Land plots not subject to mortgage. Peculiarities of Mortgage of Land Plots Criteria and Requirements

14.02.2021

Under a mortgage agreement, land plots may be mortgaged insofar as the relevant 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 tenant 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 Federal Law No. 1-FZ of February 5, 2004)
In the case of common shared or joint ownership of land plots specified in paragraph 1 of this article, a mortgage can only be established on a land plot owned by a citizen or legal entity, allocated in kind from lands that are in common shared or joint ownership.

Article 63. Land plots not subject to mortgage

Mortgage of land plots in state or municipal ownership is not allowed in accordance with this Federal Law.
(Clause 1 as amended by the Federal Law of 05.02.2004 N 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 the regulations of the constituent entities of the Russian Federation and the regulations of local governments for lands of various purposes and permitted use.

Article 64

Unless otherwise provided by the mortgage agreement, when a land plot is mortgaged, the right of pledge also extends to the building or structure of the pledgor located or under construction on the land plot.
The pledgor'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 there is a condition in the contract providing that a 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 (servitude) of that part of the land plot, which is necessary for the use of such buildings or structures in accordance with their purpose. The conditions for the use of the specified part of the land plot are determined by an agreement between the pledgor and the pledgee, and in the event of a dispute - by the court.

(Clause 1 as amended by Federal Law No. 216-FZ of December 30, 2004)
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.
In the event of the alienation of such a building or structure to another person and the absence of an agreement with the pledgee otherwise, the rights that this person can acquire to the mortgaged land plot are limited by the conditions provided for in part three of paragraph 1 of this article.

(as amended by Federal Law No. 216-FZ of December 30, 2004)
Lost strength. - Federal Law of December 30, 2004 N 216-FZ.
If the mortgaged land plot from the composition of agricultural land contains buildings, structures, structures, including those being erected on such a land plot, or other real estate objects firmly connected with the land plot, owned by the same right to the owner of such land plot, the mortgage of such land plot allowed only with the simultaneous mortgage of real estate objects firmly connected with it.

(Clause 4 was introduced by Federal Law No. 1-FZ of February 5, 2004)

Article 64.1. Mortgage of a land plot acquired with the use of credit funds of a bank or other credit organization or funds of a targeted loan

Unless otherwise provided by federal law or an agreement, a land plot acquired with the use of credit funds from a bank or other credit institution or funds from 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 right to this land plot.
If the corresponding land plot is leased, a mortgage arises by virtue of 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 institution or other legal entity that has provided a loan or targeted loan for the acquisition of a land plot or the right to lease a land plot.
To the pledge of a land plot or the right to lease a land plot arising on the basis of paragraph 1 of this article, the rules on the pledge of immovable property arising by virtue of an agreement and the right to lease immovable property shall be applied accordingly.

Article 64.2. Mortgage of a land plot on which buildings or structures are located, acquired or built using credit funds from a bank or other credit organization or funds from a targeted loan

(Introduced by Federal Law No. 216-FZ of December 30, 2004)

Unless otherwise provided by federal law or an agreement, a land plot on which a building or structure has been built or is under construction, or the right to lease such land a plot of land is considered to be pledged from the moment of state registration of the borrower's property right to a building or structure constructed or under construction or from the moment the body responsible for state registration of rights receives notification of the pledgor and the pledge holder about the conclusion of a loan agreement (loan agreement with the condition of intended use) with the application of the specified contracts.
The pledge holder under 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.

Article 65

On a land plot pledged under a mortgage agreement, the pledgor has the right, without the consent of the pledgee, to erect buildings or structures in the prescribed manner, unless otherwise provided by the mortgage agreement. Unless otherwise provided by the mortgage agreement, the mortgage extends to these buildings and structures.
(as amended by Federal Law No. 18-FZ of February 11, 2002)

If the construction by the mortgagor of a building or structure on a mortgaged land plot entails or may entail a deterioration in the security provided to the pledgee by the mortgage of this plot, the pledgee shall have the right, in accordance with paragraph 2 of Article 450 of the Civil Code of the Russian Federation, to demand an amendment to the mortgage agreement, including, if necessary, by extending the mortgage on the erected building or structure.
The erection of buildings or structures on a mortgaged land plot, if the rights of the mortgagee are certified by a mortgage, is allowed only if the right of the pledger to this is provided for in the mortgage, subject to the conditions that are reflected in it.

Article 66

If a mortgage is established on a land plot on which a building or structure is located that belongs not to the pledgor, 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 transfer to the acquirer of the plot .

Article 67

(as amended by Federal Law No. 1-FZ of February 5, 2004)

Evaluation of a land plot is carried out in accordance with the legislation governing the evaluation activities in the Russian Federation.

The collateral value of a land plot pledged under a mortgage agreement is established by agreement between the mortgagor and the pledgee.

A cadastral plan of the land plot must be attached to the mortgage agreement for the land plot.

(Clause 3 as amended by Federal Law No. 201-FZ of December 4, 2006)

Article 68

A land plot acquired by sale at a public auction, auction or tender is subject to the requirements for permitted use.
A person who has acquired a land plot by selling it at a public sale, auction, or by competition shall have the right to change the purpose of the land plot only in cases provided for by the land legislation of the Russian Federation, or in the manner prescribed by this legislation.
The sale and acquisition at public auction, auction or by competition of mortgaged land plots are carried out in compliance with the restrictions established by federal law in relation to the circle of persons who can acquire such plots.
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 in which the fulfillment of the obligation secured by the mortgage or part thereof is provided for, unless another date is provided by the mortgage agreement.

1. Mortgage of land plots in state or municipal ownership in accordance with this Federal Law is not allowed.
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 the regulations of the constituent entities of the Russian Federation and the regulations of local governments for lands of various purpose and permitted use.
The restriction on the mortgage of land plots owned by the state or a constituent entity of the Russian Federation is rather due to political reasons. Obviously, the legislator proceeded from the need to preserve the territorial integrity of Russia and secure the reserve of state lands. Such land plots can be transferred to the economic management of state and municipal unitary enterprises and to the operational management of institutions and state-owned enterprises. Attention should be paid to the contradiction of paragraph 1 of the commented article with the provisions of paragraph 1 of Art. 6 of the Mortgage Law, which allows the mortgage of property owned by the pledgor on the right of economic management. In addition, this paragraph also contradicts paragraph 3 of Art. 129 of the Civil Code of the Russian Federation, according to which land and other natural resources may be alienated or transferred from one person to another by other means, to the extent that their turnover is allowed by the laws on land and other natural resources. However, the Mortgage Law does not apply to such laws.
The definition of agricultural land is given in paragraph 1 of Art. 46 of the Town Planning Code of the Russian Federation of May 7, 1998 No. 73-FZ (repealed), which states that “within the boundaries (line) of urban and rural settlements, zones of agricultural use are allocated, occupied by arable land, gardens, vineyards, vegetable gardens, hayfields , pastures, as well as agricultural buildings, buildings, structures. A slightly different definition is given in the new Land Code of the Russian Federation. So, in accordance with paragraph 1 of Art. 77 of the Land Code of the Russian Federation, agricultural lands are recognized as lands beyond the boundaries of settlements, provided for the needs of agriculture, as well as intended for these purposes. It seems "more correct to establish the minimum size of a land plot in the new Land Code or in the manner determined by it.
However, the legislator took a different path. Obviously, this is due to the fact that the amount of usable land varies significantly in different regions of the Russian Federation. Already at the present time, different regions have "their" lower and upper limits on the size of land plots.

Establishes the possibility of obtaining a mortgage on the site. However, not all financial institutions operate programs for the purchase of land on credit.

Basically, large banks issue money for the purchase of plots:

Rosselkhozbank;
Zapsibkombank, etc.

For details on which financial institutions provide a loan for land, as well as what you need to pay attention to when choosing a bank, read.

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 construction or farming (on what conditions and how to take a mortgage on a land plot, including under individual housing construction, read). Banks rarely accept agricultural allotments as collateral due to low liquidity and a complex foreclosure procedure.

Consider which land plots are not allowed for mortgage registration:

are in state and municipal ownership;
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 can't get a mortgage on part of the land. If the site is in common or shared ownership, then it must be allocated in kind.

Criteria and requirements

What requirements do banks impose on the acquired land:

It must belong to the lands of settlements. If the land is purchased 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 on the cadastral register.
It must be located in the region where the bank branch is located. The distance from the nearest branch should be no more than 70-100 km.
A road should be laid to the site, the passage through which is accessible at any time of the year.
No encumbrance and arrest.
In relation to the allotment, there should be no litigation regarding its boundaries.
Documents for the object 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 will be more willing to issue a loan if the borrower is going to acquire a territory in a settlement with a developed infrastructure, with good access roads, with established communications and far from the place of household waste dumping.

What is the purpose of the loan?

Most banks issue a loan for the purchase of land for individual housing construction. From the point of view of banks, allotments for individual housing have high liquidity. In addition, according to Art. 64 of the Federal Law "On Mortgage", the right of pledge passes to all buildings and structures built on the mortgaged site. This means that in the case of collection of property, the bank through the court will confiscate not only the land, but also the house built on it.

It is also possible to get a plot in a mortgage for the construction of a summer house, for gardening, as well as for running a personal subsidiary plot. A loan for the purchase of land for household plots is issued only to owners of farms.

Allotment for farming can be purchased in a mortgage only for legal entities and individual entrepreneurs. Banks have special programs for small and medium-sized businesses, under the terms of which you can buy agricultural land. They are distinguished by increased rates, and a more complicated registration procedure.

Why don't all banks agree to the deal?

Plot mortgages are not as common as home loans. This is due to the complexity of land valuation and the duration of the foreclosure procedure.

Land, unlike apartments and houses, is not a highly liquid collateral. If the borrower fails to pay the loan, 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, then the borrower has several options: to save up on their own, take a regular consumer loan or take out 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 interest offered by home loan programs.
Big down payment. On average, the minimum down payment is 25-30% of the estimated value of the object.
Allotment insurance is a mandatory requirement of banks.
Strict collateral requirements.
The right of pledge extends not only to the site itself, but also to the buildings located on it.

Own land is closer than it might seem, because collecting documents 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 procedure for registration is practically no different from the stages of buying an apartment on credit. The main difficulty may arise when searching for a land plot. To choose the appropriate 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 Mortgage in case of mortgage of a land plot, the valuation of the subject is determined in accordance with the legislation of the Russian Federation by agreement of the mortgagor with the mortgagee in compliance with the requirements of Art. 67 of the Mortgage Law. The appraisal of the land plot must be indicated in the mortgage agreement in monetary terms.

If the subject of mortgage is land plots from the composition of agricultural land, to which the Law on Mortgage applies, drawing up and issuing a mortgage is not allowed. In addition, the preparation and issuance of a mortgage are not allowed if the subject of the mortgage is the right to lease a land plot (clause 4, article 13 of the Mortgage Law).

In cases where the subject of mortgage is a land plot from the composition of agricultural land, to which the Law on Mortgage applies, at the request of the pledgor, the court, if there are valid reasons, has the right, in the decision to foreclose on the mortgaged property, to postpone its implementation for up to one year (p. 3 article 54 of the Mortgage Law).

If the subject of the mortgage is a land plot, in an agreement on satisfaction of the pledgee's claims, concluded out of court, the parties are not entitled to provide for the acquisition of the pledged property by the pledgee for himself or for third parties, offset against the purchase price of the pledgee's claims against the debtor secured by the mortgage. In this case, the parties are obliged to sell the pledged property either at an open auction or at an auction organized by the mortgagee (clause 3, article 55 of the Mortgage Law).

In the event that, when foreclosing a land plot as a subject of mortgage, this plot is acquired by the pledgee (the pledgee retains the land plot for himself), and this land plot cannot belong to him by its nature and purpose, then he is obliged to alienate this land 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 Mortgage Law).

Mortgage of enterprises, buildings or structures with the land plot on which they are located can be carried out only if the requirements established by the norms of Art. 69 of the Mortgage Law.

The types of land plots that can be mortgaged are defined in Art. 62 of the Mortgage Law.

Under a mortgage agreement, only the following land plots can be mortgaged: owned by citizens, their associations, legal entities and provided for gardening, animal husbandry, individual housing, country and garage construction; household 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 be classified as land plots that are not subject to mortgage in accordance with Art. 62 of the Mortgage Law; they must be allocated in kind from lands that are in common share or joint ownership.

A number of concepts used in the Mortgage Law are defined in Art. 1 of the Federal Law "On horticultural, horticultural 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 Mortgage, the subject of the claim was the debt of Portal LLC in the amount of 45,000,000 rubles under a loan agreement dated December 26, 2002 No. 4520623 and interest for using the loan - 2,026,849 rubles 32 kopecks with foreclosure on the pledged property of the mortgagor - JSC "Alexandrovsky Radiozavod" and ZAO Standard.

The court of first and appeal instances, having analyzed the evidence presented by the parties, reasonably satisfied the claims of the plaintiff and collected, on the basis of Articles 309, 819, 334, 348, 349 of the Civil Code of the Russian Federation, the declared amount of debt on the loan, interest for using it by foreclosing on the property of JSC " Aleksandrovskiy Radiozavod, pledged under pledge agreement No. 45206323/1 dated December 26, 2002, and the property of CJSC Standard, pledged under pledge agreement No. 45206323/2 dated December 26, 2002, setting the initial sale price of the property in the decision.

It follows from the pledge agreement of the boiler house building and the land plot dated 01/05/2003 that CJSC Standard transferred the boiler house building, located at the address: Alexandrov, Vladimir Region, st. Gagarin, 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 the 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 simultaneous mortgage under the same agreement of the land plot on which this building or structure is located, or of a part of this plot that functionally provides the pledged object, or of the right of lease belonging to the pledgor this site or its corresponding part.

Evidence of pledging under the pledge agreement of 01/05/2003 exactly the part of the land plot that functionally provides the pledged object (boiler house building) was not presented in the case. The agreement of pledge of the building of the boiler house, the land plot, which is available in the case, indicates that these are independent objects of pledge, the said agreement does not contain conditions for the simultaneous mortgage of the building and the land plot, which functionally provides the pledged object. Documents certifying the ownership of the mortgaged land also do not confirm these circumstances.

By virtue of Part 2 of Article 62 of the Federal Law “On Mortgage (Pledge of Real Estate)”, in case of common shared or joint ownership of land plots, a mortgage can only be established on a land plot allocated in kind. The pledge agreement under consideration is not consistent with the specified norm of the law.

Under such circumstances, the court of first instance and the court of appeal came to a legitimate conclusion about the nullity of the pledge agreement of 01/05/2003. , are unfounded.

That is, the norm contained in paragraph 2 of Art. 62 of the Law on Mortgage, significantly restricts, 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 make transactions on the disposal of common property, unless otherwise follows from the agreement of all participants.

In accordance with Art. 63 of the Law on Mortgage mortgage is not allowed: land that is in state or municipal ownership; part of the land plot, the area of which is less than the minimum size established by the regulations of the constituent entities of the Russian Federation and the regulations of local governments for lands of various designated purposes and permitted uses (clause 2, article 63 of the Mortgage Law).

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 Mortgage Law and other regulatory legal acts.

Unlike the legislation of the most developed foreign countries, according to which the mortgage of a land plot always involves the mortgage of the buildings and structures located on it, the Russian pledge law establishes the principle according to which, when a land plot is mortgaged, the right to pledge the buildings located or being built on this plot and pledgor's facilities, including residential buildings, does not apply. However, this norm is dispositive in nature, and the parties in the contract 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 Mortgage, unless otherwise provided by the mortgage agreement, when a land plot is mortgaged, the right of pledge also extends to the building or structure of the pledgor located or under construction on the land plot. The right of the pledgor 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 Mortgage Law. If there is a condition in the agreement providing that a 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 (servitude) 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 the use of the specified part of the land plot are determined by an agreement between the pledgor and the pledgee, and in the event of a dispute - by the court. The pledgor 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, which, in accordance with paragraph 1 of Art. 64 of the Mortgage Law, 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 otherwise, the rights that this person can acquire for the mortgaged land plot are limited by the conditions provided for in Part 3, Clause 1, Art. 64. If on the mortgaged land plot from the composition of agricultural land there are buildings, structures, structures, including those being built on such a land plot, or other real estate objects firmly connected with the land plot, belonging to the owner of such land plot on the same right, a mortgage of such a land plot is allowed only with the simultaneous mortgage of immovable property firmly associated with it.

Naturally, Article 64 of the Mortgage Law cannot but contradict the same RF LC.

In accordance with Art. 1 of the Land Code of the Russian Federation establishes the principle of the unity of the fate of a land plot and real estate objects located on it. In accordance with paragraph 4 of Art. 35 of the Land Code of the Russian Federation, it is not allowed to alienate a land plot without a building, structure, structure located on it if they belong to one person. And when foreclosing the mortgaged property, it is precisely the alienation of property that will occur.

Clause 11 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 11 states that, in accordance with clause 4 of Article 35 of the Land Code of the Russian Federation, the alienation of a building, structure, structure located on a land plot and owned by one person, with the exception of the cases specified in it, is carried out together with the land plot. The alienation of a land plot without a building, structure, structure located on it, if they belong to one person, is not allowed.

Therefore, transactions in which the will of the parties is directed to the alienation of a building, structure, structure without an appropriate land plot or the alienation of 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 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 in the event of termination of the right to land in the event of requisition, confiscation of a building, structure, structure, foreclosure on the said property for the obligations of its owner (Articles 242, 243, 237 of the Civil Code of the Russian Federation).

In accordance with Art. 6 of the Mortgage Law, it is not allowed to mortgage property withdrawn from circulation, property on which execution cannot be levied in accordance with federal law. And, as we can see, foreclosure on a land plot separately from the building is not allowed.

In addition, Article 64 of the Mortgage Law and Art. 340 of the Civil Code of the Russian Federation, and art. 69 of the Law on Mortgage, which do not allow the mortgage of a building without 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 a complete lack of logic: if a building is mortgaged and the contract does not explicitly state that the land plot on which the mortgaged building is located is mortgaged simultaneously with the building, then no mortgage by virtue of law applies to this plot, and the mortgage agreement is void deal. If, however, a land plot is pledged without 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 buildings on this plot are subject to mortgage by virtue of law. What caused such an opposite approach to the mortgage of the building and land, defies logical explanation. Just as the last paragraph of the commented article, which prohibits the pledge of a land plot without buildings located on it, defies 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 buildings located on it, but a land plot from agricultural land cannot? Why such a selective approach? Unfortunately, it is not possible to even guess what the legislator was guided by when writing the commented article.

Thus, Article 64 of the Mortgage Law is contrary to Art. 1 and 35 of the Land Code of the Russian Federation. And since the transfer of property to a mortgage can lead to the alienation of this property, then, accordingly, the mortgage of a land plot without simultaneous mortgage of a property located on this plot will be a void transaction. Therefore, in this case, the property must be mortgaged together with the land plot, described on a par with the land plot in accordance with Art. 9 of the Mortgage Law. 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 simultaneous mortgage of a land plot, and a pledge of a land plot with a real estate object located on it does not exist as an independent type of agreement, and without a simultaneous pledge of a real estate object is void transaction, and Article 64 of the Mortgage Law is not applicable as it is inconsistent with the current legislation.

A characteristic feature of the Russian legal system is that real estate located on a land plot may belong to one person, and the land plot itself to others. Therefore, in the event that such a land plot was mortgaged under a mortgage agreement, and subsequently sold in the course of foreclosure, the new owner of the land plot, in essence, replaces the pledgor in his relationship with the owner of immovable property.

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 void. Thus, the Limited Liability Partnership “Agricultural Enterprise “Chelyabinskoye” filed a lawsuit with the Arbitration Court of the Chelyabinsk Region against the open joint-stock company “South Ural Bank for Social Development “Reserve” to invalidate the agreement on the pledge of the meat processing workshop dated July 30, 1997 and a notarial inscription on prohibition of the alienation of the pledged property until the termination of the pledge agreement dated 31.07.97 No. 1a-4 as an application of the consequences of the invalidity of the pledge. The claim was satisfied by the decision of 13.05.99.

In another case, the Limited Liability Partnership “Repair of Clothing” filed a lawsuit with the Moscow Arbitration Court against the joint-stock commercial bank “Moscow Industrial Bank” to invalidate the agreement on the pledge of non-residential premises dated September 29, 1995 No. 118-z.

The decision of 11.06.99 satisfied the claim. 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 this premises is located, which contradicts paragraph 3 of Article 340 of the Civil Code of the Russian Federation and Article 69 of the Federal Law "On Mortgage" (mortgage of real estate). By the decision of the court of appeal dated 20.07.99 the decision was upheld.

In both cases, the Presidium of the Supreme Court of the Russian Federation canceled the decision made by the 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 July 1, 1996 No. 6/8 “On Certain Issues Related to the Application of Part One of the Civil Code of the Russian Federation » where it is explained that when the pledgor of the building or structure is not the owner or tenant of the land plot, the mortgage agreement cannot be considered inconsistent with the law on the basis of paragraph 3 of Art. 340 of the Civil Code of the Russian Federation. The rights of the mortgagor, and in case of foreclosure on a building or structure - and the rights of the buyer to the land plot should be determined on the basis of the article of the Land Code of the Russian Federation, according to which, when transferring ownership of a building, structure or transferring them to other legal entities or citizens, along with these objects transfers the right to use the land.

In accordance with Article 69 of the Federal Law “On Mortgage”, the pledger's right to permanent use of the land plot on which the building or structure is located is not subject to the right of pledge. When foreclosing a structure or building, the person who acquires this property into ownership acquires the right to use the land plot on the same terms and to the same extent as the former owner (mortgagor) of the immovable property. Under such circumstances, the conclusion of the courts to recognize the disputed real estate pledge agreement as a void transaction is contrary to the current legislation.

In accordance with Article 64.1 of the Mortgage Law, unless otherwise provided by federal law or an agreement, a land plot acquired using credit funds from a bank or other credit organization or funds from 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 corresponding land plot is leased, a mortgage arises by virtue of 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 institution or other legal entity that has provided a loan or targeted loan for the acquisition of a land plot or the right to lease a land plot.

So, as a general rule, unless otherwise provided by a mortgage agreement or an agreement giving rise to a mortgage by virtue of law, when a land plot is mortgaged, the right of pledge also extends to the pledgor’s building or structure located or under construction 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 Land Code of the Russian Federation, lands in the Russian Federation are divided into 7 separate categories according to their intended purpose, 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 one category or another and the permitted use in accordance with the zoning of territories, the general principles and procedures 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 zoning of territories is chosen independently, without additional permits and approval procedures.

Permitted use requirements apply to all land plots, including those acquired through public sale, auction or competition.

An owner who has acquired a mortgaged land plot by selling it at a public auction, auction or by 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 ".

Paragraph 2 of article 69 of the Law on Mortgage refers to restrictions on the range of persons who can acquire land plots when they are sold at public auction, auction or by competition.

So, according to Art. 15 of the Land Code of the Russian Federation, foreign citizens, stateless persons and foreign legal entities cannot own land plots located in the border areas, 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 establishes that foreign citizens, foreign legal entities, stateless persons, as well as legal entities, in the authorized (share) capital of which the share of foreign citizens, foreign legal entities, stateless persons is more than 50%, may own land plots from the lands agricultural purpose only on the right of lease.

Federal Law No. 1-FZ of February 5, 2004 “On Amendments to the Federal Law “On Mortgage (Pledge of Real Estate)” added clause 3 to the commented article, which established additional restrictions on foreclosure on a mortgaged land plot from agricultural land. If the court decides to foreclose such a land plot, its implementation is postponed at least until the full 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 rule allows the mortgagor to retain the products that he expects to receive from the land and in the receipt of which certain forces and means were invested. Otherwise, the pledgor may lose both the pledged land plot and the products that were not pledged.

To avoid interpreting the timing of the completion of agricultural work, the legislator determined November 1 of the year in which the fulfillment of the obligation secured by the mortgage or part thereof is provided, as the date until which the sale of the pledged property is not allowed. Moreover, the parties may provide 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 Mortgage, at the request of the pledgor, the court, if there are good reasons in the decision to foreclose on a land plot from among agricultural land, has the right to postpone its implementation for up to one year.

Summarizing all the above, we can draw the following conclusions.

Pledge of land plots may arise only insofar as their circulation 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 pledged, 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, dacha 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 the composition of agricultural land. In the case of common shared or joint ownership of the said land plots, a mortgage may be established only on a land plot owned by a citizen or a legal entity, allocated in kind from lands that are in common shared or joint ownership.

Mortgage of land that is in state or municipal ownership is 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 the regulations of both the subjects of the Russian Federation and local governments for lands of various purposes and permitted use.

The main data that must be specified in the mortgage agreement for a land plot are: location (postal address) of the mortgaged plot; its cadastral number; real estate objects located on the site (if any); land area; the main category (purpose) of lands located on the site, indicating the local government in charge of these lands, and the purpose of using the land; the right under which the land plot belongs to the pledgor (property right), and the name of the body for state registration of rights to real estate that registered this right of the pledgor.

As for the appraisal of a land plot in case of 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 between the pledgor and the pledgee.

The mortgage agreement is subject to state registration, coming into force from the moment of the last registration. Failure to comply with the rules of state registration of a mortgage agreement shall entail its invalidity. Such an agreement is considered null and void.

A land plot pledged under a mortgage agreement is considered encumbered with a mortgage from the moment the rights of the pledgee (the right of pledge) arise, and if the obligation secured by the mortgage arose later, from the moment the obligation arises. This condition applies only to the parties to the mortgage agreement. For third parties, a mortgage is considered to have arisen from the moment of its state registration.

(Clause 1 as amended by the 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 the regulations of the constituent entities of the Russian Federation and the regulations of local governments for lands of various designated purposes and permitted use.
Commentary on article 63
The article defines land plots that are not subject to mortgage (mortgage of which is not allowed).
1. In accordance with the Federal Law on Mortgage, the mortgage of land plots owned by the state (federal property or the property of subjects of the Russian Federation) or municipal property is not allowed.
State property on land is land that is not owned by citizens, legal entities or municipalities (see clause 1, article 16 of the Land Code of the Russian Federation).
The delimitation of state ownership of land into the property of the Russian Federation (federal ownership of land), the ownership of constituent entities of the Russian Federation and the ownership of municipalities (municipal ownership of land) is carried out in accordance with the Federal Law "On the delimitation of state ownership of land" (see paragraph 2 of Art. 16 of the Land Code of the Russian Federation).
Prior to the entry into force of the Federal Law of 05.02.2004 N 1-FZ, the mortgage of agricultural land from the composition of the land of agricultural organizations, peasant (farm) farms and field land plots of personal subsidiary plots was also not allowed. The specified restriction was canceled, and therefore, a mortgage can be established on such land plots, subject to other requirements of the commented Law and other acts of the legislation of the Russian Federation and regulatory legal acts.
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 the regulations of the constituent entities of the Russian Federation and the regulations of local governments for lands of various purposes and permitted use.
The maximum (maximum and minimum) sizes of land plots provided to citizens for ownership from lands in state or municipal ownership are established (see paragraph 1 of article 33 of the Land Code of the Russian Federation): for conducting a peasant (farm) economy, gardening, gardening, animal husbandry, summer cottage construction - by the laws of the constituent entities of the Russian Federation, for personal subsidiary farming and individual housing construction - by regulatory legal acts of local governments.
The maximum size of land plots provided to citizens for ownership free of charge for the above purposes is established (see clause 2 of article 33 of the Land Code of the Russian Federation):
federal laws - from federally owned lands;
the laws of the subjects of the Russian Federation - from the lands owned by the subjects of the Russian Federation;
normative legal acts of local self-government bodies - from lands owned by municipalities.
For purposes not specified in paragraph 1 of Art. 33 of the Land Code of the Russian Federation, the maximum sizes of land plots are established in accordance with the norms of land acquisition approved in the established manner for specific types of activities or in accordance with the rules for land use and development, land management, town planning and project documentation (see clause 3 of article 33 of the Land Code RF).
The size of a garden land plot, garden land plot or summer cottage land plot is established by laws and other regulatory legal acts of the constituent entities of the Russian Federation, taking into account the maximum norms for the provision of land plots established by federal laws and other regulatory legal acts of the Russian Federation for citizens of certain categories (see paragraph 5 of Article 13 Federal Law "On Horticultural, Gardening and Dacha Non-Commercial Associations of Citizens" dated April 15, 1998 N 66-FZ).
In the Moscow region, the minimum size of a land plot for running a peasant (farm) economy is 2 hectares; local self-government bodies in some cases have the right to provide land plots for conducting a peasant (farm) economy less than 2 hectares in size, taking into account the specialization of the economy.
When dividing between the heirs of land plots provided for gardening, the minimum size of the land plot is 0.02 hectares (see paragraphs 2, 3 of the decision of the Small Council of the Moscow Regional Council "On the maximum size of land plots provided to citizens on the territory of the Moscow Region" dated December 16 1992 N 4/28).