The amendments to the Tax Code of the Russian Federation concerning the amount of state duty for notarial acts came into force on January 7, 2012.
RULES FOR THE CREATION AND REGISTRATION OF MORTGAGE
In case of a mortgage of a land plot, the pledge right in any case also extends to the building or structure belonging to the pledgor and located or being built on the land plot.
According to clause 1 of Article 64 of the Federal Law of July 16, 1998, "On Mortgage (Pledge of Real Estate)" (hereinafter – the Mortgage Law) as amended by Law No. 405-FZ, in case of a mortgage of a land plot, the pledge right also extends to the building or structure belonging to the pledgor and located or being built on it.
Before the entry into force of Law No. 405-FZ, the law provided that otherwise (i.e., non-extension of the mortgage to buildings or structures) could be stipulated by the mortgage agreement (agreement entailing the emergence of a mortgage by operation of law). However, it is unclear from the Mortgage Law as amended by Law No. 405-FZ whether a separate application from the pledgee (pledgor) must be submitted for state registration of the mortgage agreement, since according to Law No. 405-FZ, state registration of a mortgage by operation of law is carried out on the basis of an application from the pledgee (or the pledgor, or the notary who notarized the agreement entailing the emergence of the mortgage by operation of law). Meanwhile, pursuant to clause 1 of Article 11 of the Mortgage Law, the state registration of an agreement entailing the emergence of a mortgage by operation of law is the grounds for making an entry on the emergence of the mortgage in the Unified State Register of Rights to Real Estate and Transactions Therewith (hereinafter – USRRE/EGRP). In this regard, until the Instruction on the Procedure for State Registration of Mortgage of Real Estate Objects is amended to directly regulate this issue, it is advisable for the pledgee to submit a separate application for state registration of the mortgage of the building (structure).
Furthermore, if the issue of automatic extension of the mortgage to a building (structure) in case of a mortgage of a land plot can now be considered resolved, the issue of extending the mortgage to a building (structure) in case of a pledge of the right to lease a land plot remains unaddressed in the law. Meanwhile, in practice, this issue is resolved by courts differently, despite the provision of clause 5 of Article 5 of the Mortgage Law, according to which the rules on mortgage of real estate apply to the pledge of lease rights, unless otherwise established by federal law and unless it contradicts the essence of lease relations. In this connection, it is advisable for the parties to specify in the agreement on the pledge of the right to lease a land plot that the pledge right also extends to the buildings or structures belonging to the pledgor and located or being built on the land plot.
If the pledgor holds the land plot under a leasehold right, upon mortgage of buildings or structures located on this land plot, the right to lease the land plot is also deemed pledged
According to part 3 of Article 69 of the Mortgage Law as amended by Law No. 405-FZ, if the pledgor holds the land plot under a leasehold right, upon mortgage of buildings or structures located on it, the right to lease the land plot is also deemed pledged. Before the entry into force of Law No. 405-FZ, for such a case, granting the right to lease the land plot as mortgage was required. This change means that for the mortgage of a building (structure) and for the transfer as pledge of the right to lease the land plot on which it is located, the validity of the mortgage is not affected by the absence of the lessor's consent to the pledge of the lease right (including the case where the land plot lease agreement requires obtaining the lessor's consent for the pledge).
The rules regarding the mortgage of the land plot and the necessity of its separate and simultaneous provision upon mortgage of a building (structure) remain unchanged.
In case of a mortgage of non-residential premises, along with the non-residential premises, the share in the ownership right to the common property in the building and the share in the ownership right to the land plot (rights of a co-lessee of this land plot) belonging to the pledgor are deemed pledged.
According to part 5 of Article 69 of the Mortgage Law as amended by Law No. 405-FZ, in case of a mortgage of non-residential premises, along with the non-residential premises, the share in the ownership right to the common property in the building and the share in the ownership right to the land plot (rights of a co-lessee of this land plot) belonging to the pledgor are deemed pledged.
Previously, this position was enshrined in clause 3 of the Information Letter of the Presidium of the Supreme Arbitrazh Court of the Russian Federation No. 90 dated January 28, 2005, "Review of Practice of Consideration by Arbitrazh Courts of Disputes Related to Mortgage Agreements" and clause 11 of the Resolution of the Plenum of the Supreme Arbitrazh Court of the Russian Federation No. 10 dated February 17, 2011, "On Some Issues of Application of Legislation on Pledge." The specified rules are now directly enshrined by Law No. 405-FZ.
An application from the pledgor or pledgee is required for registration of a mortgage by operation of law
According to clause 2 of Article 20 of the Mortgage Law as amended by Law No. 405-FZ, state registration of a mortgage by operation of law is carried out on the basis of an application from the pledgee, or the pledgor, or the notary who notarized the agreement entailing the emergence of the mortgage by operation of law.
Before the entry into force of Law No. 405-FZ, submission of an application was not required if it could be established from the documents submitted for state registration of the right (transfer of right) that the real estate object is the subject of a mortgage arising on the basis of law. However, if this could not be established, then submission of a joint application of the pledgor and pledgee with attached documents confirming the emergence of the mortgage on the basis of law was required.
The new rule on the mandatory submission of an application for state registration of a mortgage also applies to the following cases of its emergence by operation of law:
Mortgage of buildings, structures, and non-residential premises acquired using credit funds from a bank or other credit institution or funds from a targeted loan from a legal entity (the listed objects are pledged to the respective pledgee from the moment of state registration of the mortgage in the USRRE according to Article 69.1 of the Mortgage Law as amended by Law No. 405-FZ);
Mortgage of residential buildings and apartments acquired (constructed) using a loan from a bank or other credit institution or funds from a targeted loan from a legal entity (the listed objects are pledged to the respective pledgee from the moment of state registration of the mortgage in the USRRE according to Article 77 of the Mortgage Law as amended by Law No. 405-FZ).
Timeframes for mortgage registration have been reduced
Law No. 405-FZ reduces the state registration period in the USRRE for mortgages of land plots, buildings, structures, and non-residential premises from one month from the date of acceptance of the application and necessary documents to fifteen working days, and if the mortgage arose on the basis of a notarized mortgage agreement (notarized agreement entailing the emergence of a mortgage by operation of law), then to five working days. This reduction is due to the fact that, according to Law No. 405-FZ, upon notarization of a mortgage agreement (agreement entailing the emergence of a mortgage by operation of law), the notary must conduct a legal examination of the documents and verify the legality of the transaction.
If buildings (structures, constructions) are located on a land plot, then state registration of the mortgage on it is carried out within the period provided for state registration of the mortgage on the buildings (structures, constructions) located on this land plot.
Furthermore, according to clause 1 of Article 21 of the Mortgage Law as amended by Law No. 405-FZ, suspension or termination of state registration of a mortgage is allowed only on the basis of a joint application of the parties to the transaction, and not upon application of one of the parties to the transaction, as is allowed (except for transactions for the acquisition of residential premises) before the entry into force of Law No. 405-FZ.
The notary conducts a legal examination of documents and the legality of the transaction upon notarization of the mortgage agreement (agreement entailing the emergence of a mortgage by operation of law)
By virtue of Law No. 405-FZ, upon state registration of a mortgage based on notarized mortgage agreements or agreements entailing the emergence of a mortgage by operation of law, the responsibility for the legal examination of documents and the legality of the transaction lies with the notary who notarized the agreement. The notary is also responsible for the validity of other documents submitted by him for state registration of the mortgage.
Such changes echo the draft Civil Code of the Russian Federation, the latest version of which provides for the following: 1) unless otherwise established by law, a transaction entailing the creation, modification, or termination of rights that are subject to state registration must be notarized, and 2) notarization of a transaction, meaning verification of the legality of its content, as well as the right of a party to enter into it, is carried out by a notary or another official authorized to perform such notarial act in the manner prescribed by the law on notaries.
Notarization of a transaction means verification of the legality of the content of the transaction, as well as the right of a party to enter into it, and is carried out by a notary or another official having the right to perform such notarial act in the manner prescribed by the law on notaries and notarial activities.
Satisfaction of the secured obligation in case of impossibility to dispose of the subject of mortgage of residential premises
If the pledgee retains the subject of the mortgage – residential premises – in case repeated public auctions are declared failed, the indebtedness under the obligation secured by the mortgage of the residential premises is deemed satisfied. According to the Mortgage Law as amended by Law No. 405-FZ, the obligation secured by the mortgage of residential premises is deemed satisfied (and the pledgee has no right to demand the deficient amount from the debtor) if:
the subject of the mortgage is residential premises;
the amount of the obligation secured by the mortgage is less than or equal to the value of the pledged property determined at the time of the mortgage's creation;
the pledgee retains the subject of the mortgage – residential premises;
l the value of the residential premises is insufficient for full satisfaction of the pledgee's claims (clause 5 of Article 61 of the Mortgage Law as amended by Law No. 405-FZ).
Arrest of pledged property to secure a claim of a recoverer who has no priority over the pledgee in the satisfaction of claims is not allowed
According to part 3.1 of Article 80 of the Federal Law of October 2, 2007, "On Enforcement Proceedings" as amended by Law No. 405-FZ, arrest of pledged property to secure a claim of a recoverer who has no priority over the pledgee in the satisfaction of claims is not allowed.