What is this?
An agreement to pledge the right of claim under the DDU is a future right of ownership that appears upon delivery of the constructed object and the conclusion of the transfer and acceptance certificate.
In the event that a family does not have the opportunity (if they do not have a permanent place of residence) or desire to wait for the completion of the construction of an apartment building, they can take advantage of the opportunity to buy a personal residential premises.
For this purpose, you need to contact the most suitable financial institution by drawing up and submitting a mortgage application.
Whereas the bank is provided with a valid DDU as collateral.
Registration procedure
When receiving the right to claim under an agreement for participation in shared construction as collateral, the bank needs to verify the legitimacy of the transaction. If the construction of the facility has already been completed, correctly executed documents on the DDU are sufficient. Otherwise, employees of the financial institution must additionally check:
- availability of a construction permit issued by government agencies with proper registration;
- design documentation for construction work;
- confirmation of the legality of the rights of the future client, as well as their cost (documents on payment made in accordance with the agreement).
That is, simply well-written documents are not enough; they need to be materially confirmed. Only after at least partial payment has been made can the bank agree to issue a loan. Most often we are talking about a mortgage, when the bank can control the client’s payments, as well as the progress of construction work by the developer.
After submitting an application to a financial institution requesting a loan, its specialists:
- require the provision of the usual package of documents required to receive loan funds, including DDU;
- check not only the accuracy of the documents drawn up, but also the state of the work carried out during the construction of the house;
- based on the data received, the contract value is assessed;
- the application is rejected or approved based on the results of checking the financial viability of the citizen and progress in the implementation of the construction project;
- the loan agreement itself is drawn up;
- the drawn up and signed document is registered in Rosreestr;
- funds are transferred to the client’s account, card, handed over or transferred to the developer.
Depending on the established value, a possible maximum amount is established for which the bank will agree to lend to the client. Many factors are studied, including the market value of housing in the area, funds contributed under the contract, and the state of construction.
Pledge of rights of claim under a share participation agreement in construction
Registration of collateral
In order to obtain a mortgage and purchase a new property as quickly as possible, into which you can immediately move in for permanent residence, the equity holder has the right to transfer personal rights to the object under construction to a credit institution.
In a situation where, before the completion of construction, the borrower is unable to fully repay the entire established amount of the mortgage loan, this real estate object will automatically become the property of the financial credit organization.
Read about prices for shared participation in construction here.
After the equity holder has fully fulfilled all his bank debt obligations, the collateral will be returned to him.
Pledge in favor of the bank
In the event of an unfavorable development of events (in particular, in case of delay, inability to transfer mortgage payments every month, etc.), the banking institution exercises its right and can also seize the constructed residential premises, which were previously transferred as collateral.
Lending to the developer
More problems arise if the developer, the first person in the contract, intends to pledge his rights of claim. In this case, the construction company undertakes to return the loan funds taken for construction work, offering as collateral a land plot (own or leased) and the right to claim the payment of funds under the DDU from the shareholders.
If a bank provides a loan, it receives a plot of land and unfinished buildings on it as collateral. However, in accordance with 214 Federal Law, p. 113, paragraph 8, as soon as the shareholder receives ownership of the apartment as a result of legal transfer, the bank’s rights to this apartment are lost. When the last apartment is transferred, the land plot is no longer collateral (based on the text of the Law on Equity Participation, p. 13).
The bank's main risk is the lack of the right to priority in receiving funds in the event of the mortgagor being declared bankrupt. The legislation allows him to participate with shareholders on an equal basis in proportion to the contribution made. Selling unfinished construction is not so easy. To minimize their risks, banks most often issue mortgage loans to individuals; in other cases, they prefer to use claims only as additional collateral.
Specifics of lending
Any DDU in construction is subject to the state registration procedure in the structures of Rosreestr.
Upon completion of this procedure, the shareholder acquires the right to demand from the construction company, which is the developer, the implementation of personal contractual obligations within a predetermined time frame, in full.
In accordance with the Federal Law “On Mortgage”, these rights of claim can be a full-fledged, independent subject of pledge, guaranteeing the fulfillment of the borrower’s obligations to the banking institution.
When applying for a mortgage, a financial institution must check:
| The object of the share participation agreement, namely | compliance of construction stages with accompanying permits, exact timing |
| Developer | in particular, its statutory documentation, legality, the fact of availability of construction permits, licenses, the reputation of the company is examined in detail (in arbitration disputes, court decisions, the media). Accordingly, the better the developer’s rating on the construction services market, the higher the likelihood of receiving approval for a mortgage loan. |
In addition, the mortgage agreement indicates the DDU number, the full name of the structure that registered the rights of the mortgagor.
If any of the above was not noted in the documentation (if the borrower does not have such information or the data is completely missing), the collateral agreement cannot be considered as having been concluded.
What options can equity holders count on?
It is permissible to take out a mortgage or consumer loan.
Modern experts strongly recommend contacting only those companies that serve the developer.
For example, a bank provides funds to a construction organization for the construction of an apartment building or performs its settlement services.
This institution is informed about all the intricacies and problems, has access to all the required documents about the real estate object, about the developer, and is aware of the actual financial situation of the construction organization, as well as its potential.
What responsibility does the developer bear?
In a situation where a construction company is unable to repay the loan, the banking company can rely on both the plot of land, which was collateral from the very beginning, and the constructed apartment building.
Lending
The contract is a promise by the construction company to build a house. The bank will not be able to take the construction project as collateral, because the property is not completed, so ownership rights to it do not yet exist. Based on this, it is impossible to dispose of the living space.
It is important for a banking organization to minimize lending risks, so it is afraid to remain without collateral.
Nowadays, the lender requires guarantees provided by Federal Law No. 214.
There are several types of lending secured by rights of claim under an equity participation agreement.
Developer
A construction company has the right to attract financial resources issued by a bank for the construction of an apartment building. When applying for a loan, the bank pays attention to the reputation of the Developer and the number of structures already erected.
If the company has no experience, then the loan will not be provided.
Financing of a construction company is carried out according to one of the following schemes:
- Providing a loan until an agreement is signed with shareholders. The bank will be the first priority mortgagee. In this case, the land territory on which the building will be erected acts as collateral.
- According to the second scheme, the bank issues a loan after signing an agreement with the shareholders, and receives the property as collateral. In this case, the collateral will also be a territory or an object whose construction has not yet been completed.
The pledge of a banking organization and the conditions for its provision are regulated by the relevant Law.
Particular attention should be paid to Article 340 of the Civil Code of the Russian Federation, according to which it is established: if the collateral is a plot of land, then the bank will own all the structures being built or already existing on it.
It turns out that upon completion of construction, the banking organization will not only have land, but also an apartment building as collateral.
The assignment of rights under an equity participation agreement is carried out in accordance with the legislation of the Russian Federation. Is it necessary to pay a state fee for registering a share participation agreement? See here.
Shareholder
Lending to the equity holder can be carried out:
- For the purchase of real estate from the primary market. With this type of lending, the Resolution of the Supreme Court of the Russian Federation of 2011 comes into force. It states that the pledge arises not from the moment of obtaining ownership of the housing, but from the moment of state registration of the DDU. Registration is carried out by Companies House. To do this, you do not need to fill out applications or pay government fees. duty.
- Providing a loan amount secured. After the registration of the agreement is completed, the shareholder has the right to demand fulfillment of the construction company’s obligations. In accordance with Federal Law No. 10, these rights are the subject of a pledge that secures obligations under the contract.
The banking organization first analyzes the collateral and checks:
- Construction company. Reviews, work experience and the number of buildings erected are carefully studied.
- Construction object. Do you have the necessary documentation, how long will it take to build the structure, etc.
Pledge agreement
The document is formatted as standard in text form.
Significant conditions for concluding this mortgage:
| The need for state registration | the agreement must be properly formalized in the structures of Rosreestr |
| The importance of formally notifying the developer | if the shareholder has fully paid his personal participation in the share construction, the future property belongs to him, accordingly, no one has the right to prevent the person from transferring his property as collateral |
Mandatory set of documents
In order to register a mortgage, you need to submit to Rosreestr:
- In a situation where the borrower is legally married, the written consent of the second spouse may also be required;
- The credit agreement for which the mortgage was issued;
- Payment certifying the fact of payment of the state fee for registration;
- A document that confirms the DDU, the identity of the applicant (original and copy);
- Application – drawn up on behalf of the mortgagee bank and the borrower-mortgagor.
Registration procedure
Rules of action:
| You need to visit the Rosreestr office | provide a standard package of documentation; |
| If all documents are collected and compiled correctly | there is no need for additional papers, the employee picks them up, draws up a receipt, and sets a specific date when it will be permissible to pick them up. |
Standard template
The standard agreement form must include:
— Grounds for acquiring ownership of a residential building facility in the construction of a multi-storey building;
— Date, as well as the exact time of the transfer, detailed technical characteristics of the future property (total area, number of floors, how many rooms in the apartment, quantity and quality of finishing, etc.).
For a sample additional agreement to an equity participation agreement in construction, see the article: additional agreement to an equity participation agreement.
State registration procedure
State registration is a very important procedure, which is subject to a special state duty and includes a whole list of documents. The procedure for completing it is established by Rosreestr and represents a clearly defined algorithm of actions.
Documents for Rosreestr
Secured loan agreement - the document must be in the original, and at the end of the registration procedure in the hands of each legal party, certified by their signatures. You will also need a passport of a citizen of the Russian Federation and an individual taxpayer number - the initiator of the transaction.
If spouses are participants in the state registration of the loan agreement, the list of documents should be supplemented with a marriage certificate, as well as the consent of the spouse to this type of transaction. These requirements for state registration of a real estate pledge agreement in Rosreestr are enshrined in the legislative framework.
In addition, do not forget that all owners of the collateral must give their consent to the execution and registration of a loan agreement secured by real estate. When visiting a notary, you will need to provide not only all of the above documents, but also an agreement for a cash loan from the bank.
Make sure that the entire package of documents for registering a loan agreement secured by real estate is collected correctly in order to reduce the registration period in Rosreestr
Document registration period
Let’s take a closer look at what makes up the period for registering a loan agreement secured by real estate in Rosreestr in order to estimate all the time costs.
- The first stage is the process of assessing the real estate, which is provided as collateral. It is worth noting that only qualified specialists who have the appropriate licenses and documents confirming their training can do this. If participants are not satisfied with the figure announced by the expert, which affects the state duty, they can attract third-party specialists.
- Secondly, preparation of all necessary real estate documents, which includes the above list. It is recommended to find out the amount of the state duty in advance.
- Next, participants visit a notary, who registers the transaction. Payment for notary services varies: for legal entities this price will be significantly higher than for individuals. However, such differences in the cost of services for organizations and individuals are common practice. It is worth making an appointment with a notary in advance, especially if we are talking about the urgency of the procedure - it often happens that the notary is too busy and his appointment days are limited.
Familiarize yourself with the process of state registration of a secured loan agreement on the official website of Rosreestr.
The last step in registering a secured loan agreement is submitting the full set of documents to Rosreestr and paying the state fee. It must be remembered that this does not happen in five minutes, so you need to devote at least several hours to this.
Payment of state duty
When registering a secured loan agreement in Rosreestr, it is worth noting that, like any procedure carried out with the involvement of government bodies and structures, this process is also subject to state duty. And there is one small difference here.
When paying in Rosreestr, already owned by the client, and transferred to a financial institution as collateral, the payment amount will be 1000 rubles.
The confirmation receipt will need to be added to the final documents. This amount goes to pay for numerous checks of the data bank provided by the client. This usually takes no more than 10-12 working days. If we are talking about a lending option such as, for example, a mortgage, then the state fee for registering a real estate pledge agreement is no longer charged.
You can pay the state duty for Rosreestr using the State Services portal or at the cash desk of any bank
Dangers when completing a transaction
When creating a shared construction document, each party describes its obligations. The shareholder must pay the entire amount specified in the contract, and the developer must complete the construction on time. The citizen chooses the apartment, and the cost of payment depends on his choice.
If there is an urgent need to obtain a mortgage, then the future apartment is left as collateral; after construction is completed, the financial institution has the full right to use the housing. There is a danger for the equity holder, because if he does not fully repay the mortgage before the completion of construction, the new residential apartment becomes the property of the bank. After the last payment, the collateral property becomes the property of the equity holder. With this cunning approach, a legally savvy citizen can get two apartments at once.
It is important to know! Pledge of the right of claim under an equity participation agreement is a serious legal procedure, in the event of failure of which the banking institution always wins.
A financial or credit organization cannot issue its funds without reliable evidence of ability to pay.
To complete a transaction you must provide:
- a valid share participation agreement;
- income of family members;
- desired mortgage housing.
Documents act as a guarantee, thereby minimizing possible risks. If a construction participant does not pay the mortgage on time or is late in payments, then the bank exercises its right and seizes the apartment that is under collateral.
Every legal procedure has its own risks, so you should weigh the possible consequences of failure to comply with obligations.
Rights and responsibilities of the developer
The construction company has the legal right to accept money, including borrowed money.
In order to issue a loan contract to a developer, the bank carefully checks the following points:
- Development of construction activities, the presence of litigation, conflict situations, dissatisfied clients.
- The credit institution checks already completed construction projects and the quality of construction. This is discussed by a specially created commission that controls the process of all activities.
- The duration of operation of this company, the longer the developer is on the real estate market, the more favorable the lending officer.
The developer can receive loan funds before signing the agreement or after. To complete a transaction at different times, additional confirmation of the legality of the transaction is required.
Following the Civil Code of the Russian Federation, on the territory of a land division that is under collateral, buildings that were erected after the conclusion of the transaction are the property of the bank. Financial institutions always win. If a controversial situation arises when the developer for some reason cannot pay the line of credit, the bank takes away the collateral and the real estate that was built on the site.
A pledge of rights of claim, for a developer under a share participation agreement in construction, is a plot of land on which future construction will take place. To do this, you need to go through the stages of verification and registration. If you fail to repay the loan, the bank receives the object and land.
We recommend that you read:
Explanation of the concept of DDU when buying an apartment in an apartment building
Decoding the concept
A pledge agreement for rights of claim under an agreement for participation in shared construction is a way to register real estate as your own property. The right to use housing is formalized after completion of construction and signing of the acceptance and transfer certificate. A situation where a family, for various reasons, needs immediate settlement may be the main reason for executing such a transaction.
By sending a request to a diverse construction organization, the participant receives information about how to conclude a contract. The organization should fill out an application for a mortgage; the collateral in this case is an agreement on participation in shared construction.
The participant uses this right quite legally: based on 214-FZ, it is possible to mortgage property under construction. Legal force is confirmed by law and is determined by the specifics of the transaction.
The shared construction agreement has two main points:
- The developer, the founder of the construction company, undertakes to the parties to the transaction to build real estate, a house, carry out the necessary finishing work in it, and make the housing suitable for living. The terms are included in the contract and confirmed by the signature of both parties. The final result is the transfer of the building into operation and the execution of a transfer deed for housing, which is described in the agreement.
- The shareholder, a construction participant, has obligations to the construction company. The amount paid by the citizen is included in the text of the contract; the payment schedule must be confirmed by both parties, as well as the method of repayment of the amount. When transferring housing, the citizen inspects the premises and signs an act of taking possession of the apartment.
Real estate is taken out on a mortgage with the collateral condition of DDU if the individual has sufficient income. The information is provided to the company’s financial department to formalize the agreement. The condition is mandatory because the citizen must repay not only the mortgage, but also the amount specified in the shared construction act.
Conditions for purchasing housing with a mortgage are available in every bank and private financial companies. The procedure for drawing up a mortgage agreement consists of issuing a loan and drawing up an agreement containing the obligations and rights of the parties. The monthly income of the family is checked without fail.
