¹219 (further —Rules).
According to the subpoint 47-49 of the Rules the record is made into the sub-section III, intended for the records about limitations (encumbrances), particularly into the part III-2 (recording about the hypothecation) with a statement of the time and size of the bond provided by the deposit. As it is established by the paragraph 43 of the Rules, the data source for the records about limitations are the contracts and other documents of obligatory state registration, which are the foundations of the appearance of limitations (encumbrances). Thus, at the appearance of the contract deposit we are talking about the registration of the transaction. The presence in the Unitary registry of the record about the hypothecation emphasizes the registration of the pledge contract and simultaneously the encumbrance of the rights of the pledger by the hypothecation.
As the agreement that should be state registrated, is considered to be made from the moment of registration (paragraph 3 article 433 CC of Russian Federation), by virtue of paragraph 1 article 341CC of Russian Federation and the paragraph 1 article 11 of the Law on the hypothecation from the moment of state registration of the hypothecation agreement the pledgee obtains the right of the deposit. There is no necessity of double registration of the hypothecation as the pledge contracts and rights of the deposit. According to the paragraph 77 of the Rules the state registration of the transaction is certificates by a stamp of a registration inscription on the hypothecation agreement with the date and number of registration.
In the paragraph 73 of the Rules it is stipulated, that at the registration the hypothecation the pledgee is granted a certificate. But according to the paragraph 1 article 14 of the Federal Act from July, 21, 1997 ¹ 122-FL "On the state registration of the rights on the real property and the transactions with it" (further — the Law on registration the rights) the certificates guarantees the conducted state registration of the appearance and transition of the right, and the conducting of state registration of the agreements and other transactions is certificated by means of conducting a special registration inscription on the document expressing the content of the transaction.
According to the paragraph 22 of the Law about the hypothecation the certification of state registration of the hypothecation is also realized by means of a registration inscription on the agreement. If it is stipulated by the hypothecation agreement, the right of the pledgee can be properly certificated by the formulated mortgage. As not the right of the deposit is being registered, but the transaction — the hypothecation agreement, the registration of the hypothecation can not be guaranteed by the certification of the state registration of the rights. Besides as it is established by the paragraph 1 article 29 of the Law on registrating the rights, the pledger will convert with an application for registration the hypothecation, but the right of the deposit for that pledgee arises, who is granted the certificate according to the Rules.
In this part of paragraph 73 of the Rules it is necessary to declare contradicting the article 14, 29 of the Law on registrating the rights and article 22 of the Law on the hypothecation. Thus, the rights of the pledgee are certificated by the agreement on the hypothecation with a stamp of inscription about the state registration of the transaction or mortgage. Both sides also have the right to receive an extract about the hypothecation registration, which is given for the payment, established on giving of the information from the Unitary registry.
If according to paragraph 3 article 340 CC of Russian Federation simultaneously with the hypothecation of a building or a construction under the same agreement the land lot or its part is being mortgaged, the recordings about the hypothecation should be brought in to both units of the Unitary registry formed for the land lot and for the building. The recordings are made under one registration number, as one transaction — one agreement about the hypothecation is being registered. Accordingly, the payment for the registration is taken for the registration of one transaction (instead of several rights).
However the article 11 of the Law on the hypothecation contains a rule distinct from the article 341 CC of Russian Federation: in the case of the appearance of factors provided by the hypothecation, after making a contract about the hypothecation, the right of the deposit arises from the moment of the appearance of these factors. The property pledged on the agreement on the hypothecation, is considered to be charged by the hypothecation from the moment of rise of the deposit right. It means that the fact of settling the agreement on the hypothecation does not generate encumbrance of the real property rights, if the main bond, provided by the deposit did not arise. For example, the contract of debt is a real contract and is considered to be settled from the moment of money transmission (article 807 CC of Russian Federation).
If the mutuant and the loaner will sign the loan contract, and then notarially will certify and register the agreement on the hypothecation in ensuring the bonds of the loaner, the right of the deposit and the encumbrance of the property by the hypothecation will arise from the moment of money transmission by the mutuant, instead of the moment of state registration of the agreement on the hypothecation. In this case it is possible to admit the settling of the contract, but hypothecation as encumbrances does not arise. Recognizing that the lawgiver supposes the hypothecation to be an encumbrance after the moment of settling the contract on the hypothecation, is arises that at the appearance of the hypothecation by virtue of the contract the transaction is being registered first, and then the hypothecation is being registered, thus according to the paragraph 2 article 20 of the Law on the hypothecation the document that provides the appearance of the bond, provided with the hypothecation should be presented.
At the "double" registration of the hypothecation —the agreement and then encumbrance by the hypothecation a problem arises: what rights of the pledgee are being confirmed by the registered agreement on the hypothecation? Is turns out, that legal consequences of registrating the agreement on the hypothecation depend on the operations of the sides under the main bond: the right of the deposit under the general rule arises from the moment of registrating the pledge contract, but if the debtor will prove, that his bond to the pledgee as a creditor has not arisen, the recording about the registration of the agreement, no less than the registration stamp on the agreement do not confirm the existence of the hypothecation.
Such situation contradicts main principle of state registration consolidated in the paragraph 1 article 2 of the Law on registration of the rights, — to the principle of certainty, according to which the state registration is the sole evidence of the existence of the registered right and transaction. It is obvious, that after the state registration of the agreement on the hypothecation the pledger can not dispose of the asset, transmitted to the deposit, without the consent of the pledgee, even if the main circumstance hasn’t arisen, and the asset is not charged with the hypothecation yet. In this sense the provisional rule of paragraph 1 article 37 of the Law on the hypothecation — the exclusion of the exploitation of the pledged asset without the consent of the pledgee represents a significant clause of the contract on the hypothecation, defined by the law, which becomes obligatory for the pledger from the moment of state registration of the transaction, instead of the moment of state registration of encumbrance by the hypothecation. Thus, the registration of the agreements on the hypothecation only already results in the limitation of the right of the pledger, thus providing the interests of the pledgee.
Another problem: whether the pledgee can convert the penalty on the hypothecation, if only one transaction is registered — the agreement on the hypothecation, but hypothecation as encumbrance is not registered? What consequences follow the lack of registration of the encumbrance by hypothecation, if only a pledge contract has been registered? The reference of penalty on the pledged asset will happen only in the case of non-execution or inadequate execution of the main bond.
It is doubtful, that the satisfaction of valid claims of the pledgee at the presence of the registrated pledge contract is possible only in the case of "double" registration and hypothecation itself. It is also unlikely, that after the registration of the pledge contract the pledger will convert for the second time to the Justice Department with the declaration of the registration of the hypothecation, attaching the document of the arise of circumstances, provided with the hypothecation, and repeatedly will bear the expenses of the state registration. Such documents can be presented by the pledgee, but the article 29 of the Law on state registration and article 20 of the Law on the hypothecation refused him.
The sighted problems determine the main problem of application of legislative standards on the state registration. What transactions are the subject of state registration: all transactions with real estate, or only indicated in the Civil Code as the subjects of registration, or the transactions generating limitations (encumbrance) of the real rights? If the nonregistated real right on the real estate is not considered to arisen (article 8 CC of Russian Federation), and the registratable but the not registered transaction is void (article 165 CC of Russian Federation), what are the consequences of lack of registration of the encumbrance of right? The study of the given problem is not the purpose of the present article, but it is obvious, that the improvement of the formulas of normative - legal acts regulating the state registration of the real property rights to and the transactions with it is required.
However now it is possible to say that in the current practice of ensuring by the hypothecation the return of the bank credits it is enough to conduct only state registration of the pledge transaction, which is certificated by a registration stamp on the agreement on the hypothecation. The credit agreement is the consensual transaction, therefore the bond to return the credit during the established period, arises for the loaner from the moment of settling the contract independent from the fact of receiving the credit. For the state registration according to the article 20 of the Law on the hypothecation the notarially certificated pledge contract and the credit agreement are presented, after the registration of the hypothecation the pledge contract is considered to be settled and the asset charged by the hypothecation.
During the registration of the hypothecation arising by virtue of circumstances, indicated in the law, it is possible to speak about the registration of the encumbrance. The deposit by virtue of the law arises in the following cases:
- At the credit sale, including the condition about the installment plan of paying, the sold asset admits to be in the deposit of the vendor from the moment of transmission to the moment of complete payment, if other conditions are not stipulated by the sale contract (paragraph 5 article 488 CC of Russian Federation);
- At the transmission of the property under disbursement of rent, including perpetual maintenance on dependence, the receiver of the rent acquires the right of the deposit in ensuring the bond of disbursement of the rent (paragraph 1 article 587 CC of Russian Federation);
- At acquiring an apartment house or a flat at the expense of the bank credit or other credit organization, the acquired asset is being in the deposit for the bank or a credit organization from the moment of the state registration of the sale contract of an apartment house or a flat, if other conditions are not stipulated by the federal law or the sale contract (paragraph 1 article 77 of the Law on the hypothecation).
In the context of singularities of acquiring the rights on the real property these cases can be supplemented by a note that the deposit by virtue of the law arises from the moment of the state registration of the property right of the purchaser of the asset (the pledger), — of the buyer and the payer of the rent. In this case the hypothecation has another derivation which is distinct from contractual. The deposit arises on the basis of the law at the approach of the circumstances, indicated in it, instead of the agreement of the sides and the fact of state registration of the hypothecation.
Paragraph 1 article 77 of the Law on the hypothecation and paragraph 5 article 488 CC of Russian Federation on the deposit by virtue of the law are the provisional rules, both sides have the right in the sale contract to cancel the given deposit by the agreement. But thus a vendor or a bank lose by their own will the opportunity of satisfaction of their financial demands granted by the law. At the same time, the deposit by virtue of the law does not arise, if the sale contract stipulates the conservation of the property right to the vendor before the complete payment of asset by the buyer (article 491 CC of Russian Federation). At contradiction to the sale and purchase, the standard of the appearance of the pledging transmitted to the payment of rent, has an imperative character and can not be abolished by the agreement of the sides.
There is an erratic judgement, that the sale contracts in credit, on the basis of which the deposit appears, by virtue of the law, are the subjects to the obligatory notarial certification, or an additional agreement on the hypothecation that is notarially certificated is necessary. The notarial certification, as well as the state registration, is necessary for the appearance of the contract deposit. According to the article 10 of the Law on the hypothecation agreement on the hypothecation should be necessarily certificated and registrated.
The link on the paragraph 2 article 1 of the Law on the hypothecation, according to which to the deposit arising by virtue of the law, are applied the rules of the deposit arising by virtue of the agreement, in this case is improper. We mean the identical legal regulation of deposit relations, but not identical demands to the deposit arising. The deposit by virtue of the law at sale and purchase arises in the condition of payment on credit and after the transmission of the thing, thus the contract form should correspond to the demands of the sale contract, but not the agreement on the hypothecation.
At the deposit arise by virtue of the law in the Unitary registry after the registration of the right of the buyer or the payer of the rent the hypothecation recording (to the chapter III-2) is made that indicates the encumbrance of the property right. As the pledgee the vendor or the receiver of the rent are directed. The given record should be brought in by the logger himself, without application for the registration of the deposit by the pledger (a buyer or a payer of the rent) and without additional payment for the registration of the hypothecation, as this limitation arises by virtue of the law (if, certainly, in the sale contract there won’t be established that the deposit at the installment plan of paying does not arise).
In the certification of the property right registration that is given to the buyer or payer of the rent, in the graph "Limitations (encumbrance) of the right" the presence of encumbrance is underlined. In the confirmation of the deposit the vendor and the receiver of the rent have the right to receive the extract from the Unitary registry (at additional expense). The deposit recording, brought in on the basis of the sale contracts, is cancelled on the basis of joint statement of the vendor and the buyer after complete repayment of the asset. The recording about the deposit on the basis of the agreements of the rent is cancelled after the discharge of the rent contract (rescission of the contract or the death of the receiver of the perpetuity).
The registration of the deposit arising according to the paragraph 1 article 77 of the Law on the hypothecation in case of acquiring the housing at the expense of the bank credit has some singularities. If in the sale contract there is no indication of the source of finance for the repayment of the asset, the justice establishment can not make the deposit recording for the benefit of the crediting bank by itself. It can be made on the application of the buyer as a pledger. For the deposit recording the documents that include the information about the bank - pledgee (full name, Personal Number of a Taxpayer, legal address, requisites of registration of a legal entity), and also a credit agreement as a document - basis are necessary. But the buyer who obtained the credit can make the repayment of asset from his own finance or at the expense of other credits, and not to file an application about the deposit registration.
That is why even with an application of the bank - creditor about the deposit registration, but without the application of the pledger the registration of the deposit is problematic. Generates complexities the problem of defining of the moment of the deposit arising— from the moment of state registration of the sale contract. On the moment of the registration of the agreement and up to the moment of the registration of transition of the right the vendor of the real estate is the owner. He becomes the pledger, and his flat is in the deposit in ensuring of another's unknown bond —the bond of the buyer on return of the credit to the bank. Besides on the basis of the sale contract the vendor is the creditor himself in a part of monetary demands to the buyer. In most cases after the payment of the real estate price the property right transfers to the buyer, therefore it is more logical to assume, that the deposit by virtue of the law arises not from the moment of registrating the sale contract, but from the moment of registrating the transition of the right to the buyer, who becomes the pledger as a debtor under the credit agreement.
On the basis of the Concepts of development of a system of hypothecary housing crediting the ensuring of the credit can be made as a trilateral (mixed) sale contract with the involvement of the vendor, buyer and creditor. If to consider the given agreement as the including of the hypothecation agreement in the agreement that contains the bond, provided with the hypothecation, then according to the paragraph 3 article10 of the Law on the hypothecation it is the subject of the notarial certification and state registration. But in case of settling the trilateral sale contract with the involvement of the bank - creditor, on which basis the vendor gets the money not from the buyer, but from the bank, there appears not a contractual deposit, but a deposit by virtue of the law.
Accordingly, the given trilateral sale contract is not the subject of obligatory notarial certification that allows essentially moderate the expenditures on the execution of the hypothecary credit. For state registration the credit agreement between the bank and buyer of housing can be extra presented. The justice establishment registers the sale contract and simultaneously according to the paragraph 1 article 77 of the Law on the hypothecation makes a deposit recording for the benefit of the bank. The pledger is not the buyer as the debtor under the credit agreement, but the third person — the vendor, that is why it is expedient to point in the agreement the appearance of the deposit by virtue of the law from the moment of registrating the agreement. The interests of the vendor can be provided by the clause of the sale contract about the transition of the property right of a flat to the buyer after the full payment of the price by the bank. After the execution of the given clause the transition of the property right to the buyer is registered, thus according to the article 353 CC of Russian Federation the deposit for the benefit of bank is saved. The buyer becomes the pledger, and the justice establishment should make changes in the recording about the deposit by virtue of the law.
The paragraph 1 article 77 of the Law on the hypothecation can result in the appearance of the double deposit on one unit. For example, if the sale contract will stipulate the installment plan of payment after the transition of the right to the buyer at the expense of the bank credit, then by virtue of the law there appear two deposits — for the benefit of the vendor in ensuring the bonds of payment of the price and for the benefit of the bank in ensuring the bonds of the return of the credit. The rules of the precedent and consequent hypothecation can be used for the deposits on the basis of the contracts, but not for the deposits on the basis of the law. It is obvious, that the standards of contract and deposit relations in hypothecary crediting require more careful formulation.
An essential singularity of the state registration of the hypothecation is the necessity of preliminary registration of the real right of the pledger for the deposit, including the right, which has arisen before the introduction of the Law on registration of the rights. The given demand is established by the paragraph article 6, paragraph 2 article 13, paragraph 1 article 29 of the Law. Besides according to the paragraph 2 article 9 of the Law on the hypothecation the contract should indicate the right, by virtue of which the asset belongs to the pledger, and name of an department of the state registration of the rights on the real property which has registered this right of the pledger.
The power of transformation of the property to the deposit have the owners and subjects of law of economic operation. Before the registration of the hypothecation, in the Unitary registry the property right of the pledger or right of economic operation of the pledger — of unitary, state or municipal firm should be registered. As under the agreement on the hypothecation of a building or a construction the occupied land should be simultaneously transmitted in the deposit (article 69 of the Law on the hypothecation), then beforehand the property right on the land should be also registered. If the land belongs to the pledger on the right of constant use or life-long heritable possession, then such land is not transmitted in the deposit, and the registration of the rights arisen earlier is not required. If the pledger is the leaser of the land, then together with a building the right of the land rent is also mortgaged. In this connection there is a problem of state registration of the deposit of the rent right.
In the Law of Russian Federation "On the deposit" the deposit of leasehold interests was not considered as the hypothecation. But after the introduction of the law on the hypothecation, the rules on the hypothecation of the real property are applied to the pledge of rights of rent of the real estate, as other conditions are not established by the federal law and do not contradict the current rent relations (paragraph 5 article 5). In the paragraph 2 article 9 of the Law on the hypothecation it is said that if a subject of the hypothecation is the right of rent, the leasehold should be defined in the agreement the same way as if it was a subject of the hypothecation. At the same time, the necessity of the state registration of the deposit of the right of rent is arguable, as the deposit of leasehold interests by the leaser does not charge real rights of the lessor on the real estate. However the demands about the state registration of the hypothecation agreement established by the article 10 of the law, do not contain exceptions for the pledge of rights of rent.
That is why the contracts on the pledge of rent rights of the real estate, are the subject of the state registration in the order, foreseen for the registrating the agreements on the hypothecation. It is obvious, that the registration of the deposit of the rent right should prevent the sale (concession) of the rent right of the real estate without the consent of the pledgee. For the registration of the deposit of the rent right the consent of the lessor should be also presented (if the rent contract does not stipulate something different) and, probably, the owner or the subject of the economic operation right of the leasehold according to the demands of the paragraph 4 article 6 of the Law on the hypothecation and paragraph 3 article 335 CC of Russian Federation.
The state registration of the deposit of the rent right leads to the necessity of preliminary registration of rent in the Unitary registry, which right is mortgaged by the pledger. Outgoing from the paragraph 2 article 9 of the Law on the hypothecation this registration is realized before the notarial certification of the pledge contract, and in the agreement the data on the effected state registration should be contained. But the registration of rent is effected only after the registration of the real rights of the lessor (paragraph 2 article13 of the Law on registration). Thus, the procedure of registrating the deposit of the rent right becomes more complicated, however the pledgee of the leasehold interests will receive additional state warranties of lawfulness of the rent contract, the right on which are mortgaged by the leaser.
Besides, in the case of the pledge of the rent rights arisen on the basis of the agreements concluded before the introduction of the Law on registrating the rights, the registration of rent should be also conducted. The registration in the Unitary registry the rent on the basis of the concluded agreements does not change the date of their settling, we mean not the registration of the transaction, but the registration of the earlier arisen encumbrance of the right of the lessor.
According to the paragraph 1 article 6 of the Law on the registrating the rights the registration of legally accepted rights and transaction can be carried out at the request of the legal owners, and the paragraph 3 article 433 CC of Russian Federation supposes another aspect of settling the contract that is the subject of state registration. The deposit of the right of short-term rent is being improbable, as on the moment of the reference of penalty the period of rent can expire, and the creditor will lose the ensuring of the bond.
The article 76 of the Law on the hypothecation provides a possibility of ensuring the return of credit granted for the building of an apartment house, by the incomplete construction and the pledger’s materials and equipment, which are prepared for the construction. The incomplete construction is a specific subject of rights. According to the article 130 CC of Russian Federation and the article 25 of the Law on the state registration, to the real property can be referred the subjects of incomplete construction which are not being the subject of the construction contract in force (paragraph 16 of the decree of the full Commission of Higher Arbitration court of Russian Federation from February, 25, 1998 ¹ 8).
Thus, the incomplete apartment house can be a subject of the hypothecation, if the construction contract is terminated (is executed or broken), or if the tenant builder is constructing by himself without engaging the original contractor. However more often the necessity of receiving the credit by the tenant builder (customer) arises for the prolongation of construction of a multi-apartment house without the stoppage of contract works. In this case by the transmission to the deposit of construction in progress the pledger will meet a problem of the state registration of the hypothecation.
According to the paragraph 2 article 25 and the paragraph 1 article 29 of the Law on the state registration of rights before the registration of the hypothecation the right of the pledger on the incomplete construction should be registered. Thus the pledger - tenant builder should present the documents reconfirming the termination of the construction contract, and also the documents on the lack of rights of the third party on the building site. According to the paragraph 1 article 218 CC of Russian Federation the right for the new thing is acquired by the person who has created it for himself. If the financing of the construction of multi-apartment house is realized with the engagement of money resources of the investors under the bond to transmit flats in the built house, then in this case it is hardly possible to speak about the property right of the tenant builder on the whole apartment house. In view of ambiguity of legal qualification of the contracts of individual share in the construction and the variety of schemes of investment activity the definition of the subjects of real rights on the built house is the problem of separate research. Thus, the registration of the hypothecation in ensuring the credit that is necessary for the prolongation of construction can call difficulties.
It seems that the hypothecation of the firm as a property complex is possible in this case. The construction as a whole is an example of business, "firms on the move". The tenant builder can arrange the construction of a multiapartment house as a property complex, having included in its composition the firm according to the paragraph 2 article 132 CC of Russian Federation and paragraph 2 article 70 of the Law on the hypothecation the right on the land of the construction area, equipment, building materials, and also incorporeal right and debts, also under the construction contract and investment agreements. The legal regulation of the hypothecation of firms has such singularities, as the necessity of conducting before the hypothecation the complete inventory control of the property and auditor check (paragraph 3 article 70 of the Law on the hypothecation), and also granting the pledgee the right of hypothecary monitoring of the pledger’s activity (paragraph 2 article 72 of the Law on the hypothecation). However the problems linked with the state registration of the transaction with the firms as property complexes, require special reviewing.
The transfer of the rights of the pledgee under the agreement on the hypothecation is possible by the following ways:
- By making an assignment contract (cession) between the primal creditor (pledgee) and another face (paragraph article 47 of the Law on the hypothecation);
- By making an assignment contract (cession) between the primal creditor under the bond, provided with the hypothecation, and new creditor (article 384 CC of Russian Federation);
- By transfer of rights under the mortgage by committing on it the endorsement for the benefit of the new holder of the mortgage and the transmission him the mortgage (article 48 of the Law on the hypothecation).
The agreement of concession by the pledgee of the rights under the agreement on the hypothecation should be notarially certificated and registered in the Unitary registry in the order established for the registration of the transaction with the real estate (paragraph 1,2 article 398 CC of Russian Federation, paragraph 4 article 47 of the Law on the hypothecation). The registration of the agreement of the rights concession is realized by the importation of new recording on the hypothecation in the sub-section III-2. As the foundation the primal pledge contract and the agreement of the rights concession by the pledgee are directed.
The previous recording on the hypothecation is cancelled, but because the encumbrance will be converted for the benefit of the third party, in a stamp of cancellation according to the article 63 of the Rules of organizing the Unitary registry the number of the sub-section and the sheet is underlined, on which the hypothecary recording was made. The effected registration of the rights concession id certificated by the stamp of the registrating the transaction on the agreement of transferring the rights by the pledgee. As according to the paragraph 3 article 47 the concession by the pledgee of the rights under the agreement on the hypothecation is real, if the same person is given a cession of the incorporeal rights to the debtor under the bond provided with the hypothecation, that, obviously the assignment contract on the main, for example, credit agreement should be presented. The registration of the assignment can be realized under the application of the new pledgee, the demand of the registration under the application of the pledger would contradict the paragraph 2 article 382 CC of Russian Federation, according to which for the transition of the rights of the creditor to the other face the consent of the debtor is not required, if other is not specified in the agreement.
The transfer of the rights under the pledge contract as a bond is possible by transferring the rights of the main bond. The article 384 CC of Russian Federation includes in the volume the rights of the creditors transferred to other party, and rights providing the execution of the bond. That is, the concession by the bank of the rights of the creditor under the credit agreement provided by the hypothecation leads to the changing of the pledgee in the bail bond. The agreement of the assignment under the credit contract unlike the cession on the hypothecary contract can be concluded in the simple written form and is not the subject to the state registration, as is not the transaction with the real estate. But its settling leads to the changing of the party, for the benefit of which the hypothecation is registered, that should be reflected in the Unitary registry.
The new recording on the hypothecation on the foundation of previously registered pledge contract and agreement of concession of the rights under the main bond is entered into the Unitary registry, and the previous recording on the hypothecation is cancelled according to the paragraph 63 of the Rules. What is the size payment for this operation of the justice establishment? It is impossible to speak about the registration of the transaction, as the concession of the right under the credit agreement is not the transaction with the real estate. It is also impossible to speak about modification in the records on the hypothecation, as the section VII of the Rules stipulates the importation of recordings on modifications that do not lead to the transition rights.
We mean the registration of the hypothecation as the encumbrance of real right on the real estate for the benefit of other party. The effected state registration of the hypothecation for the benefit of a new pledgee can be certificated by the extract from the Unitary registry. It is possible, that the justice establishments will take money for registrating "the rights of the deposit" and issue certificates of the state registration of the right to the pledgee, requiring the confirmation of paying the state tax for the registration of the deposit and issuing of the registration certificate. Thus the expenses should be born by the new pledgee, as the expenses on registrating the hypothecation and modification and supplements in the registration recording, but not the expenses of forming the rights of the new pledgee are laid on the pledger.
The mortgage is the nominal financial credit instrument that certificates the right for the receiving of the bond, provided by the hypothecation, and the right of the deposit of the real property (paragraph 2 article 13 of the Law on the hypothecation), with which transmission is effected the transfer of rights of the pledgee and the creditor. The mortgage is made by the pledger and debtor under the bond, provided with the hypothecation. The sheets of the mortgage are numbered and are sealed by the notary, all sheets of the mortgage constitute a single unit (paragraph 3 article 14 of the Law on the hypothecation). The integral part of the mortgage are the attached documents defining the conditions of the hypothecation or necessary for the accomplishment by the pledgee of the rights under the mortgage.
As is established by the article 48 of the Law on the hypothecation, the transfer of rights certificated by the mortgage is committed by the endorsement for the benefit of the next holder of the mortgage, and simultaneous transmission of the mortgage to this person. The new holder of the mortgage becomes the new pledgee (the hypothecary pledgee) and simultaneously a creditor under the bond, provided with the deposit.
The mortgage as the financial credit instrument can be a subject of the self-supporting transactions. The mortgage can be pledged and on the expiration of a definite period sold on the basis of special bond endorsement made by the hypothecary pledgee. The deposit of the mortgage as the financial credit instruments is not the hypothecation and is not the subject of registration (paragraph 4 article 49 of the Law on the hypothecation). The person, who has bought the mortgage, becomes its legal holder and the hypothecary pledgee.
The transmission of the mortgage to the pledger or in the justice establishment testifies on the execution of the bond, provided with the hypothecation. The presence of the mortgage in the property of any party, obliged on it, or in the department which has realized the state registration of the hypothecation, testifies, if different is not proved and not set by the law, that the bond, provided with the hypothecation, is executed. The party, which possesses a mortgage, is obliged to inform immediately the department which has realized the registration of the hypothecation, and the parties, obliged on the mortgage, (paragraph 7 article 16 of the Law on the hypothecation).
The mortgage should contain the information and requisites indicated in the paragraph 1 article 14 of the Law on the hypothecation. The information about the state registration of the hypothecation is deposited to the mortgage by making a stamp about the state registration of the hypothecation, the recordings in which are appended by a signature of the logger and a seal of the justice establishment. Besides the information about the state registration of the hypothecation the date of its output to the primal pledgee is also underlined on the mortgage; the signature of the logger and a seal also appends the inscription about it.
The Law on the hypothecation provides for the following activities of the justice establishments, connected with the executing of the mortgage rights.
1) The justice establishment issues the mortgage to the primal pledgee after the state registration of the hypothecation with the mark of the registration of the hypothecation the date of its output to the primal pledgee (paragraph 3 article 22). A registration operation is only the registration of the hypothecation for the law does not stipulate additional payment for the issue of the mortgage.
2) If the pledger and legal holder of the mortgage have concluded the notarially certificated agreement on the modification of the subject of the hypothecation or the size of the bond, provided with the hypothecation, providing the issue of the new mortgage, then the justice establishment will annul the available mortgage and will simultaneously issues the new mortgage to the pledgee. The annulling is effected by inscripting "Is cancelled" on the front of the mortgage (paragraph 7 article 16) with the indication of the issue of the new mortgage. The annulled mortgage remains deposited in the matter of law establishing documents up to the moment of cancellation of the registration record on the hypothecation (paragraph 6 article 13). The new mortgage is presented to the justice establishment of by the pledger simultaneously with an application for the modification of data of the Unitary registry. To the registration recording on the hypothecation the modifications are made according to section VII of the Rule of supporting the registry. In many subjects of Russian Federation the payment for the modification is much less than the payment for the registration.
3) According to the article 16 of the Law on the hypothecation the justice establishment record the legal holders in the Unitary registry. The given formula is not faultless, as the justice establishments register not the subjects of the real estates right, but the rights, the encumbrances of rights and transactions. It is obvious, that in the article 16 it is said about the registration of the hypothecation for the benefit of the new pledgee —the holder of the mortgage. The record on the hypothecation with the indication of the legal holder of the mortgage as the pledgee is deposited on the basis of:
- Making the endorsement on the mortgage on his name, accomplished by the previous legal holder;
- The endorsement on his name accomplished by the pledgee of the mortgage, if in his favor was made a special bond inscription, and who has sold the mortgage on the expiration of definite period;
- The documents reconfirming the transition of the rights on the mortgage to other parties as a result of legal succession of a legal entity or by way of succession;
- The decision of the court on the declaration of the mortgage rights behind the applicant.
The registration record on the indicated basis on the legal holder of the mortgage should be made within one day from the moment of his application to the Registration chamber. As the statutory period starts on the next day after the calendar date (article 191 CC of Russian Federation), the registration record on the new holder should be made within a working day, following the day of the reception of the documents.
Though the transfer of the rights under the mortgage is made in the order established for the order financial credit instrument, — by making the endorsement, the mortgage is the nominal financial credit instrument. According to the paragraph 2 article 146 CC of Russian Federation the rights certificated by the nominal financial credit instrument, are transmitted in the order established for the concession of demands (assignment). The committing of endorsement and transmission of the mortgage to the new holder is the transaction, on which basis the change of hypothecary pledgee and creditor is being made under the bond, provided with the hypothecation.
According to the paragraph 1 article 16 of the Law on registration of the rights the application for the registration of the transition of the rights under the mortgage should be to filed by both parties: the previous legal holder and the party, which is being transferred the right under the mortgage. If the authenticity of a subscript of the legal holder under the endorsement is certified notarially, the application can be made only by one party, for the benefit of which the endorsement is accomplished. The new record on the hypothecation is made in the Unitary registry, and the earlier made agreement on the hypothecation and the endorsement accomplished by the previous legal holder by the mortgage are underlined as the foundation. The effected registration of the new holder of the mortgage can be certificated by the stamp of the registration of the transaction on the mortgage or by the extract from the Unitary registry.
Certainly, the qualification of the registration of the transfer of the rights under the mortgage as the registration of the transaction is arguable. In the normative acts on state registration it is necessary to give a more precise definition of the operations of justice establishments during the registration of the hypothecation and registration of the transferring of the rights on the hypothecary agreement. Also it is impossible to define uniquely the operations of justice establishments at the change of the owner of the mortgage as a result of legal succession or on the basis of court adjudgement. The new record on the hypothecation with the indication of the new pledgee should be brought into the Unitary registry, that is not neither the registration of the transaction, nor the registration of the "deposit rights". Thus it is possible to certify the registration of the new holder of the mortgage by the extract from the Unitary registry, as on the mortgage only the endorsements can be committed.
4) The justice establishments should also issue the duplicate of the mortgage in the order of recovering the rights under the lost mortgage (article 18 of the Law on the hypothecation). The duplicate is made by the pledger or the debtor under the provided agreement; and the mark "Duplicate" is made on it. The justice establishment can issue the duplicate to the legal holder of the mortgage if it is possible to recover all transmission records under the lost mortgage on data of the Unitary registry. If all endorsements can not be recovered the duplicate is not issued (paragraph 1 article 18 of the Law on the hypothecation). Thus, though the Law on the hypothecation stipulates a possibility of free reference of the mortgages by the means of endorsements instead of the complicated procedure of the notarial certification and state registration of the assignment contracts under the hypothecation, the holders of the mortgage should take care of the registration in the Unitary registry as the pledgees. Otherwise the recovering of the rights under the lost mortgage is effected on the basis of the decree, endured in the order of special proceeding on matters of the installation of the juridical facts.
5) At the cancellation of a registration record on the hypothecation the justice establishment will annul the mortgage and transmit it to the obliged party (article 25 of the Law on the hypothecation). The duplicate of the mortgage with a mark "Is cancelled" remains deposited in the matter of law establishing documents and does not refer to the public documents.
To the application for the registration of the agreement on the hypothecation should be attached a document that is reconfirming the payment for the state registration of the transaction in the amount established by the normative act of the subject of Russian Federation, on which territory the justice establishment acts (article 11, 13 Laws on registrating the rights). The payment for the registration is not the budgetary finance and are transferred to the justice establishment. At the same time, to the deposit of the real property the standards of the Law of Russian Federation from May 29, 1992 ¹2872-1 "On the deposit", not contradicting to the Law on the hypothecation are also applied. In particular, the article 15 establishes, that for the registration of the deposit, issue of the certificates of the registration and also making extracts from the registry a State Tax is raised at the rate, defined by the legislative acts of Russian Federation. The applicant gives evidence of the payment of the State Tax to the registrating department; at lack of such evidences the application is discontinued. The amount of the toll is defined by the Federal Act from December 31, 1995 ¹226-FL "On modification and supplements of the Law of Russian Federation" "On the State Tax" (with mod. and sup. from August 20, 1996, July 19, 1997, July 21, 1998). The article 4 (paragraph 7 subpoint 4) of the given law establishes that for the registration of the deposit the toll of the following rate is paid:
- Five-multiple minimum size of the monthly wage officially established on the date of the toll payment for the pledgers —legal entity,
- Repeated minimum size of the monthly wage officially established on the date of the toll payment for the pledgers — individuals.
The State Tax is included to the income of the local budget on the location of the bank or its affiliate that has received the payment. (According to the instruction of State Tax Service on application of the Law of Russian Federation "On the State Tax" from May 15, 1996 ¹42 on the payment document there should be an inscription "Is enumerated in the income of the budget ___ rub.", the subscript of the chief accountant of the bank establishment of sealed by a reprint of round stamp.)
There is a double repayment of a legally significant operation of the state department established by different federal acts. Thus, including the toll or a tariff for the obligatory notarial certification of the agreement on the hypothecation, during the process of executing the deposit the pledger bears significant expenses. Besides if the pledgee will wish to receive the certificate of the registration of the deposit, he also would be obliged to present to registrating department the evidence of payment of the state tax. The necessity of double repayment can be removed by the modification of the Law of Russian Federation "On the deposit" and the Law of Russian Federation "On the State Tax". The proposals of lowering or canceling the state tax for the registration of the deposit are contained in the Concept of development of the system of hypothecary crediting.
It is represented, that for the registration of the deposit by virtue of the law the payment and the state tax are not raised, as in this case the registration represents not the legally significant act, but only an importation of recording on the encumbrance which is arising by virtue of circumstances, indicated in the law. The analogy to the registration of property attachment realized without paying for the registration is pertinent.
In the federal acts on the state registration of the rights and on the hypothecation do not contain exemptions from the general rule of the check of lawfulness of the transactions concluded in the skilled shape. The notarially certificated contracts on the deposit exposed to legal expertise and the check of lawfulness on the general rules. According to the paragraph 1 article 21 of the Law on the hypothecation the state registration of the hypothecation can be refused to be conducted on the foundation indicated in the article 20, and also other articles of the Law on the state registration of rights. For example, the additional foundation for the refusal of registration of the hypothecation is the inhibitory of the deposit of the real property by the law. The singularity of the state registration of the hypothecation is that in the case of non-conformity of the content of the agreement on the hypothecation to the mortgage and attached documents to the demands of the Law of Russian Federation, the registration stops, and the parties are given the possibility to eliminate the detected non-conformities. After that the registration be refused at the fact of failure to meet the requirements of registration department (paragraph 2 article 21 of the Law on the hypothecation).
Alongside with the legal expertise of the agreement on the hypothecation the check of other documents, introduced for the registration is also conducted. For example, according to the paragraph 2 article 20 of the Law on the hypothecation the document that reconfirms the appearance of the bond, provided with the hypothecation should be presented for the registration. In most cases it is the credit agreement between the bank and the loaner, whose bonds on the return of the credit are provided with the hypothecation. Whether the justice establishments have the right to conduct legal expertise of the credit agreement or other agreements, on which basis main bond appeared? Whether the refusal in the state registration of the hypothecation is possible on the basis of the recognition by the justice establishment of the credit agreement which is not being a transaction with the real estate, not appropriate to the current legislation?
Outgoing from demands of the sub-paragraph 3 article 20 of the Law on the registration of right the justice establishment can refuse the registration of the hypothecation on the basis that the credit agreement as the document, introduced for the registration, in its form or content does not correspond to the demands of the current legislation, as the invalidity of the main bond leads to the invalidity of the providing bond (paragraph 3 article 329 CC of Russian Federation). However the analysis of special standards that establish the foundation for the refusal in the registration of the hypothecation, indicates that the non-conformity of the main agreement to the demands of the law doesn’t give the right to the justice establishment to refuse the registration of the hypothecation.
So, the paragraph 2 article 29 of the Law on the registration of rights does not permit the registration of the hypothecation, if the content of the agreement and necessary attached documents does not correspond to the demands of the state registration of the rights. The paragraph 2,3 article 21 of the Law on the hypothecation enacts the refusal of the registration in the case, if the documents sighted in the agreement on the hypothecation as the attachment do not correspond to the demands of the law. But the paragraph 2 article 20 of the Law on the hypothecation divides the attachments to the agreement on the hypothecation and the document that reconfirms the appearance of the bond, provided with the hypothecation.
It is represented, that the justice establishment should conduct the legal expertise of the main agreement in following way: authentication of the given document, coincidence of the pledgee and creditor under the main agreement, correspondence of the main bond, its entity, size and maturation to the significant contract clauses on the hypothecation (according to the paragraph 1 and paragraph 4 article 9 of the Law on the hypothecation). However the pledgee and the pledger, who have included the credit agreement into the attachment to the agreement on the hypothecation, risk to receive a refusal of the registration of the hypothecation, if, on the opinion of the justice establishment the credit agreement won’t correspond the demands of the law.
The hypothecation as an obligatory legal relationship first appears by virtue of the agreement on the hypothecation or the law. Further, the change or the parties of the current bond is possible— the transmission of the rights of the pledgee to the another party that occurs on the basis of transactions (cession, transmission of the mortgage) or on the basis of the law at the approach of the circumstances, indicated in it, (legal succession, decree). The records on the primal hypothecation are deposited to the Unitary state registry of the rights on the real property and the transaction with it on the basis of:
- The agreements on the hypothecation (paragraph 3 article 339 CC of Russian Federation);
- The sale contract in credit (paragraph 5 article 488 CC of Russian Federation);
- The agreements of the rent, perpetual maintenance with dependence (article 587 CC of Russian Federation);
- The sale contracts of living premises at the expense of the bank credit (article 77 of the Law on the hypothecation).
The recordings on the hypothecation at the change of the pledgee are deposited on the basis of:
- The assignment contracts of the pledgee (paragraph 2 article 389 CC of Russian Federation);
- The assignment contracts under the main bond provided with the hypothecation (article 384 CC of Russian Federation);
- The endorsements for the benefit of the new holder of the mortgage (paragraph 3 article 16, article 48 of the Law on the hypothecation);
- The decrees on the transmission of the rights of the pledgee, legal holder of the mortgage to another party (article 387 CC of Russian Federation, paragraph 3 article 16 of the Law on the hypothecation);
- The certificate of the right on the patrimony of the pledgee — of the individual (article 387 CC of Russian Federation, paragraph 3 article 16 of the Law on the hypothecation);
- The transmission act or the separating balance that include the provision on the legal succession of a reorganized legal entity —the pledgee (article 58, 59 CC of Russian Federation, paragraph 3 article 16 of the Law on the hypothecation).
The state registration of transactions is committed only in the case of presentation of the agreements on the hypothecation and agreements of concession of the rights of the pledgee (assignment). In other cases the registration operations of the justice establishments are not being the registration of the transaction or the registration of the rights, are not the modification in registration records on the hypothecation. The illegibility of standards on the state registration (the registration of the hypothecation, the agreements on the hypothecation, legal holders of the mortgage) hampers the qualification of the registration operations of justice establishments and the definition of the payment for the registration.
The above-stated causes for the importation of records on the hypothecation allow to define the registration operations of justice establishments at the appearance of the hypothecation and at the change of the pledgee as the registration of encumbrance of the right of the pledger by the hypothecation for the benefit of a definite party. It is possible, that the given "universal" definition will allow according to the Concept of development of the system of hypothecary housing crediting to specify the registration procedures that are included in the Law on the hypothecation and the Rules of carrying the Unitary state registry of the rights. The payment for the state registration of the hypothecation (possibly, depending on the cases of appearance) can be established by the normative acts of the subjects of Russian Federation according to the paragraph 1 article 11 of the Law on state registration of rights. Thus the amount of payment for the state registration of the hypothecation for the benefit of a physical or legal entity should not exceed the limits established by the Order of the Government of Russian Federation from February, 26, 1998 ¹248 "On installation of a maximum size of payment for the state registration of the rights on the real property and the transactions with it for the provision of information on the recorded rights".
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