Instructions on how to remove the encumbrance after paying off the mortgage

What does it mean to encumber a mortgage by force of law?

A mortgage by law arises when a buyer takes out a loan to purchase a home, and the apartment becomes collateral for the loan.
It is issued automatically upon registration of ownership of real estate . There is no state fee for such a mortgage.

If the parties are not interested in such a mortgage, this can be stated in the purchase and sale agreement in words, in accordance with clause 5 of Art. 488 of the Civil Code of the Russian Federation (payment for goods sold on credit).

In addition to the legal mortgage, there is also a mortgage by virtue of an agreement - the bank issues a loan for the purchase of real estate and no encumbrances will be present in the documents for the apartment. This option is less common.

Mortgage by agreement

Federal Law of July 16, 1998 No. 102-FZ

RUSSIAN FEDERATION

THE FEDERAL LAW

About mortgage (real estate pledge)

Adopted by the State Duma on June 24, 1997
Approved by the Federation Council on July 9, 1998

(As amended by federal laws dated November 9, 2001 No. 143-FZ, dated February 11, 2002 No. 18-FZ, dated December 24, 2002 No. 179-FZ, dated February 5, 2004 No. 1-FZ, dated June 29, 2004 No. 58-FZ, dated 02.11.2004 No. 127-FZ, dated 30.12.2004 No. 214-FZ, dated 30.12.2004 No. 216-FZ, dated 04.12.2006 No. 201-FZ, dated 18.12.2006 No. 232-FZ, dated 26.06.2007 No. 118-FZ, dated 04.12.2007 No. 324-FZ, dated 13.05.2008 No. 66-FZ, dated 22.12.2008 No. 264-FZ, dated 30.12.2008 No. 306-FZ, dated 17.07.2009 No. 166-FZ, dated 06/17/2010 No. 119-FZ, dated 06/28/2011 No. 168-FZ, dated 07/01/2011 No. 169-FZ, dated 12/06/2011 No. 405-FZ, dated 05/07/2013 No. 101-FZ, dated 12/21/2013 No. 363 -FZ, dated 06/23/2014 No. 169-FZ, dated 06/23/2014 No. 171-FZ, dated 07/21/2014 No. 217-FZ, dated 12/29/2014 No. 476-FZ, dated 12/31/2014 No. 499-FZ, dated 06.04 .2015 No. 82-FZ, dated 10/05/2015 No. 286-FZ, dated 06/23/2016 No. 217-FZ, dated 07/03/2016 No. 315-FZ, dated 07/03/2016 No. 361-FZ, dated 07/01/2017 No. 141- Federal Law, dated July 26, 2017 No. 212-FZ, dated July 29, 2017 No. 217-FZ, dated November 25, 2017 No. 328-FZ, dated December 5, 2017 No. 378-FZ, dated December 31, 2017 No. 486-FZ, dated November 28. 2018 No. 451-FZ, dated 05/01/2019 No. 76-FZ, dated 06/06/2019 No. 138-FZ, dated 08/02/2019 No. 261-FZ, dated 12/27/2019 No. 483-FZ, dated 04/03/2020 No. 106-FZ , dated July 13, 2020 No. 202-FZ, dated December 22, 2020 No. 447-FZ, dated December 30, 2020 No. 494-FZ, dated December 30, 2020 No. 514-FZ, dated April 30, 2021 No. 118-FZ, dated April 30, 2021 No. 120-FZ)

Chapter I. BASIC PROVISIONS

Article 1. Grounds for the emergence of a mortgage and its regulation

1. Under an agreement on the pledge of real estate (mortgage agreement), one party - the pledgee, who is a creditor under the obligation secured by the mortgage, has the right to receive satisfaction of his monetary claims against the debtor under this obligation from the value of the pledged real estate of the other party - the mortgagor, preferentially before others creditors of the pledgor, with exceptions established by federal law.

The mortgagor may be the debtor himself under the obligation secured by a mortgage, or a person not participating in this obligation (a third party).

The property on which the mortgage is established remains with the mortgagor in his possession and use.

2. To a pledge of real estate arising on the basis of a federal law upon the occurrence of the circumstances specified therein (hereinafter referred to as a mortgage by force of law), the rules on a pledge arising by virtue of a mortgage agreement are correspondingly applied, unless otherwise established by federal law. (As amended by Federal Law No. 18-FZ dated 11.02.2002)

In the event of a mortgage arising by force of law, the mortgagor and the mortgagee have the right to enter into an agreement regulating their relations in the form provided for the mortgage agreement. (Paragraph introduced - Federal Law dated November 25, 2017 No. 328-FZ)

3. The general rules on pledge contained in the Civil Code of the Russian Federation apply to relations under a mortgage agreement in cases where the specified Code or this Federal Law does not establish other rules.

4. A pledge of land plots, enterprises, buildings, structures, apartments and other real estate can arise only insofar as their circulation is permitted by federal laws.

Article 2. Obligation secured by a mortgage

A mortgage may be established to secure an obligation under a credit agreement, a loan agreement or another obligation, including an obligation based on purchase and sale, lease, contract, other agreement, damage, unless otherwise provided by federal law.

Obligations secured by a mortgage are subject to accounting by the creditor and debtor, if they are legal entities, in the manner established by the legislation of the Russian Federation on accounting.

Article 3. Requirements secured by a mortgage

1. A mortgage ensures payment to the mortgagee of the principal amount of debt under a loan agreement or other obligation secured by a mortgage in full or in part provided for by the mortgage agreement.

A mortgage established to secure the execution of a credit agreement or a loan agreement with the condition of paying interest also ensures payment to the creditor (lender) of the interest due to him for using the loan (borrowed funds).

Unless otherwise provided by the agreement, the mortgage also ensures payment to the mortgagee of the amounts due to him:

1) as compensation for losses and/or as a penalty (fine, penalty) due to non-fulfillment, delay in fulfillment or other improper fulfillment of an obligation secured by a mortgage;

2) in the form of interest for the unlawful use of someone else’s money, provided for by the obligation secured by the mortgage or by federal law;

3) for compensation of legal costs and other expenses caused by the foreclosure of the pledged property;

4) to reimburse expenses for the sale of the pledged property.

2. Unless otherwise provided by the agreement, the mortgage secures the claims of the mortgagee to the extent that they have at the time of their satisfaction at the expense of the pledged property.

3. If the mortgage agreement specifies the total fixed amount of the mortgagee’s claims secured by the mortgage, the debtor’s obligations to the mortgagee in excess of this amount are not considered secured by the mortgage, with the exception of claims based on subparagraphs 3 and 4 of paragraph 1 of this article or on article 4 of this Federal Law.

Article 4. Securing additional expenses of the mortgagee with a mortgage

In cases where the mortgagee, in accordance with the terms of the mortgage agreement or due to the need to ensure the preservation of the property pledged under this agreement, is forced to bear for the mortgagor the costs of insuring this property, its maintenance and/or security, or to pay off the debt of the mortgagor for related property taxes, fees or utility payments, compensation to the mortgagee for such necessary expenses is ensured at the expense of the pledged property. (As amended by Federal Law No. 328-FZ dated November 25, 2017)

Article 5. Property that may be the subject of a mortgage

1. Under a mortgage agreement, real estate specified in paragraph 1 of Article 130 of the Civil Code of the Russian Federation may be pledged, the rights to which are registered in the manner established for state registration of rights to real estate and transactions with it, including: (As amended Federal Law of December 30, 2004 No. 216-FZ)

1) land plots, with the exception of land plots specified in Article 63 of this Federal Law;

2) enterprises, as well as buildings, structures and other real estate used in business activities;

3) residential buildings, apartments and parts of residential buildings and apartments, consisting of one or more isolated rooms;

4) garden houses, garages and other buildings for consumer purposes; (As amended by Federal Law No. 217-FZ dated July 29, 2017)

5) aircraft and sea vessels, inland navigation vessels; (As amended by Federal Law No. 328-FZ dated November 25, 2017)

6) parking spaces. (Subclause introduced - Federal Law dated July 3, 2016 No. 315-FZ)

Buildings, including residential buildings and other structures and structures directly connected to the land, may be the subject of a mortgage, subject to the rules of Article 69 of this Federal Law.

The absence of state registration of ownership of land plots, the state ownership of which is not demarcated, is not an obstacle to the mortgage of such land plots in accordance with Article 621 of this Federal Law. (Paragraph introduced - Federal Law of December 18, 2006 No. 232-FZ)

2. The rules of this Federal Law apply to the pledge of unfinished real estate constructed on a land plot in accordance with the requirements of the legislation of the Russian Federation, including buildings and structures, subject to the rules of Article 69 of this Federal Law. (As amended by Federal Law No. 18-FZ dated 11.02.2002)

3. Unless otherwise provided by the agreement, the thing that is the subject of the mortgage is considered pledged together with accessories (Article 135 of the Civil Code of the Russian Federation) as a single whole.

4. Part of the property, the division of which in kind is impossible without changing its purpose (indivisible thing), cannot be an independent subject of mortgage.

5. The rules on the mortgage of real estate accordingly apply to the pledge of the rights of a tenant under a lease agreement for such property (lease right), since otherwise is not established by federal law and does not contradict the essence of rental relations.

The rules on the mortgage of real estate also apply to the pledge of the rights of claim of a participant in shared construction arising from an agreement for participation in shared construction (hereinafter referred to as the rights of claim of a participant in shared construction), which meets the requirements of the Federal Law of December 30, 2004 No. 214-FZ “On Participation in Shared Construction”. construction of apartment buildings and other real estate and on amendments to certain legislative acts of the Russian Federation" (hereinafter referred to as the Federal Law "On participation in shared-equity construction of apartment buildings and other real estate and on amendments to certain legislative acts of the Russian Federation"). (Paragraph introduced - Federal Law dated December 4, 2007 No. 324-FZ; as amended by Federal Laws dated June 17, 2010 No. 119-FZ; dated August 2, 2019 No. 261-FZ)

Article 6. The right to pledge property under a mortgage agreement

1. A mortgage may be established on the property specified in Article 5 of this Federal Law, which belongs to the mortgagor on the right of ownership, and in cases and in the manner provided for by the Civil Code of the Russian Federation and other federal laws, on the right of economic management or operational management. (As amended by Federal Law No. 328-FZ dated November 25, 2017)

2. Mortgage of property withdrawn from circulation, property on which, in accordance with federal law, cannot be foreclosed on, as well as property in respect of which mandatory privatization is provided for in accordance with the procedure established by federal law or the privatization of which is prohibited is not permitted.

3. If the subject of the mortgage is property, the alienation of which requires the consent or permission of another person or body, the same consent or permission is necessary for the mortgage of this property, with the exception of a mortgage by force of law. (As amended by Federal Law No. 328-FZ dated November 25, 2017)

Decisions on the pledge of real estate that is state-owned and not secured by the right of economic management or operational management are made by the Government of the Russian Federation or the government (administration) of a constituent entity of the Russian Federation. (As amended by Federal Law No. 328-FZ dated November 25, 2017)

4. The right to lease may be the subject of a mortgage with the consent of the lessor, unless otherwise provided by federal law or the lease agreement. In the cases provided for in paragraph 3 of Article 335 of the Civil Code of the Russian Federation, the consent of the owner of the leased property or the person who has the right of economic management over it is also required.

5. A pledge of real estate is not the basis for the release of a person who acted as a mortgagor under a mortgage agreement from fulfilling the conditions under which he participated in an investment (commercial) competition, auction or otherwise in the process of privatization of the property that is the subject of this pledge.

6. The mortgage applies to all inseparable improvements to the subject of the mortgage, unless otherwise provided by the agreement or this Federal Law. (Clause introduced - Federal Law dated December 30, 2004 No. 216-FZ)

Article 7. Mortgage of property in common ownership

1. On property that is in common joint ownership (without determining the share of each owner in the right of ownership), a mortgage can be established with the consent of all owners. Consent must be given in writing, unless federal law provides otherwise.

2. A participant in common shared ownership may pledge his share in the right to common property without the consent of other owners.

If, at the request of the mortgagee, foreclosure is applied to this share upon its sale, the rules of Articles 250 and 255 of the Civil Code of the Russian Federation on the pre-emptive right of purchase belonging to the remaining owners and on foreclosure on a share in the right of common ownership are applied, with the exception of cases of foreclosure on a share in the right of ownership of the common property of a residential building (Article 290 of the Civil Code of the Russian Federation) in connection with the foreclosure of an apartment in this building.

Chapter II. CONCLUSION OF A MORTGAGE AGREEMENT

Article 8. General rules for concluding a mortgage agreement

The mortgage agreement is concluded in compliance with the general rules of the Civil Code of the Russian Federation on concluding agreements, as well as the provisions of this Federal Law.

Article 9. Contents of the mortgage agreement

1. The mortgage agreement must indicate the subject of the mortgage, its valuation, essence, size and deadline for fulfilling the obligation secured by the mortgage.

11. The parties may provide in the mortgage agreement a condition on the possibility of foreclosure on the mortgaged property out of court and (or) the methods and procedure for the sale of the pledged property when foreclosure on the subject of the mortgage by a court decision.

If a mortgage arises by force of law, the parties have the right to provide in the agreement a condition on the methods and procedure for the sale of the pledged property when foreclosure on the subject of the mortgage by a court decision. The rules on form and state registration established by federal law for a mortgage agreement apply to this agreement. (As amended by Federal Law No. 328-FZ dated November 25, 2017)

(Clause introduced - Federal Law dated December 6, 2011 No. 405-FZ)

2. The subject of the mortgage is determined in the agreement by indicating its name, location and a description sufficient to identify this subject.

The mortgage agreement must indicate the right by virtue of which the property that is the subject of the mortgage belongs to the mortgagor, the date of state registration and the registration number of this right of the mortgagor in the Unified State Register of Real Estate. (As amended by federal laws dated December 30, 2004 No. 216-FZ, dated July 3, 2016 No. 361-FZ, dated November 25, 2017 No. 328-FZ, dated April 30, 2021 No. 120-FZ)

If the subject of the mortgage is a leasehold right owned by the mortgagor, the leased property must be defined in the mortgage agreement in the same way as if it were itself the subject of the mortgage, and the lease term must be indicated.

3. The valuation of the subject of the mortgage is determined in accordance with the legislation of the Russian Federation by agreement between the mortgagor and the mortgagee in compliance with the requirements of Article 67 of this Federal Law when mortgaging a land plot and is indicated in the mortgage agreement in monetary terms.

When mortgaging state and municipal property, its assessment is carried out in accordance with the requirements established by federal law, or in the manner prescribed by it.

(Paragraph excluded - Federal Law of 09.11.2001 No. 143-FZ)

In the case of a pledge of unfinished real estate that is in state or municipal ownership, the market value of this property is assessed. (Paragraph introduced - Federal Law of 09.11.2001 No. 143-FZ)

4. The obligation secured by a mortgage must be named in the mortgage agreement, indicating its amount, the basis for its occurrence and the deadline for fulfillment. If the amount of the obligation secured by the mortgage is subject to determination in the future, the mortgage agreement must indicate the procedure and other necessary conditions for its determination. (As amended by Federal Law No. 328-FZ dated November 25, 2017)

5. If the obligation secured by a mortgage is subject to execution in parts, the mortgage agreement must indicate the terms (frequency) of the relevant payments and their amounts or conditions allowing these amounts to be determined.

6. If the rights of the mortgagee in accordance with Article 13 of this Federal Law are certified by a mortgage, this is indicated in the mortgage agreement, with the exception of cases of issuance of a mortgage under a mortgage by force of law. (As amended by Federal Law No. 18-FZ dated 11.02.2002)

Section 91 when providing a consumer loan (loan), the borrower’s obligations under which are secured by a mortgage

(Name as amended by federal laws dated May 1, 2019 No. 76-FZ, dated December 27, 2019 No. 483-FZ)

Features of the terms of a credit agreement, a loan agreement that are concluded with an individual for purposes not related to his business activities, and the borrower’s obligations under which are secured by a mortgage, as well as the features of their changes at the request of the borrower and the features of the terms of the insurance contract concluded when providing consumer insurance credit (loan), the borrower's obligations under which are secured by a mortgage, are established by Federal Law of December 21, 2013 No. 353-FZ “On consumer credit (loan)”. (This article was introduced by Federal Law No. 363-FZ dated December 21, 2013; as amended by Federal Laws No. 378-FZ dated December 5, 2017, No. 76-FZ dated May 1, 2019, No. 483-FZ dated December 27, 2019)

Article 10. State registration of a mortgage agreement

1. A mortgage agreement is concluded in writing by drawing up one document signed by the parties and is subject to state registration. Drawing up one document is not required if the terms of the obligation secured by a mortgage are changed in accordance with Article 61-1 of the Federal Law of December 21, 2013 No. 353-FZ “On Consumer Credit (Loan)” or in accordance with Articles 6 and 7 of the Federal Law “On amendments to the Federal Law “On the Central Bank of the Russian Federation (Bank of Russia)” and certain legislative acts of the Russian Federation regarding the specifics of changing the terms of a credit agreement, loan agreement.” (As amended by federal laws dated December 6, 2011 No. 405-FZ, dated May 1, 2019 No. 76-FZ, dated April 3, 2020 No. 106-FZ)

An agreement that does not contain any data specified in Article 9 of this Federal Law, or violates the rules of paragraph 4 of Article 13 of this Federal Law, is not subject to state registration (if federal law establishes a requirement for state registration of a mortgage agreement) in as a mortgage agreement. (As amended by Federal Law dated July 3, 2016 No. 361-FZ)

Failure to comply with the rules on state registration of a mortgage agreement entails its invalidity. Such an agreement is considered void.

2. The mortgage agreement is considered concluded and comes into force from the moment of its state registration (if federal law establishes a requirement for state registration of the mortgage agreement). (As amended by Federal Law dated July 3, 2016 No. 361-FZ)

3.

Is it possible to sell an encumbrance?

No , transfer of rights becomes possible only after all restrictions are removed, but there are different options for repaying the loan.
Either you pay off the remaining debt yourself and deal with the issue of removing restrictions, or the buyer helps with this. In such a transaction, instead of two parties, three will participate: the buyer, the seller and the bank from which the loan was received. All conditions will be determined tripartitely.

If you need to sell an apartment, you need the bank's consent to this operation.

It is important to determine what part of the debt has already been paid; most often, the buyer pays the remaining amount himself, and you receive the difference between the original amount and part of the loan.

However, from January 1, 2021, a ban on the sale and transfer of ownership rights without removing the encumbrance appeared in the Unified State Register.

How to avoid encumbrances when buying and selling real estate:

Encumbrance after repayment of mortgages in banks

When a borrower takes out a mortgage loan, he is subject to an encumbrance with the obligation to pay the amount specified in the agreement.

After paying off the entire debt, you can remove the encumbrance from the bank if it provides such services to its clients.

It's worth knowing:

VTB 24

If there is a mortgage, he recommends to his clients, after full repayment of the loan, to order a mortgage at the branch where the mortgage was obtained.
The mortgage is issued within 10 days from the date of request. To officially cancel the encumbrance, you should contact the registry office. In this case, repayment occurs in the presence of an application from the mortgagor and the mortgage; the presence of a bank employee is not required.

If necessary, the bank can independently remove the encumbrance on your behalf for a fee based on an application certified by a notary. The term for removing the encumbrance is 3 days.

Note! In one of our articles, we looked at a mortgage on an apartment.

In the absence of a mortgage on the loan - if the apartment was purchased in an unfinished building (ownership has not yet been registered), but a mortgage on the land was registered, it is necessary to remove the mortgage on the land in Rosreestr, and then remove the encumbrance in the usual manner.

Sberbank

After repaying the debt, the bank has the right to remove the encumbrance from the property.
After which the owner can receive an extract from the Unified State Register or a new certificate. When the mortgage is repaid, a bank employee contacts the client to agree on the removal of the encumbrance.

There are two options:

• A mortgage on the loan has been issued - the bank provides a mortgage with a note about the payment of the mortgage and all the documents necessary for the state structure, after which the mortgagor takes the documents to Rosreestr and removes the encumbrance;
• The mortgage on the loan was not issued - the bank agrees on the date of the visit to Rosreestr, after which the bank and the owner submit a joint application.

Gazprombank

The removal of the encumbrance occurs, as in VTB24.

After repaying the debt, you need to come to the bank branch where you received the mortgage and receive a document with a note indicating full repayment of the debt, then take the necessary papers for government agencies, write an application and come to the Rosreestr branch for further removal of the encumbrance.

On the removal of encumbrances/seizures in bankruptcy proceedings

I often encounter the problem of the competence of bailiffs in bankruptcy proceedings. Often, before the introduction of bankruptcy proceedings for the Debtor, creditors go to court and settle the debt that has arisen, and during the settlement they apply for the imposition of interim measures on the property of the Defendant in order to ensure the execution of the judicial act. The courts, satisfying this petition, issue a ruling on the seizure or other restrictions on the disposal of the debtor's property. After the seizure of the Debtor’s property, as practice shows, removing it in bankruptcy proceedings is not always as easy as it might seem...

According to paragraph 1 of Art. 126 of the Federal Law “On Insolvency (Bankruptcy)”, after the introduction of bankruptcy proceedings, execution under executive documents is terminated , including under executive documents executed during previously introduced procedures applied in a bankruptcy case, unless otherwise provided by this Federal Law;

writs of execution, the execution of which has ceased in accordance with this Federal Law, are subject to transfer by bailiffs to the bankruptcy trustee in the manner established by federal law;

Previously imposed arrests on the debtor's property and other restrictions on the disposal of the debtor's property are lifted . The basis for lifting the seizure of the debtor's property is a court decision declaring the debtor bankrupt and opening bankruptcy proceedings. The imposition of new arrests on the debtor's property and other restrictions on the disposal of the debtor's property are not permitted.

This norm corresponds to the provisions of paragraphs. 4, 5 tbsp. 96 of the Federal Law of October 2, 2007 N 229-FZ “On Enforcement Proceedings”. According to these paragraphs, upon receipt of a copy of the arbitration court decision declaring the debtor bankrupt and opening bankruptcy proceedings (as well as when the debtor is in the process of liquidation), the bailiff completes enforcement proceedings , including on enforcement documents executed during previously introduced bankruptcy procedures , with the exception of executive documents on recognition of property rights, on the reclaim of property from someone else’s illegal possession, on the application of the consequences of invalid transactions, as well as on the collection of debt on current payments. Simultaneously with the end of the enforcement proceedings, the bailiff removes the arrests imposed by him during the enforcement proceedings on the debtor’s property and other restrictions on the disposal of this property.

The enforcement documents, the proceedings for which have been completed, together with a copy of the resolution on the completion of the enforcement proceedings, are sent to the bankruptcy trustee or the liquidation commission (liquidator) within three days from the date of completion of the enforcement proceedings. A copy of this resolution is sent to the parties to the enforcement proceedings within the same period.

Thus, the bailiff is obliged to complete the enforcement proceedings and remove previously imposed restrictions on the Debtor’s property from the moment he receives the decision to declare the debtor bankrupt. This position applies to both bankruptcy of legal entities and individuals.

But as numerous practice shows, bailiffs do not apply the above rules of law in their work. And they refuse to complete enforcement proceedings under all sorts of pretexts and reasons. At the same time, the internal motivation of these civil servants is completely incomprehensible (it seems easier to stop production and not worry about how to sell this property, etc.).

Thus, one of the bailiffs, to my requests and complaints, answered briefly and succinctly, I will lift the arrests only after the court, which issued the Determination of seizure, lifts this restriction on the disposal of property in court. The most interesting thing is that this bailiff did not react in any way to the complaints directed at him to his management. One got the impression that he lives in a parallel universe, where there is only one correct opinion - his.

The bailiff demanded from us a judicial act to lift the arrest, despite the fact that, according to paragraph 12 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 23, 2009 N 59 (as amended on June 6, 2014) “On some issues of the practice of applying the Federal Law “On Enforcement Proceedings” in the case of initiation of bankruptcy proceedings”, by virtue of paragraph six of paragraph 1 of Article 126 of the Bankruptcy Law, from the date of the court’s decision to declare the debtor bankrupt and to open bankruptcy proceedings, execution of enforcement documents is terminated, including enforcement documents executed during previously introduced procedures applied in a bankruptcy case, unless otherwise provided by the Bankruptcy Law.

According to paragraph 7 of part 1 of Article 47 of the Law on Enforcement Proceedings, if a debtor organization is declared bankrupt and the enforcement document is sent to the bankruptcy trustee, with the exception of the enforcement documents specified in Part 4 of Article 96 of the Law on Enforcement Proceedings, enforcement proceedings are completed by a bailiff. The bailiff issues a resolution to terminate enforcement proceedings upon receipt of a copy of the court decision declaring the debtor bankrupt and opening bankruptcy proceedings (Part 4 of Article 96 of the Law on Enforcement Proceedings).

An independent judicial act on this issue is not required . If a bailiff applies to the court with an application to terminate enforcement proceedings, it must be taken into account that such an application is not subject to consideration in court.

Considering further correspondence and complaints against the bailiff useless, I decided to apply to the court with a petition to lift the arrest.

The most paradoxical thing is how to look at this situation. In my case, I needed to remove the restrictions imposed on the debtor’s property in order to subsequently sell it at auction. Delay on the part of the bailiff leads to a decrease in the bankruptcy estate of the Debtor, and as a result, if among the creditors there are persons who are in conflict with the insolvency administrator, they can easily write a complaint to the court or to Rosreestr.

And if we consider this abuse, on the part of bailiffs, from the perspective of a creditor who did not manage to be included in the register of creditors’ claims in time, then for him this will be like a lifeline. So, if the bailiff has not completed the enforcement proceedings, the bankruptcy creditor who missed the deadline for inclusion in the debtor’s RTK, who is a claimant under the IL, has the right to restore this period, or rather, for him it begins to run from the moment when he was notified by the arbitration manager about the need to file an application for inclusion in the RTK, in connection with the end of enforcement proceedings, and receipt of IL from the bailiff.

How do you combat the arbitrariness of bailiffs? (maybe someone has a wonderful recipe).

Mortgage encumbrance through government services

In order to become the owner of real estate after repaying the mortgage, you must submit an application to Rosreestr.

The law allows you to do this in one of the following ways:

• In person - come to the FSGR office yourself and submit the necessary documents;
• By mail - it is possible to send documents by valuable letter, it is important to note that an inventory of the attachment is required and all papers must first be certified by a notary;
• Via the Internet - you can submit an application for removal of the encumbrance, but the remaining documents will have to be submitted in person;
• Through the MFC - most often this is relevant for residents of small towns, this method allows you to avoid huge queues.

Recommended viewing:

After some time, you receive an extract from the unified state register of rights without a mark on the encumbrance.

You also need to decide whether you want to get a new certificate or not. If you need it, you will have to pay a fee to the government agency and wait a month.

Registration of legal mortgage

A mortgage by law and a mortgage by contract are similar in many ways. The borrower contacts the bank, collects the necessary documents and waits for a decision. Upon approval and completion of all formal procedures, for example, insurance, the transaction requires mandatory registration.

If you are taking out a standard housing loan by force of law, then to register it it is not necessary for all participants in the transaction to be present; an application from either the lender or the borrower is sufficient. But since the bank is interested in carrying out the procedure, it usually controls the process, and the transaction is fixed in the presence of a representative of the lender and the borrower himself.

Registration procedure:

1. The bank helps to collect a package of documents to transfer them to Rosreestr or MFC. There will be no problems at this stage: bank representatives know very well what papers are needed for registration.
2. After submitting the documents, the registration itself is completed within 5 working days. During this period, the government agency carefully checks all documents.
3. The borrower receives a certificate of ownership with a mark of encumbrance.

How long does it take to remove the encumbrance from an apartment?

The duration of the procedure depends on how quickly you prepare all the necessary documents, contact the bank to issue the necessary papers and write an application to the FSGR.
If you want to speed up the waiting time, you can contact the bank, which will submit and collect all the papers for you for an additional fee.

Five days after submitting the application, you will receive a certificate of removal of the encumbrance.

If you want to receive an extract from the Unified State Register stating that you have gotten rid of the mortgage encumbrance or want to receive a completely clean certificate, you will have to wait a month.

Collection of necessary documents

It is necessary to obtain a sample application for removal of the encumbrance from the apartment from the FSGR office.

Sample application for removal of encumbrance from an apartment

After this, the bank should provide you with:

• A power of attorney from the bank, according to which the borrower receives the right to represent his interests in the registration authority;
• A mortgage note indicating that the mortgage has been paid in full;
• Letter from the bank regarding the fulfillment of obligations under the agreement.

The person submitting the application must prepare:

• Application to the FSGR;
• Passports of all property owners;
• Real estate documents;
• If available, purchase and sale agreement.

Where to remove the mortgage encumbrance from an apartment?

The Federal State Registration Service is responsible for removing the encumbrance from the apartment. If you cannot personally deal with the issue of removing the encumbrance, then it is possible to hire a person who will carry out everything necessary for the legal procedure.

The process of canceling the encumbrance itself is free, but for issuing a new certificate for an apartment without this data, you must pay a fee of 350 rubles.

In addition, you can contact a bank that provides its clients with this free procedure.

It will be useful to view:

Restriction of rights and encumbrance of real estate

Restriction of property rights is determined by clause 1 of article 1 of the Federal Legislation.
Grounds for encumbrances:

• Laws of the Russian Federation;
• The court's decision;
• A transaction that results in an encumbrance;
• Any act issued by the government.

In the case of apartments, such cases arise as a result of:

• Mortgage - the grounds for its occurrence - agreement or law (sale of an apartment in installments);
• Lease agreement , the owner allows the use of his real estate or land, such agreements are concluded only in writing, and if the duration is more than a year, such an agreement belongs to state registration;
• Seizure - can be imposed by a court or a bailiff, excludes the possibility of transfer of ownership of real estate; information about the arrest is contained in the Unified State Register. When purchasing such an apartment, the owner will have to challenge the court order or file a lawsuit demanding the release of the property;
• Agreement of free use – limits the actual possibility of owning an apartment; all rights under the previously concluded agreement are transferred to the owner. Rights are vested in the recipient of the loan;
• Rent - a person who has undertaken obligations to care for a person, after his death becomes the owner of the apartment, does not have the right to dispose of it until the death of the owner of the property. Occurs only if the owner of the apartment has entered into a lifelong annuity agreement;
• Restrictions imposed by guardianship authorities - if among the owners of the apartment there are minors or incapacitated people.
• Collateral – real estate is collateral for the repayment of the debt;
• Encumbrance of a share of property - occurs when a person owns only part of the property, unlike arrest, it makes it possible to sell the property;
• There may also be a case of double encumbrance on an apartment with a mortgage and an existing rent - two restrictions will have to be lifted, the first only after the death of the rent recipient, and the second, as usual, through repayment of the loan;

A double encumbrance occurs when a buyer buys an apartment on credit in an unfinished building, and then the company goes bankrupt - then all the property goes to the bank - a double encumbrance results.

This problem can be solved through the court by demanding money from the bank that issued the loan to the developer, but this is problematic. It is much easier to get rid of restrictions after construction is completed.

Federal Law “On State Registration of Rights to Real Estate and Transactions with It” No. 122-FZ dated July 21, 1997 (hereinafter referred to as the Registration Law), which guides the Administration when making and canceling registration records, does not contain provisions allowing for actions to cancel the entered in the register of entries upon unilateral application to the Office with an application for repayment of the mortgage registration record.

Paragraph 4 of Article 29 of the Registration Law provides that the registration record of a mortgage is canceled on the grounds provided for by Federal Law No. 102-FZ of July 16, 1998 “On Mortgage (Pledge of Real Estate)” (hereinafter referred to as the Mortgage Law).

Based on Article 25 of the Law on Mortgage, the registration record of the mortgage is canceled within three working days from the moment the body carrying out state registration of rights receives: an application from the owner of the mortgage; joint application of the pledgor and the pledgee; an application from the mortgagor with the simultaneous submission of a mortgage note containing a note from the mortgage owner regarding the fulfillment of the obligation secured by the mortgage in full, or a decision of a court, arbitration court or arbitration tribunal to terminate the mortgage.

Thus, Art. 25 of the Law on Mortgage directly provides for a method of protecting the violated right of the mortgagor (rentpayer): filing a demand in court or arbitration court to terminate the mortgage, which corresponds to paragraph. 11th century 12 of the Civil Code of the Russian Federation.

Meanwhile, by virtue of Art. 2 of the Law on Mortgage, a mortgage, as an encumbrance on property, arises from the moment of state registration of ownership of this property, unless otherwise established by the agreement.

In accordance with Art. 12 of the Registration Law, only making an entry in the Unified State Register of Mortgages by force of law is confirmation by the state of the encumbrance of real estate arising on the basis of the law.

Therefore, the adoption by the court of a decision provided for by law on the termination of a contractual mortgage (on recognizing the encumbrance as absent), the registration record of which has not been canceled due to the mortgagee’s evasion of filing an application with the registering authority (including due to his death), cannot be considered as the termination of what has already been terminated in accordance with from paragraph 1 of Article 605 of the Civil Code of the Russian Federation of a pledge obligation.

In this case, until the mortgage record is redeemed, the specified encumbrance is listed in the register, exists for all third parties and is not considered terminated.

By virtue of Art. 2 of the Law on Registration of Rights, state registration of rights to real estate and transactions therewith is a legal act of recognition and confirmation by the state of the occurrence, limitation (encumbrance), transfer or termination of rights to real estate in accordance with the Civil Code of the Russian Federation.

State registration is the only evidence of the existence of a registered encumbrance. A registered encumbrance can only be challenged in court.

Based on the meaning of the provisions of the above-mentioned Law, it follows that until the registered encumbrance is challenged in court, the registering authority does not have the right to cancel the corresponding entry in the Unified State Register.

Article 25 of the Mortgage Law defines the conditions for repayment of the mortgage registration record.

In addition, the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation explained a possible way to protect the rights of the rent payer in this case.

Thus, according to paragraph four of paragraph 52 of the joint Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 29, 2010 No. 10, the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 29, 2010 No. 22 “On some issues arising in judicial practice when resolving disputes related to the protection of rights property and other real rights" (hereinafter referred to as Resolution No. 10/22) in cases where an entry in the Unified State Register of Rights to Real Estate and Transactions with It violates the plaintiff’s right, which cannot be protected by recognizing the right or claiming property from someone else’s illegal possession, challenging a registered right or encumbrance can be carried out by filing a claim to declare the right or encumbrance absent.

Since the law does not provide for a mandatory pre-trial procedure for resolving such disputes, a preliminary application to the state registrar with a corresponding application is not required (clause 55 of Resolution No. 10/22).

Thus, from the above it follows that in the absence of the possibility of submitting a joint application of the mortgagor and the mortgagee to the registering authority, the mortgage record can only be extinguished on the basis of a court decision.

Thus, the decisions of the registering authority to refuse the mortgagor (rentee) state registration of repayment of the mortgage registration record due to failure to submit an application on the part of the mortgagee (rentee) were recognized as legal by the Ruling of the Supreme Arbitration Court of the Russian Federation of November 30, 2010 N VAS-6209/10 in case No. A12-17190/ 2009, Resolutions of the FAS Central District dated 06/06/2007 on the case, FAS Moscow District dated 03/30/2009 N KG-A41/949-09-P.

Based on these judicial acts, the arbitration courts took into account the fact that there were no court decisions to terminate the mortgage and did not take into account that the mortgagors provided evidence of the fulfillment of the obligations secured by the mortgage.

Thus, at present, judicial arbitration practice prevails, adhering to the approach that the repayment of the registration record of a mortgage that arose by force of law (rent agreement) at the request of one party (the rent payer) with a copy of the death certificate of the rent recipient, without submitting a corresponding court decision on recognition of the encumbrance as absent unlawfully.

2. Regarding the possibility of participation in the consideration of disputes of this category of the Office as a defendant, we inform you as follows.

In accordance with paragraph 1 of Article 2 of the Registration Law, state registration is the only evidence of the existence of a registered right, restriction (encumbrance), transfer or termination of rights to real estate. A registered right or restriction (encumbrance) of rights to real estate can only be challenged in court. The corresponding claims are considered in the manner of claim proceedings.

The defendant in a claim aimed at challenging a registered right or encumbrance is the person for whom the disputed right or encumbrance is registered.

The state registrar is not a defendant in such claims, but may be involved in such cases as a third party who does not make independent claims regarding the subject of the dispute.

If a claim aimed at challenging a registered right or encumbrance is brought against the state registrar, the court replaces the improper defendant in accordance with Part 1 of Article 41 of the Civil Procedure Code of the Russian Federation or Parts 1, 2 of Article 47 of the Arbitration Procedure Code of the Russian Federation.

The registered right to real estate is not subject to challenge by filing claims subject to consideration according to the rules of Chapter 25 of the Civil Procedural Code of the Russian Federation or Chapter 24 of the Arbitration Procedural Code of the Russian Federation, since in the procedure for proceedings in cases arising from public legal relations, a dispute about the right cannot be resolved for real estate.

At the same time, if a person believes that the state registrar committed violations during the state registration of a right or transaction, he has the right to apply to the court with a statement according to the rules of Chapter 25 of the Civil Procedure Code of the Russian Federation or Chapter 24 of the Arbitration Procedure Code of the Russian Federation, taking into account the jurisdiction of the case.

Considering the fact that there is no other party on the controversial issue (in the event of death), we believe it is possible to apply the clarifications given in paragraph 62 of Resolution No. 10/22. As provided for in paragraph 62 of Resolution No. 10/22, on the basis of Articles 58, 1110 and 1112 of the Civil Code of the Russian Federation, the seller’s obligations under the sales contract are transferred to his universal legal successors. Therefore, the buyer of real estate has the right to file a claim for state registration of the transfer of ownership (Article 551 of the Civil Code of the Russian Federation) to the heirs or other universal legal successors of the seller.

Chief specialist-expert of the legal support department Petrosyan N.A.