Mortgage for commercial real estate for individuals

The essence of obtaining a mortgage for the purchase of non-residential premises

Commercial real estate is premises from which you can make a profit. They can be, for example, offices, warehouses, premises for shops. You can purchase such real estate with a mortgage, but the lending conditions will be somewhat different from a standard mortgage on a residential building. You can get a loan to purchase commercial real estate:

• individuals;
• entrepreneurs;
• owners of small and medium-sized businesses.

There can be some complications when taking out a mortgage for commercial real estate. Take into account the nuances and details when obtaining this type of lending, since the process of issuing funds differs from a regular mortgage. Most often, difficulties arise for individuals, since lending programs for the purchase of commercial premises are designed specifically to support businesses.

Is it possible to take out a mortgage on non-residential premises for individuals?

Now lenders provide the opportunity for such mortgages not only for legal entities, but also for individuals.
This is due to the development of programs to support small businesses.

Some banks even allow individual entrepreneurs to pledge not only the mortgaged premises, but also any other real estate that they own.

To the garage

Individuals and individual entrepreneurs can take out a mortgage for a garage.
Some banks (for example, Sberbank) issue targeted loans specifically for the purchase or construction of garages. Of course, not all banks offer such a mortgage, but in this case, you can apply for a regular consumer loan.

Note! Garages are not real estate in themselves. They are connected to the land on which they are located. In addition, a garage must, at a minimum, have a foundation to be considered real estate.

Also, according to the law, you can take out a mortgage even for an ordinary parking space. Sberbank already practices issuing such loans.

The terms of this mortgage are:

1. The minimum loan amount is 45,000 rubles;
2. PV – 15% of the property value;
3. Commission for using mortgage funds – 10%;
4. The maximum loan term is 30 years.

With land

According to Article 69, Article 103 of the Federal Law, a land plot becomes collateral if a house purchased with a mortgage is located on it.
But there are also cases in which you can take out a mortgage and not pledge a plot of land:

• If it is municipal or federal property;
• If the area of ​​the plot is smaller than that established in the region;
• The property is under the right of permanent use.

You can learn more about mortgages on land in this article.

Commercial real estate

It is more difficult for individuals to buy commercial real estate than for legal entities.
The fact is that legal entities, in principle, issue loans at an increased rate, and if you allow an individual to issue such a mortgage, the bank will lose its money.

Such loans are most often issued:

1. For individual entrepreneurs;
2. Farm owners;
3. Small business owners;
4. Heads of companies.

Thus, in this case, the bank will carefully analyze the activities of the company that takes out the mortgage. That is, an individual (for example, the head of an LLC) must provide not only a standard package of documents, but also company papers.

Note! Due to the peculiarities of the legislation of the Russian Federation, issuing loans for the purchase of commercial real estate is accompanied by difficulties for banks. If only because the transfer of non-residential real estate as collateral from an individual is a rather specific process, from the point of view of the law. Therefore, each case should be considered individually.

More often, such loans are accompanied by stricter conditions for the borrower.

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Largely:

• The interest rate on a mortgage can be from 11.5% to 20% per annum ;
• Loan amount from 150,000 to 200,000,000 rubles ;
• Down payment on mortgage at least 20%
• Loan term – from 5 to 15 years ;
• The building in which the premises are located must be permanent;
• There should be no encumbrances on ownership.

Features of a commercial mortgage

Individuals who decide to take out a mortgage for commercial real estate will be faced with some features:

1. Increased interest rate compared to an apartment mortgage.
2. The lending period is much shorter - up to 10 years, rather than 15-25.
3. The initial payment is higher - from 30%; with a classic mortgage you can find offers from 10-15%.
4. More demands are placed on borrowers.
5. When purchasing real estate, a plot of land also becomes part of the security.

As with classic mortgage lending, in this case real estate becomes collateral. Until payments to the bank are completed, the borrower's rights to dispose of the property will be limited.

Registration of a pledge occurs as follows: the seller receives an advance payment, transfers ownership rights to the new owner, and the property becomes a pledge. After this, a loan agreement is concluded, the previous owner receives the remaining money.

Terms of loan

Lenders can set any requirements and conditions, since this is not limited by law.
Therefore, each bank can present its own requirements, and for greater accuracy, it is worth contacting a bank employee directly with this question. Individuals can obtain a mortgage for non-residential premises only under the following conditions:

• An individual is an individual entrepreneur;
• A business owner, one of the founders or a major shareholder;
• Acting top manager in LLC;
• The borrower must be a citizen of the Russian Federation;
• This company must have a good reputation;
• The company must be located in the region where the bank is located;
• The company is registered in the Russian Federation and pays taxes.
• Must be between 21 and 65 years of age;
• The area of ​​the property must be at least 150 square meters;
• The facility is located in the region where the bank is located;
• This is a capital building;
• There are no encumbrances on the property.

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Conditions for commercial mortgage recipients

Banks may set different conditions for obtaining a mortgage; the requirements are not regulated by law. Most often, when applying for a commercial mortgage, an individual entrepreneur checks:

• having citizenship of the Russian Federation;
• age restrictions – from 21 to 65 years;
• location of the borrower and registration on the territory of Russia in the bank’s area of ​​operation;
• the presence of a mobile phone that is used at work, this can also be the borrower’s personal number.

Mortgage requirements for legal entities:

1. The period of state registration at the time of filing the application is at least 9 months.
2. The total share of participation of the Russian Federation, municipalities, public and religious organizations, non-residents, foundations in the authorized capital is up to 25%.
3. Legal address of the borrower in the region where the bank operates.
4. The actual location of the borrower is in the region where the bank operates.

For a commercial mortgage, it is impossible to make part of the payment using maternity capital or other housing subsidies. It is also impossible to obtain a property deduction.

Specifics of non-residential premises

If for legal entities the purchase of non-residential premises is a fairly standard and already verified to the smallest detail procedure, then individuals will have to face certain, not always pleasant, nuances:

1. The mortgaged property will necessarily become collateral;
2. If you buy an apartment, but you cannot register in it;
3. The tariff for utilities in non-residential premises is much higher, so an ordinary individual will have difficulty paying for them;
4. To repay the loan, you cannot use funds from maternity capital or any other housing subsidies;
5. Taxes on such a mortgage are not deductible.

Issuing a loan

Before you apply for a commercial real estate mortgage, submit an application. It’s more convenient to do this online on the bank’s website, but you can also do it in a branch. Documents you will need:

• passport of a citizen of the Russian Federation with permanent registration;
• state registration certificate;
• certificate of registration with the tax service;
• legal entity charter;
• licenses, if this is due to the type of activity;
• protocol on the appointment of a manager;
• an order on the appointment of a chief accountant or on the transfer of the duties of an accountant to a manager;
• financial statements;
• tax returns;
• documents on the purchased property.

If the bank approves the mortgage, the process of issuing money to purchase the property begins. Since the law does not regulate collateral for a commercial mortgage, registration of a mortgage can only occur after the property is transferred into the ownership of the borrower. This creates great risks for the bank, since it turns out that the loan is unsecured for a certain period. The bank first issues money, and only then registers the premises as collateral and insures its risks.

Problems of mortgage of non-residential buildings (premises)

The effectiveness of bank lending largely depends on employees of the legal departments of banks, who conduct an examination of proposed transactions to determine their compliance with current legislation. This article aims to attempt to formulate some of the main problems of concluding mortgage agreements for non-residential property and ways to resolve them.

Mortgage of a building or structure A mortgage of a building or structure is allowed only with a simultaneous mortgage under the same agreement of the land plot on which this building or structure is located, or the right to lease this plot belonging to the mortgagor (clause 3 of Article 340 of the Civil Code of the Russian Federation).
BUILDING (STRUCTURE) OR SEPARATE PREMISES

Currently, judicial practice is based on the equivalence of the legal regime of buildings and premises. Thus, the Federal Antimonopoly Service of the North-Western District in its Resolution dated February 13, 2001 in case No. A56-25828/00 indicates: since non-residential premises in accordance with Art. 130 of the Civil Code of the Russian Federation refers to real estate; as part of a building, it is subject to the legal regime established for buildings and structures.

Judicial practice: Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 8, 1998 No. 5046/98; Resolution of the cassation instance of the FAS Moscow District dated 05/06/1999 in case No. KG-A40/1266-99; Resolution of the cassation instance of the FAS Moscow District dated November 3, 1998 in case No. KG-A40/2641-98.

Recommendations: when preparing a transaction to make a decision on the need to pledge a land plot, at the moment it does not matter whether a separate building (structure) or premises in a building are offered as collateral.

THE NECESSITY TO OBTAIN THE CONSENT OF THE OWNER OF THE LAND TO TRANSFER THE RIGHT OF ITS LEASE TO A MORTGAGE

According to the explanation of the Presidium of the Supreme Arbitration Court of the Russian Federation, contained in clause 5 of Information Letter No. 90 dated January 28, 2005 “Review of the practice of consideration by arbitration courts of disputes related to the mortgage agreement”, in accordance with clause 9 of Art. 22 of the Land Code of the Russian Federation, the owner of a building located on a land plot from state and municipal lands, leased by him for a period of more than five years, simultaneously mortgaging the building and the rights under the lease agreement for this plot under one mortgage agreement, has the right to mortgage these rights without the consent of the lessor with his notifications.

The provision of the lease agreement regarding the obligatory receipt by the tenant of the landlord's prior consent to the mortgage of the lease right contradicts the imperative norm of paragraph 9 of Art. 22 of the Land Code of the Russian Federation, which provides that the tenant, without the consent of the lessor with his notice, has the right to pledge his rights under the contract. Provision of paragraph 9 of Art. 22 of the Land Code of the Russian Federation does not contradict paragraph 2 of Art. 615 of the Civil Code of the Russian Federation, since according to clause 2 of Art. 607 of the Civil Code of the Russian Federation, the law may establish the specifics of leasing land plots. The condition of the land lease agreement, which provides for the obligatory receipt by the tenant of the lessor's consent to pledge the right to lease, is invalid by virtue of Art. 168 and 180 of the Civil Code of the Russian Federation.

Effect of clause 1.1 of Art. 62 of the Federal Law “On Mortgage (Pledge of Real Estate)”, which establishes the condition for the transfer of a lease right to a mortgage only with the consent of the lessor, applies to those cases of mortgage of the right to lease a land plot when such a right is the only (independent) subject of the mortgage and is pledged without a simultaneous mortgage buildings (structures). In the case of a mortgage, the right to lease a land plot in connection with the mortgage of a building located on this plot, clause 1.1 of Art. 62 of the Law “On Mortgage (Pledge of Real Estate)” does not apply.

Judicial practice: Resolution of the Tenth Arbitration Court of Appeal dated December 13, 2005/10/16/2005 in case No. 10AP-2882/05-GK; Resolution of the Federal Antimonopoly Service of the Far Eastern District dated July 31, 2007 in case No. F03-A73/07-1/2748.

Recommendations: if a building/premises located on a land plot of state and municipal land leased for a period of more than five years is offered as collateral, you must request:

• an extract from the Unified State Register of Rights to Real Estate and Transactions with It on a Land Plot;
• extract from the cadastral plan, lease agreement (with registration stamp);
• evidence of the notification of the owner of the land plot with the attachment of evidence confirming the receipt by the owner of these documents (postal notification of delivery or an office stamp confirming the acceptance of the incoming document on the notification).

MORTGAGE WITHOUT LAND
RIGHTS TO LAND NOT REGISTERED

If the mortgagor 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 clause 3 of Art. 340 Civil Code of the Russian Federation. The rights of the mortgagor, and when foreclosure is applied to a building or structure, the rights of the buyer to the land plot must be determined on the basis of Art. 37 of the Land Code of the Russian Federation, according to which when the ownership of a building, structure is transferred or when they are transferred to other legal entities or citizens, the right to use land plots is transferred along with these objects (clause 45 of the Joint Resolution of the plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated 01.07. 1996 No. 6/8).

A building mortgage agreement cannot be considered inconsistent with the law if it is concluded without a pledge of rights to a land plot due to the mortgagor’s lack of ownership rights to this plot (clause 4 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 27, 2001 No. 61).

Judicial practice: Resolution of the Ninth Arbitration Court of Appeal dated 06/21/2007/06/28/2007 in case No. 09AP-6239/2007-GK; Resolution of the Ninth Arbitration Court of Appeal dated 06.12.2006/13.12.2006 in case No. 09AP-

16165/2006-GK; Resolution of the Tenth Arbitration Court of Appeal dated January 24, 2007/01/31/2007 in case No. A41-K1-25771/05.

Recommendations: the real estate pledge agreement complies with the requirements of the law - in the absence of a simultaneous pledge of the land plot, if the Borrower’s rights to the land plot are not formalized. In this case, it is necessary to request from the Pledgor documentary evidence of the absence of formalized rights to the land plot:

• an extract from the Unified State Register of Rights to Real Estate and Transactions with it on land rights (or rather, on the absence of such rights by the owner);
• a certificate from the Federal Cadastral Service (Rosnedvizhimost) confirming the absence of rights to land.

REGISTRATION OF REAL ESTATE AS PLEDGE WITHOUT A SIMULTANEOUS MORTGAGE OF A LAND
If real estate is located on a land plot, the rights to which are formalized by a lease agreement that is not subject to state registration (a lease agreement for a period of less than a year or a lease agreement for an indefinite period), then the real estate can be registered as a pledge without a simultaneous mortgage of the land plot.

This position has been confirmed by judicial practice. Resolution of the Federal Antimonopoly Service of the Moscow District dated 03/19/2007/03/26/2007 in case No. KG-A40/1895-07: the court considered correct the position of the appellate court, which refused to recognize the mortgage agreement as a void transaction due to the absence of a pledge of lease rights along with the pledge of a non-residential building land plot.

Resolving the dispute, the court of first instance found that the plaintiff acquired the said building on the basis of a purchase and sale agreement dated 2002 from an OJSC, to which the land plot located under the building was leased for a period of three years under an agreement dated 2001 concluded with Moskomzem.

Referring to the provisions of Art. 552 of the Civil Code of the Russian Federation and Art. 35 of the Land Code of the Russian Federation, the court indicated that the plaintiff, by force of law, acquired the right to lease a land plot under the terms of a lease agreement dated 2001 as a legal consequence of the acquisition of real estate. Despite the fact that on the date of concluding the mortgage (pledge) agreement - 2004 - the lease agreement from 2001 had expired, the existence of rental legal relations with the Plaintiff was confirmed by judicial acts in case No. A40-18013/05-7-153, therefore, the lease agreement was renewed under the same conditions for an indefinite period.

A lease agreement renewed for an indefinite period does not require state registration, since, according to clause 2 of Art. 651 of the Civil Code of the Russian Federation, a lease agreement concluded only for a period of at least one year is subject to state registration.

According to paragraph 1 of Art. 5 of the Federal Law “On Mortgage (Pledge of Real Estate)”, under a mortgage agreement the real estate specified in clause 1 of Art. 130 of the Civil Code of the Russian Federation (including land plots and buildings), the rights to which are registered in the manner established for state registration of rights to real estate and transactions with it.

Clause 1 of Art. 26 of the Federal Law “On State Registration of Rights to Real Estate and Transactions with It” establishes that state registration of the lease of real estate is carried out through state registration of the lease agreement for this real estate.

In accordance with paragraph 5 of Art. 5 of the Federal Law “On Mortgage (Pledge of Real Estate)”, 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), unless otherwise established by federal law and does not contradict the essence of rental relations.

Thus, the rights of a tenant arising from a lease agreement for real estate that is not subject to state registration cannot be the subject of a mortgage agreement. Therefore, an agreement on the pledge of the rights of a tenant arising from such a lease agreement for real estate is not a mortgage agreement and is not subject to state registration (clause 10 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 28, 2005 No. 90 “Review of the practice of consideration by arbitration courts of disputes related to mortgage agreement").

In accordance with paragraph 2 of Art. 9 of the Federal Law “On Mortgage (Pledge of Real Estate)”, if the subject of the mortgage is a lease 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.

However, the appeal court found that, in accordance with the data of the Unified State Register of Rights to Real Estate and Transactions with It, the registration of rights to the land plot under the mortgaged building was carried out by a third party; no other information was provided about the registration of the lease right for Teknodom LLC.

Consequently, Teknodom LLC did not have the opportunity, in compliance with the requirements of the law, to pledge under a mortgage agreement what was not registered in the manner established for state registration of rights to real estate and transactions with it (Clause 1, 5, Article 5 of the Federal Law “On Mortgage” (real estate pledge)"), the right to lease a land plot located under a building mortgaged under the contested mortgage (pledge) agreement dated December 9, 2004 No. 150/10.

Such an agreement is not invalid (void), since the right to the land plot located under the premises owned by the mortgagor belonged to him by law, but was not formalized in kind, and therefore could not be included in the disputed mortgage agreement.

THE LAND UNDER THE BUILDING BELONGED BELONGES TO THE OWNER OF THE BUILDING WITH THE RIGHT OF PERMANENT, LIFELESS USE OF THE LAND

In accordance with Art. 69 of the Federal Law “On Mortgage (Pledge of Real Estate)”, the right of pledge belonging to the mortgagor for permanent use of the land plot on which the building or structure is located does not apply. When foreclosure on a structure or building, the person who acquires ownership of this property acquires the right to use the land plot on the same terms and to the same extent as the previous owner (mortgagor) of the real estate.

A commercial bank filed a claim with the arbitration court against a limited liability partnership (mortgagor) to foreclose on a mortgaged non-residential building.

The court decision rejected the claims with reference to clause 3 of Art. 340 of the Civil Code of the Russian Federation, according to which a mortgage on a building is allowed only with a simultaneous mortgage under the same agreement on the land plot on which the building is located.

The cassation court overturned the decision on the following grounds.

An agreement was concluded between a commercial bank and a partnership to provide the latter with a loan, which was secured by an agreement on the pledge of a non-residential building.

Due to the borrower's lack of funds, the lender exercised its right to foreclose on the pledged property.

Notarization of the pledge agreement and its state registration are confirmed by documents.

In addition, it was determined that the owner of the mortgaged building owns the land plot on which it is located with the right of perpetual use in accordance with a state act issued in the prescribed manner.

In such circumstances, the reference of the court of first instance to paragraph 3 of Art. 340 of the Civil Code of the Russian Federation is unlawful.

According to paragraph 3 of Art. 334 of the Civil Code of the Russian Federation, the rules of the Code on a pledge arising by virtue of an agreement apply to a pledge arising on the basis of law, unless otherwise provided by law.

In accordance with paragraph 3 of Art. 1 of the Federal Law “On Mortgage (Pledge of Real Estate)”, 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 do not establish other rules.

Such rules are contained in Art. 69 of the said Federal Law. It follows from it that the right of pledge belonging to the mortgagor for permanent use of the land plot on which the building is located does not apply. When foreclosure is applied to such a building, the person who acquires ownership of this property acquires the right to use the land plot on the same terms and to the same extent as the previous owner (mortgagor) of the real estate.

A similar approach to resolving this issue is contained in Art. 37 of the Land Code of the Russian Federation1.

Below are court decisions in which mortgagees were deprived of the opportunity to foreclose on the mortgaged property due to failure to address certain issues when concluding a mortgage agreement. Since this article is aimed at practicing lawyers of credit institutions, I hope that the examples given will help avoid complications when lending to legal entities and individuals.

Mandatory indication in the pledge agreement of the price of each object that is the subject of pledge

According to paragraph 1 of Art. 339 of the Civil Code of the Russian Federation, the pledge agreement must indicate the subject of the pledge and its valuation, the essence, size and deadline for fulfilling the obligation secured by the pledge. When preparing a pledge agreement, you should pay special attention to the obligation to indicate in the agreement the collateral value of each collateral item separately.

As an example, let us cite the Resolution of the Arbitration Court of Cassation of the Volga-Vyatka District dated June 20, 2007 in case No. A82-14740/2006-43, the essence of which was as follows.

The joint-stock bank filed a claim with the Arbitration Court of the Yaroslavl Region against the LLC for debt collection under the loan agreement. At the same time, the Bank asked to foreclose on the mortgaged real estate under the mortgage agreement:

• building with a total area of ​​506.10 sq. m;
• garage with a total area of ​​98.10 sq. m;
• land plot with a total area of ​​1751 sq. m.

The court of first instance, by decision dated February 1, 2007, satisfied the claim in the amount of the stated requirements.
The court refused to foreclose on the mortgaged property. The court considered that foreclosure on the pledged property is impossible, since it is not a single property complex and the parties did not agree on the prices of the pledged items separately in the pledge agreement. Having disagreed with the adopted judicial act, the Bank appealed to the Federal Arbitration Court of the Volga-Vyatka District with a cassation appeal, in which it asks to cancel the decision of 02/01/2007 regarding the refusal to satisfy the requirement to foreclose on the pledged property. Having studied the case materials, the arguments of the applicant of the cassation appeal and the objections to them, the district court found no grounds for canceling the appealed judicial act.

When considering the dispute, the arbitration court established and the case materials confirm that in order to ensure the fulfillment of the borrower’s obligations under the loan agreement, the bank and the LLC entered into a mortgage agreement, the subject of which were: a building, a garage, and a plot of land. In accordance with clause 1.5 of the agreement, the subject of the mortgage is assessed, according to Report dated 02/06/2006 No. 008-N/2006 “On the assessment of the market value of real estate properties of Mustang and Company LLC as of 02/01/2006”, at market value in the amount of 22 362,652 rubles.

By virtue of paragraph 1 of Art. 339 of the Civil Code of the Russian Federation, the pledge agreement must indicate the subject of the pledge and its valuation, the essence, size and deadline for fulfilling the obligation secured by the pledge. It must also contain an indication of which party holds the pledged property. As can be seen from the mortgage agreement No. 400/05/d dated 02/06/2006 and the case materials, the collateral includes several real estate objects. These circumstances are confirmed by the submitted technical passports for the specified objects, certificates of state registration of rights and extracts from the Unified State Register of Rights to Real Estate and Transactions with It (hereinafter referred to as the Unified State Register of Real Estate). Consequently, the court’s conclusion that the real estate objects are independent objects and are not part of a single property complex corresponds to the circumstances established in the case and the evidence available in the case. No documents were presented in the case confirming otherwise (regarding a single property complex). Contrary to the requirements of Art. 339 (clause 1), the considered mortgage agreement does not contain information about the price of the mentioned collateral items separately, therefore the court justifiably refused to satisfy the plaintiff’s demands for foreclosure on the pledged property. The Bank's argument about the incorrect application by the court of first instance of the rules of Art. 348 of the Civil Code of the Russian Federation, the district court rejected, since the basis for the refusal were circumstances that were a violation of the provisions of Art. 339 (clause 1) and 350 (clause 4) of the Civil Code of the Russian Federation by the parties to the pledge agreement, such as:

• absence of the price of collateral in the contract dated 02/06/2006 No. 400/05/d;
• the ability to set the initial selling price of objects.

Taking into account the above, the cassation court rejected the applicant’s arguments specified in the complaint.
By a ruling dated October 17, 2007, the Supreme Arbitration Court of the Russian Federation refused to transfer the case to the Presidium of the Supreme Arbitration Court for review by way of supervision, considering that the courts had not committed violations of the norms of substantive law and the requirements of procedural legislation, entailing the unconditional reversal of the judicial act.

Acceptance as collateral of a building that may be considered necessary for production activities

NO DECISION OF SHAREHOLDERS ON TRANSFER OF REAL ESTATE AS POLLOGATE

As an example, let us cite the Resolution of the Tenth Arbitration Court of Appeal dated February 22, 2007 in case No. A41-K1-5828/06, the essence of which was as follows.

The court refused to foreclose on the mortgaged property, indicating that the building pledged under the mortgage agreement is the main facility in which the Pledgor’s production operates, without which the Pledgor would actually be unable to carry out its activities.

The joint stock bank filed a claim with the arbitration court to collect the debt under the obligations of the Borrower (Defendant 1). The plaintiff also asked to foreclose on the pledged property of the Company (Defendant 2/mortgagor): fixed assets owned by the Pledger - a 4-story industrial building and the right to lease a land plot for a period of 49 years with an area that functionally supports the mortgaged property located on it.

The Arbitration Court of the Moscow Region, by its decision dated October 25, 2006, satisfied the claim regarding debt collection, but refused to satisfy the request to foreclose on the pledged property.

Disagreeing with this decision, the Bank filed an appeal, in which it asks the decision to be canceled in part of the refusal to foreclose on the pledged property, and to satisfy the claim in this part.

The Arbitration Court of Appeal does not find the grounds provided for in Art. 270 of the Arbitration Procedure Code of the Russian Federation, to cancel or change a court decision, based on the following.

Since the subject of pledge under the agreement is real estate, the legal relations of the parties are subject to the provisions of the Federal Law “On Mortgage (Pledge of Real Estate)”.

According to paragraph 1 of Art. 5 of the Federal Law “On Mortgage (Pledge of Real Estate)”, the subject of a mortgage can be enterprises, as well as buildings, structures and other real estate used in business activities.

According to Art. 132 of the Civil Code of the Russian Federation, an enterprise is recognized as an object of rights as a property complex used to carry out business activities. The enterprise as a whole as a property complex is recognized as real estate. An enterprise as a whole or part of it may be the object of purchase and sale, pledge, lease and other transactions related to the establishment, modification and termination of property rights.

The composition of an enterprise as a property complex includes all types of property intended for its activities, including land plots, buildings, structures, equipment, inventory, raw materials, products, rights of claim, debts, as well as rights to designations that individualize the enterprise, its products, and work and services (trade name, trademarks, service marks), and other exclusive rights, unless otherwise provided by law or contract.

Enterprises as property complexes represent a specific object of civil rights, since they include, in addition to tangible elements - buildings, land, equipment, raw materials, finished products, cash, securities, etc., and intangible assets - rights , claims, debts, company name, trademarks and other exclusive rights (clause 2 of article 132 of the Civil Code of the Russian Federation).

Features of the mortgage of enterprises, buildings or structures with the land plot on which they are located are provided for in Art. 69 of the Federal Law “On Mortgage (Pledge of Real Estate)”.

When mortgaging an enterprise as a property complex, the right of pledge extends to all property included in its composition.

Clause 2 of Art. 340 of the Civil Code of the Russian Federation provides that when mortgaging an enterprise or other property complex as a whole, the right of pledge extends to all property included in it, movable and immovable, including claims and exclusive rights, including those acquired during the mortgage period, unless otherwise provided by law or an agreement.

The composition of the enterprise property being mortgaged and the assessment of its value are determined on the basis of a complete inventory of this property. The inventory report, the balance sheet and the conclusion of an independent auditor on the composition and value of property related to the enterprise are mandatory annexes to the mortgage agreement (Article 70 of the Federal Law “On Mortgage (Pledge of Real Estate)”).

In this case, the subject of collateral under the mortgage agreement is a 4-story industrial building with a total area of ​​3124.20 sq. m. m (including the basement) and the right to lease the land plot under this building for a period of 49 years.

It does not follow from the mortgage agreement that the subject of the pledge was the enterprise as a property complex.

However, the building pledged under the mortgage agreement is the main asset of Defendant 2 in which its production operates, without which Defendant 2 will actually not be able to carry out its activities.

This Resolution in case No. A41-K1-5828/06 contains another justification for the refusal to foreclose on the mortgaged property.

The Court of Appeal also took into account that the mortgage agreement was signed on behalf of Defendant 2 by director S.V.

The case file contains Minutes No. 29 of the extraordinary general meeting of shareholders of Defendant 2, drawn up on the date prior to the conclusion of the pledge agreement, at which the company’s shareholders Sh., P., L., who together hold 100% of the votes, made decisions to refuse to provide a pledge real estate (4-storey industrial building with a total area of ​​3124.20 sq. m) owned by Defendant 2 under the Borrower’s loan obligations to the Bank. Also at this meeting it was decided to warn director S.V. on the inadmissibility of concluding a collateral transaction without the approval of shareholders and the refusal to provide a guarantee for Defendant 2 in the requested loan.

The case materials also contain Minutes No. 29 of the extraordinary general meeting of shareholders of Defendant 2, drawn up on the same date, in which shareholder P., director and shareholder S.V. participated, who decided to provide collateral for a 4-story industrial building with a total area of ​​3124, 20 sq. m, owned by Defendant 2.

Meanwhile, according to an extract from the register of shareholders of Defendant 2, as of the date of drawing up the protocol, the company’s shareholders for this period of time were Sh., L., P., who together owned 100% of the company’s shares.

Thus, taking into account the absence of a decision of the shareholders of Defendant 2 to pledge fixed assets - the real estate of Defendant 2, and also taking into account that the pledged real estate is the building in which the production of Defendant 2 operates, which is not the subject of a mortgage as a property complex, the appeal The court considers it impossible in this case to foreclose on the Borrower's obligations on the collateral under the mortgage agreement - real estate.

In addition, in the case materials there is a guarantee agreement concluded between the Bank and P. (guarantor), under the terms of which the latter acted as a guarantor to the Bank for the Borrower’s fulfillment of all obligations under the loan agreement and undertook to bear joint and several liability.

Thus, in addition to the mortgage, the Borrower’s loan obligations were also secured by a guarantee, and therefore in this case the court does not see any significant violation of the plaintiff’s rights when refusing to foreclose on the property of Defendant 2.

Having considered the arguments of the appeal in full, the appellate court, in connection with the above, finds them untenable and subject to rejection.

There are no grounds for canceling or changing the court's decision.

It should be noted that this court decision is highly controversial and may be canceled if the Bank appeals it. However, we can nevertheless recommend that lawyers involved in the preparation of similar transactions pay close attention to the circumstances that served as the basis for the court’s refusal to foreclose on the mortgaged property. Thus, it is necessary to obtain extracts from the register of shareholders as of the date of making decisions on the transfer of property as collateral. It can also be recommended to request a written document in which the Pledgor guarantees and assures the Bank that the real estate is not property, without which the Pledgor will actually be unable to carry out its activities.

Unfortunately, we have to admit that even receiving these documents does not guarantee the Bank 100% protection.

In conclusion, we would like to provide an approximate list of documents that are necessary to conduct an examination of a real estate transaction.

1. Articles of association/memorandum of association.

2. Changes to the charter/memorandum of association.

3. Decision on creation (if the company was created in the process of privatization: decision on privatization, privatization plan, other available documents).

4. Protocol on the appointment of the executive body.

5. Certificate of establishment.

6. Certificate of assignment of TIN.

7. Certificate of entry into the Unified State Register of Legal Entities (assignment of OGRN).

8. Certificates confirming registration of amendments to the constituent documents.

9. Certificates of making entries in the Unified State Register of Legal Entities that are not related to amendments to the constituent documents.

10. Information letter from Rosstat on the assignment of statistics codes.

11. A copy of a notarized bank card.

12. Orders on the appointment of persons indicated on the bank card.

13. Extract from the Unified State Register of Legal Entities (current date).

14. Documents confirming registration of the issue of shares (report on the results of the issue of shares registered with the Federal Commission for the Securities Market, notification of the Federal Commission for the Securities Market on registration of the issue of shares, prospectus) - for JSC.

15. An extract from the register of shareholders of the company (as of the current date), which must contain data from the register on the names of all owners (full name of the legal entity), quantity, category (type) and nominal value of the securities they own, information on the availability/ absence of encumbrances (for joint stock companies).

16. Certificate of ownership of the Object (real estate).

17. Purchase and sale agreement for the Object (other document) confirming the transfer of ownership of the Object, with an attached acceptance certificate for the Object and evidence of payment; it is also necessary to request documents from the Seller of the Object in order to verify the legality of the transaction (the scope of documents depends on the specific situation, but must include: verification of the authority of the person who entered into the transaction, balance sheet, decision to sell (major transaction and interested party transaction)) .

18. Technical passport of the Object (including explication and floor plan of the Object) + general plan (M 1:500 - if several buildings are being sold).

19. Documents confirming payment of utility bills, telephone, property taxes.

20. Certificate of absence of debt to the budget for taxes and fees.

21. Documents confirming the existence of encumbrances on the Property (pledge, lease, including a period of less than a year, etc.).

22. Balance sheet of the company as of the last reporting date and the date of acquisition of the Object.

23. Documents of title to the land (land lease agreement with an attached plot diagram, additional agreements to it, documents confirming payment of rent; certificate of ownership of land, other rights to land).

24. Resolution on the provision of lease, ownership of a land plot.

25. Cadastral plan of the land plot (extract from the state land cadastre).

26. Certificate of book value of the land plot.

27. Conclusion on the market valuation of the Property, drawn up by an independent appraiser.

28. Extract from the Unified State Register of Rights to Real Estate and Transactions with It as of the current date (on the ownership of the Object and the land plot).

29. The decision of the owners to acquire the Object and the land plot (if it is owned) (indicating a major transaction or an interested party transaction, if such is the case).

30. Certificate of book value of the Object.

Please note that this list is not exhaustive. Upon provision of these documents and their analysis, additional documents may be requested.

1 Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 29, 1997 in case No. 3923/96.

Ways to get a commercial mortgage

There are several schemes for obtaining a mortgage for commercial real estate:

1. Through a purchase and sale agreement . The buyer pays the seller part of the amount, the bank guarantees receipt of the remaining money. After this, ownership rights are registered in the name of the buyer. An agreement is concluded between the borrower and the bank and the property is registered as collateral. The bank issues borrowed funds, and the buyer transfers them to the seller.
2. By prior agreement. The buyer pays part of the amount to the seller. The property is registered as the property of the borrower and as collateral to the bank. The bank pays the remaining amount to the seller.
3. Redemption by a legal entity . First, they create a shell company. The property is pledged as collateral to this company. The borrower buys the shares of the company, that is, pays off the loan. When he buys all the shares, ownership of the company will be transferred to him.
4. Registration for an individual . The mortgage is issued by a private person - the owner of the business. The bank evaluates the solvency of the borrower and its assets. The company's activities are also assessed. After this, the bank issues a loan.

You can apply for a mortgage on commercial real estate using any of these methods.

Registration procedure

When applying for a mortgage for the purchase of commercial real estate, the history of the borrower is carefully considered. This rather complicated process is associated with the imperfection of the relevant legislation. It should be noted that a lien cannot be placed on the property until the transfer of ownership from the seller to the buyer.

When such a situation arises, the risk for all parties to the transaction increases significantly, including the financial institution that issues the loan. In order to minimize the risk to their own funds, financial institutions have developed a special mortgage registration scheme, which consists of three stages:

Initially, the purchase and sale transaction is completed, and then the pledge. The amount is given to the seller after the mortgage is registered in the name of the new owner.

First, a mortgage is issued on the object under the old owner, and then gradually the transfer of ownership and re-encumbrance occurs.

The transfer of ownership of commercial real estate to a legal entity is carried out after the acquisition of the right of ownership of this legal entity from the seller.

Pros and cons of commercial mortgages

There are several disadvantages to a commercial loan:

1. Long waiting period for a bank decision. Usually the answer comes no earlier than 5 days. But in many situations, consideration of the application can take up to two weeks. This is due to the fact that the bank checks not only the borrower himself, but also his business and real estate.
2. Some banks charge a fee for processing an application for a commercial mortgage.
3. This type of lending is often offered only in large cities. In small towns, such mortgages are often unavailable.

Advantages of a commercial real estate mortgage:

• some banks allow borrowers to take a deferment on mortgage payments for up to 6 months or a year;
• you can choose different debt payment schemes: equal payments or seasonal payments, this is especially beneficial for those companies that depend on the time of year;
• Some banks do not oblige you to take out a mortgage.

It is advisable to take out a commercial mortgage only when there is a benefit for a specific enterprise. Otherwise, getting involved in a long-term loan secured by real estate may not be advisable.

Rosbank

There are 2 lending programs:

• A loan for the purchase of a parking space/garage, where the interest will be from 8.25% per year, and the down payment will be from 30% per annum, for a period of 10 years.
• A loan for apartments, where the advance is from 20% and the rate is from 8.25% per annum, but the maximum debt servicing period is 25 years.

You can use our advanced calculator with the ability to build a payment schedule and calculate early repayment on this page.

Most large Russian banks are ready to issue a loan for a non-residential building. Their offers are in demand, because they give ordinary borrowers the opportunity to purchase a commercial property without additional red tape with the involvement of a legal entity.

If you want to find out where it’s better to invest your money to make money this year, then follow this link. If you are interested in deposits, then you can check out the best offers from banks here.

08/08/2019 Information about the authors | Category: Mortgage | Real estate

Which bank is better to choose

Which bank is better to apply for a commercial mortgage depends on which loan parameters are the most important. For example, if you need a minimum down payment, compare this parameter according to the offers of different banks. If the interest rate is more important, look for a bank based on this criterion. Also keep in mind that the interest rate is affected by income, credit rating, business stability and the quality of the collateral.

Choose the most suitable bank conditions and fill out an application. This can be done online on the official website. Waiting for a response from the lender can take up to several days. The presence of a guarantee or collateral that is already owned by the potential borrower significantly increases the chances of loan approval. Then the bank’s risks are reduced, and it is ready to make concessions to the client - lower the interest rate, reduce the size of the down payment or extend the maximum term of the commercial mortgage.

Features of the procedure

For legal entities, the scheme for purchasing a non-residential building is a standard operation, but individuals will have to expect the following:

• When purchasing apartments, you cannot register in them.
• Real estate will act as collateral for the loan (but this is also included in proposals for individuals).

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• Utilities are many times more expensive, since enterprises have their own tariffs.
• It is impossible to take advantage of maternal capital or housing subsidies.
• It will not be possible to deduct taxes.

The entire process of commercial mortgages is controlled by Federal Law No. 102. Although even it does not talk about all the details of the process, only generalized information. All of the above regulations relate more to issues of collateral real estate.

Recommendations when applying for a mortgage

To increase your chances of getting a mortgage approved and getting more favorable terms, contact a bank with which you have previously collaborated. If you did not have any controversial situations before applying, the bank may approve the most favorable conditions. It is illogical to apply for services from different credit organizations, so first of all you should consider the bank where the businessman has a current account.

It is recommended to treat a commercial real estate mortgage as an investment. Draw up a business plan, calculate the benefits. If it covers the cost of paying interest, a mortgage can be taken out because it will bring profit to the business or allow you to save on renting premises.