Registration of property rights and mortgage

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Published: March 24, 2018

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New buildings are one of the most convenient options for purchasing housing, as they allow you to fully realize all the existing ideas of potential owners. In addition, the purchase of housing in a new building is obviously a “clean” transaction from a legal point of view, since such housing has not yet had owners and it belongs to the primary fund.

• Where to begin?
• Procedure
• What documents should I prepare?

However, if the purchase is carried out using borrowed funds, some nuances of such a transaction should be clarified.

Limitations of the borrower's rights

The mortgage loan payer has the right to live in the purchased apartment, repair it and use it for the needs of his family. However, there are a number of restrictions on some actions that the owner cannot perform without the permission of the mortgagee:

• registration in the apartment of persons who are not co-borrowers or co-owners;
• alienation of residential premises;
• apartment redevelopment;
• concluding a rental agreement;
• assignment of rights under a mortgage agreement (Article 38 of Federal Law No. 102).

All these restrictions apply until the mortgage loan is fully repaid and the encumbrance on the pledged property is removed.

Where to go to register property rights?

The body that registers the transfer of ownership of real estate is Rosreestr. However, you can submit documents for registration in different ways:

1. You can register ownership of the purchased residential premises by contacting the Rosreestr branch. To avoid problems with queues and save your time, you can register on the State Services portal and select the date and time of your appointment in advance in your personal account on the Rosreestr website.
2. You can also submit registration documents through any MFC office. You will have to wait a few days longer for the documents to be processed. The exact time of receipt of completed documents can be found on the MFC website by the number of the issued receipt or by calling the regional MFC hotline.
3. If the purchase and sale agreement is subject to notarization by force of law, or the parties to the transaction have made such a decision, then after completing all the necessary actions, the notary himself can send the documents for registration to Rosreestr.

Registration of ownership after repayment of the mortgage loan

After closing the mortgage agreement, the borrower has every right to fully register ownership of the property. After all, it’s no secret that for the period while the housing is pledged to the lender, the owner does not have the right to take any legal actions with it. The apartment cannot be sold, given away or exchanged. Some banking organizations also prohibit the registration of registration until the debt to the bank is completely settled.

However, many borrowers mistakenly believe that the mortgaged property is the property of the lender. In fact, according to the purchase and sale agreement, it is already the property of the buyer. However, a note about the presence of an encumbrance is made in the certificate of ownership. As soon as the debt to the bank is fully repaid, this note is canceled.

In order to remove the encumbrance from real estate upon expiration of the mortgage agreement, you will need to provide the documents required by the regulations, namely:

• Passport and statement from the owner.
• A certificate from the creditor confirming full repayment of the debt.
• Original mortgage agreement.
• A mortgage note with a note indicating that the mortgage has been paid off.
• Documents on ownership of the apartment.

Find out more about registering ownership of an apartment, common mistakes and recommendations for registration on the Rosbank Dom website.

Required documents

To register ownership of an apartment purchased on the secondary housing market, the following documents will be required:

• passports of participants in the purchase and sale transaction;
• application for registration of property rights;
• contract of sale;
• title documents for the purchased housing;
• extract from the Unified State Register of Real Estate;
• technical certificate;
• notarized consent of the spouse to complete the transaction;
• preliminary permission from the guardianship and trusteeship authorities (if minors were among the owners of the apartment being sold);
• mortgage agreement and pledge agreement;
• receipt of payment of state duty.

To register ownership of an apartment in a new building after putting the house into operation you will need:

• passports of participants in shared construction;
• agreement of shared participation in construction;
• deed of transfer;
• technical and cadastral passport of the house;
• permission to put the house into operation;
• a document confirming the assignment of a zip code and postal address to the property.

If the developer violates the terms of the DDU (for example, evading the signing of an apartment acceptance certificate), ownership can be registered on the basis of an appropriate court decision confirming the fulfillment of obligations by the participant in shared construction and his actual right to the acquired property.

List of documents for registration of ownership of an apartment

When purchasing housing using credit funds, a lien arises against it by virtue of the law. At the time of the transaction, the transfer of ownership to the borrower and the mortgage itself are simultaneously registered. The basis is the mortgage agreement and the application of the mortgagor or mortgagee.

The encumbrance is lifted within three working days. There is no state duty paid for repaying the mortgage registration record.

• joint statement of the mortgagor and the legal owner of the mortgage;
• statement from the legal owner of the mortgage;
• application of the mortgagor and a mortgage note with a note on the fulfillment of the obligation in full.

We suggest you familiarize yourself with how an apartment purchased with a mortgage with maternity capital is divided during a divorce

In general terms, the list of documents required for registration of a PS will look like this:

• identification documents of all owners (this can be passports or birth certificates - depending on the age of the family member);
• legal certificate (for example, share participation agreement);
• mortgage agreement;
• consent of the pledgee in writing to the possession and use of the pledged property;
• the documents listed above received from the developer and BTI.

A receipt for payment of the state fee must also be submitted to the registration authority. At the moment she leaves 2,000 rubles.

Please note that in some cases additional information may be required:

• consent of the guardianship authority (if at least one of the homeowners is a minor child);
• a power of attorney, duly certified, if the property is registered only by one of several adult owners (or the owner’s representative).

Rosreestr employees may request other documents. Each case is individual.

Applicants should note that each certificate must be submitted along with a copy, except for identification documents.

Step-by-step algorithm of actions

When the purchase and sale agreement for an apartment has already been signed by the parties, a full package of documents has been prepared, the following actions must be taken:

1. Decide which method is more convenient to submit documents for registration.
2. Make an appointment and submit documents at the appointed time.
3. Receive a receipt for documents acceptance.
4. On the appointed day, receive a registered agreement and an extract from the Unified State Register of Real Estate.
5. Provide a bank statement to transfer funds to the seller.

The document confirming the transfer of ownership will be an extract from the Unified State Register of Real Estate. It indicates the new owner of the residential premises, as well as a mark on the encumbrance of the property.

After registering ownership of an apartment in a new building, the documents received from Rosreestr must be submitted by the participant in shared construction to the bank to register it as collateral. It will also be necessary to evaluate the apartment to determine the market value and insure the home in accordance with the requirements of the mortgage agreement.

Mortgages for apartments in new buildings

* Lending conditions affecting the full cost of the loan (as of 06/08/2020): rates 6.39% -10.14% for clients whose salary account is opened with PJSC ROSBANK, subject to the purchase of an apartment on the primary market with an initial contribution of 20% of its market value, with a loan amount of 5,000,000 rubles. (for real estate located in Moscow/Moscow region) or from RUB 3,000,000. (for real estate located in regions other than Moscow/Moscow region), making a one-time payment in connection with a reduction in the interest rate under the agreement in the amount of 1% to 4% of the loan amount (depending on the terms of the loan agreement), life insurance and health, property and the risk of loss (limitation) of ownership of it (the borrower has the right not to insure these risks), and depending on the credit history, loan term (3-25 years), work activity, level of education, number of participants in the transaction, location location of the collateral, type of income and ratio of income to expenses. If the Borrower does not provide the Bank with documents and information confirming the Borrower’s ownership of the apartment and the fulfillment of insurance obligations after 36 months from the date of issuance of the loan, the interest rate on the loan increases by 1%. Subsequently, after providing the above documents and information, the interest rate is reduced by 1%. Loan size from RUB 600,000. for Moscow and the Moscow region, from RUB 300,000. for other regions. Costs for appraisal and insurance – in accordance with the tariffs of appraisal and insurance companies. PJSC ROSBANK reserves the right to change any part of this message without prior notice. The bank has the right to refuse to provide a loan. PJSC ROSBANK General license of the Central Bank of the Russian Federation No. 2272 dated January 28, 2015

**A 0.25% discount is provided when receiving a loan in the period from 09/01/2020 to 12/01/2020, subject to submission of a complete application through the personal account of the user of the DomExpress system; authorization using an account on the Unified Identification and Logistics Portal “Gosuslugi”; consent to provide data on income and employment from the Pension Fund of the Russian Federation by sending an automated request from your personal account; The bank has the right to request additional documents confirming income/employment.

***The discount on the mortgage rate for clients whose salary account is or will be opened with PJSC ROSBANK cannot be combined with the discount for the online application.

Deadlines and costs

The timing of registration of an apartment directly depends on the chosen method of transferring documents for state registration:

Please note that deadlines are indicated in working days. The period for reviewing documents may be extended if additional documents are required.

The state fee for performing actions to register property rights is 2,000 rubles.

Where should I contact?

The latter option is convenient because the process of submitting documents will take less time, but you will have to wait longer for a response.

After the representative of the authorized body accepts the set of documents, the buyer will be given a receipt indicating their list. He will also be informed of the approximate deadline for the document to be ready. By law, this period cannot exceed one quarter, but, as a rule, the registration procedure requires much less time. On average, the document can be received in 10-18 days.

Even if the apartment owner receives a negative answer, he has the right to appeal it in court.

We invite you to familiarize yourself with Mortgage secured by existing real estate: pawn mortgage

How to remove the encumbrance after paying off the mortgage?

Once the mortgage loan is fully repaid, the encumbrance on the collateral property is not automatically removed. To do this, the owner of the residential premises must take the following actions:

• obtain from the bank a certificate of payment of the mortgage loan and a mortgage note with the appropriate mark (download an application for the issuance of a mortgage loan);
• submit to Rosreestr the documents received from the bank, the mortgage agreement and a joint application with the mortgagee bank for the removal of the encumbrance (download the application for the removal of the encumbrance);
• after the encumbrance record is cleared, receive an extract from the Unified State Register of Real Estate.

Expert opinion

Smirnov Alexander Stanislavovich

Lawyer with 12 years of experience. Specialization: civil law. Member of the Bar Association.

The application must be written by all owners, or by one of them if there is a notarized power of attorney from the other owners. The procedure for removing the encumbrance takes on average up to 3 working days.

With a military mortgage

When removing the encumbrance from an apartment purchased with a military mortgage, it is necessary to take into account that its mortgagee is not only a credit institution, but also the state represented by the Ministry of Defense of the Russian Federation (Article 15 of Federal Law No. 117). Restrictions on the disposal of such property will be the same as with a regular mortgage.

The borrower acquires ownership rights at the time of registration of the transaction in Rosreestr. However, it can only be registered in the name of a borrower who is a participant in the savings mortgage system, since state funds are earmarked. The borrower's spouse will have no right to this property in the event of divorce.

The bank's encumbrance is removed after the mortgage loan is fully repaid. But if the borrower is dismissed from service early, then, depending on the circumstances of the dismissal, he has the opportunity to repay the mortgage with his own funds, while removing the encumbrance imposed by the state.

Lawyer's answers to frequently asked questions

Good afternoon I have fully paid off my mortgage loan. What should I do to become a full-fledged owner?

After the mortgage loan is fully repaid, you need to remove the encumbrance from the apartment. To do this, you need to obtain a mortgage note from the bank with a note indicating full repayment of the loan.

And also a letter from the bank about repayment of the entire amount of debt. The next step is to contact Rosreestr and provide the following documents there: a housing purchase and sale agreement, a mortgage and a letter from the bank and a joint application from the borrower and the lender to remove the encumbrance.

Once the encumbrance is lifted, you have the right to dispose of your property.

Hello! I am my husband's co-borrower on the mortgage. The mortgage agreement and the equity participation agreement are issued in the name of the husband. Can I register an apartment in my own name?

According to current legislation, all property acquired during marriage, including under a mortgage agreement, is considered the common property of the spouses. Even if it is registered to one of them.

If you still want to be among the owners or become the sole owner, by agreement with your husband, you can draw up a donation agreement for part or for the entire apartment.

A share participation agreement and a mortgage have been drawn up for me. The house has been put into operation, the transfer acceptance certificate has been signed. The mortgage has been paid off. My father and I want to register shared ownership of an apartment. How can I do that?

Since the house has already been commissioned and the developer has fulfilled his obligations, it will not be possible to assign part of the right of claim to the father under the share participation agreement. It will be possible to register ½ of the apartment in the name of the father by concluding a gift or sale agreement.

I purchased an apartment with a mortgage under the DDU. The house is rented. Ownership is confirmed by a court decision, but is not registered in Rosreestr. Mortgage debt is about 2 million. Can I register ownership of another person?

Expert opinion

Smirnov Alexander Stanislavovich

Lawyer with 12 years of experience. Specialization: civil law. Member of the Bar Association.

In order to re-register ownership of another person, first of all it must be registered in your name, based on an existing court decision. Only after this can you consider the possibility of selling the apartment.

But given that the mortgage loan has not yet been repaid, and the apartment is pledged to the bank, it can only be sold with the permission of the mortgagee and after the encumbrance is removed. To do this, the mortgage must be paid off with your funds or the buyer's funds.

It is impossible to register the ownership of real estate to another person without grounds for doing so.

I am a participant in shared construction (unfinished construction). The house was commissioned a year ago, but the developer avoids signing the transfer acceptance certificate. I don’t actually live in the apartment and I’m not registered. How can I register ownership of this apartment?

If the developer refuses to sign the transfer acceptance certificate, you will have to go to court. In court, you will need to prove that you have fulfilled your obligations under the DDU and that you have paid the cost of the apartment. Based on the court decision, you will be able to register ownership in Rosreestr.

Registration of a mortgaged apartment in the ownership of the borrower differs from a regular purchase and sale transaction, since the bank is present in it as a third interested party. Let's consider what features are present when registering rights to real estate acquired using borrowed funds.

A package of documents for registering ownership of an object purchased with a mortgage

For state registration of rights to real estate acquired with a mortgage, you will need the following package of documents:

• applications from the seller and buyer to register the transfer of ownership of real estate;
• an application from the borrower or a bank representative to register a mortgage by force of law;
• applicants' passports;
• purchase and sale agreement indicating that housing is purchased using credit funds;
• a loan agreement, the fulfillment of obligations under which is secured by a mortgage;
• mortgage.

We invite you to familiarize yourself with the common joint ownership of an apartment by spouses upon its sale.

Procedure for registering ownership of an apartment with a mortgage

According to paragraph 1 of Art. 131 of the Civil Code of the Russian Federation, rights to real estate are subject to mandatory state registration, including if it was acquired using credit funds.

Documents for registering the borrower as an owner are submitted on the day the loan agreement is signed. The procedure should be as follows:

1. Signing a mortgage agreement with the bank.
2. Transferring the down payment to the seller and signing the purchase and sale agreement.
3. Submission of a package of documents by the seller and buyer for state registration.
4. Conducting a legal examination of documents submitted for state registration of rights and checking the legality of the transaction.
5. Entering information into the state real estate register.
6. Issuing documents to the seller and buyer confirming the registration of the new owner.

Registration of ownership of an apartment with a mortgage

Mandatory state registration of rights to real estate is established by legislative act No. 218-FZ “On State Registration of Real Estate” and is carried out by Rosreestr authorities on the basis of a purchase and sale agreement between the seller and the buyer.

Registration of property rights is a prerequisite for obtaining owner rights.

Important!

The peculiarity of an apartment with a mortgage is that despite the acquisition of property, the buyer does not receive the full scope of owner rights.

Thus, according to the rule established by Article 209 of the Civil Code of the Russian Federation, the owner of the property has the rights of ownership, use and disposal. He can use the object himself, benefit from such use, allow other persons to use it, and also dispose of the object at his own discretion: donate, sell, mortgage.

A mortgage involves limiting the rights of the owner of the property by imposing an encumbrance. The owner acquires the right to use the residential premises personally, can register in it and register his family members.

Important!

The mortgage agreement cannot limit these rights. The corresponding restrictions therein are void by law.

The owner also gets the opportunity to benefit from the property and carry out the necessary transformations, repairs and redevelopments with it.

In addition to the rights, the owner is burdened with responsibilities in connection with the acquired property, such as maintaining the property or paying utility bills.

However, the owner does not have the right, without the written permission of the mortgagee, the bank, to dispose of the object, for example, to sell it. This rule does not apply to wills.

Important!

It is possible to bequeath mortgaged property; the conditions limiting this rule are void.

Encumbrances on the property are recorded in a unified state register and are reflected in an extract from it, therefore the registration of rights for a mortgage has its own peculiarities.