The emergence of a mortgage by virtue of a contract. What is the difference between a mortgage by operation of law and a mortgage by virtue of a contract: how to remove the burden

If you want to apply for a mortgage loan, the borrower may encounter two terms denoting the type of loan: "mortgage by virtue of law" and "mortgage by virtue of the contract." Both types involve real estate transactions, for both you can purchase an object using collateral, but most often it is a legal loan that is used by banks.

Mortgage by virtue of law: what is it?

This is the acquisition of housing or other real estate in accordance with all legal norms. The law clearly regulates the process of obtaining and registering a housing loan.

Most banks issue mortgages by virtue of the law, as it is less risky for the lender. If you plan to take out a classic mortgage, that is, the transaction will be secured by a pledge of the acquired property, it is more likely that this will be a mortgage by virtue of law.

Important features of a legal mortgage:

1. Acquisition of any type of real estate or construction of a house at the expense of borrowed funds.
2. An encumbrance is imposed on the purchased object. The borrower receives the right of ownership, but will be limited in actions: the sale of mortgaged real estate is impossible, and the bank may also establish restrictions on the registration of other citizens in the apartment / house or renting out the object.
3. If the borrower fails to fulfill its obligations, the creditor has the right to seize the pledged property.
4. Mortgage by law is a strictly targeted loan. The borrower does not receive funds in his hands, they are transferred by the creditor to the seller of the property.

In the case of registration by virtue of law, not only a bank can become a creditor. They may be another financial institution or even a developer in the case of the acquisition of new housing. Developers often offer buyers installments without the participation of a bank. It is also a loan, which is regulated by law and executed accordingly. In this case, an encumbrance is also imposed on the object, and the developer will act as the mortgagee: in case of non-payment of the loan, it is he who can initiate the process of withdrawal of the deposit and eviction.

Mortgage by contract

If the lender uses this type of transaction, it means that the relationship between the borrower and the lender will be regulated by a separate agreement, and not by Federal Laws. In fact, a contractual mortgage involves the issuance of a loan on any terms, the participants in the transaction can indicate in the contract any points that are not regulated by law, which are impossible in the case of a mortgage loan by virtue of law.

Features of this type of mortgage:

1. The deal is not necessarily secured. If you plan to take a mortgage secured by housing already owned, in this case the mortgage will be issued by virtue of the contract. When registering the transaction, you will immediately receive full ownership of the purchased property, which is impossible with a loan by virtue of law.
2. This is not necessarily a targeted loan. If you plan to get a cash loan secured by an owned immovable object, the agreement will also regulate the transaction. Such transactions also apply to mortgages.

Mortgage by virtue of law and by virtue of the contract: differences

A contractual mortgage is a deal with more flexible terms, the lender and the borrower can deviate from the law and draw up individual terms of cooperation. But this type of lending is rarely used, since it carries risks for the lender himself. In fact, in the market, a mortgage loan by virtue of an agreement is issued practically only when making a non-purpose loan secured by property or when making a mortgage with a pledge of property that is already owned by the borrower.

What is the difference between a mortgage and a mortgage by operation of law:

1. Under a mortgage, by virtue of the law, a transaction is made only with the use of a pledge of the acquired property.
2. Registration of a legal mortgage and settlement with the seller occur at the moment when the contract of sale is registered, that is, everything is done simultaneously. In the case of a contractual housing loan, the bank first issues money to the seller, after which the purchase and sale transaction is executed, and only after that is it possible to impose an encumbrance: it is precisely because the transaction is unprotected for some time that banks take risks, and this may affect the rates.
3. Registering a mortgage is free of charge by law. Upon contractual execution, a fee will be required, for individual borrowers it is 1000 rubles. If the borrower is a legal entity, it will pay 4,000 rubles.

In both cases, anyone can act as a lender and borrower: citizens, organizations (not necessarily financial ones). Mortgage by virtue of law between individuals is not excluded.

Registration of a legal mortgage

A mortgage by operation of law and a mortgage by virtue of a contract are similar in many respects. The borrower contacts the bank, collects the necessary documents and waits for a decision. Upon approval and passing through all formal procedures, such as insurance, the transaction requires mandatory registration.

If you draw up a standard housing loan by virtue of the law, then for its registration it is not necessary for all participants in the transaction to be present, a statement from either the lender or the borrower is sufficient. But since the bank is interested in carrying out the procedure, it usually controls the process, and the transaction is fixed in the presence of a representative of the lender and the borrower himself.

Registration procedure:

1. The bank helps to collect a package of documents for transfer to Rosreestr or the MFC. At this stage, there will be no problems: bank representatives are well aware of what papers are needed for registration.
2. After the transfer of documents, the registration itself takes place within 5 working days. During this period, the state agency carefully checks all documents.
3. The borrower receives a certificate of ownership with a note of encumbrance.

Registration of a loan by virtue of an agreement

Registration takes place strictly with the participation of all parties to the transaction: both the borrower and the representative of the lender. First, a contract of sale is registered, only after that it is possible to impose an encumbrance (in case of a mortgage, by virtue of the law, the legalization of these documents occurs simultaneously). Further, everything is standard: within 5 days after the submission of documents, the transaction is registered.

Restriction of rights and encumbrance of a real estate object in case of a mortgage by virtue of law

The emergence of a mortgage by virtue of law implies certain restrictions. The borrower buys a property, he can freely dispose of it, but he will not be able to sell the property. The fact of encumbrance is recorded in the state body. The only possibility of implementation is an agreement with the bank: usually this is possible only in case of problems with the payment of the loan.

The lender can set limits on . One bank may completely prohibit such transactions, the other will allow this, but only upon receipt of permission (the borrower applies to the bank with an application). As for registration, there are no restrictions for the buyer himself and his family members.

How to get rid of legal mortgage encumbrance

After the full payment of the housing loan according to the schedule or ahead of schedule, the borrower applies to the lender and receives documents confirming the fulfillment of debt obligations in full. Both parties to the transaction participate in the removal of the encumbrance, they constitute a mutual agreement.

According to the law, the removal of the encumbrance can take place with the personal presence of the borrower and the lender: most often this happens, so the parties need to agree on the time of the transaction and make an appointment at the MFC. The term for checking documents is up to 3 working days, when buying by DDU - up to 5 days. There is no fee for this operation.

The differences between a mortgage by virtue of law and by virtue of a contract are quite significant. These formats have their own characteristics and are used in different circumstances. At the same time, one should not think that a mortgage by virtue of an agreement is not legal. On the contrary, it also does not contradict the regulatory framework, it is simply very difficult to actually call such a loan a mortgage.

Federal Law No. 102-FZ "On Mortgage" provides a specific definition of this type of loan. Actually, any mortgage has one important feature: the money is given to the client as a loan, and in return, he provides the bank with security in the form of collateral.

For Russian financial institutions, mortgages are most typical, in which the client buys real estate with the allocated funds. That is, in this case we are talking about a targeted loan. The bank not only imposes requirements on the form of real estate, but also directly on its characteristics.

A "legitimate" mortgage allows borrowers to purchase an apartment on the primary or secondary market, in a house under construction, including land, a house, a room or a share in an apartment. Some banks offer targeted loans for the purchase of a garage. For business representatives, special types of real estate are provided (commercial real estate, for example, production or storage facilities).

For banks, mortgages are legally more profitable and safer, as they reduce their risks of losing money by obtaining collateral real estate. The client cannot dispose of it, despite the fact that it is registered as property, until the debt is fully repaid and the encumbrance is removed.

A legitimate mortgage occurs under the following conditions:

• at the time of signing the rental agreement (real estate becomes the property of another person who assumes the obligation to care for a dependent, such a scheme is often used for the maintenance of old people by relatives or private nursing homes);
• targeted purchase of finished or under construction real estate with money issued by the bank;
• sale of real estate on credit or in installments.

Mortgage by virtue of the law is typical not only for bank loans. Similar legal relations may also arise between individuals and legal entities. For example, a family has some money on hand to buy an apartment. The buyer agrees to provide an installment plan for the remaining amount. At the time of signing the contract of sale, installment terms are prescribed. In this case, too, there is a place to be a mortgage by virtue of law.

If the mortgage is issued through a bank, then the sequence of actions is approximately as follows:

1. the client applies to the bank for preliminary approval of the mortgage;
2. a person is looking for suitable real estate;
3. after real estate appraisal, the bank makes a final decision on the mortgage, a loan agreement is signed between the parties;
4. a sale and purchase transaction is concluded;
5. the seller receives the funds due to him from the bank.

The fact that the money is being transferred from the bank indicates that housing is being bought with borrowed funds. Which just confirms the need to use real estate as collateral. In the future, if suddenly the borrower cannot or does not want to fulfill his obligations, the bank has the right to confiscate the property, sell it and take money to pay off the debt.

An important feature of the conclusion of a mortgage by virtue of the law is the obligatory presence of a mortgage.

This type of mortgage is very rare in Russian banks. It assumes that all terms of the contract between the lender and the borrower are prescribed individually. In fact, this type of mortgage has more in common with a regular loan than with a legal mortgage. It has the following formats:

1. the bank issues money for which the client buys real estate, while the loan is not targeted and does not involve the provision of collateral;
2. in the form of a pledge, the client provides not acquired, but already owned by him real estate;
3. a pledge is issued after registration of ownership.

Few banks are willing to provide this type of mortgage, as this significantly increases the risk of non-repayment of borrowed funds. Even the latter option has its drawbacks for the lender. In this case, the client is given time to register the property for himself. Only after this is a pledge agreement concluded. However, from an official point of view, real estate has no encumbrance. And if the client refuses to issue it, then the bank, even in court, will not be able to obtain ownership of the housing until the contract is fully repaid.

What is the difference?

Mortgage by virtue of law and contract has many differences. They concern not only the risks for the bank, but also other important features:

Mortgage by virtue of law is more profitable for the bank. From a financial point of view, it is also better for the borrower: he does not need to spend money on state duty, and the terms of lending on such a loan are more profitable. A mortgage by virtue of an agreement gives more rights and freedoms in relation to the acquired property, but the absence of any collateral will require the client to confirm his financial solvency and reliability.

In April 2007 OJSC (seller) and LLC (buyer) entered into a contract for the sale and purchase of a real estate object (non-residential building). No other contracts were signed in relation to the specified object.

The agreement stipulates that when transferring the object being sold, the parties must draw up a deed of transfer without fail - after full payment of the sale price of the object. The contract does not contain reservations about the moment of transfer of ownership.

In May 2007, the contract was registered by the registration chamber. The buyer was issued two certificates of state registration of property rights with a restriction (encumbrance): mortgage by virtue of law.

To date, the purchase price has not been paid to the seller. The deed of transfer has not been drawn up. The object is on the balance sheet of the seller.
Without full payment, he does not transfer the property to the buyer.

The IFTS believes that the buyer unlawfully does not put the building on the balance sheet as an object of fixed assets, requires such a statement to be made and, accordingly, to charge property tax.

Are the actions of the registration chamber to register the contract and issue certificates with restrictions legal? Is the IFTS right?

E.N. Lobanov,
director of V-stroy LLC,
Voskresensk
Moscow region

The taxmen are right

In the situation under consideration (provided that the registration chamber has formalized the transfer of ownership of the property with the issuance of a certificate of ownership with an encumbrance), the requirement of the tax authority insisting on the accounting of the acquired property by the buyer is legitimate.

State registration of the transfer of ownership of real estate is for the tax authorities an indisputable confirmation of the obligation of the buyer to put the acquired property on the balance sheet as a fixed asset and pay property tax (Article 374 of the Tax Code of the Russian Federation). This is due to the fact that the ownership of real estate, as well as its transfer to other persons, is subject to state registration in the Unified State Register of Rights to Real Estate and Transactions with It (EGRP). It is from the moment of state registration that the right of ownership of real estate arises (clause 1, article 131, article 219 and clause 2, article 223 of the Civil Code of the Russian Federation).

Registrar error?

There are two reasons why the outcome of the transaction does not meet the expectations of the parties. Firstly, the contract does not clearly formulate a condition on a special procedure for the transfer of ownership of the property being sold (after full payment). Secondly, the registering authority did not fully take into account the terms of the contract and, in our opinion, committed a violation during the registration of the sale and purchase transaction and the transfer of rights under it.

As follows from the question, the parties intended to conclude a contract for the sale of real estate not just with an installment payment (Article 489 of the Civil Code of the Russian Federation), but with a special procedure for transferring ownership of property - after full payment under the contract. This conclusion is indirectly indicated by the condition of the contract cited in the question: the property is transferred after full payment of the sale price. This procedure is admissible by virtue of Art. 491 of the Civil Code of the Russian Federation.

For reference

Article 491 of the Civil Code of the Russian Federation "Retention of ownership of the seller"

In cases where the contract of sale provides that the ownership of the goods transferred to the buyer is retained by the seller until payment for the goods or the occurrence of other circumstances, the buyer is not entitled to alienate the goods or dispose of them in any other way before the transfer of ownership to him, unless otherwise provided by law. or contract or does not follow from the purpose and properties of the goods.

But the ability to use a special structure for determining the moment of transfer of ownership (after full payment) is made dependent on the presence in the contract of the condition for the seller to retain ownership until a certain moment. There is no such clause in the contract. It indicates only the moment of transfer of property, and not the moment of transfer of ownership.

Most likely, the registration authority decided that the special conditions of Art. 491 of the Civil Code of the Russian Federation are not applicable in this case, and regarded the contract as a sale and purchase transaction with installment payment (Article 489 of the Civil Code of the Russian Federation) with the transfer of ownership to the buyer until full payment.

In order to use the construction of the transfer of ownership, provided for in Art. 491 of the Civil Code of the Russian Federation, the following condition should have been included in the contract: the ownership of the goods transferred to the buyer is retained by the seller until full payment for the goods. It would allow the registering authority to unambiguously determine the moment of transfer of ownership and correctly perform registration actions.

At the same time, the absence of an acceptance certificate indicates a failure to fulfill the contract by the seller. Under such circumstances, the registering authority had only to register the transaction itself (purchase and sale agreement), and the transfer of ownership - only after the parties fulfilled the terms of the agreement. On the part of the buyer, this is a full payment (confirmation is payment orders or other evidence permitted by the terms of the contract), on the part of the seller, the transfer of property (confirmed by an acceptance certificate signed by both parties to the contract).

Registration of a mortgage by virtue of law

If there is an acceptance certificate signed by the parties, the registering authority has the right to register the transfer of rights with an encumbrance (mortgage), despite the absence of a separate pledge (mortgage) agreement and relevant statements of the parties to the transaction. Let's explain.

Under a contract for the sale of real estate, the seller undertakes to transfer real estate to the ownership of the buyer (clause 1, article 130 and clause 1
Art. 549 of the Civil Code of the Russian Federation). The transfer to the buyer of ownership of real estate under such an agreement is subject to state registration. From the moment of its implementation, the acquirer acquires the right of ownership to real estate (clause 1 of article 551 and clause 2 of article 223 of the Civil Code of the Russian Federation).

A contract for the sale of real estate can be concluded on the terms of payment in installments (clause 1, article 488 and clause 1, article 489 of the Civil Code of the Russian Federation). In paragraph 3 of Art. 489 of the Civil Code of the Russian Federation provides that the rules provided for in paragraphs 2, 4 and 5 of Art. 488 of the Civil Code of the Russian Federation.

In paragraph 5 of Art. 488 of the Civil Code of the Russian Federation states that, unless otherwise stipulated by the contract of sale, from the moment the goods are transferred to the buyer and until payment for the goods, the goods sold on credit are recognized as being pledged by the seller to ensure that the buyer fulfills his obligation to pay for the goods.

In accordance with paragraph 2 of Art. 1 of the Federal Law of July 17, 1998 No. 102-FZ “On Mortgage (Pledge of Real Estate)” (hereinafter referred to as the Mortgage Law) to the pledge of real estate arising on the basis of federal law upon the occurrence of the circumstances specified therein (hereinafter referred to as mortgage by virtue of law) , the rules on a pledge arising by virtue of a mortgage agreement are applied, unless otherwise provided by federal law. Mortgage as an encumbrance of property pledged under a mortgage agreement arises from the moment of conclusion of this agreement (clause 2, article 11 of the Mortgage Law). In case of a mortgage by virtue of law, a mortgage as an encumbrance of property arises from the moment of state registration of ownership of the property, unless otherwise provided by the contract.

In paragraph 2 of Art. 20 of the Law on Mortgage states that a mortgage by virtue of law is subject to state registration without submitting a separate application and without paying a fee. The state registration of a mortgage by virtue of law is carried out simultaneously with the state registration of the property right of a person whose rights are encumbered by a mortgage, unless otherwise stipulated by federal law. The rights of a mortgagee under a mortgage may be certified by a mortgage by virtue of law. During the state registration of a mortgage, by virtue of law, information about the mortgagee is entered into the USRR on the basis of the agreement under which the obligation secured by the mortgage arose. It is not allowed to demand from the applicant other documents and information relating to the pledgee.

Paragraph 24 of the Instruction on the Procedure for State Registration of Mortgage of Real Estate Objects, approved by Order of the Ministry of Justice of Russia dated June 15, 2006 No. 213, notes that a mortgage by virtue of law arises when a real estate object is alienated under a contract for the sale and purchase of a real estate object on credit, including with a condition on installment payment, unless otherwise provided by the contract (Article 488 of the Civil Code of the Russian Federation). Paragraph 25 of the instruction states that the state registration of a mortgage by virtue of the law is carried out simultaneously with the state registration of the right of the mortgagor (buyer, rent payer, etc. - paragraph 2 of article 20 of the Mortgage Law).

In addition, based on paragraph 1 of Chapter 30 of the Civil Code of the Russian Federation, a sales contract is considered concluded if the parties have reached an agreement on all essential terms in the required form.

In a situation where the alienation of property is subject to state registration, the acquirer's ownership right arises from the moment of such registration, unless otherwise provided by law (clause 2, article 223 of the Civil Code of the Russian Federation).

According to paragraph 1 of Art. 2 of Federal Law No. 122-FZ of July 21, 1997, state registration of rights to real estate and transactions with it is a legal act of recognition and confirmation by the state of the emergence, restriction (encumbrance), transfer or termination of rights to real estate in accordance with the Civil Code of the Russian Federation. State registration is the only proof of the existence of a registered right to real estate. This right can only be challenged in court.

In the case under consideration, the contract provides that the goods are not transferred to the buyer until full payment, therefore, it cannot be considered as being in pledge, taking into account the above rules. Thus, the registration of the transfer of ownership rights with an encumbrance was made in violation of the norms of the current legislation.

Note to seller

A person's disagreement with the state registration act should be regarded as the seller's independent claim regarding the object of registration. An adequate way to protect the rights of the seller to the property is to file a claim in the prescribed manner for recognition of the right to the person specified in the act of registration (see the decisions of the Federal Antimonopoly Service of the Central District dated June 15, 2007 in case No. A35-5767 / 06-C11, North Caucasian District No. Ф08-2930/2007 dated 06.06.2007 in case No. А32-23817/2006-36/551, dated 05.22.2007 No. Ф08-2437/2007 in case No. А32-17490/2006-41/464, of the Far Eastern District dated 24.04 .2007, 04/17/2007 No. F03-A73 / 07-1 / 883 in case No. A73-6497 / 2006-36).

A mortgage by virtue of a contract and a mortgage by virtue of law arise due to different reasons. But in essence, this is the same thing - a loan with collateral that ensures payments from the borrower to the lender. The purpose of this obligation is the purchase of real estate for funds provided by the bank.

Different types of mortgage

Buying a home today is not so easy, especially for residents of large cities. It's all about the cost of real estate, which for most citizens is simply unbearable. That is why many credit institutions are ready to provide their customers with funds subject to the transfer of property if the borrower fails to fulfill its conditions. That is, everything is simple - if you cannot pay, then you will have to pay a deposit. You should also be aware that a mortgage may arise on the basis of either an agreement or a law.

A mortgage by virtue of an agreement always arises on the basis of a document concluded by the parties. This is the so-called mortgage agreement, indicating the obligations of the borrower in relation to the bank. The reasons for the appearance of this type of loan are also:

1. Collection of documents for the transfer of real estate on pledge.
2. Registration of property acquired for mortgage funds.

In other words, a mortgage by virtue of an agreement arises when the borrower draws up housing on security. For banks, this is a big risk. Until the parties register the contract, the creditor cannot claim the rights to the mortgaged property. Therefore, at this stage, the client is required to provide guarantors. In addition, banks often raise interest rates until collateral is issued.

Important: the procedure for registering a mortgage agreement is carried out on the basis of an application by the parties. If the agreement is certified by a notary, he can submit an application for state registration (FZ No. 102).

If everything is clear with the agreement, then few people know what a mortgage by virtue of law is. It occurs when the acquired housing becomes a pledge from the bank, but the agreement does not play any role here.

Mortgage by virtue of law is registered during the state registration of the contract of sale. And the document on the ownership of housing purchased for credit contains information that he has a certain encumbrance. This encumbrance does not allow, for example, to sell this property without the permission of the mortgagee, to register relatives, etc.

In addition, the grounds are:

1. Sale on credit. If an object is sold on credit, it is automatically mortgaged, unless otherwise provided. This provision of the law also applies to purchases in installments.
2. Rent. The recipient of the rent has the right to pledge the property that is the object of the agreement.

Differences

Mortgage by virtue of a concluded agreement and mortgage by virtue of law are distinguished by the following conditions:

1. Mortgage by operation of law arises automatically at the time of registration of the sale and purchase agreement, while for the second type of loan it is necessary to conclude an agreement.
2. For the first case, only the acquired property acts as collateral. For the second, any property of the borrower can serve as collateral.
3. No state duty is charged for registering a mortgage by virtue of law, but a mortgage by virtue of an agreement is subject to taxation.

It is important to know

When mortgaging property, the following requirements must be taken into account:

1. Indivisible property, which may lose its purpose during division, cannot be provided as a pledge.
2. If for the purchase of real estate with the help of a bank it is necessary to obtain permission from third parties, then without it the bank will not draw up an appropriate agreement.
3. The borrower is obliged to take care of the pledged property and ensure its safety.
4. If there is a possibility of loss or damage to the pledged property, the borrower is obliged to inform the pledgee about it.
5. The Bank has the right to check the condition of the property pledged by the creditor.
6. Any alienation of property, which is a pledge, is possible only with the consent of the bank.
7. The person who acquires the pledged property receives all the rights and obligations of the pledger.
8. After the loan is closed, the encumbrance should be removed from the property.

Issues related to the registration of mortgages by virtue of law and contract cause many problems and disputes. This is due to the rather blurred line between the terms used. Within the framework of this article, we will analyze what a mortgage by virtue of law means, what are the features, cases of application, and how mortgage by virtue of an agreement differs from that provided for by law.

Mortgage by virtue of law

The correct definition of the term mortgage by virtue of law, what it means and what rules it regulates, is possible only with the correct use of the following basic financial definitions:

• mortgage;
• mortgage credit (loan).

Many citizens incorrectly identify these concepts and assume that in both cases we are talking about obtaining a loan to buy a home, which is typical only for a mortgage loan.

A mortgage is one of the ways to ensure the fulfillment of obligations under an agreement, including a loan agreement, under which real estate is pledged. The owner of such property is actually deprived of the right to dispose of it without obtaining the consent of the pledgee, namely, to make transactions of sale, exchange, donation, and others.

Obligations by force of law are based on the operation of regulations that establish, regardless of the desire of the parties, the obligation to pledge real estate. The normative basis of such relations is:

Civil Code of the Russian Federation;

• Federal Law No. 218-FZ of July 13, 2015 “On State Registration of Real Estate”;
• Federal Law No. 102-FZ of July 16, 1998 “On Mortgage (Pledge of Real Estate)”;
• Federal Law No. 122-FZ of July 21, 1997 “On State Registration of Rights to Real Estate and Transactions Therewith” (expires in full from January 1, 2020).

From the meaning of these norms, it can be concluded that a mortgage by virtue of the law has the following characteristic features:

• a bank or other credit organization acts as a creditor and pledgee;
• real estate is acquired at the expense of borrowed funds;
• the conditions and requirements for collateral are contained in the loan agreement;
• for registration, the pledgor or pledgee must apply for a mortgage by virtue of law and provide a loan agreement, on the basis of which information about the parties is entered in the state register;
• registration of ownership of the acquired object and collateral encumbrance is carried out simultaneously.

The analysis carried out allows us to classify the types of mortgages by virtue of the law, depending on the grounds for the occurrence:

• use of credit funds when buying real estate during the construction phase - despite the absence of the property at the time of execution of the loan agreement, it is expected to be pledged;
• registration of a loan for the purchase of a finished property - registration of the rights of the pledgee is carried out at the time of transfer of rights to the property to the pledger;
• arising from the terms of the rent;
• other cases expressly provided for by the rules of law.

It should be noted that the parties are subject to a special preferential regime, which exempts them from paying state duty during registration.

Mortgage by contract

Although the law mentions the type of pledge of property arising from the terms of the contract, it does not clearly regulate it and does not contain the concept of what a mortgage under a contract is. From the meaning of the above norms, one should understand all types of pledge of real estate that do not have the features of a mortgage established at the legislative level.

The pledge arising from the agreement may arise in various situations, for example, when applying for a loan or be a guarantee for the fulfillment of other obligations. Regardless of the basis for the occurrence of pledge obligations, a separate independent mortgage agreement must be concluded containing information about the parties and the object of pledge.

Encumbrance registration is carried out in accordance with the following rules:

• a joint statement is required from the pledgor and the pledgee or a statement from a notary who certified the agreement;
• data in the USRN are entered in strict accordance with the completed transaction;
• registration is carried out separately and does not imply a change in ownership and other real rights to the object;
• making an entry in the state register is carried out after payment of the state duty - 1000 rubles (clause 28, part 1, article 333.33 of the Tax Code of the Russian Federation).

The transfer of property as collateral is carried out on a voluntary basis, for example, to obtain a larger amount of a consumer loan or to apply for a loan with a minimum interest rate.

Distinctive features

The correct classification of the existing legal relations within the framework of pledge obligations will allow not only to register the encumbrance according to the rules, but also to determine whether the payment of state duty is necessary in a particular case.

For easy perception, the distinguishing features are presented in the table.

Registration of a mortgage by virtue of the law is relevant for all mortgage loans, including those issued under special state programs. The encumbrance of property under the rules of mortgage by virtue of an agreement is used by representatives of large and medium-sized businesses to open a credit line or obtain loans for the development of their activities, as well as individuals in mutual lending secured by real estate.