Find out on our website about the specifics of exchanging privatized and municipal housing, as well as a room in a dorm or communal apartment.
Legal requirements for the procedure
The relationship between the bank and the borrower is regulated on the basis of a loan agreement , which is drawn up in accordance with the Laws of the Russian Federation.
According to Federal Law No. 102 (Article 6), each mortgage loan is based on collateral, which is the purchased property.
The exchange procedure involves replacing the collateral, that is, actually re-issuing a loan for another object .
The general procedure for such a replacement is regulated by Article 345 of the Civil Code of the Russian Federation. Based on this law, each bank issues its own document, which contains specific steps for carrying out this procedure.
You can learn about how to exchange an apartment with an additional payment, how to exchange old housing for a new building, as well as about non-resident housing exchange from our articles.
Ways to solve the problem
The exchange of a mortgaged apartment is possible by law, but getting the go-ahead for it is not so easy. The lender needs to calculate its own risks in this situation, so each of them puts forward its own conditions. Most often, borrowers are offered two options:
- Paying off your mortgage by taking out a new short-term loan . Under this scheme, the living space is removed from the collateral by issuing funds to pay the mortgage in the form of a short-term loan. Objects are changed “with an additional payment”, and the money received goes to repay the loan. Alternatively, the debt is repaid at the expense of the buyer. That is, housing is sold with an encumbrance in the form of collateral. The balance of the debt is paid off from the additional payment received at the time of sale.
- Assignment of debt . The buyer purchases from the borrower not living space, but a loan. In this case, the borrower changes, but the payment schedule and the amount of debt remain unchanged. This scheme rarely works, since the new borrower must satisfy the lender, and such a buyer of real estate is extremely difficult.
The disadvantage of this option is the difficulty of obtaining a new loan if you have a mortgage.
Read on our website about how to exchange a two-room apartment, whether it is possible to exchange a room for a house and land, and how to conclude an exchange agreement with an additional payment.
Preparation
To carry out the exchange, you must adhere to the following procedure.
You need to start by studying the loan agreement .
Each bank describes in detail the actions of the borrower and its own in this document, and most likely the clause on the sale or exchange of collateral real estate is stipulated in the document.
In order to understand all the intricacies of the process and find out in which regions the action is possible, it is worth consulting directly with the organization’s employees.
If you want to exchange an apartment for housing in another city, it must be no further than 1000 km away. from the bank branch. The collateralized living space is regularly checked by inspectors , and they must reach it within one day.
After consultation and familiarization with the terms of a possible transaction, it is necessary to select a suitable property. Confidence in the integrity of the owner is a necessary condition for the success of the transaction, because a delay in payment on his part can result in serious troubles.
It should be noted that this step is one of the most difficult. Therefore, it is more advisable to involve a reliable real estate agency to solve the problem, preferably one that cooperates with your bank.
Then the borrower, together with the bank’s security service, checks the object for which the exchange is planned. The object is inspected by the housing department or management company, tax authorities, Federal Migration Service, Unified State Register. At the same time, the second participant in the exchange is checked for criminal records.
In the absence of circumstances that impede the transaction, the preparation of a package of documents begins.
The third stage of preparation is collecting documents. Preparation of the package occurs simultaneously with the search for housing options. The list of documents consists of the following items:
- loan agreement;
- copy of personal account;
- documents for the object cancellation;
- extract from the house register;
- personal documents of the parties to the transaction;
- certificate of absence of debt on loans;
- marriage certificate (if available);
- consent to exchange registered at the address;
- technical certificates and floor plans of premises;
- act of assessing an object.
They are delaying the auction
Debtors can take a long time to sell property; to do this, they delay the auction. Such actions entail significant losses for the creditor. In this case, he has the right to demand compensation for losses caused, even if outwardly the actions of the mortgagor appear lawful.
Pledgors often go to court with an unfounded application for interim measures. For this reason, the court may temporarily block the opportunity to hold an auction for the sale of pledged property.
Example: the debtor managed to delay the auction for nine months with the help of interim measures. The bank filed a claim in court to recover compensation.
Three authorities refused the applicant. They decided that filing applications for interim measures could not be considered unlawful conduct. The fact that the courts subsequently refused to satisfy the debtor’s demands, to secure which they imposed restrictions, does not indicate his bad faith.
The Supreme Court overturned the judicial acts of the lower courts. In a dispute over the recovery of damages or payment of compensation in connection with securing a claim, it is not necessary to prove the guilt of the person who requested the imposition of interim measures.
What argument will protect the mortgagee
The right to compensate for losses from interim measures or to receive compensation is based on the provisions of paragraph 3 of Article 1064 of the Civil Code and arises by virtue of the direct instructions of the law - Article 98 of the Arbitration Procedure Code. Therefore, the losses of the creditor - pledgee in similar cases can be assigned to the debtor - mortgagor, even if there were no direct culpable actions.
The article was prepared using materials from the magazine “Corporate Lawyer”
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Features depending on the characteristics of objects
The exchange of a collateral apartment can be carried out under the following conditions:
For an equivalent
This is done by changing the collateral in the same loan agreement . The selected object is checked by the bank's security service. To do this, the borrower must take various documents for the premises from the Criminal Code, Unified State Register, BTI.
If no obstacles to purchasing a new home are found, the following documents are drawn up:
- exchange agreement;
- act on the transfer of a new collateral;
- release from collateral of old living space.
The costs of obtaining various certificates are borne by the borrower. The new owner becomes the full owner after the encumbrance is removed and receives a Certificate.
To a more expensive one
Is it possible to exchange an apartment for a larger one? The loan is repaid using the cost of the old home, and the difference is used as a down payment on a new home. Such a transaction is more profitable for the bank , since the value of the collateral increases.
How to do it? Most often it is carried out by selling a mortgaged apartment with the consent of the bank and applying for a new loan . The client simultaneously submits an application for the sale of the housing space already taken on credit and for the registration of a new mortgage.
As a rule, such an exchange is easily permitted by the bank if the borrower has no delays under the current agreement.
Change of debtor
It is carried out in case of a lack of funds from the purchaser of the living space. The buyer gives the seller an additional payment, and the remaining amount is issued in the form of a loan in his name.
The housing remains collateral. The difficulty of such a transaction lies in finding a seller who can satisfy the bank with his solvency, so such schemes are quite rare in practice.
Contract of sale
How to exchange a mortgaged apartment for another by drawing up a purchase and sale agreement?
The proceeds from the sale are used to pay off the mortgage , and a new mortgage is issued again.
In this case, even changing the bank . This scheme is mainly used if the client wants to exchange housing for a cheaper one.
The bank most likely will not want to take real estate of lesser value as collateral, since it is not profitable for it. Therefore, he will not agree to apply the previous schemes.
Most often, in this case, you have to look for a consumer loan to pay off the balance of the mortgage, and then simply draw up a new mortgage agreement.
You can also pay off the balance using the difference received from the buyer. In this case, the amount is taken as an advance, and the final transaction is completed after the encumbrance on the property is removed.
A few words about military mortgages
It is easy to see that any option can be resolved by exchange. Without any extra buying and selling. But it happens that the seller of other real estate may not need the apartment that the client took on a mortgage. If the seller only requires cash, then buying and selling is indispensable. In addition, a more expensive or cheaper apartment means a different mortgage size, because the value of the collateral must correspond to the amount that the bank lent. With its change, both the interest rate and the down payment may change. That is why, most often, all transactions with mortgage real estate take place within the framework of a cash equivalent exchange. Another unconsidered case is a military mortgage. Perhaps it will be the most difficult for a client to exchange/sell such real estate. After all, there is a double burden here - banking and Rosvoenipoteka. There is only one permitted early method:
- transfer of service to another location. Usually it's another city. This is provided for in advance in the military mortgage agreement in the “moving” clause. The scheme is similar to that which takes place in an equivalent exchange, only the housing must be near the military’s place of service;
- the second option is obvious - simply level out the mortgage and pay off under the Rosvoenipoteka program.
Finally, it is worth warning that it is not uncommon for a mortgage agreement to specify in advance the conditions for the exchange or sale of collateral. Therefore, you must be careful when signing an agreement. This is one of the main points of the sale of real estate under mortgage encumbrance, which were discussed in this informative article.
Making a deal
Depending on the chosen method, the transaction is carried out according to a certain scenario. The similarity of the options is that the transaction takes place directly at the bank in the presence of a supervisory officer.
Actions are carried out as follows:
- Sale and purchase agreements are drawn up for each of the exchanged premises . The housing space sold by the borrower at this stage remains as collateral with the bank.
- The borrower applies to Rosreestr and registers the purchase of a new home.
- Based on the new Certificate, a new agreement , according to which the purchased living space is transferred as collateral to the lender.
- The credit institution issues permission to remove the encumbrance from the former mortgaged living space, and the new owner can complete the registration of the property.
Bank permission
You can dispose of real estate that is under a mortgage only with the permission of the bank. In fact, to exchange an apartment, you must first remove it from encumbrance . The bank will do this only when the borrower has fully paid under the loan agreement. Therefore, to resolve the issue, you must first contact the lender. Attempts to carry out an operation without permission may lead to the bank, citing a gross violation of the loan agreement, demanding early repayment of the debt. A borrower who has not allowed any delays to occur and fulfills all the bank’s requirements in a timely manner, including those related to concluding insurance contracts, is more likely to receive permission. It is better if the current loan agreement was concluded at least two years ago, and the borrower has repaid at least a third of the loan over the past period.
The borrower should understand that the bank may authorize the exchange, but is not obligated to do so . For the lender, such a procedure is unnecessary paperwork, which carries certain risks. Therefore, the borrower’s task is to fulfill all the lender’s requirements regarding the provision of documents and compliance with the procedure.
Preliminary permission from the bank must be obtained before starting the search for a new apartment owner and choosing a new home. Otherwise, the borrower may waste time and money.
The requirements for the collateral that will serve as security after the exchange are the same as for obtaining a loan. The bank will check all documents for the property, as well as its legal purity.
