Mortgage (pledge) contract for buildings and structures. Mortgage problems of non-residential buildings (premises) Obtaining a loan secured by a building, what to do with land

The form of the document “Real estate pledge agreement” refers to the heading “Loan agreement, pledge agreement”. Save a link to the document in social networks or download it to your computer.

CONTRACT
pledge of real estate (mortgage)

__________________ "___"_____________________ 200___

____________________________________________________________________________,
(name of company)
in the person of ________________________________________________________________________,

acting on the basis __________________________________________________,
hereinafter referred to as the Pledgor, and _____________________________________________________,
(name of company)
in the person of ___________________________________________________________,
(surname, initials, position)
acting on the basis ______________________________________________,
(charter, regulations, powers of attorney)
hereinafter referred to as the Pledgee, 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 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. m, at the address: ________________________________________________,
(in words)
under the inventory number according to a copy of the explication of the Territorial Bureau of Technical Inventory ____________________________ dated "___" ___________________ ____, compiled as of "___" ___________________ ____, which is an integral part of the Agreement (Appendix No. 1).
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 "____" _________________________ ____, 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 mortgaged building located 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, is confirmed by a certificate of state registration of rights ___________________ dated __________, No. ______________, series ______________, as evidenced in the Unified State Register of Rights to Real Estate and Transactions with It "___" ____, registration No. _____________ (register item number).
1.4. The right of lease of the Pledgor to the land plot specified in sub. 1.2.2 of the Agreement, is confirmed by the Lease Agreement for a land plot No. ________________ dated "___" ___________________ ____, concluded from _______________ for a period up to ____________ and recorded in the register of _______________ under No. _________ dated "___" _______________ ____.
1.5. The inventory value specified in sub. 1.2.1 of the property is ____________________ rubles, which is confirmed by certificate No. _____ dated "__" _____________ ___, issued by the Territorial BTI ___________.

1.6. The standard price of the land plot specified in sub. 1.2.2 of this Agreement, in accordance with ____________________, on the day of signing the Agreement amounts to ______________________ rubles, based on the land tax rate of ____________________ rubles per hectare.
1.7. The subject of the pledge as a whole is estimated by the Parties at _____________________ 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.
1.8. 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
SECURATED

2.1. The subject of the pledge secures the fulfillment of the obligations of ________________________________, (hereinafter referred to as the "Borrower") to ________________________________ under the Loan Agreement No. ___________________ dated "___" __________________ ____ (hereinafter referred to as the "Loan Agreement"), which comes 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 ____________________________________ under the surety agreement No. ________ dated "___" __________________ ____. In case of partial fulfillment of the obligation stipulated 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 ____________________ (_______________________________________________) US dollars for ______ years. Amount of credit
(in words)
issued within three banking days from the date of registration of this Agreement and Pledge Agreement No. ______ dated "___" ____________________ ____ in ______________________.
2.3. Interest rate on the loan is ____% per annum.
2.4. The increased interest rate is ___% per annum of the amount of overdue debt for each day of delay.
2.5. Purpose of lending: ________________________________.

3. GUARANTEES OF THE PARTIES
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, which is confirmed by information from the Unified state register rights No. ___________ dated "___" _______________________ ____, issued by _________________________________________________________________________________.
3.1.3. There are no objections to encumbrance of the land plot by pledge, which is confirmed by ____________________________.
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 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 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 ___________ 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 ensures the requirements of the Pledgee for 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 of the Subject of Pledge is used to repay the debt under the Loan Agreement in the following order:
a) for reimbursement of legal and other expenses for debt collection;
b) to pay fines and penalties;
c) for the payment of overdue interest on the loan;
d) to pay term interest;
e) to pay off overdue loans;
e) 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. 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 amendment and termination of this Agreement shall be 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 accordance with the procedure established by the legislation of the Russian Federation.
6.4. The costs of execution, 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 sub-clause 4.1.6 of this Agreement, the Pledgor will be obliged to pay the Pledgee a fine in the amount of ________% (_________________________ percent)
(in words)
from the value of the Pledge item specified in clause 1.7 of the Agreement.
The fine shall be paid by the Pledgor within five 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 no agreement is reached, the dispute will be resolved in __________________________________________ in accordance
(time period)
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 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 _______ (_____________________________)
(in words)
calendar days from the date of actual change of 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 this Agreement.
9.4. This Agreement is an integral part of the Loan Agreement No. __________________ dated "___" _____________ ____ and the Guarantee Agreement No. _________ dated "___" _______________ ____
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.

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 money;
• 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 the minimum size, for which other rules apply, Article 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 a total area of ​​649.4 sq. m;
• 1/20 share of the land plot with a total area of ​​920 sq. m.

The court considered that the parties agreed on all the 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: the name, area, location, cadastral number were present. 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 term 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 that:

• 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. The court examined the balance sheet of the defendant's company and found that, taking into account the financial results, the transaction does not belong to the category of large ones (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

property (apartments) Gr. , passport: series , number , issued by , residing at the address: , hereinafter referred to as " mortgagee”, on the one hand, and in the person acting on the basis of , hereinafter referred to as “ Borrower-Pledger”, on the other hand, hereinafter referred to as the “Parties”, have concluded this agreement, hereinafter “ Treaty" about the following:

1. THE SUBJECT OF THE AGREEMENT

1.1. In accordance with this agreement, the Pledgee accepts, and the Borrower-Pledger transfers as security for the repayment of the loan in accordance with the loan agreement No. dated "" 2020, concluded between and for the amount of rubles for a period, an apartment belonging to him on the right of ownership, located at:. The parties determined the cost of the apartment in the amount of rubles.

1.2. The apartment (address: ) is owned by the Borrower-Pledgor on the basis of .

1.3. The apartment specified in clause 1.1 remains with the Borrower-Pledger for the entire duration of this agreement.

2. RIGHTS AND OBLIGATIONS OF THE PARTIES

2.1. The Borrower-Pledgor is obliged:

• jointly with the Pledgee to register this agreement in the manner prescribed by the current legislation of the Russian Federation;
• take appropriate measures to preserve the apartment, including current and major repairs;
• make the necessary utility payments;
• at the request of the Pledgee, transfer to him notarized copies of documents confirming the ownership of the Borrower-Pledgor to the mortgaged apartment;
• guarantee that on the day of conclusion of this agreement the apartment specified in this agreement belongs to him by right of ownership, and is not a subject of pledge under other agreements and cannot be alienated on other grounds by third parties, is not in dispute and is not under arrest;
• immediately notify the Pledgee of the intention to lease the subject of pledge or as a pledge to fulfill an obligation not provided for by this agreement.

2.1.1. The Borrower-Pledgor has the right:

• own and use the mortgaged apartment in accordance with its purpose;
• with the written consent of the Pledgee, dispose of the subject of pledge by alienating it with the transfer to the acquirer of the debt under the obligation secured by the pledge or by leasing it.

2.2. The pledgee is obliged:

• together with the Borrower-Pledger to register this agreement in the manner prescribed by the current legislation of the Russian Federation;
• pay all costs for registration of this agreement.

2.3. The mortgagee has the right:

• check according to the documents and in fact the availability, condition and conditions of the mortgaged apartment;
• require the Borrower-Pledger to take measures necessary to keep the subject of pledge in proper condition;
• demand from any person the cessation of encroachments on the mortgaged apartment, threatening its loss or damage.

2.4. The pledgee, without additional agreement, acquires the right to foreclose on the subject of pledge (clause 1.1 of this agreement), if at the time of the due date for the fulfillment of the obligation secured by the pledge, it is not fulfilled, or when, by virtue of law, the Pledgee has the right to collect earlier.

3. SPECIAL CONDITIONS

3.1. The subject of pledge under this agreement (apartment) may be replaced by other property by agreement of the parties. The agreement of the parties on the replacement of the pledged property is drawn up in writing in accordance with the current legislation of the Russian Federation and is an integral part of this agreement.

3.2. The relationship of the parties, not directly regulated by this agreement, is regulated by the current legislation of the Russian Federation.

3.3. The pledge secures the claims of the Pledgee to the extent that they exist by the time they are actually satisfied, including interest, losses caused by delay in performance, as well as penalties and others.

3.4. In case of partial fulfillment by the Borrower-Pledgor of the obligation secured by the pledge, the pledge shall be retained in its original volume until the full fulfillment of the obligation secured by it.

3.5. The pledge remains valid if the ownership of the mortgaged apartment passes to a third party.

3.6. All expenses for registration of this agreement shall be borne by the Pledgee.

4. PROCEDURE FOR RESOLUTION OF DISPUTES AND CLAIMS

4.1. Disputes and claims arising from this agreement are resolved by the parties through negotiations.

4.2. In case of failure to reach an agreement through negotiations, disputes and disagreements shall be resolved in court in accordance with the legislation of the Russian Federation.

5. AMENDMENT, TERMINATION AND TERMINATION OF THE CONTRACT

5.1. Amendment and termination of this agreement is made by mutual agreement of the parties.

5.2. This agreement is terminated:

• upon termination of the obligation secured by the pledge;
• upon transfer of the right to the subject of pledge to the Pledgee;
• upon reaching the written consent of the parties to terminate this agreement.

6. TERM OF THE CONTRACT

6.1. This agreement comes into force from the moment of its state registration and is valid until the full fulfillment of the terms of the agreement.

6.2. The term of the contract may be extended by agreement of the parties.

6.3. The Agreement is made in two copies, having the same legal force - one copy for each of the parties.

6.4. Attachments to the contract:

1. The act of appraising the value of the apartment.
2. Documents certifying the ownership of the Borrower-Pledgor to this apartment.

7. LEGAL ADDRESSES AND DETAILS OF THE PARTIES

mortgagee Registration: Postal address: Passport series: Number: Issued by: By: Phone:

Borrower-Pledger Jur. address: Postal address: TIN: KPP: Bank: Settlement/account: Corr./account: BIC:

8. SIGNATURES OF THE PARTIES

Pawnee _________________

Borrower-Pledgor _________________

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
To the pledgor on the right of ownership of immovable property 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 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 the inventory number according to a copy of the explication of the Territorial Bureau of Technical Inventory __________ dated "______" __________, compiled as of "_____" _______ ___, which is an integral part of the Agreement (Appendix No. 1).
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 “____” _________ ____, 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 mortgaged building located 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 state registration record 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. The inventory value specified 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 issued within three banking days from the date of registration of this Agreement with 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 Pledge Item 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 Stop foreclosing the Subject of Pledge in case of early repayment of the obligation secured by the pledge.
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 performance of 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. Foreclosure on the subject of pledge
5.1. The Pledgee has the right to foreclose on the Subject of the Pledge in case of non-fulfillment by the Pledgor of the obligations specified in the terms of the Loan Agreement, after the expiration of ________________________________
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 the following 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 the prescribed manner 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 the manner prescribed by law by concluding an additional agreement registered in the manner prescribed 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 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.
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 If one of the Parties changes bank details or other details, it is obliged to inform the other Party about this before the changes take effect, but no later than () calendar days from the date of the actual change in 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 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 of the Civil Code of the Russian Federation, the fulfillment of an obligation may be secured by a penalty, pledge, retention of the debtor's property, surety, bank guarantee, deposit and in other ways provided by law or contract.

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 have 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 having the right of economic management to it can be a pledger of a thing.

This wording is essential 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).

This has been repeatedly brought to the attention of the Supreme Arbitration Court of the Russian Federation. 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, the necessary requirement for the pledgor is the existence of the right of ownership to the mortgaged property or the right of economic management of it.

AT 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 a necessary condition for the validity of a 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 pledgor 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 norm will contribute to the development of mortgage lending.

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

We are talking about 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 trials conducted by the author of this article in the Moscow Arbitration Court, where the said Resolution 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 a legal assessment of 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 the Expanded Clay Gravel Plant CJSC, evaluate the company's charter in terms of its compliance with the legislation on joint-stock companies and draw 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 other regulations governing collateral relations do 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 pledger 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, the competence of the 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 the General Director 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 is known, the land, as a general rule, is with the owners of buildings only on the right of lease, and not ownership. Accordingly, when mortgaging, for example, 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 obligatory pledge of 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 example, a pledge of the right to lease that share of land, which corresponds to the share of the premises in the building.

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 unimportant premises. Accordingly, from a legal point of view, not the entire building will be mortgaged, but only 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 invalidation of the agreement on the pledge of non-residential premises located on the 1st floor of the building was considered.

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 (mortgagor) of real estate (Article 69 of the Federal Law " On Mortgage", paragraph 45 of the Resolution of the Plenum 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 the first part of the Civil Code of the Russian Federation").

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