Is it possible to buy a plot of land the house by making a pledge
Is it possible to buy a plot of land the house by making a pledge?
So, in paragraph 2 of article 336 of the civil code States that "a Contract of pledge or in respect of a pledge arising on the basis of the law, the law may stipulate the pledge of the property which the pledgor will acquire in the future." While buildings, including residential houses and other buildings and facilities directly connected with land may be the subject of the mortgage (pledge of real estate) only, subject to the rules of article 69 of the Law.
It is necessary to note that the procedure for the simultaneous acquisition secured the land with the building (building, structure) has its own characteristics and nuances, knowledge of which can help to avoid adverse effects, including mortgagees. Discuss in detail the most important of them separately.
First, in civil law there is no direct explanation how should be the price of the collateral objects (house and land): General or each property separately. Understanding this question was brought by judicial practice. As explained by the Plenum of the Russian Federation in art.par. 1, 2 n. 27 resolution of 17.02.2011, № 10 "About some questions of application of legislation on pledge" "the pledge contract may contain a General assessment of the several movable things (property rights (requirements)) or real property that is the subject of collateral. In this case, recovery appeals to all of the pledged movable or immovable property, which gives a General assessment, and subsequent implementation, but in General." Such opinion is set forth in the decree of the Presidium of the SAC dated 01.06.2010, № 2620/10 in case No. A38 – 5402/2008.
Thus, in the pledge agreement may specify how the total cost of land and houses (or other buildings, is inextricably linked with the land) and the value of each property individually.
However, it should be noted that when the definition in the contract of pledge the total value of two properties, the pledgee may face difficulties foreclosure of the mortgaged property. The fact that in such a situation, the foreclosure on each property individually is possible only in certain cases. In particular, "the Court may foreclose on the portion of the collateral if the mortgagor can prove that the cash proceeds from the sale of the mortgaged property will be sufficient to meet the requirements of the pledgee, and provide documents confirming the market value of certain movable things (property rights (requirements)) or immovable thing to which the pledgor proposes to foreclose". "In case of a failed public auction for the sale of the collateral as a whole due to the fact that the auction was less than two buyers were either not made allowance against the initial sales price of the mortgaged property, the mortgagor or the mortgagee the right to re-public auction to go to court, has foreclosed on the collateral and set initial selling price with a statement on the sale of property constituting collateral, separately, which should be considered by the rules of article 324 of the APC" (par.par. 3, 4 n. 27 resolution of the Plenum of the RF from 17.02.2011, № 10).
The Commission specified in these cases, procedures will delay the process of implementation of the pledged property, and also requires significant financial resources, which, in our view, disadvantageous to the mortgagee. Therefore, summarizing the above, we believe that specifying in the contract of pledge of a land plot the building (building, structure) of value of each real estate, which the mortgagee in the future to save time and avoid additional costs.
Secondly, the importance is on what proprietary right (except rights of ownership) land goes to the mortgagor. This should be taken into account, assessing the risks of default or improper performance by the pledger of obligations on the basic obligation (e.g. loan agreement) and the possibility of foreclosure on the mortgaged property.
So, if the mortgagor owns the land on lease, when the mortgage held on the land buildings or structures laid down is the law of the land lease.
If the mortgagor owns the land by right of permanent (perpetual) use, right of pledge is not covered. However, when foreclosure on a house, building or structure a person who acquires the property in the property, acquires the right to use the land on the same terms and to the same extent as the previous owner (mortgagor) of real estate. In practice there are cases when the pledgor after the conclusion of the contract of pledge houses (buildings, constructions) located on land owned by the pledgor on the right of permanent (perpetual) use, bought the land in accordance with the requirements of paragraph 2 of article 3 of the Federal law dated 25.10.2001 No. 137 – FZ "About introduction in action of the Land code of the Russian Federation". The court in these cases generally takes the position that implementation of houses (buildings, constructions) can be carried out only with the simultaneous sale of belonging to the pledger on the property right of land. In this case the lender-mortgagee has preferential right to satisfaction of their claims secured by a mortgage of the cash proceeds from the sale of such land, as subject to realization from the auction (auction) the mortgaged together with the building land was not mortgaged (item 17 of the Information letter YOU the Russian Federation from 28.01.2005, No. 90).
Third, the state registration of mortgage of a house (building) and the land on which it is situated, are made simultaneously, except for the cases established by the Law (for example, the right of pledge cannot be registered in respect of the right of permanent (perpetual) use of land (article 69 of the Act)). Therefore, the application for state registration of a mortgage of such facilities should also be filed at the same time. Otherwise, this may be grounds for refusal of the state registration (letter of Rosreestr from 21.08.2014, No. 14-Ref/09541-GE/14 and the resolution of the Ninth arbitration court of appeal 16.09.2016, No. 09AP – 40064/2016).