building pledge agreement. Real estate pledge agreement: check the terms before the deal

AGREEMENT No.
pledge of real estate
________________________________________________________ "____" ___________ _____
___________________________________________________________________________________
(name of company)
hereinafter referred to as the "Pledgee", represented by __________________________________________

(position, surname, name, patronymic)
acting on the basis of ___________________________________________________, on the one hand,
(Charter)
AND ________________________________________________________________________________________,
(name of company)
hereinafter referred to as the "Pledger", represented by _____________________________________________
__________________________________________________________________________________________
(Full Name)
acting on the basis of __________________________________________________, on the other hand,
(Charter)
have entered into this Agreement as follows:
1. The Subject of the Agreement
1.1 The subject of this Agreement is the pledge to the Pledgee of the property
Pledgor on the right of ownership real estate and lease rights to the relevant land plot on which this property is located (hereinafter referred to as the "Collateral").
1.2. The subject of the pledge is:
1.2.1. The real estate object belonging to the Pledgor on the right of ownership is a building with an area of
() sq. m, at the address: , under inventory number according to a copy of the explication of the Territorial Bureau technical inventory __________ dated "______" __________, drawn up as of "_____" _______ ___, which is an integral part of the Agreement (Appendix No. 1).
The boundaries of the building included in the subject of the pledge are established in accordance with the copies floor plans Territorial Bureau of Technical Inventory ______ dated "____" _________ ____, which are an integral part of this Agreement (Appendix No. 2).
1.2.2. Lease right land plot with an area that functionally provides the building being laid on it, constituting (_____) sq. m in accordance with the plan of the land plot, which is an integral part of this Agreement (Appendix No. 3).
1.3. The right of ownership of the Pledgor to the building specified in subpara. 1.2.1 of this Agreement, belongs on the basis of Agreement No. dated " ",
(purchase and sale, privatization, etc.)
which is confirmed by the record of state registration No. _____ (department of the real estate registration authority)
from "" g. (certificate of state registration of rights from "____" ______ ___ g.).
1.4. The right of lease of the Pledgor to the land plot specified in subp. 1.2.2 of the Agreement, is confirmed by the lease agreement for the land plot No. dated "____" _____ ___, concluded with
for a period up to "" ___
1.5. Inventory cost referred to in sub. 1.2.1 of the real estate object is (____) rubles,
which is confirmed by certificate No. dated " ", issued by the Territorial BTI.
1.6. The subject of pledge as a whole is estimated by the Parties in US dollars, which is
(____) rubles at the exchange rate of the Central Bank of the Russian Federation as of the date of signing this Agreement.
1.7. Subsequent pledge of the Subject of Pledge without the written consent of the Pledgee is not allowed.
1.8. The subject of the pledge remains in the use and possession of the Pledgor.
2. Obligations, the fulfillment of which is secured by a pledge
2.1. The subject of the pledge ensures the fulfillment of the obligations of the Pledgor to the Pledgee under the loan agreement No. dated "____" _____ ___ (hereinafter referred to as the "Credit Agreement"), which comes into force from the moment of its signing and is valid until the full repayment of the amount loan and payment of interest on it.In the event of partial fulfillment of the obligation provided for by the Loan Agreement, the pledge is retained in the original amount until the full fulfillment of the secured obligation.The Loan Agreement is an integral part of this Agreement.

2.2. The loan amount is (____) US dollars.
The loan amount is disbursed within three banking days from the moment of registration of this Agreement in the real estate registration authorities.
2.3. The interest rate on the loan is % per annum.
3. Representations and warranties
3.1. The Pledgor represents and warrants that:
3.1.1 Acts in accordance with the powers established by its founding documents.
3.1.2 Is the full and legal owner of the rights to the Subject of Pledge. Until the conclusion of the Agreement, the Subject of the Pledge has not been alienated, not pledged, is not in dispute or under arrest, is not encumbered with the rights of third parties, the lease rights of the Pledgor are not disputed by anyone.
3.1.3 Objections to the encumbrance of a land plot by _________________________________________________________________________________
(owner of the land)
not available, which is confirmed by _________________________________________________________.
(certificate (or agreement) of the land owner)
3.1.4 The subject of the pledge does not have any properties that could result in its loss, deterioration or damage.
4. Rights and obligations of the parties
4.1. The pledger is obliged:
4.1.1 Do not take actions that lead to the termination of the right of pledge or a decrease in the value of the pledged property.
4.1.2 Take measures necessary to protect the Subject of Pledge from encroachments of third parties.
4.1.3 Not prevent the Pledgee from inspecting the Subject of Pledge during the term of this Agreement.
4.1.4 Guarantee to the Pledgee that the transferred Subject of Pledge will not be re-pledged until the obligation secured by the pledge is fulfilled in full.
4.1.5 Immediately notify the Pledgee of information about changes that have occurred with the Pledge, about encroachments by third parties on the Pledge, about the threat of loss or damage to the Pledge.
4.1.6 Do not alienate or assign the Subject of Pledge to third parties without the written consent of the Pledgee.
4.1.7 Take all measures necessary to ensure the safety of the Subject of Pledge, including its current and major repairs.
4.1.8 Bear the risk of accidental loss or accidental damage to the Collateral.
4.2 The pledgor has the right:
4.2.1 Own and use the pledged property in accordance with its direct purpose and receive income from the use of the Subject of Pledge, ensuring its safety.
4.2.2 Terminate foreclosure on the Subject of Pledge in the event early repayment secured obligation.
4.3 The pledgee has the right to:
4.3.1 Check against the documents and in fact the availability, condition and conditions of use of the Pledge.
4.3.2 Require the Pledgor to take measures provided for by the current legislation of the Russian Federation, necessary to preserve the Pledge. The Pledgee has the right to foreclose on the Subject of Pledge before the due date for the fulfillment of the obligation secured by the pledge in cases provided for by law Russian Federation.
4.3.3 Act as third party in a case in which a claim is being considered for property that is the Subject of pledge under the Agreement.
5. Foreclosure on the subject of pledge
5.1. The Pledgee has the right to foreclose on the Subject of the Pledge in case of failure by the Pledgor to fulfill the obligations specified in the conditions loan agreement, after ________________________________
after the due date for the fulfillment of these obligations, including: in case of non-payment or untimely payment of the amount of the principal debt in whole or in part, as well as in case of violation of the terms for paying interest on the use of the loan.
5.2. Foreclosure on the Subject of Pledge is carried out by a court decision in accordance with the current legislation of the Russian Federation.
5.3. The pledge of real estate objects secures the requirements of the Pledgee under the Loan Agreement to the extent that they exist by the time of their actual execution by the Pledgor, including interest, increased interest for late payments, as well as reimbursement of expenses for the collection and sale of the pledged property.
The amount received from the sale of the Subject of Pledge is used to repay the debt under the Loan Agreement in next order:
— for reimbursement of court and other expenses for debt collection;
- to pay fines and penalties;
- for the payment of overdue interest for the use of the loan;
- for the payment of urgent interest;
- to pay off overdue loans;
- to pay off urgent debt on a loan.
6. Additional terms
6.1 This Agreement is subject to registration in accordance with the established procedure and is considered to have entered into force from the moment of its registration.
6.2 Amendment and termination of this Agreement is made by mutual agreement of the Parties in statutory procedure by concluding an additional agreement registered in accordance with the procedure established by the legislation of the Russian Federation.
6.3 The costs of execution and registration of this Agreement by agreement of the Parties are assigned to the Pledgor.
7. Liability of the parties
7.1. For failure or improper execution obligations under the Agreement, the Parties shall be liable in accordance with the current legislation of the Russian Federation.
8. Duration of the contract
8.1. The Agreement comes into force from the moment of its state registration in accordance with the procedure established by the legislation of the Russian Federation and is valid until the full fulfillment of the obligations of the Pledgor under the Main Agreement.
9. Final provisions
9.1 All disputes arising in the process of execution of this Agreement will be preliminary considered by the Parties in order to develop a mutually acceptable solution. If an agreement is not reached, the dispute will be resolved in accordance with the current legislation of the Russian Federation.
9.2 In the event of a change by one of the Parties bank details or other details, it is obliged to inform the other Party about this before the changes enter into force, but no later than () calendar days from the moment the details are actually changed.
9.3. Any notification and other communication sent by the Parties to each other under the Agreement must be made in writing and signed by an authorized person. Such notification or message is considered to be properly sent if it is delivered by courier, faxed to the details specified in Section 10 of this Agreement.
9.4 This Agreement is made in three copies - one copy for each of the Parties, one copy for the state registration authorities of rights to real estate.
10. Legal addresses and other details of the parties
Pledgor: Pledgee:
Name
organization Name
organizations
Legal address Legal address
TIN
OKPO code OKPO code
f/s f/s
At the bank at the Central Bank of the Central Bank
BIC
FULL NAME. FULL NAME.
Signature
m.p. M.P.

The current civil legislation provides for several ways to ensure the fulfillment of an obligation. So, according to Art. 329 Civil Code Russian Federation, the fulfillment of an obligation may be secured by a forfeit, pledge, retention of the debtor's property, surety, bank guarantee, deposit and in other ways, statutory or by agreement.

A special place among the listed methods of securing obligations is occupied by the pledge of property, which originates in Roman law.

According to Art. 334 of the Civil Code of the Russian Federation, by virtue of a pledge, the creditor under the obligation secured by the pledge (pledgee) has the right, in the event of the debtor's failure to fulfill this obligation, to receive satisfaction from the value of the pledged property, predominantly over other creditors of the person who owns this property (pledger), with exceptions established by law.

This article will analyze a number of problematic issues that are reflected in judicial practice.

The first issue concerns the status of the pledgor and who can act in his role.

Unfortunately, most entrepreneurs take a very superficial approach to solving this issue.

At the same time, in accordance with Art. 335 of the Civil Code of the Russian Federation The pledger can be both the debtor himself and a third party, while, however, paragraph 2 of the same article is overlooked. Meanwhile, in paragraph 2 of Art. 335 of the Civil Code of the Russian Federation establishes that only its owner or a person entitled to it can be a pledger of a thing. economic management.

The specified wording is of the utmost importance for resolving the issue of the validity of the pledge agreement concluded between the parties. Indeed, if the pledgor is not the owner of the pledged property at the time of the conclusion of the pledge agreement, then the agreement is invalid (void).

The Supreme Arbitration Court of the Russian Federation has repeatedly drawn attention to the above. Yes, in Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of May 30, 2000 N 5210/99 notes: "Based on the meaning of Article 335 of the Civil Code of the Russian Federation necessary requirement to the mortgagor is the existence of the right of ownership to the mortgaged property or the right of economic management of it.

IN Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of August 13, 1996 N 3238/96 it is also noted that necessary condition the validity of the pledge agreement is the presence of the subject of pledge with the pledgor on the right of ownership (economic management) on the day the pledge agreement is concluded.

On the other hand, when analyzing this problem, it must be taken into account that the Civil Code of the Russian Federation also allows the pledge of property that will only be acquired by the pledgor in the future. So, according to paragraph 6 of Art. 340 of the Civil Code of the Russian Federation by a pledge agreement, and in relation to a pledge arising on the basis of a law, the law may provide for a pledge of things and property rights that the pledger will acquire in the future. The scientific literature also draws attention to the indisputability of the above conclusions of the Presidium of the Supreme Arbitration Court of the Russian Federation (see, for example, Commentary on Part One of the Civil Code of the Russian Federation, edited by O. Sadikov, 2nd ed., 1997, p. 591). Moreover, in the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 15, 1998 N 26 "Overview of the practice of resolving disputes related to the application by arbitration courts of the norms of the Civil Code of the Russian Federation on pledge" a pledge of "future" property is also allowed, while drawing attention to two points: .

a) in such a situation, the right of pledge arises from the pledge holder from the moment the pledger acquires the relevant property;

b) the pledge agreement must define the conditions governing the procedure and method for delimiting the property that was the subject of the pledge, in the event of its receipt by the pledgor.

Thus, there is a certain ambiguity between the two articles of the Civil Code of the Russian Federation (Articles 340 and 335 of the Civil Code of the Russian Federation), which gave rise to a very extensive and controversial judicial practice on this issue. Therefore, in order to avoid possible litigation and taking into account the practice of the Presidium of the Supreme Arbitration Court of the Russian Federation on specific cases, the parties can be recommended the following.

When concluding a pledge agreement, it is necessary to demand from the pledgor evidence that the property pledged by him belongs to him by right of ownership. If, for example, the pledgor indicates that the subject of the pledge are cars that he will only acquire in the future (even if under an already concluded supply agreement with a third party), such a pledge should, if possible, be abandoned. Otherwise, there is a very high probability that the pledge agreement will be declared void (Article 168 of the Civil Code of the Russian Federation).

At the same time, it should be borne in mind that certain “relaxations” have been established by special legislation regarding real estate. Thus, the Federal Law of July 16, 1998 N 102-FZ "On Mortgage (Pledge of Real Estate)" (Articles 5 and 76) allowed the possibility of pledging real estate construction in progress, erected on a land plot allocated for construction in the manner established by the legislation of the Russian Federation , as well as materials and equipment that is prepared for construction.

Undoubtedly, this regulation will contribute to the development mortgage lending.

The second problem also directly concerns the status of the pledgor.

It's about on the possibility of pledge of property by a person who is not a debtor under the main obligation (i.e. a third party).

It would seem that the answer to this question can only be in the affirmative.

Yes, Art. 335 of the Civil Code of the Russian Federation directly established that both the debtor himself and a third party can be a pledger of property, i.e. a person who is not a debtor under the main obligation. Does not contain any prohibition on participation in the pledge of third parties and the Law of the Russian Federation "On Pledge".

Meanwhile, the practice of the Supreme Arbitration Court of the Russian Federation leads to very unexpected conclusions. So, for example, the subject of analysis in one of the Resolutions of the Supreme Arbitration Court of the Russian Federation was the question of the validity of the pledge agreement due to the fact that the pledger was a third party, and not the debtor himself (it should be noted that the analyzed agreement was concluded back in 1994, i.e. e. even before the entry into force of the new Civil Code of the Russian Federation, however, taking into account the fact that the wording of the Law of the Russian Federation "On Pledge" of 1992 and the provisions of the Civil Code of the Russian Federation on pledge are identical in terms of determining the status of the pledgor, it undoubtedly remains relevant This is confirmed, in particular, by a number of lawsuits conducted by the author of this article in arbitration court Moscow, where the specified Decree of the Supreme Arbitration Court of the Russian Federation was very actively used by the parties).

In this Decree ( Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of March 10, 1998 N 7422/97) As possible grounds for recognizing the pledge agreement as invalid, the Presidium of the Supreme Arbitration Court of the Russian Federation noted two main points:

"At the same time, it is necessary to give legal assessment to the pledge agreement dated February 1, 1994 for its compliance with the Law of the Russian Federation "On Pledge" and draw a conclusion regarding the legality or illegality of this transaction, bearing in mind that the transaction was concluded by the director of a closed joint stock company without the consent of the shareholders or the board of the company and is actually aimed at securing the obligations of a third party, having nothing to do with society. Ultimately, such a transaction may lead to the gratuitous alienation of the company's property without the consent of the shareholders."

No less interesting is the second point (conclusion):

"In addition, it is necessary to analyze the local documents of CJSC "Expanded Gravel Plant", assess the charter of the company in terms of its compliance with the legislation on joint-stock companies and make a conclusion about the scope of powers of the director of this company, who is not the owner of his property, and therefore cannot arbitrarily dispose of this property.

Indeed, quite unexpected conclusions.

Meanwhile, it seems that the given opinion of the Presidium of the Supreme Arbitration Court of the Russian Federation is very ambiguous.

The fact is that neither in the Law of the Russian Federation "On Pledge", nor in Art. 335 of the Civil Code of the Russian Federation and others regulations, regulating collateral relations, does not mention the need for any ties (for example, economic, mutual participation in capital, etc.) between organizations in order for a third party to become a mortgagor of property.

In addition, the Supreme Arbitration Court of the Russian Federation actually narrows the powers of the General Director, obliging him to coordinate such transactions with shareholders. Meanwhile, competence general meeting is clearly defined in the Law and the shareholders do not have such a right to control, no one has the right to interfere in the current activities of the director, which he has the right to carry out by virtue of the direct instructions of the Law (Article 69 of the Federal Law "On Joint Stock Companies"). If the transaction being concluded is not a major transaction or a transaction in which there is an interest, then CEO has the right to conclude it without anyone's instructions or consent.

Of course, no hasty conclusions should be drawn, since, firstly, the said Resolution of the Supreme Arbitration Court of the Russian Federation analyzes an agreement that was concluded even before the entry into force of the new Civil Code of the Russian Federation and, in addition, there are many cases when the Presidium of the Supreme Arbitration Court of the Russian Federation on others ( in many similar cases) by his decision foreclosed on the subject of pledge, which was provided by a third party.

However, at the same time, the above "case" can be used by an unscrupulous pledgor or debtor in order to avoid foreclosing the pledged property. And given the contradictory practice of our courts, no one can guarantee that this argument will be immediately rejected.

In conclusion, I would like to dwell on one more very urgent problem for participants in collateral relations.

In this work, Art. 340 of the Civil Code of the Russian Federation in relation to the analysis of the possibility of pledging future property. No less questions are raised by the wording of paragraph 3 of Art. 340 of the Civil Code of the Russian Federation.

According to paragraph 3 of Art. 340 of the Civil Code of the Russian Federation, mortgage of a building or structure is allowed only with simultaneous mortgage under the same agreement of the land plot on which this building or structure is located, or of a part of this plot that functionally provides the pledged object, or of the right to lease this plot or its corresponding part belonging to the pledgor.

Thus, it is not allowed to pledge buildings without simultaneous pledge of the land on which they are located.

The rule is completely reasonable, since it excludes the possibility of pledging a building (structure) that is, as it were, "in the air."

The problem is different. in the formulation of the concept of "building", which gave rise to a lot of controversy.

Indeed, how to interpret the provisions of Art. 340 of the Civil Code of the Russian Federation, speaking about the pledge of a building (structure). as a whole building or as a part of it. This is of great practical importance: after all, it is one thing when the whole building is mortgaged, then the requirement for a simultaneous mortgage of the land plot on which this building is located is still understandable. And if part of the building is laid. for example, its first floor, (in practice this case is just more common) should the land be mortgaged in this case as well?

This issue is especially relevant for the city of Moscow, where, as you know, the land general rule is located with the owners of buildings only on the right of lease, and not ownership. Accordingly, in the case of a mortgage, for example, of a part of a building, there is, among other things, the need to obtain the consent of Moskomzem to pledge the right to lease land (Article 615 of the Civil Code of the Russian Federation).

Literal reading of Art. 340 of the Civil Code of the Russian Federation allows us to conclude that only in the case of a mortgage of a building or structure, it is in general (that is, the entire building or structure) that the right to lease the land plot on which they are located is also subject to pledge. Moreover, if we proceed from the obligation to pledge a part of the land plot proportional to the mortgaged part of the building, then in practice the matter can really reach the point of absurdity, when for a pledge, for example, some room or premises in high-rise building a pledge of the right to lease that share of the land corresponding to the share of the premises in the building will also be required.

On the other hand, this approach makes it possible to very simply circumvent (exclude) the norm of the Civil Code on the obligation to pledge land: - by splitting the subject of mortgage and excluding from the building, for example, its insignificant premises. Accordingly, from a legal point of view, not the entire building will be mortgaged, but only a part of it (in fact, it is being mortgaged in its entirety), which will make it possible not to pledge the right to lease land. In practice, such "tricks" are already very actively used.

It seems that in the current situation, in order to finally resolve the problem, one should turn to judicial practice.

An analysis of similar practice, including the practice of the Federal Arbitration Court of the Moscow District and the Supreme Arbitration Court of the Russian Federation, leads to the conclusion that it is necessary to mortgage a land plot (or part of it) even if only part of the building is pledged (for example, its first floor).

So, for example, in Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 08.12.98 N 5046/98 the dispute on the invalidation of the pledge agreement was considered non-residential premises located on the 1st floor of the building.

In refusing to satisfy the claim for recognizing the pledge agreement as invalid, the first and appellate instances proceeded from the fact that the transaction for the pledge of non-residential premises, which is part of the building, does not require simultaneous mortgage of the land plot. The agreement on the pledge of non-residential premises was registered by the Moscow Property Committee and taken into account in the bureau of technical inventory, therefore there are no grounds for recognizing this agreement as void.

Meanwhile, the Presidium of the Supreme Arbitration Court of the Russian Federation recognized these arguments of the courts as untenable and noted that recognizing the agreement on the pledge of the disputed premises as invalid at the claim of the person concerned and being the proper plaintiff in this regard, the court of cassation reasonably applied paragraph 3 of Article 340 of the Civil Code of the Russian Federation, according to which Mortgage of a building or structure is allowed only with simultaneous mortgage under the same agreement of the land plot on which this building or structure is located, or of a part of this plot that functionally provides the pledged object, or of the right to lease this plot or its corresponding part belonging to the pledgor.

Thus, when applying the provisions of Art. 340 of the Civil Code of the Russian Federation, in practice, one should proceed from a broad interpretation of these norms and issue a mortgage on a land plot even if only part of it is pledged under a building pledge agreement.

At the same time, it should be borne in mind that there are no grounds for recognizing the pledge agreement for premises (buildings) as invalid if the pledgor did not pledge the land plot due to the fact that he was not the owner or tenant of this land plot at the time of the conclusion of the pledge agreement. In this case, when foreclosing such a building or premises, the person who acquires this property into ownership acquires the right to use the land plot on the same conditions and to the same extent as the former owner (pledger) of real estate (Article 69 of the Federal Law " On Mortgage", paragraph 45 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 N 6/8 "On Some Issues Related to the Application of Part One of the Civil Code of the Russian Federation").

Maxim Smirnov, lawyer of the press service of the Garant company

Pledge is used as one of the ways to secure a transaction. If the object is real estate, the content of the pledge agreement will depend on the type of object. A sample agreement will help you prepare.

Read in the article:

What rules govern mortgages on real estate?

Real estate pledge transactions are transactions that are subject to the rules of the Civil Code of the Russian Federation and, as well as the norms of the mortgage law. From the article you will learn:

• what are the specifics of such transactions, including the conditions under which land plots of state or municipal property become the subject of pledge;
• what conditions must be met in order for the court to recognize the real estate pledge agreement as concluded;
• in which cases the approval of a pledge as a major transaction is required.

To prepare a deal, a sample contract is useful.

Pledge of immovable property (mortgage agreement) is an agreement under which the pledgee-creditor has an advantage in satisfying the claim against the pledger-debtor over other creditors of the pledger. The specificity lies in the fact that these relations arise from an obligation secured by a mortgage (Part 1, Article 1 “On Mortgage (Pledge of Real Estate)”, hereinafter referred to as Law No. 102-FZ).

The real estate pledge agreement provides the pledgee with the payment of:

• debt under a loan agreement or other obligation (in whole or in part);
• losses and/or penalties (fines, penalties) for non-performance, delay in performance or other improper performance of an obligation secured by a mortgage;
• interest for the misuse of other people's in cash;
• court costs and other expenses that the claimant has incurred as a result of applying for the protection of the right;
• expenses for the sale of pledged property (Article 3 of Law No. 102-FZ);
• amounts for insurance of property-collateral, taxes on it (Article 4 of Law No. 102-FZ).

The subject of real estate pledge is property, the rights to which are formalized according to the rules of state registration of real estate and transactions with it. Such property is:

• plots (except for lands from state or municipal property and plots with an area less than minimum size for which other rules apply, Art. 63 of Law No. 102-FZ);
• enterprises, buildings, structures and other real estate (including construction in progress, subject to the law);
• residential buildings, apartments, as well as their parts from one or more isolated rooms (appeal ruling of the Moscow City Court dated December 14, 2017 in case No. 33-46315/2017);
• dachas, garden houses, garages and other consumer buildings;
• air and sea vessels;
• parking spaces (Article 5 of Law No. 102-FZ).

The law provides for the possibility to specify plots of state or municipal property as the subject of pledge under a mortgage agreement. Such lands should be intended for:

• housing construction;
• integrated development for housing construction

They are passed on to ensure the return of funds that credit organisation provides for the arrangement of these lands through the construction of engineering infrastructure facilities (Article 62.1 of Law No. 102-FZ).

What conditions are included in the contract when pledging real estate?

A pledge of real estate is a transaction that is drawn up in writing and registered (Article 9 of Law No. 102-FZ). If the parties do not comply with the registration rule, the court will invalidate the agreement ().

The parties indicate:

• subject of mortgage;
• evaluation;
• the essence, amount and term of fulfillment of the obligation (clause 1, article 9 of Law No. 102-FZ). The contract must include information about the property that is secured by the mortgage.

If the obligation will be fulfilled in installments, it is necessary to indicate the terms for each stage, the amounts of payments or conditions that will allow determining such amounts (clauses 4 and 5, article 9 of Law No. 102-FZ). Also, counterparties have the right to indicate the method and procedure for the sale of pledged property when foreclosing by a court decision (clause 1.1. Article 9 of Law No. 102-FZ).

Thus, the court recognized the mortgage agreement as concluded. The subject of the deal were:

• 327/6494 shares of a non-residential building - an extension to a consumer services complex, with total area 649.4 sq. m;
• 1/20 share of the land plot with a total area of ​​920 sq. m.

The court held that the parties had agreed essential conditions, the agreement in form and content complies with the law ().

In another case, the court also recognized the contract as a valid transaction. The document that the party submitted for state registration contained the necessary data. They made it possible to identify the object: there was a name, area, location, cadastral number. The counterparties indicated information about the registration of the right in the contract using the name from the USRR, the dates and the number of the state registration record ().

The term of the real estate pledge agreement is determined by the parties independently. At the same time, the period for which the lender provides borrowed funds, is not the duration of the contract. These are different time frames.

For example, the parties entered into a loan agreement. They also signed a real estate pledge agreement to secure the main obligation. The borrower (mortgagor) did not return the debt and interest for the use of the amount. He believed that the lender (mortgagor) had lost the right to collect, as the term of the contract had expired. But the borrower confused the terms of the loan and the validity of the contract. There were no grounds for terminating the pledge (Article 352 of the Civil Code of the Russian Federation). The court collected the debt, interest, forfeit, and also foreclosed on the pledged property (appeal ruling of the Novosibirsk Regional Court dated October 31, 2017 in case No. 33-10458/2017).

In what cases it is necessary to approve a real estate pledge agreement as a major transaction

A major transaction is one or more related transactions, which:

• outside the scope of normal business activities;
• associated with the value of property in the amount of 25 percent or more book value company assets ( , ).

Thus, if the transaction on the pledge of the property meets these conditions, it must be approved. However, the court will not allow to challenge the transaction, the approval procedure of which was violated, if the transaction is not a major one.

For example, the bank went to court and demanded debt under loan agreements. The defendant filed a counterclaim. He asked that the guarantee and pledge agreements be declared invalid and that the consequences of the invalidity of transactions be applied. The court granted the original claim and denied the counterclaim. Court examined balance sheet defendant's company and found that, given financial results the transaction does not belong to the category of major transactions (decision of the Arbitration Court of the Volga-Vyatka District dated March 23, 2017 No. F01-424/2017 in case No. A38-6821/2015).

It is possible to prove the legitimacy of a transaction if you confirm that:

• the company received an amount that is equivalent to the alienated property;
• the business transaction helped prevent large losses;
• the transaction, although it was unprofitable, was part of interrelated transactions, with one economic purpose, as a result of which the company was supposed to benefit (clause 3).

Attached files

• Land plot mortgage agreement.doc

1. THE SUBJECT OF THE AGREEMENT

1.1. The subject of this Agreement is the pledge to the Pledgee of the real estate belonging to the Pledgor on the right of ownership and the right to lease to the relevant land plot on which this property is located (hereinafter referred to as the “Pledged Subject”).

1.2. The subject of the pledge is:

1.2.1. The property belonging to the Pledgor on the right of ownership is a building with an area of ​​​​sq. . The boundaries of the building included in the Subject of Pledge are established in accordance with copies of the floor plans of the Territorial Bureau of Technical Inventory dated "" year, which are an integral part of this Agreement (Appendix No. 2).

1.2.2. The right to lease a land plot with an area that functionally provides the building being laid on it, which is sq.m in accordance with the plan of the land plot, which is an integral part of this Agreement (Appendix No. 3).

1.3. The Pledgor's ownership of the building specified in clause 1.2.1 of this Agreement is confirmed by a certificate of state registration of rights dated from the year series No. item number).

1.4. The Pledgor's right to lease a land plot specified in clause 1.2.2 of the Agreement is confirmed by a land plot lease agreement No. from "" of the year, concluded with for a period of up to a year and recorded in the register under No. from "" of the year.

1.5. The inventory value of the property specified in clause 1.2.1 is a ruble, which is confirmed by a certificate No. dated "" of the year issued by the Territorial BTI.

1.6. The standard price of the land plot specified in clause 1.2.2 of this Agreement, in accordance with the date of signing the Agreement, is rubles, based on the rate land tax rubles per hectare.

1.7. The subject of pledge as a whole is valued by the Parties in rubles.

1.8. Subsequent pledge of the Subject of Pledge without the written consent of the Pledgee is not allowed.

1.9. The subject of pledge remains in use and in storage with the Pledgor.

2. OBLIGATIONS, THE PERFORMANCE OF WHICH IS SECURATED

2.1. The subject of the pledge secures the fulfillment of obligations (hereinafter referred to as the "Borrower") under the loan agreement No. from "" of the year (hereinafter referred to as the "Loan Agreement"), which enters into force from the moment of its signing and is valid until the full repayment of the loan amount and payment of interest on it, obligations to the surety agreement No. "" of the year In case of partial fulfillment of the obligation provided for by the Loan Agreement, the pledge is retained in its original amount until the secured obligation is fully fulfilled.

2.2. provides the Borrower with a loan in the amount of rubles for a year. The loan amount is issued within banking days from the date of registration of this Agreement and the pledge agreement No. from "" in.

2.3. The interest rate on the loan is % per annum.

2.4. Increased interest rate is % per annum of the amount of overdue debt for each day of delay.

2.5. Purpose of lending: .

2.6. The loan is provided in a single tranche.

3. REPRESENTATIONS AND WARRANTY

3.1. The Pledgor represents and warrants that:

3.1.1. Acts in accordance with the powers established by its founding documents.

3.1.2. Is the full and legal owner of the rights to the Subject of Pledge. Until the conclusion of the Agreement, the Subject of the Pledge has not been alienated, not pledged, is not in dispute or under arrest, is not encumbered with the rights of third parties, the lease rights of the Pledgor are not contested by anyone, which is confirmed by information from the Unified State Register of Rights No. dated "" of the year issued by .

3.1.3. There are no objections to the encumbrance of a land plot by a pledge, which is confirmed.

3.1.4. The subject of the pledge does not have any properties, as a result of which its manifestation may result in its loss, damage or damage.

4. RIGHTS AND OBLIGATIONS OF THE PARTIES

4.1. The pledger is obliged:

4.1.1. Not to take actions entailing the termination of the right of pledge or a decrease in the value of the pledged property.

4.1.2. Take measures necessary to protect the Subject of Pledge from encroachment of third parties.

4.1.3. Not prevent the Pledgee from inspecting the Subject of Pledge during the term of this Agreement.

4.1.4. Guarantee to the Pledgee that the transferred Pledge will not be re-pledged until the obligation secured by the pledge is fulfilled in full.

4.1.5. Immediately notify the Pledgee of information about changes that have occurred with the Pledge Item, about encroachments by third parties on the Pledge Item, about the threat of loss or damage to the Pledge Item.

4.1.6. Do not alienate or assign the Subject of Pledge to third parties without the written consent of the Pledgee.

4.1.7. Take all measures necessary to ensure the safety of the Pledge, including its current and major repairs.

4.1.8. Bear the risk of accidental loss or accidental damage to the Collateral.

4.2. The pledger has the right:

4.2.1. Own and use the pledged property in accordance with its direct purpose and receive income from the use of the Subject of Pledge, ensuring its safety.

4.2.2. Stop foreclosure on the Subject of Pledge in case of early repayment of the obligation secured by the pledge.

4.3. The pledgee has the right:

4.3.1. Check according to the documents and in fact the availability, condition and conditions of use of the Pledge.

4.3.2. Require the Pledgor to take measures, provided for by the current legislation of the Russian Federation, necessary for the preservation of the Subject of Pledge. The Pledgee has the right to foreclose on the Subject of Pledge before the deadline for fulfilling the obligation secured by the pledge in cases provided for by the legislation of the Russian Federation.

4.3.3. Act as a third party in a case in which a claim is being considered for property that is the Subject of Pledge under the Agreement.

5. FOREWORDING THE SUBJECT OF PLEDGE

5.1. The Pledgee has the right to foreclose on the Subject of Pledge in the event that the Borrower fails to fulfill the obligations specified in the terms of the Loan Agreement, upon the expiration of days after the due date for the fulfillment of these obligations, including: terms of payment of interest for the use of the loan.

5.2. Foreclosure on the Subject of Pledge is carried out by a court decision in accordance with the current legislation of the Russian Federation.

5.3. The pledge of real estate objects secures the requirements of the Pledgee under the Loan Agreement to the extent that they exist at the time of their actual execution by the Borrower, including interest, increased interest for late payments, as well as reimbursement of expenses for the collection and sale of the pledged property. The amount received from the sale The subject of the pledge goes to repay the debt under the Loan Agreement in the following order:

• for reimbursement of legal and other expenses for debt collection;
• to pay fines and penalties;
• for the payment of overdue interest on the loan;
• for the payment of urgent interest;
• to pay off overdue loans;
• to pay off a term loan.

6. ADDITIONAL TERMS

6.1. This Agreement is subject to registration in accordance with the established procedure and is considered to have entered into force from the moment of its registration.

6.2. After the registration of this Agreement, which consists in certification by making a special registration inscription on the Agreement, one original of the Agreement is transferred to the Pledgee, and the other to the Pledgor.

6.3. The change and termination of this Agreement is made by mutual agreement of the Parties in the manner prescribed by law by concluding an additional agreement certified by a notary and registered in the manner prescribed by the legislation of the Russian Federation.

6.4. processing costs, notarization and registration of this Agreement by agreement of the Parties are assigned to the Pledgor.

7. RESPONSIBILITIES OF THE PARTIES

7.1. For non-fulfillment or improper fulfillment of obligations under the Agreement, the Parties shall be liable in accordance with the current legislation of the Russian Federation.

7.2. In case of violation by the Pledgor of clause 1.8 or clause 4.1.6 of this Agreement, the Pledgor will be obliged to pay the Pledgee a fine in the amount of % of the value of the Subject of Pledge specified in clause 1.7 of the Agreement. The fine shall be paid by the Pledgor within working days from the date of receipt from the Pledgee of a written request for payment of the fine. Payment of the fine does not relieve the Pledgor from fulfilling his obligations under the Agreement.

8. TERM OF THE CONTRACT

8.1. The Agreement comes into force from the moment of its state registration in accordance with the procedure established by the legislation of the Russian Federation and is valid until the full fulfillment of the obligations of the Borrower under the Loan Agreement and the Pledgor under this Agreement.

9. FINAL PROVISIONS

9.1. All disputes arising in the process of execution of this Agreement will be preliminary considered by the Parties in order to develop a mutually acceptable solution. If an agreement is not reached, the dispute will be resolved in the Arbitration Court of the city in accordance with the current legislation of the Russian Federation.

9.2. If one of the Parties changes its address, it will be obliged to inform the other Party about this before the state registration of the relevant changes in founding documents, but no later than calendar days from the date of the actual change in bank details. If one of the Parties changes the bank details, it is obliged to inform the other Party about this before the changes come into force, but no later than calendar days from the date of the actual change in the bank details.

9.3. Any notification and other communication sent by the Parties to each other under the Agreement must be made in writing and signed by an authorized person. Such notification or message is considered to be properly sent if it is delivered by courier, faxed to the details specified in Article 10 of this Agreement.

9.4. This Agreement is an integral part of the Loan Agreement No. from "" of the year and the surety agreement No. of "" of the year.

9.5. This Agreement is made in three copies - one copy for each of the Parties, one copy is kept in the files of the notary.

10. LEGAL ADDRESSES AND BANK DETAILS OF THE PARTIES

mortgagee

• Legal address:
• Mailing address:
• Phone fax:
• TIN/KPP:
• Checking account:
• Bank:
• Correspondent account:
• BIC:
• Signature:

pledger

• Legal address:
• Mailing address:
• Phone fax:
• TIN/KPP:
• Checking account:
• Bank:
• Correspondent account:
• BIC:
• Signature:

Real estate pledge agreement sample

CONTRACT
pledge of real estate (apartment) owned by the borrower to ensure the return of the loan amount under a loan agreement with collateral

date and place of signing

___(name of company) ___, hereinafter referred to as "Pledgee", represented by ___ (position, surname, name, patronymic) ___, acting on the basis of, on the one hand, and ___ (last name, first name, patronymic, passport details) ___, hereinafter referred to as ___ "Borrower" or "Pledgor", on the other hand, have entered into this Agreement as follows:
TERMS
Federal Law - Federal Law "On Mortgage (Pledge of Real Estate)".

Civil Code - Civil Code of the Russian Federation.

Subject of collateral — _________________________

(characteristics of the apartment)

Note: Under a mortgage agreement, real estate specified in paragraph 1 of Art. 130 of the Civil Code, including residential buildings, apartments and parts of residential buildings and apartments, consisting of one or more isolated rooms.

1. THE SUBJECT OF THE AGREEMENT

1.1. The Pledgee, being a lender under an obligation secured by a mortgage, has the right to receive satisfaction of his monetary claims against the Borrower under this obligation from the value of the Pledge of the other party - the Pledgor, predominantly over other creditors of the Pledgor.
Note: The pledger may be the debtor under the obligation secured by the mortgage, or a person not participating in this obligation (third party).

1.2. The subject of pledge remains in the possession and use of the Pledgor.

1.3. The mortgage was established to secure the obligation under the loan agreement dated "___" ______ ____ g. N _____.
The amount of the obligation secured by the mortgage is ____ (____________) rubles.

The amount of interest is __________________ per annum (or conditions that allow determining these interests at the appropriate time).

The deadline for paying the amount of the obligation secured by the mortgage is _____________ (and if this amount is payable in installments, the terms (frequency) of the relevant payments and the amount of each of them, or the conditions that make it possible to determine these terms and amounts of payments (debt repayment plan)).

1.4. The mortgage secures the payment to the Pledgee of the principal amount of the debt under the loan agreement in full (or in part stipulated by the agreement).

1.5. Mortgage also ensures the payment of interest for the use of the loan.

1.6. The mortgage provides (other may be established by the agreement) also the payment to the Pledgee of the amounts due to him:

1) in compensation for losses and / or as a penalty (fine, penalty fee) due to non-performance, delay in performance or other improper performance of an obligation secured by a mortgage;
2) in the form of interest for the illegal use of other people's funds, provided for by an obligation secured by a mortgage or by the Federal Law;
3) in compensation for court costs and other expenses caused by foreclosure on the Subject of Pledge;
4) in reimbursement of expenses for the sale of the Subject of Pledge.

1.7. The mortgage secures (other may be established by the agreement) the claims of the Pledgee to the extent that they have by the time they are satisfied at the expense of the Subject of Pledge.

1.8. The obligations of the Borrower to the Pledgee in excess of this amount are not considered secured by the mortgage, except for claims based on paragraphs. 3 and 4 paragraph 1 of Art. 3 or at st. 4 of the Federal Law.

1.9. The subject of the pledge is considered to be pledged together with the accessories as a whole (otherwise may be established by the agreement).

1.10. The mortgage extends to all inseparable improvements to the subject of mortgage (otherwise may be established by the agreement).

1.11. The Pledgor’s ownership of the Subject of Pledge is confirmed by a certificate of state registration of rights _______________ dated _____________ year N ____ series _________________, as evidenced in the Unified State Register of Rights to Real Estate and Transactions with It “__” ________ ____, an entry was made on registration N ______ (register object number) _________ (name of the body that carried out the state registration of the right to real estate).

1.12. The inventory value of the Subject of Pledge is ______________ rubles, which is confirmed by certificate N ______ dated "___" _________ ____, issued by ___________________________.

1.13. The subject of the pledge as a whole is estimated by the Parties at _____________ (_______________) rubles as of the date of signing the Agreement.

1.14. Subsequent pledge of the Subject of Pledge is not allowed (otherwise may be established by the agreement).

1.15. Foreclosure on the Subject of Pledge is drawn in accordance with Chapter IX of the Federal Law.

1.16. Realization of the Subject of Pledge is carried out in accordance with Chapter X of the Federal Law.

1.17. Release of the Subject of Pledge is carried out in accordance with the procedure established by Art. 35, paragraph 2 of Art. 95 and paragraph 2, part 2 of Art. 106 Housing Code Russian Federation.

1.18. The pledgee has the right to transfer his rights to another person (the contract may provide otherwise):
- under a mortgage agreement;
— under the mortgage-secured obligation (primary obligation).

1.19. The person to whom the rights under the obligation (main obligation) have been transferred shall also transfer the rights ensuring the fulfillment of the obligation (otherwise may be established by the contract).
Such person takes the place of the Pledgee under this Agreement.

1.20. The mortgagor who has concluded a subsequent mortgage agreement must immediately notify the mortgagees on previous mortgages and, at their request, provide them with information about the subsequent mortgage, provided for in paragraph 1 of Art. 9 of the Federal Law.
The rules of this paragraph shall not apply if the parties to the previous and subsequent mortgage agreements are the same persons.

1.21. The subject of pledge under a mortgage agreement may be alienated by the Pledgor to another person by selling, donating, exchanging, making it as a contribution to the property of a business partnership or company or a share contribution to the property of a production cooperative, or in any other way only with the consent of the Pledgee (the agreement may establish otherwise ).

1.22. The Pledgor bears the risk of accidental loss and accidental damage to the Pledge.

1.23. To ensure the safety of the Subject of Pledge, including to protect it from encroachment by third parties, fire, natural disasters, the Pledgor is obliged to take measures established by federal law, others legal acts of the Russian Federation (clauses 3 and 4 of Article 3 of the Civil Code) and a mortgage agreement, and if they are not established, the necessary measures that meet the usual requirements.
In the event of a real threat of loss or damage to the Subject of Pledge, the Pledgor shall be obliged to notify the Pledgee thereof.

1.24. In cases of presentation to the Pledgor by other persons of demands for recognition of their ownership or other rights to the Pledge, for its withdrawal (request) or for the encumbrance of the specified Pledge or other requirements, the satisfaction of which may entail a decrease in the value or deterioration of this Pledge, the Pledgor is obliged to immediately notify the Pledgee thereof. When a relevant claim is filed against the Pledgor in a court, arbitration court or arbitration court (hereinafter referred to as the court), he must involve the Pledgee to participate in the case.

1.25. In the cases specified in clause 1.23, the Pledgor must use appropriate circumstances to protect their rights to the Subject of Pledge, provided for in Art. 12 of the Civil Code. If the Pledgor has refused to protect his rights to the Subject of Pledge or does not exercise it, the Pledgee has the right to use these methods of protection on behalf of the Pledgor without a special power of attorney and demand that the Pledgor reimburse the necessary expenses incurred in connection with this.

1.26. If the Subject of Pledge is in the illegal possession of third parties, the Pledgee has the right, acting on its own behalf, to claim this Subject of Pledge from someone else's illegal possession in accordance with Articles 301-303 of the Civil Code in order to transfer it to the possession of the Pledgor.

2. WARRANTY

2.1. The Pledgor represents and warrants that:

2.1.1. Acts in accordance with their interests without coercion.

2.1.2. Is the full and legal owner of the rights to the Subject of Pledge. Until the conclusion of the Agreement, the Subject of the Pledge has not been alienated, not pledged, is not in dispute or under arrest, is not burdened by the rights of third parties, the lease rights of the Pledgor are not disputed by anyone, which is confirmed by an extract from the Unified State Register of Rights N ____ dated "___" __________ ____ ., issued by __________________.
Note: In case of encumbrance of the Subject of Pledge, the Pledgor warns the Pledgee about all the rights of third parties to the subject of mortgage known to him by the time of state registration of the agreement (rights of pledge, life use, lease, servitudes and other rights).

2.1.3. The subject of the pledge does not have any hidden properties, as a result of the manifestation of which its loss, damage or damage may occur.

3. RIGHTS AND OBLIGATIONS OF THE PARTIES

3.1. The pledger is obliged:

3.1.1. Not to take actions that lead to the termination of the right of pledge or a decrease in the value of the Subject of Pledge.

3.1.2. Take measures necessary to protect the Subject of Pledge from encroachment of third parties.

3.1.3. Not prevent the Pledgee from inspecting the Subject of Pledge during the term of the Agreement.

3.1.4. Guarantee to the Pledgee that the transferred Pledge will not be re-pledged until the obligation secured by the pledge is fulfilled in full.

3.1.5. Immediately notify the Pledgee of information about changes that have occurred with the Pledge Item, about encroachments by third parties on the Pledge Item, about the threat of loss or damage to the Pledge Item.

3.1.6. Do not alienate or assign the Subject of Pledge to third parties without the written consent of the Pledgee.

3.1.7. Take all measures necessary to ensure the safety of the Pledge, including its current and major repairs.

3.1.8. Bear the risk of accidental loss or accidental damage to the Collateral.

3.1.9. Insure the subject of pledge.

3.2. The pledger has the right:

3.2.1. Own and use the Subject of Pledge in accordance with its direct purpose and receive income from the use of the Subject of Pledge, ensuring its safety.

3.2.2. Stop foreclosure on the Subject of Pledge in case of early repayment of the obligation secured by the pledge.

3.3. The pledgee has the right:

3.3.1. Check according to the documents and in fact the availability, condition and conditions of use of the Pledge.

3.3.2. Require the Pledgor to take measures, provided for by the current legislation of the Russian Federation, necessary for the preservation of the Subject of Pledge. The Pledgee has the right to foreclose on the Subject of Pledge before the deadline for fulfilling the obligation secured by the pledge in cases provided for by the legislation of the Russian Federation.

3.3.3. To act as a third party in a case in which a claim regarding the Subject of Collateral is being considered.

4. INSURANCE

4.1. The Pledgor insures the Subject of Pledge at his own expense for an amount not less than the amount of the obligation secured by the mortgage in favor of the Pledgee (beneficiary).

4.2. The pledgee is deprived of the right to satisfy his claim from insurance compensation if the loss or damage to the Collateral occurred due to reasons for which he is responsible.

4.3. Upon transfer of the creditor's rights in an obligation secured by a pledge, the rights of the beneficiary under the insurance contract are transferred to the new creditor in full.

5. ADDITIONAL TERMS

5.1. This Agreement is considered concluded and comes into force from the moment of its state registration.

5.2. After the registration of this Agreement, which consists in certification by making a special registration inscription on the Agreement, one original of the Agreement is transferred to the Pledgee, and the other to the Pledgor.

5.3. Change and termination of this Agreement are made by mutual agreement of the Parties in the manner prescribed by law by concluding an additional agreement in writing and registered in the manner prescribed by the legislation of the Russian Federation.

5.4. The costs of execution and registration of this Agreement by agreement of the Parties are assigned to the Pledgor.

6. RESPONSIBILITIES OF THE PARTIES

6.1. For non-fulfillment or improper fulfillment of obligations under the Agreement, the Parties shall be liable in accordance with the current legislation of the Russian Federation.

6.2. In case of violation by the Pledgor of clause 2.1 of the Agreement, the Pledgor will be obliged to pay the Pledgee a fine in the amount of ___% (________ percent) of the value of the Pledge. The fine shall be paid by the Pledgor within ____ working days from the date of receipt from the Pledgee of a written request for payment of the fine. Payment of the fine does not relieve the Pledgor from fulfilling his obligations under the Agreement.

7. TERM OF THE CONTRACT

7.1. The Agreement comes into force from the moment of its state registration in accordance with the procedure established by the legislation of the Russian Federation and is valid until the full fulfillment of the obligations of the Borrower under the Loan Agreement and the Pledgor under this Agreement.

8. FINAL PROVISIONS

8.1. All disputes arising in the process of execution of this Agreement will be preliminary considered by the Parties in order to develop a mutually acceptable solution. If an agreement is not reached, the dispute will be resolved in ____________ in accordance with the current legislation of the Russian Federation.

8.2. If one of the Parties changes its address, it will be obliged to inform the other Party about this before the state registration of the relevant changes in the constituent documents, but no later than _____ (_______) calendar days from the date of the actual change in bank details.
If one of the Parties changes the bank details, it is obliged to inform the other Party about this before the changes enter into force, but no later than _____ (__________) calendar days from the date of the actual change in bank details.

8.3. Any notification and other communication sent by the Parties to each other under the Agreement must be made in writing and signed by an authorized person. Such notification or message is considered to be properly sent if it is delivered by courier, faxed to the details specified in Art. 9 of this Agreement.

8.4. This Agreement is made in three copies - one copy for each of the Parties, one copy is stored in ___________.