Article 62
Land plots that can be mortgaged
1. Under a mortgage agreement, land plots may be mortgaged insofar as the corresponding land on the basis of federal law is not excluded from circulation or is not limited in circulation.
1.1. If a land plot is transferred under a lease agreement to a citizen or a legal entity, the lessee of the land plot has the right to pledge the lease rights of the land plot within the term of the land plot lease agreement with the consent of the owner of the land plot.
(Clause 1.1 was introduced by the Federal Law of 05.02.2004 N 1-FZ)
2. In case of common share or joint ownership of land plots specified in paragraph 1 of this article, a mortgage may be established only on a land plot belonging to a citizen or a legal entity, allocated in kind from lands that are in common shared or joint ownership.
Article 63.
Land plots not subject to mortgage
1. Mortgage of land plots in state or municipal ownership is not allowed in accordance with this Federal Law.
(Clause 1 as amended by Federal Law of 05.02.2004 N 1-FZ)
2. It is not allowed to mortgage a part of a land plot, the area of which is less than the minimum size established by regulatory enactments of the constituent entities of the Russian Federation and regulatory enactments of local government bodies for lands for various purposes and permitted use.
Section 64
Mortgage of a land plot on which there are buildings or structures belonging to the mortgagor
1. Unless otherwise provided by the mortgage agreement, in case of a mortgage of a land plot, the right of pledge to the buildings and structures of the pledger located or erected on this plot, including residential buildings, shall not apply.
In the absence in the contract of a condition stipulating that a building or structure belonging to the mortgagor located or being erected on the land plot is mortgaged to the same mortgagee, the mortgagor, when levying execution on the land plot, retains the right to this building or structure and acquires the right of limited use (easement) of that part of the site, which is necessary for the use of a building or structure in accordance with its purpose. The conditions for using this part of the site are determined by an agreement between the mortgagor and the mortgagee, and in the event of a dispute, by the court.
2. The pledger of a land plot shall have the right, without the consent of the pledgee, to dispose of the buildings and structures belonging to him on this plot, to which, in accordance with paragraph 1 of this article, the right of pledge does not apply.
When such a building or structure is alienated to another person and there is no agreement with the pledgee on other rights that this person may acquire on the mortgaged land plot, they are limited by the conditions provided for in part two of paragraph 1 of this article.
3. If a building or structure belonging to the mortgagor of a land plot, located or being erected on this land plot, is pledged to the same mortgagee, the right of the mortgagor to dispose of this building or structure, the conditions and consequences of the transfer of rights to this building or structure to other persons are determined by the rules of Chapter VI. of this Federal Law.
4. If on the pledged land plot from the composition of agricultural land there are buildings, structures, structures, including those erected on such a land plot, or other real estate objects firmly connected with the land plot, belonging on the same right to the owner of such a land plot, the mortgage of such a land plot is allowed only with a simultaneous mortgage of real estate objects firmly connected with it.
(Clause 4 was introduced by the Federal Law of 05.02.2004 N 1-FZ)
Section 65
Construction by the mortgagor of buildings or structures on the mortgaged land plot
1. On a land plot pledged under a mortgage agreement, the pledger shall have the right, without the consent of the pledgee, to erect buildings or structures in accordance with the established procedure, unless otherwise provided by the mortgage agreement. Unless otherwise provided by the mortgage agreement, the mortgage applies to these buildings and structures.
(as amended by Federal Law of 11.02.2002 N 18-FZ)
If the erection of a building or structure by the mortgagor on the mortgaged land plot entails or may result in deterioration of the security provided to the mortgagee by the mortgage of this land plot, the mortgagee has the right, in accordance with paragraph 2 of Article 450 of the Civil Code of the Russian Federation, to demand amendments to the mortgage agreement, including, if necessary, by extending the mortgage to the erected building or structure.
2. The erection of buildings or structures on the mortgaged land plot, if the rights of the mortgagee are certified by the mortgage, is allowed only if the mortgagor's right to this is provided for in the mortgage, subject to the conditions that are reflected in it.
Section 66
Mortgage of a land plot on which there are buildings or structures owned by third parties
If a mortgage is installed on a land plot on which a building or structure is located that does not belong to the pledger, but to another person, when the pledgee levies execution on this plot and its sale, the rights and obligations that the pledgor had as the owner of the plot are transferred to the acquirer of the plot. ...
Art 67
Valuation of a land plot with its mortgage (as amended by Federal Law of 05.02.2004 N 1-FZ)
1. The appraisal of the land plot is carried out in accordance with the legislation governing appraisal activities in the Russian Federation.
2. The pledge value of a land plot pledged under a mortgage agreement shall be established by agreement between the pledger and the pledgee.
3. A copy of the plan (drawing of boundaries) of this plot, issued by the relevant committee for land resources and land management, must be attached to the mortgage agreement for a land plot as a mandatory annex.
Section 68
Peculiarities of foreclosure on mortgaged land plots and their sale
1. Requirements for permitted use shall apply to a land plot acquired through a sale at a public auction, auction or competition.
A person who has acquired a land plot when it is sold at a public auction, auction or tender has the right to change the purpose of the plot only in the cases provided for by the land legislation of the Russian Federation, or in accordance with the procedure established by this legislation.
2. The sale and purchase of mortgaged land plots at a public auction, auction or competition shall be carried out in compliance with the restrictions established by federal law in relation to the circle of persons who can acquire such plots.
3. It is not allowed to foreclose on a mortgaged land plot from the composition of agricultural land before the expiration of the corresponding period of agricultural work, taking into account the time required for the sale of produced or produced and processed agricultural products.
This requirement is valid until November 1 of the year, which provides for the fulfillment of the obligation secured by the mortgage, or part of it, unless a different date is provided for by the mortgage agreement.
Establishes the possibility of obtaining a mortgage on the site. However, not all financial institutions have programs for buying land on credit.
Basically, money for the purchase of land plots is given out by large banks:
- Rosselkhozbank;
- Zapsibkombank, etc.
For details on which financial institutions provide loans for land, as well as what you need to pay attention to when choosing a bank, read in.
A mortgage on a plot is possible only if the selected land is not excluded from circulation. A prerequisite is that the allotment belongs to the lands of settlements with permitted use for individual housing or subsidiary farming (read about under what conditions and how to take a mortgage on a land plot, including for individual housing construction, read). Banks rarely accept allotments for agricultural purposes as collateral due to low liquidity and a complex foreclosure procedure.
Consider which land plots are not allowed for mortgage registration:
- state and municipal property;
- located in nature protection and reserve zones;
- the area of which is less than the minimum size established by the regulatory documents of the Russian Federation or local authorities.
Also you cannot get a mortgage on a part of the land... If the site is in common or shared ownership, then it must be allocated in kind.
Criteria and Requirements
What are the requirements of banks for the acquired land:
- It must belong to the lands of settlements. If the plot is bought for the purpose of building a residential building, then it must be suitable for the construction of structures.
- The area is not less than 6 acres.
- The territory must have clear boundaries and be cadastral.
- It must be located in the region where the bank branch is present. The distance from the nearest branch should be no more than 70-100 km.
- There must be a road to the site, which is accessible at any time of the year.
- Lack of encumbrance and arrest.
- In relation to the allotment, there should be no litigation concerning its boundaries.
- Site documents must be legally clean.
These are the basic requirements of banks. But when choosing a site, it is also important to take into account the criteria by which its liquidity will be assessed.
The bank is more willing to issue a loan if the borrower is going to acquire territory in a settlement with a developed infrastructure, with good access roads, with well-established communications and far from the place of household waste disposal.
What are the purposes of the loan?
It is also possible to get a land plot on a mortgage for the construction of a summer cottage, for gardening, as well as for running a personal subsidiary farm. A loan for the purchase of land for private household plots is issued only to owners of farms.
Allotment for farming can be purchased on a mortgage only to legal entities and individual entrepreneurs. For small and medium-sized businesses, banks have special programs, under the terms of which you can buy agricultural land. They are distinguished by higher rates and a more complex registration procedure.
Why don't all banks agree to the deal?
Land mortgages are not as common as home loans. This is due to the complexity of land valuation and the length of the foreclosure procedure.
Land, unlike apartments and houses, is not a highly liquid collateral... In case of non-payment of the loan by the borrower, the bank will be forced to confiscate the land through the court. And he will be able to get his money back only after the sale of the site at the auction. In practice, this procedure will take a long time. In this regard, not all Russian banks are ready to provide loans for land.
Advantages and disadvantages
If there is a need to purchase land, the borrower has several options: to save up on his own, take a regular consumer loan or get a mortgage. Each of these options has its own characteristics.
Consider the pros and cons of mortgage lending. Advantages:
Disadvantages:
- High rates compared to the rates offered by home loan programs.
- Big down payment. On average, the minimum down payment is 25-30% of the appraised value of the property.
- Allotment insurance is a mandatory requirement of banks.
- Strict requirements for collateral.
- The right of pledge extends not only to the site itself, but also to the buildings located on it.
Your own land is closer than it might seem, because collecting documents in order to get a mortgage on a land plot is a laborious, but quite real thing. You also need to seriously approach the site itself.
The registration procedure is practically no different from the stages of buying an apartment on credit. The main difficulty can arise when searching for a land plot. To find a suitable option that would suit the bank, it is advisable to contact an experienced realtor.
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In accordance with paragraph 3 of Art. 9 of the Law on Mortgages for a mortgage of a land plot, the assessment of the subject is determined in accordance with the legislation of the Russian Federation by agreement of the pledger with the pledgee in compliance with the requirements of Art. 67 of the Law on Mortgages. The assessment of the land plot must be indicated in the mortgage agreement in monetary terms.
If the subject of the mortgage is agricultural land, which is subject to the Law on Mortgage, the drafting and issuance of a mortgage is not allowed. In addition, the preparation and issuance of a mortgage is not allowed if the subject of the mortgage is the right to lease a land plot (clause 4 of article 13 of the Law on Mortgage).
In cases where the subject of the mortgage is a land plot from the composition of agricultural land, which is subject to the Law on Mortgage, at the request of the mortgagor, the court, if there are valid reasons, has the right, in the decision to foreclose on the mortgaged property, to postpone its sale for up to one year (p. 3 article 54 of the Law on Mortgage).
If the subject of the mortgage is a land plot, in the agreement on satisfying the claims of the mortgagee, concluded out of court, the parties are not entitled to provide for the acquisition of the mortgaged property by the mortgagee for himself or for third parties with a set-off against the purchase price of the claims of the mortgagee against the debtor secured by the mortgage. In this case, the parties are obliged to realize the sale of the pledged property either at an open auction or at an auction organized by the mortgagee (clause 3 of article 55 of the Law on Mortgages).
In the event that, when levying execution on a land plot as a subject of mortgage, this plot is acquired by the mortgagee (the mortgagee reserves the land plot for himself), and this land plot, by its nature and purpose, cannot belong to him, then he is obliged to alienate this land plot within a year. property in accordance with Art. 238 of the Civil Code of the Russian Federation (part 2, clause 4, article 58 of the Law on Mortgages).
Mortgages of enterprises, buildings or structures with the land plot on which they are located can only be carried out subject to the requirements established by the norms of Art. 69 of the Law on Mortgages.
The types of land plots that can be the subject of a mortgage are defined in Art. 62 of the Law on Mortgages.
Under a mortgage agreement, only the following land plots can be pledged: owned by citizens, their associations, legal entities and provided for gardening, animal husbandry, individual housing, summer cottage and garage construction; backyard plots of personal subsidiary plots; land plots occupied by buildings, structures or structures, in the amount necessary for their economic maintenance (functional support).
At the same time, the above plots must meet the following requirements: they must not apply to land plots that are not subject to mortgage in accordance with Art. 62 of the Law on Mortgages; they must be allocated in kind from land in common shared or joint ownership.
A number of concepts used in the Law on Mortgages are defined in Art. 1 of the Federal Law "On horticultural, vegetable gardening and dacha non-profit associations of citizens" dated April 15, 1998 No. 66-FZ.
In accordance with paragraph 2 of Art. 62 of the Federal Law on Mortgages, the subject of the claim was the debt of LLC Portal in the amount of 45,000,000 rubles under the loan agreement dated December 26, 2002 No. 4520623 and interest on the loan - 2026849 rubles 32 kopecks with foreclosure on the mortgaged property of the pledgers - OJSC Aleksandrovsky Radiozavod and ZAO Standard.
The court of first and appellate instances, having analyzed the evidence presented by the parties, reasonably satisfied the plaintiff's claims and collected, on the basis of Articles 309, 819, 334, 348, 349 of the Civil Code of the Russian Federation, the claimed amount of the loan debt, interest for using it by way of foreclosure on the property of JSC " Aleksandrovskiy Radiozavod ", pledged under the pledge agreement dated December 26, 2002 No. 45206323/1, and the property of ZAO Standard, pledged under the pledge agreement No. 45206323/2 dated December 26, 2002, setting the initial sale price of the property in the decision.
From the pledge agreement of the boiler house building and the land plot dated 01/05/2003, it follows that Standard CJSC pledged the boiler house building, located at the address: Aleksandrov, Vladimir region, st. Gagarina, house 2, with a total area of 1784.8 square meters and 106/1000 shares in the right of common shared ownership of a land plot with a total area of 248653 square meters, located at the indicated address with cadastral number 33:17:00 06 09: 0002.
In accordance with paragraph 3 of Art. 340 of the Civil Code of the Russian Federation, Art. 69 of the Federal Law "On Mortgage (Pledge of Real Estate)" mortgage of a building or structure is allowed only with a 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 the right of lease belonging to the pledger of this site or its corresponding part.
Proofs of pledging under the pledge agreement dated 01/05/2003, namely, of the part of the land plot that functionally provides the pledged object (boiler house building) has not been submitted to the case. The agreement on the pledge of the boiler house building, the land plot available in the case indicates that these are independent objects of pledge, the conditions for the simultaneous mortgage of the building and the land plot that functionally provide the pledged object, the mentioned agreement does not contain. The documents confirming the ownership of the pledged land plot also do not confirm these circumstances.
By virtue of Part 2 of Article 62 of the Federal Law "On Mortgages (Pledge of Real Estate)" in case of common shared or joint ownership of land plots, a mortgage can be established only on a land plot allocated in kind. The considered pledge agreement is inconsistent with the specified norm of the law.
In such circumstances, the court of first and appeal instances came to a lawful conclusion that the pledge agreement of 01/05/2003 was null and void. , - are unreasonable.
That is, the norm contained in paragraph 2 of Art. 62 of the Law on Mortgage, significantly limits, in comparison with the rules of the Civil Code of the Russian Federation, the right of a citizen or legal entity to conclude a mortgage agreement for a land plot that is in common shared or joint ownership. In accordance with paragraph 3 of Art. 253 of the Civil Code of the Russian Federation, each of the participants in joint ownership has the right to conclude transactions for the disposal of common property, unless otherwise follows from the agreement of all participants.
In accordance with Art. 63 of the Law on Mortgages, mortgages are not allowed: lands in state or municipal ownership; part of the land plot, the area of which is less than the minimum size established by the regulatory acts of the constituent entities of the Russian Federation and the regulatory acts of local governments for lands for various purposes and permitted use (clause 2 of article 63 of the Law on Mortgage).
So, when determining the subject of mortgage of land plots, it is necessary to take into account the provisions of the Civil Code of the Russian Federation, the Law on Mortgages and other regulatory legal acts.
In contrast to the legislation of the most developed foreign countries, according to which the mortgage of a land plot always presupposes a mortgage of the buildings and structures located on it, in the Russian pledge law the principle is enshrined in accordance with which, in the case of a mortgage of a land plot, the right of pledge on the buildings located or erected on this plot and structures of the pledger, including residential buildings, does not apply. However, this provision has a dispositive character, and the parties to the agreement may provide for the simultaneous mortgage of the land plot and the buildings and structures located on it.
In accordance with Art. 64 of the Law on Mortgages, unless otherwise provided by the mortgage agreement, when mortgaging a land plot, the right of pledge also extends to the building or structure of the pledger located or being built on the land plot. The pledger's right to dispose of such a building or structure, the conditions and consequences of the transfer of rights to such a building or structure to other persons are determined by the rules of Ch. VI of the Law on Mortgages. If there is a condition in the agreement stipulating that a building or structure located or under construction on a land plot and belonging to the mortgagor is not mortgaged to the same mortgagee, the mortgagor, when levying execution on the land plot, retains the right to such a building or structure and acquires the right of limited use (easement) of that part of the land plot, which is necessary for the use of such a building or structure in accordance with its purpose. The conditions for using the specified part of the land plot are determined by an agreement between the mortgagor and the mortgagee, and in the event of a dispute, by the court. The pledger of a land plot has the right, without the consent of the pledgee, to dispose of the buildings and structures belonging to him on this plot, for which, in accordance with paragraph 1 of Art. 64 of the Law on Mortgages, the right of pledge does not apply. When such a building or structure is alienated to another person and there is no agreement with the mortgagee about other rights that this person can acquire on the mortgaged land plot, they are limited by the conditions provided for in part 3 of paragraph 1 of Art. 64. If on the pledged land plot from the composition of agricultural land there are buildings, structures, structures, including those erected on such a land plot, or other real estate objects firmly connected with the land plot, belonging on the same right to the owner of such a land plot, a mortgage of a similar a land plot is allowed only with a simultaneous mortgage of real estate objects firmly connected with it.
Naturally, Article 64 of the Law on Mortgages cannot but contradict the same Law Code of the Russian Federation.
In accordance with Art. 1 of the Labor Code of the Russian Federation established the principle of the unity of the fate of the land plot and the real estate objects located on it. In accordance with paragraph 4 of Art. 35 of the Labor Code of the Russian Federation, the alienation of a land plot without buildings, structures, structures located on it is not allowed if they belong to one person. And when foreclosure is levied on the pledged property, it is the alienation of the property that will take place.
Clause 11 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 11 indicates that according to clause 4 of Article 35 of the Labor Code of the Russian Federation, the alienation of a building, structure, structure located on a land plot and belonging to one person, except for the cases indicated in it, is carried out together with the land plot. Alienation of a land plot without a building, structure, structure located on it, if they belong to one person, is not allowed.
Therefore, transactions, the will of the parties to which is aimed at alienating a building, structure, structure without a corresponding land plot or alienating a land plot without real estate objects located on it, if the land plot and the objects located on it belong to one person by right of ownership, are null and void.
The same procedure for the alienation of land plots belonging to one person and real estate objects located on them should also be applied upon termination of the right to land in the event of requisition, confiscation of a building, structure, structure, foreclosure on said property according to the obligations of its owner (Articles 242, 243, 237 of the Civil Code of the Russian Federation).
In accordance with Art. 6 of the Law on Mortgages, the mortgage of property withdrawn from circulation, property that cannot be foreclosed in accordance with federal law is not allowed. And, as we can see, collection on the land plot separately from the building is not allowed.
In addition, it is contrary to Article 64 of the Law on Mortgages and Art. 340 of the Civil Code of the Russian Federation, and Art. 69 of the Law on Mortgages, which do not allow the mortgage of a building without a simultaneous mortgage of the land plot on which this building is located, if the owner of both the building and the plot is the same person. It turns out that there is a complete lack of logic: if a building is transferred to a mortgage and the contract does not explicitly state that the land plot on which the mortgaged building is located is transferred to the mortgage simultaneously with the building, then no mortgage, by virtue of the law, does not apply to this plot, and the mortgage agreement is null and void deal. If a land plot is pledged without a simultaneous mortgage of the buildings located on it, then such a pledge is not an invalid transaction, and unless otherwise established by the parties, the mortgage is extended to the buildings on this plot by virtue of the law. What caused such an opposite approach to mortgages for a building and a land plot defies logical explanation. Equally, the last paragraph of the commented article, which prohibits the mortgage of a land plot without buildings located on it, does not lend itself to logical explanation, if this plot belongs to agricultural land. Why can a land plot, for example, from the land of settlements, intended for the operation of a building, be laid without the buildings located on it, but a land plot from agricultural land cannot? What caused this selective approach? Unfortunately, it is not even possible to guess what the legislator was guided by when writing the commented article.
Thus, Article 64 of the Law on Mortgages is contrary to Art. 1 and 35 of the RF Law Code. And since the transfer of property to a mortgage can lead to the alienation of this property, then, accordingly, a mortgage of a land plot without a simultaneous mortgage of a real estate object located on this site will be a void transaction. Consequently, in this case, the real estate object must be mortgaged together with the land plot, described on a par with the land plot in accordance with Art. 9 of the Law on Mortgages. Therefore, a mortgage agreement for a land plot with a real estate object located on it must be completely identical to a mortgage agreement for a real estate object with a simultaneous mortgage of a land plot, and the mortgage of a land plot with a real estate object located on it does not exist as an independent type of contract, and without a simultaneous mortgage of a real estate object is void transaction, and Article 64 of the Law on Mortgages is not subject to application as inconsistent with applicable law.
A characteristic feature of the Russian legal system is that real estate located on a land plot may belong to one person, while the land plot itself can be owned by others. Therefore, in the event that such a land plot was mortgaged under a mortgage agreement, and subsequently sold in the course of levying execution on it, the new owner of the land plot essentially replaces the mortgagor in its relationship with the owner of real estate.
In practice, the opposite situation sometimes arises when buildings or premises are rented without leasing the land plot on which they are located, as a result of which the Arbitration courts of first instance recognized such mortgage agreements as null and void. So, the limited liability partnership "Agricultural enterprise" Chelyabinskoye "filed a claim with the Arbitration Court of the Chelyabinsk Region against the open joint-stock company" South Ural Bank for Social Development "Reserve" for invalidating the pledge agreement of the meat processing shop dated July 30, 1997 and a notarial inscription on the prohibition of the alienation of the pledged property until the termination of the pledge agreement dated July 31, 1997 No. 1a-4 as the application of the consequences of the invalidity of the pledge. The claim was satisfied by the decision of 05/13/99.
In another case, the Limited Liability Partnership "Clothing Repair" applied to the Moscow Arbitration Court with a claim against the joint-stock commercial bank "Moscow Industrial Bank" to invalidate the agreement on pledge of non-residential premises dated 09.29.95 No. 118-z.
By the decision of 06/11/99, the claim was satisfied. The pledge agreement was recognized as a void transaction, since it does not contain information about the simultaneous mortgage of the premises and the land plot on which the premises are located, which contradicts clause 3 of Article 340 of the Civil Code of the Russian Federation and Article 69 of the Federal Law "On Mortgage" (real estate mortgage). By the decision of the appellate instance dated 20.07.99, the decision was left unchanged.
In both cases, the Presidium of the Supreme Court of the Russian Federation overturned the decisions made by lower courts, referring to 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 01.07.96 No. 6/8 "On some issues related to the application of part one of the Civil Code of the Russian Federation »Where it is explained that when the mortgagor of a building or structure is not the owner or lessee of the land plot, the mortgage agreement cannot be considered inconsistent with the legislation on the basis of paragraph 3 of Art. 340 of the Civil Code of the Russian Federation. The rights of the pledger, and when levying execution on a building or structure, the buyer's rights to a land plot should be determined on the basis of an article of the Land Code of the Russian Federation, according to which when the ownership of a building, structure is transferred or when they are transferred to other legal entities or citizens, together with these the objects also transfer the right to use the land plot.
In accordance with Article 69 of the Federal Law "On Mortgages", the right of mortgage does not apply to the right of permanent use of the land plot on which the building or structure is located to the mortgagor. When foreclosure is levied on a structure or building, a person who acquires this property in ownership acquires the right to use the land plot on the same conditions and in the same amount as the previous owner (pledger) of real estate. In such circumstances, the conclusion of the courts on the recognition of the disputed agreement on the pledge of real estate as a void transaction contradicts the current legislation.
In accordance with article 64.1 of the Law on Mortgages, unless otherwise provided by federal law or agreement, a land plot acquired using credit funds of a bank or other credit institution or funds of a targeted loan provided by another legal entity for the acquisition of this land plot is considered to be pledged from the moment of state registration of the borrower's ownership of this land plot.
If the relevant land plot is leased, a mortgage arises by virtue of the law for the right to lease, unless otherwise provided by federal law or the lease agreement.
The pledgee under this pledge is a bank or other credit organization or other legal entity that has provided a loan or target loan for the purchase of a land plot or the right to lease a land plot.
So, as a general rule, if the mortgage agreement or the agreement entailing the emergence of a mortgage by virtue of the law does not provide otherwise, when mortgaging a land plot, the right of pledge also applies to the building or structure of the pledger located or being constructed on the land plot.
Considering that land plots as objects of civil circulation have their own characteristics, the content of the powers of any land user, including the owner, is limited, for example, by the established requirements for the permitted use of a certain land plot.
In accordance with Art. 7 of the Labor Code of the Russian Federation, land in the Russian Federation for its intended purpose is divided into 7 separate categories, which are used in accordance with the intended purpose established for them. The legal regime of lands is determined on the basis of their belonging to a particular category and permitted use in accordance with the zoning of territories, the general principles and procedure for which are established by federal laws and the requirements of special federal laws. Any type of permitted use from the types provided for by the zoning of territories is selected independently, without additional permits and approval procedures.
Permitted use requirements apply to all land plots, including those acquired through a sale at a public auction, auction or competition.
An owner who has acquired a mortgaged land plot during the sale at a public auction, auction or tender has the right to change the purpose of the land plot in accordance with Federal Law No. 172-FZ of December 21, 2004 “On the transfer of land or land plots from one category to another. ".
In paragraph 2 of Article 69 of the Law on Mortgages, reference is made to restrictions on the circle of persons who can acquire land plots when sold at a public auction, auction or competition.
So, according to Art. 15 of the Labor Code of the Russian Federation, foreign citizens, stateless persons and foreign legal entities cannot own land plots located in the border territories, the list of which is established by the President of the Russian Federation in accordance with the federal legislation on the State Border of the Russian Federation, and in other specially established territories of the Russian Federation in accordance with federal laws.
Federal Law of July 24, 2002 No. 101-FZ "On the turnover of agricultural land" in Art. 3 it was established that foreign citizens, foreign legal entities, stateless persons, as well as legal entities, in the authorized (joint) capital of which the share of foreign citizens, foreign legal entities, stateless persons is more than 50%, can own land plots from the land for agricultural purposes only on a leasehold basis.
Federal Law No. 1-FZ of February 5, 2004 “On Amendments to the Federal Law“ On Mortgages (Real Estate Pledges) ”added clause 3 to the commented article, which established additional restrictions on foreclosure on a mortgaged agricultural land. If the court decides to levy execution on such a land plot, its implementation is postponed at least until the full expiration of the relevant period of agricultural work, taking into account the time required to sell the produced or produced and processed agricultural products. This rule allows the mortgagor to keep the products that he expects to receive from the land plot and in the receipt of which certain forces and funds were invested. Otherwise, the mortgagor may lose both the mortgaged land plot and the products that were not mortgaged.
To avoid interpretation of the timing of the completion of agricultural work, the legislator has defined November 1 of the year, which provides for the performance of the obligation secured by the mortgage, or part of it, as the date until which the sale of the pledged property is not allowed. Moreover, the parties may stipulate a different date in the mortgage agreement.
At the end of the consideration of the issue, we note that it should be borne in mind that in accordance with paragraph 3 of Art. 54 of the Law on Mortgages, upon the application of the pledger, the court, if there are valid reasons in the decision to foreclose on a land plot from among agricultural lands, has the right to postpone its implementation for up to one year.
Summarizing all of the above, the following conclusions can be drawn.
The pledge of land plots can arise only insofar as their turnover is permitted by federal laws. At the same time, an essential feature of the mortgage of land plots is the fact that the latter are divided into two types: those that can be the subject of mortgage, and those that are not subject to mortgage.
Under a mortgage agreement, land plots owned by citizens, their associations, legal entities and provided for gardening, animal husbandry, individual housing, summer cottage and garage construction, household plots of personal subsidiary plots and land plots occupied by buildings, structures or structures, in the amount necessary for their economic maintenance (functional support), as well as land plots from agricultural land. In case of common shared or joint ownership of the said land plots, a mortgage may be established only on a land plot belonging to a citizen or legal entity, allocated in kind from lands that are in common shared or joint ownership.
Mortgages of lands in state or municipal ownership are not allowed. It is also not allowed to mortgage a part of a land plot, the area of which is less than the minimum size established by regulatory enactments of both the constituent entities of the Russian Federation and local government bodies for lands for various purposes and permitted use.
The main data that must be specified in the mortgage agreement for the land plot are: location (postal address) of the pledged plot; its cadastral number; real estate objects located on the site (if any); land area; the main category (designated purpose) of the land located on the site, with an indication of the local government body in charge of these lands, and the purpose of using the land plot; the right under which the land plot belongs to the mortgagor (ownership), and the name of the body for state registration of rights to immovable property that registered this right of the mortgagor.
As for the appraisal of a land plot under its mortgage, according to Article 67 of the Federal Law "On Mortgage (Pledge) of Real Estate" it is carried out in accordance with the legislation governing appraisal activities in the Russian Federation. The mortgage value of the land plot is established in the mortgage agreement by agreement of the mortgagor with the mortgagee.
The mortgage agreement is subject to state registration, taking effect from the moment of the latter. Failure to comply with the rules for state registration of a mortgage agreement entails its invalidity. Such an agreement is considered null and void.
A land plot pledged under a mortgage agreement is considered to be encumbered with a mortgage from the moment the rights of the pledgee (right of pledge) arise, and if the obligation secured by the mortgage arose later, from the moment the obligation arose. This condition applies only to the parties to the mortgage agreement. For third parties, the mortgage is considered to have arisen from the moment of its state registration.
Article 62. Land plots that can be the subject of mortgage- Under a mortgage agreement, land plots may be pledged insofar as the corresponding land on the basis of federal law is not excluded from circulation or is not limited in circulation (clause as amended on February 10, 2004 by Federal Law of February 5, 2004 N 1- FZ, see previous edition). * 62.1)
1_1. If a land plot is transferred under a lease agreement to a citizen or a legal entity, the lessee of the land plot has the right to pledge the lease rights of the land plot within the term of the land plot lease agreement with the consent of the land plot owner (clause additionally included from February 10, 2004 by the Federal Law of February 5, 2004 year N 1-FZ).
- In case of common shared or joint ownership of land plots specified in paragraph 1 of this article, a mortgage may be established only on a land plot belonging to a citizen or legal entity, allocated in kind from lands that are in common shared or joint ownership.
- Mortgage of land plots in state or municipal ownership is not allowed in accordance with this Federal Law (clause as amended by Federal Law of February 5, 2004 No. 1-FZ) ...
- It is not allowed to mortgage a part of a land plot, the area of which is less than the minimum size established by regulatory enactments of the constituent entities of the Russian Federation and regulatory enactments of local self-government bodies for lands for various purposes and permitted use. * 63.2)
- Unless otherwise provided by the mortgage agreement, in the case of a mortgage of a land plot, the right of pledge also extends to the building or structure of the pledger located or being constructed on the land plot.
The pledger's right to dispose of such a building or structure, the conditions and consequences of the transfer of rights to such a building or structure to other persons are determined by the rules of Chapter VI of this Federal Law.
If the agreement contains a condition stipulating that the building or structure located or under construction on the land plot and belonging to the pledgor is not pledged to the same pledgee, the pledgor, when levying execution on the land plot, retains the right to such a building or structure and acquires the right of limited use (easement) of that part of the land plot, which is necessary for the use of such a building or structure in accordance with their purpose. The conditions for the use of this part of the land plot are determined by an agreement between the mortgagor and the mortgagee, and in the event of a dispute, by the court.
(Clause as amended by Federal Law of December 30, 2004 N 216-FZ - see previous edition) - The pledger of a land plot has the right, without the consent of the pledgee, to dispose of the buildings and structures belonging to him on this plot, to which, in accordance with paragraph 1 of this article, the right of pledge does not apply.
If such a building or structure is alienated to another person and there is no agreement with the pledgee on other rights that this person can acquire on the mortgaged land plot, they are limited by the conditions provided for in part three of paragraph 1 of this article (paragraph as amended from January 11, 2005 Federal Law of December 30, 2004 N 216-FZ - see the previous edition).
- The clause became invalid on January 11, 2005 - Federal Law of December 30, 2004 N 216-FZ. - See previous edition.
- If on the mortgaged land plot from the composition of agricultural land there are buildings, structures, structures, including those erected on such a land plot, or other real estate objects firmly connected with the land plot, belonging on the same right to the owner of such a land plot, the mortgage of such a land plot is allowed only with a simultaneous mortgage of real estate objects firmly connected with it (the item is additionally included from February 10, 2004 by Federal Law of February 5, 2004 N 1-FZ).
- Unless otherwise provided by federal law or agreement, a land plot acquired using credit funds of a bank or other credit institution or funds of a target loan provided by another legal entity for the acquisition of this land plot is considered to be pledged from the moment of state registration of the borrower's ownership of this land plot.
If the relevant land plot is leased, a mortgage arises by virtue of the law for the right to lease, unless otherwise provided by federal law or the lease agreement.
The pledgee for this pledge is a bank or other credit organization or other legal entity that has provided a loan or target loan for the purchase of a land plot or the right to lease a land plot.
- The pledge of a land plot or the right to lease a land plot arising on the basis of paragraph 1 of this Article shall be subject to the rules on the pledge of immovable property arising by virtue of the contract and the right to lease immovable property.
- Unless otherwise provided by federal law or agreement, a land plot on which, using the credit funds of a bank or other credit institution or funds of a target loan provided by another legal entity for the construction of a building or structure, a building or structure has been built or is under construction, or the right to lease such land the site is considered to be pledged from the moment of state registration of the borrower's property rights to a building or structure constructed or under construction, or from the moment the body carrying out state registration of rights receives a notification of the contract.
- The pledge holder for the pledge specified in paragraph 1 of this article is a bank or other credit organization or other legal entity that has provided a loan or a targeted loan for the construction of a building or structure.
(The article is additionally included from January 11, 2005 by the Federal Law of December 30, 2004 N 216-FZ)
- On a land plot pledged under a mortgage agreement, the mortgagor shall have the right to erect buildings or structures in accordance with the established procedure without the consent of the mortgagee, unless otherwise provided by the mortgage agreement. Unless otherwise provided by the mortgage agreement, the mortgage applies to these buildings and structures (the paragraph as amended by Federal Law of February 11, 2002 N 18-FZ).
If the erection of a building or structure by the mortgagor on the mortgaged land plot entails or may result in deterioration of the security provided to the mortgagee by the mortgage of this land plot, the mortgagee has the right, in accordance with paragraph 2 of Article 450 of the Civil Code of the Russian Federation, to demand amendments to the mortgage agreement, including, if necessary, by extending the mortgage to the erected building or structure.
- The erection of buildings or structures on the mortgaged land plot, if the rights of the mortgagee are certified by the mortgage, is allowed only if the mortgagor's right to this is provided for in the mortgage, subject to the conditions that are reflected in it.
If a mortgage is installed on a land plot on which a building or structure is located that does not belong to the pledger, but to another person, when the pledgee levies execution on this plot and its sale, the rights and obligations that the pledgor had as the owner of the plot are transferred to the acquirer of the plot. ...
Article 67. Valuation of a land plot in case of its mortgage
- The appraisal of the land plot is carried out in accordance with the legislation governing appraisal activities in the Russian Federation. * 67.1)
- The collateral value of a land plot pledged under a mortgage agreement is established by agreement between the mortgagor and the mortgagee.
- A copy of the plan (drawing of boundaries) of this site, issued by the relevant committee for land resources and land management, must be attached to the mortgage agreement for a land plot as a mandatory annex.
(The article as amended by the Federal Law of February 5, 2004 N 1-FZ, entered into force on February 10, 2004 - see the previous edition)
- A land plot acquired through a sale at a public auction, auction or competition is subject to the requirements for permitted use.
A person who has acquired a land plot when it is sold at a public auction, auction or through a tender has the right to change the purpose of the plot only in cases stipulated by the land legislation of the Russian Federation, or in the manner established by this legislation. * 68.1.2)
- The sale and purchase of mortgaged land plots at a public auction, auction or competition shall be carried out in compliance with the restrictions established by federal law with respect to the circle of persons who can acquire such plots. * 68.2)
- It is not allowed to foreclose on a mortgaged land plot from the composition of agricultural land before the expiration of the corresponding period of agricultural work, taking into account the time required for the sale of produced or produced and processed agricultural products.
This requirement is valid until November 1 of the year, which provides for the fulfillment of the obligation secured by the mortgage or part thereof, unless a different date is provided for by the mortgage agreement.
(Clause is additionally included from February 10, 2004 by Federal Law of February 5, 2004 N 1-FZ).
The mortgage of land plots in state or municipal ownership is not allowed in accordance with the Federal Law on mortgage. As a rule, these are lands of settlements, transport, communications, radio broadcasting, television, informatics, lands for ensuring space activities, lands for defense, security and lands for other special purposes; lands of specially protected areas and objects; forest lands; water fund lands; reserve land, although there may be exceptions.
Prior to the adoption of the Federal Law on the turnover of agricultural land, mortgage of agricultural land from the land of agricultural organizations, peasant (farmer) households and field land plots of personal subsidiary plots was also not allowed. According to article 7 of the Federal Law of July 24, 2002 No. 101-FZ "On the turnover of agricultural land", the mortgage of land plots from agricultural land is carried out in accordance with the Federal Law on mortgage.
According to article 27 of the Land Code of the Russian Federation, the turnover of agricultural land is regulated by the federal law on the turnover of agricultural land, but this rule does not apply to land plots provided from agricultural land to citizens for individual housing, garage construction, personal subsidiary and suburban farming, gardening, livestock and truck farming, as well as on land plots occupied by buildings, structures, structures. Federal Law No. 1-FZ of February 5, 2004 amended the Federal Law on Mortgages.
It should be noted that the institution of pledge of agricultural land is sometimes practically the only way to provide loans in agriculture. On the other hand, given that it is impossible (or very difficult) to change the purpose of the land, the state and the consumer will not be deprived of agricultural products; on the contrary, such a pledge will serve to redistribute land in favor of the most efficient owners - agricultural commodity producers.
It is not allowed to mortgage a part of an agricultural land plot, the area of which is less than the minimum size established by regulatory enactments of the constituent entities of the Russian Federation and regulatory enactments of local governments for lands for various purposes and permitted use (Article 4 of the Federal Law on the turnover of agricultural land). This measure is envisaged in order to prevent the undesirable fragmentation of agricultural land into excessively small areas, in order to maintain the optimal size of agricultural land.
A pledge of a land plot that is in inherited life possession is not allowed (). There are also restrictions on pledging land to foreigners: in border areas, pledging of land of any category is not allowed, and it is not allowed to pledge agricultural land to foreigners. Foreign citizens, stateless persons and foreign legal entities cannot own land plots located in the border territories, the list of which is established by the President of the Russian Federation in accordance with the federal legislation on the State Border of the Russian Federation, and in other specially established territories of the Russian Federation in accordance with federal laws (article 15 of the Land Code of the Russian Federation).
Foreign citizens, foreign legal entities, stateless persons, as well as legal entities, in the authorized (pooled) capital of which the share of foreign citizens, foreign legal entities, stateless persons is more than 50%, may own land plots or shares in the right of common ownership on land plots from agricultural land only on the basis of a lease (Article 3 of the Federal Law on the turnover of agricultural land), therefore, it can be concluded that such persons cannot be mortgagees. If, nevertheless, such a person became the owner of a land plot, he becomes obliged to alienate the land plot from agricultural land or a share in the common ownership of a land plot from agricultural land that cannot belong to him by right of ownership (Article 5 of the Federal Law on agricultural land turnover).