Purchasing real estate on the primary market usually does not raise concerns about its legal purity. But secondary housing can have many unpleasant surprises, especially regarding encumbrances. Therefore, such objects need to be checked carefully to avoid adverse consequences.

What is an encumbrance?

The concept of encumbrance means any restriction imposed on real estate by virtue of a concluded agreement or law. The owner is then limited in its use or disposal. Since the encumbrance concerns the object, then all restrictions in the event of sale, debts and obligations along with it pass to the new owner. This can be avoided by stipulating options for their withdrawal in the transaction agreement.

Types of encumbrances on real estate

Order of the State Land Committee of the Russian Federation dated November 22, 1999 No. 84 “On the implementation of documents for maintaining the state land cadastre” identifies the main types of encumbrances on real estate:

• the right of use (including lease, gratuitous use, lifelong maintenance and easement) can be established for at least a year;
• trust management(in case of bankruptcy, inheritance relations, guardianship, trusteeship);
• pledge;
• arrest;
• restrictions imposed by authorities regarding the disposal and use of real estate, as well as on the performance of a number of works;
• other transactions provided for by law that encumber the property.

The grounds for establishing restrictions may be:

• a court decision that has entered into force;
• transaction with the conclusion of an agreement;
• act of local administrative or government bodies;
• by force of law.

How to check real estate for encumbrances on the Rosreestr website

A series of checks will help to insure the purchase and sale transaction. To do this you need:

• check the authenticity of all title documents;
• order an extract from the Unified State Register of Real Estate to check the property for the absence of encumbrances and restrictions.

The legislation of the Russian Federation, with rare exceptions, allows the sale of real estate with an encumbrance and then additional responsibilities pass to the new owner. Some people deliberately buy, for example, an apartment with an encumbrance, since its price is much lower, but here it is important to know how difficult it can be to remove the encumbrance. Find out more about this below.

You can always get up-to-date information about real estate, including the presence or absence of any restrictions or encumbrances at online service by ordering an extract from the Unified State Register of Real Estate. It indicates what type of encumbrance is present, as well as the date of its occurrence.

Step-by-step instruction:

How are the rights of the owner of real estate with an encumbrance limited?

1. Rent. In the case of a lease, a corresponding agreement is concluded. If the owner of the property wants to sell it, it is not terminated; obligations under the contract are transferred to the new owner for the entire period of validity.

2. Deposit. An encumbrance arises on the basis of a contract and under obligations. As a rule, property is pledged against the receipt of certain cash loans. The encumbrance is removed after the debt is repaid. The transfer of ownership to another person can only be carried out with the consent of the mortgagee.

With the consent of the pledgee, the owner is not prohibited from alienating the pledged property or transferring it for temporary use. If it is sold to pay off a debt on a mortgage loan, then the owner is obliged to vacate the occupied immovable object. At the same time, the law provides for the owner’s opportunity to go to court and, by its decision, obtain housing for temporary use or delay the sale of property. The period is set to no more than one year.

3. Rent. The annuity agreement stipulates the lifelong maintenance of the property and its owner. This could be a purchase and sale transaction, where the previous owner retains the right to reside in the given living space for life, or not only to reside, but also to be a dependent.

In case of lifelong maintenance with dependents under the contract, the recipient of the annuity transfers the property to its payer. The latter assumes the obligation to support the person specified in the contract. Any legal actions with such real estate require the consent of the rent recipient.

Sets a time limit of at least one calendar year. The right to use burdens the one to whom it is granted.

Such agreements are beneficial to both parties. For the owner, the fact that he receives lifelong maintenance at the expense of the recipient, who also pays utility bills, without losing the right to live in the apartment. For the rent recipient, this agreement is beneficial for the reason that he ultimately receives an apartment. The encumbrance is removed after the death of the owner, who was a dependent and transferred his property under the contract.

Rent encumbrance imposes the risk of cancellation of the annuity contract by the annuitant upon the occurrence of certain conditions.

4.Easement. The right of a stranger to use property that belongs to you. For example, in the case of walk-through rooms, when it is not possible to get into your own room other than through the walk-through.

There are several forms:

• Private easement used when other people use your property for their own benefit. It is established on the basis of an agreement, which must be registered with Rosreestr, or court decision. In this case, the owner can completely dispose of his home, but the easement will continue to be in force.
• Public easement imposed on the basis of an agreement between an individual and the state. This form is possible, for example, if a residential property is located at the site of the planned construction of a new road. Then apartment owners are offered housing for relocation or monetary compensation.

The encumbrance of an easement does not deprive the rights of ownership, but imposes restrictions on the owner; in the case of a public easement, there is the risk of receiving insufficient compensation for housing or the risk of providing less comfortable living space.

5. Trust management. It can be installed in several cases, the most common of which are:

• bankruptcy;
• inheritance relations;
• guardianship;
• care.

In this case, ownership rights do not pass to the trustee. But it undertakes to manage the property in the interests of the copyright holder himself or another person specified by him. An agreement on the transfer of property into trust management is an onerous document.

6. Seizure of real estate. Serious troubles can arise for the seller when the buyer of a home encumbered with a lien is denied registration. The seller may be held liable for fraudulent actions based on the buyer's claim.

The seizure of housing deprives the owner of the right to alienate it (sell, exchange). If you try to ignore this encumbrance, any concluded contract will be considered invalid and canceled.

7. Mortgage. Upon registration mortgage loan The bank, as a rule, imposes an encumbrance on the property under which it is taken. The encumbrance is removed only after full repayment of the debt and interest on it.

During the entire period of using the mortgage, the owner can, with the consent of the bank that issued the loan, register his family in the living space, use it without restrictions, but cannot alienate it.

In rare cases, a bank may agree to sell an apartment encumbered with a mortgage, but loan repayment options must be discussed with the buyer. This could be transferring the loan to the new owner or repaying the buyer's funds on behalf of the seller. Any agreement must be in writing and certified by a notary.

A significant risk is the possibility of being left without an apartment if it is impossible to fulfill debentures before the creditor.

8. Encumbrance in the form of debts, undischarged people and minors will entail the need to pay utility bills, taking into account all persons registered in the living space. You can check the presence or absence of registered residents by obtaining an extract from the house register. It also lists those who are temporarily absent and have the right to register again upon their return. These are people deprived of their liberty, temporarily in special institutions, on long business trips, etc.

By law, citizens registered in an apartment are required to check out after its sale. Otherwise, the new owner may evict them judicial procedure. However, registered citizens can also protest the transaction agreement and have it declared invalid.

It is impossible to discharge minor children in court. Children under 18 years of age are recognized as legally incompetent and their rights are represented by their parents (guardians). Extract from an apartment and its sale can only occur with the consent of the guardianship and trusteeship authorities and a guarantee of the children’s registration in another residential area.

How can existing encumbrances be removed?

Encumbrances must be removed immediately after the reasons that gave rise to them have been eliminated. All actions related to the creation and removal of real estate encumbrances must be registered with the Rosreestr authority.

To remove restrictions, the owner must contact the Rosreestr branch or through the MFC with documents confirming the elimination of their causes. In some cases, the presence of the person who initiated the imposition of the encumbrance will be required.

If it is impossible to remove the restriction in as usual, you can restore your rights in court by presenting all the evidence. Then, in case positive decision, the owner applies to Rosreestr with a court decision.

If there is a court decision to terminate the arrest, then this fact is also entered into the register.

The encumbrance under the mortgage loan agreement is terminated in the following cases:

• full repayment of the loan and interest thereon,
• on the grounds provided for early termination,
• destruction of the property that served as collateral,
• selling the property to repay the loan.

Information on the removal of the encumbrance is processed at the Rosreestr branch within three days from the date of submission of the application. There is no state fee for these actions.

Is it possible to sell encumbered real estate?

If the real estate is pledged to the bank, then any transaction for its alienation requires consent from the bank. All mechanisms for completing and approving a transaction are usually prescribed in the contract, where this object appears as a subject of collateral.

Real estate encumbered with lifelong maintenance can only be sold with the consent of the annuity recipient, certified by a notary.

All actions for the sale of objects that have been seized or prohibited from any registration actions are completely excluded. Such serious encumbrances make the transaction invalid. It becomes possible to sell property only after restrictions and seizure are lifted.

There are serious risks for the buyer:

1. Loss of rights to residential real estate by the new owner, which may occur as a result of challenging his rights previous owner or third parties.
2. Recognition of the completed transaction as invalid upon the application of persons applying for this housing.
3. Termination (cancellation) of a contract (when a life annuity acts as an encumbrance) upon the occurrence of certain conditions, the initiator is the recipient of the annuity.
4. The copyright holder has the right to claim living space, which is housing secured by a bank under a mortgage, as well as under a public easement.
5. The emergence of unforeseen expenses. These include costs associated with the reconstruction of premises in architectural monuments.

A significant part of the residential real estate market consists of apartments under encumbrances, ranging from a common mortgage to a rare easement for apartments.

Any burden on the apartment gives rise to additional rights and obligations for the owner.

The essence of real estate encumbrance is the emergence of separate rights to it of persons who do not own the apartment.

The Registration Law contains the concept encumbrances- these are conditions that constrain the owner of an apartment in the use and disposal of it, giving rise to the rights of third parties.

Encumbrances on the apartment may arise from agreement, agreement between the parties or on the basis judicial act, which came into force.

The peculiarity of encumbrances is that they can be expressed not only in limiting the rights of the owner, but also in imposing certain responsibilities on him. First of all, this applies to apartments transferred under a rental agreement and lifelong maintenance with dependents.

Types of encumbrances

Legal restrictions on the ownership of an apartment may include:

• mortgage;
• rent;
• arrest;
• prohibition of actions;
• rent;
• trust management.

The mortgagor transfers his apartment to the bank as mortgage collateral. The pledge can also serve as protection of the rights of the owner of the apartment if it is transferred to a trustee, because it can only be sold with the consent of the pledge holder.

Annuity or lifelong maintenance with dependents– types of apartment encumbrances that allow you to solve the problem of purchasing housing through payments or actions specified in the agreement. But these restrictions also have their own risks, in particular, the emergence of heirs to the apartment challenging the right to it.

Rent– an encumbrance arising on the basis of a commercial lease agreement for an apartment transferred for temporary possession and use for a fee. The lease of an apartment concluded for a period of more than a year is subject to registration, and both the transaction itself and the fact of imposing restrictions are registered simultaneously.

Apartment arrest imposed by the court or bailiff on the basis of a judicial act - this is a restriction imposed to secure a claim for repayment of the debt of the apartment owner. An encumbrance can be removed from an apartment only by the body that imposed it, after the reasons for the imposition have been eliminated.

How are the rights of an apartment owner limited?

The owner of a mortgaged apartment retains the right to alienate it, transfer it for temporary use, transfer it into a subsequent mortgage, but only with the consent of the mortgagee.

If the mortgaged apartment is sold to pay off the mortgage debt, the owner is obliged to release it, but in accordance with the Mortgage Law, he has the right, by court decision, to postpone the sale of the apartment for a period up to one year and obtain temporary housing.

The lessor also does not lose the right to own and dispose of the apartment, but within the framework stipulated by the lease agreement. The owner has the right to sell, donate, or mortgage the rented apartment, and the lease as an encumbrance remains with the new owner.

The landlord is obliged to respect the tenant's pre-emptive right to extend the lease, in the absence of a violation of the terms of the contract.

The rights of the rent recipient follow the rights to the apartment and do not depend on the current owner of the apartment.

With the transfer of the right to an apartment encumbered with rent, the new owner takes the place of the rent payer. The owner - the rent payer is burdened with the right of the rentee to control the fate and condition of the apartment.

Complete seizure of the apartment excludes the possibility of managing it for the owner, but use of the apartment is retained until a court decision on its sale at auction.

How can existing encumbrances be removed?

Encumbrance of an apartment with a mortgage may be terminated in the following cases:

• termination of the obligation;
• existence of grounds for early termination of bail;
• destruction of the mortgaged apartment;
• selling an apartment to pay off a debt.

To remove a mortgage, applications from the mortgagor and the mortgagee or, if there is a mortgage, an application from the mortgagor accompanied by a mortgage with a note from the bank on the fulfillment of the obligation, or a court decision to terminate the mortgage are submitted to the registering authority.

Termination of arrest, based on a court decision or a bailiff's order, is also subject to entry into the register.

A similar mechanism is provided for terminating the encumbrance in the form of a ban on actions with the apartment.

Redemption of an encumbrance record is carried out in the state register in three days from the moment of receipt of applications, without paying a state fee.

Is it possible to sell encumbered real estate?

In the case of a mortgage, the apartment is pledged to the bank until the obligation is terminated.

Without the consent of the mortgagee, the owner can live in the apartment and rent it out, but for any transaction aimed at alienating the property, including the sale, it will be necessary written agreement with the bank. The mechanism for approving the transaction is established by the mortgagee bank.

The sale of an apartment encumbered with lifelong maintenance is allowed only if there is notarized consent of the annuity recipient.

Restrictions that completely exclude the sale of an apartment are arrest and a ban on registration actions. These encumbrances entail the invalidity of the concluded contract of purchase and sale of housing. The sale of an apartment is possible only after the arrest or prohibition is lifted.

The law does not prohibit the sale of an apartment encumbered by a commercial lease, while tenants retain the right to reside in the apartment until the end of the contract.

Documents for selling an apartment

To sell an apartment you will need:

• indicating the presence of an encumbrance on the property;
• deed of transfer;
• certificate of entitlement (if available);
• statement of the parties to the transaction;
• an extract from the house register about those living in the apartment;
• receipt of payment of state duty;
• identification documents of applicants.

The need to provide depends on terms of the deal And type of encumbrance apartments.

In particular, the following documents will be required:

• when encumbered with a mortgage - the consent of the mortgagee;
• when encumbered with rent - notarized consent of the recipient of payments;
• if there is an arrest - a court decision, a bailiff's order to lift it;
• when alienating the property of a minor - permission from the guardianship authority;
• upon alienation of an apartment from joint ownership– consent of the spouse;
• notarized power of attorney of the representative;
• for trust management of an apartment - the original and a copy of the trust management agreement;
• for the attorney - the original and a copy of the agency agreement.

Legal consequences for the parties after the sale of housing with encumbrances

If a property is purchased with an encumbrance, the new owner assumes the risks associated with this restriction. For example, the purchaser of an apartment in a mortgage takes the place of the mortgagor and subsequently bears obligations to the bank.

The consequences of being encumbered by a mortgage by operation of law, such as settlement on a certificate, expose the seller to the risk of not receiving money if the certificate is not accepted for payment.

The legal consequences of arrest or prohibition that arose before the registration of the transfer of rights to the apartment are dangerous for the parties to the transaction due to the invalidity of the contract.

As a result of purchasing an apartment under a rental agreement, it must be taken into account that, despite the transfer of rights to the new owner, the recipient of the rent retains the possibility of residence in this apartment. In addition, the risk of termination of the rental agreement and the return of the apartment to the previous owner cannot be excluded.

Significant risks are associated with purchasing an apartment with minor citizens, persons serving in the army or serving prison terms.

Selling an apartment with a mortgage

The sale of an apartment encumbered with a mortgage imposes on the buyer the need to assume all the obligations of the mortgagor.

The bank, giving consent to the transaction, notifies the buyer of the subsequent conclusion of an agreement with him to change the debtor in the pledge agreement.

In addition, in the application for registration of transfer of rights, the buyer must declare the mortgage registered in his name.

When registering property rights, the mortgage of the previous owner in the register is terminated and an entry is made about encumbering the apartment with a mortgage in relation to the new owner.

Registration of a mortgage arising on the basis of a purchase and sale agreement does not require payment of a state fee.

In the certificate of title of the new owner, in the “encumbrances” section, the existence of a mortgage or mortgage by force of law is indicated.

Lack of written consent from the bank entails suspension of registration of the transfer of rights for a period up to one month, and then - refusal of registration.

Preliminary information, which contains the necessary information about the encumbrance, will help you avoid an unwanted mortgage when buying an apartment.

Video: Buying a “mortgage” apartment

The report discusses the difficulties that may arise for the buyer of an apartment that is pledged to a bank, and provides advice on how to resolve them.

When first encountered with the concept of “encumbrance,” not many citizens understand its exact meaning and the risks to which a real estate transaction is exposed, as well as its subsequent use. An apartment with an encumbrance can cause a huge amount of trouble. Among them are the cancellation of the purchase and sale agreement and the recognition of the transaction as invalid.

The reader will learn from our article what you need to know about real estate under an encumbrance, why it is dangerous and how it can be removed.

Encumbrance means restricting the rights of the apartment owner to use it. In fact, the owner cannot fully dispose of his property without the consent of a third party. Its role can be played by any individual, government or banking organization.

If the apartment is under encumbrance, the owner will not be able to:

• Conclude a purchase and sale agreement;
• Donate property

Sales and donations can be carried out after the encumbrance has been completely removed or the consent of a third party has been obtained. Thus, with the permission of the bank, it is possible to sell an apartment taken on a mortgage, provided that the balance of the debt will be paid new owner.

Types of encumbrances

There are various forms of encumbrances, on which the nature of the restrictions imposed depends.

According to the current legislation, there are:

• Mortgage encumbrance. A prerequisite for any mortgage agreement is the imposition of an encumbrance on the purchased apartment. This allows the bank to protect itself from fraud on the part of the client by guaranteeing the repayment of the loan. Once the mortgage is fully repaid, the encumbrance is completely removed. If the borrower violates the obligations specified in the agreement, the bank has the right to seize the apartment and put it up for auction for full repayment of the loan.
• Encumbrance under the lease agreement. The owner of an apartment can lease it to third parties by concluding a contract of the same name with them. If its duration exceeds 12 months, it is subject to mandatory registration with Rosreestr. In this case, an encumbrance is automatically placed on the apartment until the documents are torn up or its validity is terminated.
• Encumbrance under a rent agreement. Bad economic situation in the country forces pensioners to seek financial assistance from outsiders. As a rule, a lifetime annuity agreement is concluded between them. Under its terms, one party undertakes to take care of the other until her death. Caring can come in the form of payment. utilities, purchasing clothes, food, household assistance. As a reward, the citizen receives an apartment. A rent agreement concluded in accordance with all the rules places an encumbrance on the property. It can be withdrawn only in the event of termination of the contract or its recognition as invalid, as well as the death of one of the parties to the transaction.
• Encumbrance due to arrest. Often apartments are seized for the owner's debts. In this case, an encumbrance is also placed on the property. As a rule, the apartment is sealed and cannot be used for living. Removal of the encumbrance occurs after full repayment of debt obligations.
• Fiduciary encumbrance. When leaving abroad or to another city, the owner can draw up an agreement giving a third party the right to manage the apartment. This document allows you to manage and live in real estate, and also obliges you to pay utility bills. However, the attorney will not be able to sell the apartment or rent it out without the consent of the owner. In such a situation, the encumbrance is removed after the termination of the contract or the death of one of the parties.

Each type of encumbrance has its own characteristic differences, features and conditions for lifting restrictions. So, when buying an apartment using , an encumbrance is placed on it, obliging it to allocate shares to all family members. It is removed immediately after registration of property rights and its division in equal shares between parents and minor children.

Danger of encumbrance for the owner and buyer of the apartment

Imposing an encumbrance on an apartment carries enormous risks for both the seller and the buyer. The owner of the property can hide the existence of the restriction by selling it and receiving a good amount of money. In this case, the buyer will have to resolve the dispute in court. This is the only way to prove the seller’s guilt. In practice, this is quite difficult to do. Therefore, it is worth recommending that before purchasing an apartment, you carefully study the documentation and find out whether it is under encumbrance.

Having purchased an encumbered apartment, the new owner may face a huge number of problems, including:

• Inability to fully use the living space;
• Residence ban;
• Lack of ability to evict tenants;
• The need to pay off the debt in full

The most problematic will be the purchase of an apartment in which a share belongs to a minor child. In this case, the former owner must coordinate the sale with the guardianship authorities and obtain approval. The buyer must also make sure that no unauthorized person is registered in the apartment.

Purchasing an apartment with an encumbrance under a rent or lease agreement will lead to the need for cancellation of this document in a court. This will require spending a large number of money and strength. Such legal proceedings have been going on for years, and it is quite difficult to predict their outcome.

Purchase and sale of an apartment with an encumbrance

Despite the existing risks, citizens consciously buy apartments that are under encumbrance. As a rule, this applies to real estate purchased under a mortgage agreement. Some banks agree to such transactions, but the owner must coordinate these actions with the management of the organization and obtain approval.

Many buyers ask the question: is it worth taking out a mortgage encumbrance? There is no clear answer to this. We can only recommend discussing this issue with employees of the bank where the mortgage loan agreement was drawn up, and also consulting with professional lawyer.

It is not recommended to buy an apartment that is under arrest or encumbrance under a lease (rent) agreement. The seller should take care of removing restrictions in advance. If this does not happen, the buyer must refuse the transaction, no matter how tempting the price of the property.

The purchase and sale of an encumbered apartment is carried out according to standard rules. The parties must draw up an appropriate agreement with a notary, having visited the banking organization or government structure, which imposed the restriction, and obtain permission to conduct the transaction.

Having bought an apartment with an encumbrance, the new owner must understand that all existing restrictions “fall on his shoulders.” From the moment of registration of ownership of real estate in Rosreestr, debts also become his property. This means that you will have to pay or repay in full. New owner The owner of the apartment can try to remove the encumbrance and clear the debts in court, but this is quite difficult. In resolving this issue, there is a high probability that the judge will side with the defendant, i.e. an organization or individual with whom an agreement has been entered into that facilitates the imposition of restrictions on the use of real estate.

It is worth saying that when buying an apartment under a mortgage encumbrance, in order to obtain permission to re-register it, you will have to enter into an agreement with the bank. Otherwise, financial institution has the right to file a lawsuit to have the transaction declared invalid.

How to check whether an apartment is under encumbrance

The buyer should not believe the words of the apartment owner; he must make sure that there is no encumbrance on his own. This can be done by ordering a USRN extract from Rosreestr or the MFC. To do this, you do not need to be the owner of the property, the main thing is to know the actual address of the apartment. It is also desirable, but not mandatory, to provide employees of the organization with.

The extract is provided subject to payment state duty. You can also get it. Payment of the state fee is possible at the cash desk of any bank or online.

The extract will contain general information about the property of interest, including:

• Cadastral number;
• Full name of the owner;
• Presence of encumbrance;
• General information about the apartment and other information

Checking the apartment for encumbrances will take a few days. Approximately five days after submitting the application, and possibly earlier, the buyer will be able to familiarize himself with its contents.

If the buyer has information that the apartment was under an encumbrance, which, according to the owner, has been removed, it is worth asking for evidence. They will be the relevant papers received from the organizations that imposed the encumbrance or canceled copies of contracts.

Is it possible to remove the encumbrance from an apartment?

The encumbrance is temporary. Restrictions are lifted after the root cause of their imposition is eliminated, that is:

• Full repayment;
• Expiration of the lease agreement or its cancellation;
• Termination of trust relationships;
• Repayment of debts that resulted in seizure;
• Death of one of the parties to the life annuity agreement

Each type of encumbrance is removed in a certain order. So, after paying off the debts for the apartment, the owner needs to contact the organization that seized the property with receipts. After this, all restrictions will be lifted, and he will be able to dispose of the property at his own discretion.

The encumbrance of the apartment under the rent agreement is removed if one of the parties dies. As a rule, the death of the apartment owner occurs. The second party to the transaction has the right to apply to Rosreestr to re-register ownership on the basis of a previously concluded rent agreement. However, here we cannot fail to mention the possible presence of heirs who will interfere with the fulfillment of the terms of the contract. In this case, the dispute must be resolved in court.

The encumbrance under the lease agreement is removed immediately after its expiration. Going to court or peacefully resolving the issue with tenants will help speed up this action.

Restrictions on trust management are lifted after the death of one of the parties or the cancellation of previously concluded agreements. If the owner of an apartment dies, ownership of it passes to his heirs.

How to remove the encumbrance from an apartment after paying off the mortgage

Removing the mortgage encumbrance will require contacting the bank that issued the loan. The owner will need to obtain a mortgage for the apartment and a document confirming the absence of debt. Next, you need to contact Rosreestr.

Documents for removing the encumbrance from the apartment after repaying the mortgage:

• Application for lifting restrictions;
• Certificate of ownership;
• Mortgage;
• Document confirming payment of the mortgage loan;
• Agreement with the bank

When purchasing an apartment on the secondary market, the buyer must be aware of the possibility of the existence of explicit or hidden restrictions on the disposal of residential premises by the homeowner.

To protect yourself from fraudulent activities of unscrupulous sellers, you need to know what types of restrictions there are and where you can get information about them.

What is an encumbrance on an apartment, and who can limit the rights of the owner?

Encumbrance on an apartment– these are restrictions on the disposal or use of the owner’s home, documented in contracts and acts. The rights to the apartment or part of it are granted to a third party, who is not designated in the documents as the owner. All transactions of the owner with the encumbered apartment are carried out with the permission of this 3rd party to conduct them.

Owners of encumbered apartments are not only limited in their rights, but also bear obligations, which happens when they are in the care of dependents when signing a rent document. Law No. 122-FZ of July 21, 1997 “On state registration real estate rights" provides the official definition of “encumbrance.”

A reduction in the ability to carry out real estate transactions is sometimes registered at the will of the owner, documented or by issuing an act by an institution to which the law gives the right to register such transactions. The judge has the power to restrict the right to housing without taking into account the will of the owner.

Only some encumbrances on living space are registered in the unified register of property rights.

Records are recorded on:

1. Collateral living space (mortgage collateral, collateral to the bank for a loan issued).
2. The living space specified in the rental agreement.
3. Housing seized authorized bodies due to a court decision (for example, for debts).

The register does not make entries about 3 persons, not indicated in the apartment’s DCP and who have not had housing ownership rights until now (relatives of the apartment owner or people who occupy the living space but have refused to privatize it).

Types of encumbrance on an apartment in Russia - features of each case

There are some types of encumbrance on an apartment.

Let's list them:

1. Mortgage housing

The owner of the living space registers it as collateral in order to ensure that the apartment fulfills its debt obligations to the credit institution. The premises continue to belong to the previous owner.

The lender, if the owner of the apartment fails to fulfill the debt obligation, receives the legal right to return the amount of the debt through the sale of the collateral living space.

A mortgage may arise when:

1. Purchase or construction of housing, paid for with credit from a banking organization.
2. Sale of an apartment under a loan agreement.
3. Signing rent documents for the living space.
4. Registration of a pledge for the right to dispose of an apartment.

Such a mortgage occurs by direct instructions of legislative acts and is registered in the state register automatically.

Negotiable mortgage occurs in case of execution of a mortgage agreement, is not considered legislative acts as an independent obligation. Recorded in the register at the request of the parties, the housing remains the property of the owner. Encumbrances are not stated in the documents for the apartment.

2.Rented housing

The owner of the living space enters into a written lease agreement with the tenant of his apartment, transferring to him the rights to temporary use of the apartment. It is recognized as valid only if it complies with the form specified by legislative documents.

The conclusion of an agreement is mandatory for premises rented for a period of more than 365 days; registration is carried out at authorized institutions.

The tenant has the right to occupy the living space until the contractual obligations expire, subject to compliance with all clauses of the contract.

3. Easement.

There are several forms:

1. Its private form is an agreement between two individuals. Example: a passage room in a communal apartment, since without the right to pass through it it is impossible to use your room.
2. Public form – an agreement between an individual and the state. Example: restrictions imposed by the state on a residential property on the site of which a building will be built new road. The apartment owner is paid compensation or offered new housing for relocation.

4. Trust management

Under a trust management agreement registered with a notary, the owner of the property transfers the right to manage the apartment to the manager without registering ownership rights to it.

Once the purchase and sale documents are completed, this encumbrance loses its legal force.

5. Rent

The rent agreement documents are concluded by the owner of the property (recipient cash payments) and the second person making payments. The owner of the apartment becomes the rent payer , which, in turn, undertakes to provide this area for living until the end of the life of the former owner.

The documents indicate different conditions for interaction between the parties. For example, payment for utilities, lifelong care, cleaning floors, and payment for treatment are considered.

Careful drafting of the terms of the contract and the reasons for its termination by a competent lawyer will protect both parties from deception.

The encumbrance is removed upon the death of the annuitant.

6. Burdened with guardianship

Minor owners of an apartment or its shared owners are protected by law during the alienation of property belonging to them.

Guardianship authorities have the right to impose a ban on the sale of an apartment if the rights of children are violated.

When selling an apartment owned by a minor, the guardianship authorities will require documents indicating the provision of housing for the child in another place.

7. Seized housing

The arrest is imposed by authorized bodies by court order to enable the owner of the apartment to fulfill debt obligations.

Also, a seizure is imposed on housing if the owner is under investigation or if a legal dispute arises.

It's worth remembering apartment – ​​architectural or historical monument. It is protected by authorities for the protection of historical, cultural or architectural monuments. These authorities impose obligations on owners to restore housing. The permissibility of changes inside and outside is consistent with the same bodies.

All risks of encumbrance on the apartment for the owner and buyer

N An encumbrance on housing carries certain risks for the owner:

1. In case of mortgage encumbrance– the opportunity to remain without an apartment if it is impossible to fulfill debt obligations to the creditor.
2. When encumbered rental relations – impossibility of living in a residential property or selling it before the end of the contract period.
3. Encumbrance with easement does not deprive the rights of ownership, but imposes restrictions on the owner, with a public easement - the risk of receiving insufficient compensation for housing or the risk of providing less comfortable living space.
4. Trust management there is a risk of incurring losses due to the manager’s dishonesty or irresponsibility.
5. Rent encumbrance imposes the risk of cancellation of the annuity contract by the annuitant upon the occurrence of certain conditions.
6. Encumbrances imposed by guardianship authorities, it is impossible to rent unless the child is provided with another living space.
7. Seized housing deprives the owner of the right to alienate it (sell, exchange).
8. In housing that is a historical or architectural monument even changing the color of the windows is consistent with certain government agencies - as is the glazing of the loggia and the installation of air conditioning.

The buyer bears more serious risks:

1. Invalidation of a completed home purchase transaction at the request of persons who are potential applicants for an apartment.
2. Loss of housing property rights by the acquirer due to a challenge to this right by the former owner or 3 persons who have housing rights to it.
3. Termination of an agreement(when encumbered with a life annuity) by the annuitants upon the occurrence of certain conditions.
4. Reclamation of living space by persons having rights to it– mortgage banking housing, public easement.
5. The emergence of unforeseen expenses. For example, expenses for the reconstruction of the premises of architectural monuments.

How to check an apartment for encumbrances?

Not all encumbrances on an apartment are registered with government agencies - sometimes it is necessary to make more than one request to find out about its existence.

You can check the encumbrance:

1. By requesting data on the apartment from government agencies.
2. Carrying out verification by questioning neighbors and apartment residents.

When checking, keep the following in mind:

1. A potential buyer must request an extract from the Unified State Register for the apartment being purchased , extracts from the house register or certificates from the territorial FMS office about registered residents.
2. It wouldn't hurt to get a certificate management company about those living in the apartment . Prisoners or military personnel may be temporarily discharged from it.
3. Lease encumbrance is more difficult to verify. You need to go to the apartment several times and see if anyone lives there, ask neighbors about the residents and housing.

In a general sense, encumbrance can be understood as some legally prescribed restrictions on the owner’s freedom to dispose of his property. Moreover, various kinds of restrictions can be imposed on property either at the will of the owner or without it. It happens that the rights of other interested parties may arise to the object of the encumbered right.

Concepts such as encumbrance and limitation are synonymous.

When encumbered, the rights to the property themselves remain with the person, but there are certain conditions that restrain the right holder from managing some of his rights.

encumber- this means limiting the right to use property.

There are such types of restrictions as:

• The right to use real estate for at least a certain period. This may include easements, rent, gratuitous use, lifelong maintenance;
• Management called fiduciary;
• Encumbrances arising from collateral transactions;
• Encumbrances that arise when property is seized;
• Restrictions on the manipulation and use of property or on the performance of any specific actions;
• Other transactions limiting the right to use property.

The grounds for the occurrence of encumbrances may arise from various sources. These may be acts of government authorities. Encumbrances can also be imposed by a court decision. In addition, encumbrances may result from transactions carried out in relation to real estate.

Encumber property- means limiting the rights to dispose of property, which may affect the value of such property, but does not prohibit its transfer to new owners.

That is, restrictions may arise in relation to the right of ownership of any property. At the same time, encumbrances are closely related precisely to the property itself, and not to its legal owner. Thus, when the rights to a particular property are transferred, the existing restrictions on that property are also transferred to the new owner.

Most often there are restrictions on real estate– for apartments or land plots.

Encumbered area

If we talk about encumbrances on a land plot, then usually these are restrictions on the right to use such a plot.

For example, land easement - the right to disinterested or paid partial use of a plot of land. This means that an interested person has the opportunity to purchase a limited right to use someone else's land if such a person desperately needs it. Also, this type Encumbrances may be imposed if any repair work needs to be carried out on the site.

The approval of the easement can be completed peacefully– through an agreement between the owner and an interested person or organization. The said encumbrance is based on the lease agreement. However, such a restriction does not prevent the right to transfer a plot of land to another owner, for example, by selling it.

Also, land ownership may be subject to construction restriction, if it is located in a protected reserve area or in an area unsuitable for permanent or temporary residence of people.

So-called interim measures may be imposed on the land. They can arise as a result of the conclusion of a credit agreement, a loan agreement, including a mortgage agreement, a tax debt, or when a court imposes a ban on the alienation of property.

Encumbered land plots

Encumbered land property can quite legally be sold or purchased. In this case, as mentioned earlier, the restrictions pass along with the site itself to the new owner.

Therefore, when making real estate transactions, it is important to check it for any restrictions imposed.

The owner of the property being sold, for personal gain, may not inform you of existing encumbrances. You can check the property by obtaining an extract from the Unified State Register, which will reflect all the necessary information.

Mortgage encumbrance

This type of encumbrance may concern land ownership and apartments, as well as other real estate. Arises as a result of the bank establishing collateral to secure a mortgage agreement. When purchasing real estate with a mortgage, the real estate itself will be owned by the borrower.

But, it will be possible to dispose of such property only with the permission of the creditor. Restrictions are lifted from real estate only after the debt is fully repaid. If the debt is not repaid, the encumbered property is taken away and sold to pay off the mortgage.

However, with the permission of the lender, property encumbered with a mortgage can be sold. In this case, the property passes to the next owner along with the restriction. Such a transaction is formalized by concluding a purchase and sale agreement with an encumbrance.

Encumbered contract

Often, encumbrance agreements are concluded between copyright holders. This means that the contract may contain additional obligations.

Some purchase and sale agreements may be concluded with certain encumbrances on the property, the subject of which the agreement is concluded. Most often, this refers to the sale or purchase of real estate previously purchased with a mortgage while the mortgage has not yet been fully paid off.

1. The conclusion of such an agreement is possible only with the consent of the organization, which has this property as collateral. An important condition for such a transaction is that the amount of unpaid debt must be less than or equal to the value of the property itself.
2. There is another way to conclude such a transaction that does not require bank approval. The parties may draw up preliminary agreement, according to which the buyer will have to transfer an advance to the seller in an amount equal to the balance of the debt to the credit institution.

After which the seller repays the loan and receives papers confirming the repayment of the debt. And then you can safely complete the transaction in the usual way.

In addition, other types of encumbrances may be specified in the contract.. For example, if a person has the right to live in a certain residential premises for life, then the sale of such premises does not terminate the right of such person to live in it for life.

When faced with any transaction involving property, you should always protect yourself and check if there are any encumbrances on it. Any citizen can do this, since this information is publicly available. You can obtain reliable information about a specific property in the shortest possible time by taking an extract from the Unified State Register.

To obtain complete and up-to-date information, it would be wiser to contact a professional lawyer.

ATTENTION! Due to latest changes in legislation, the legal information in this article may be out of date!
Our lawyer will advise you free of charge.

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Other encumbrance restrictions - how to find out about their presence and how to remove them?

Rights to any real estate may be limited if there are legal grounds for this.

In particular, as practice shows, the reference is to the Land Code and, in some cases, to federal legislation. To understand what the essence of the restrictions is and how to avoid them, you need to consider this legal issue in more detail.

The concept of encumbrance of property rights

The imposition of an encumbrance is a restriction on the owner’s ability to fully dispose of the property; in fact, certain obligations are imposed on him. The most common and clear example- This is a rental agreement.

From a legal point of view, the following can be distinguished:

• An encumbrance is the right of a third party or persons to an object of property that arose as a result of any circumstances. Moreover, citizens who have this right are not the owner of an apartment or house.
• In fact, the effect of the encumbrance begins only after a judicial act or agreement between the two parties.

Types of encumbrance of rights to real estate

There is a clear classification in the legislation. Naturally, depending on the type of restriction, there will be specific legal features. Let us consider in more detail the various types of encumbrances.

Rent

An encumbrance in the form of a lease implies the following:

• The premises were transferred for use to third parties on the basis of a lease agreement. It must stipulate clear conditions for the operation of the property and the agreed terms and rent.
• The matter is complicated by the fact that if the contract term exceeds twelve months, it was subject to mandatory registration with the authorized state body.
• Often the tenant of the premises can extract additional benefit from real estate by subletting space.
• Violation of the terms of an already concluded agreement is not allowed even if the owner of the premises has changed. Therefore, when purchasing premises that have already been leased, it is worth carefully studying the terms of the agreement under which it was transferred for operation to third parties.

Mortgage

Meet mortgaged apartment in the real estate market it is possible quite often, because given the current cost of real estate, lending is quite widespread.

What nuances accompany real estate with this encumbrance:

• When purchasing such an apartment in mandatory An agreement must be drawn up under which the buyer pays the remainder of the mortgage. It is noteworthy that such an agreement must be formalized by a notary.
• The purchase and sale agreement is concluded only after the debt to the bank is repaid.
• In order to avoid difficult situation and various types of misunderstandings, all facts of transfer of funds must be confirmed by receipts.
• In the event that you plan to carry out a real estate transaction on which a mortgage has been concluded, you will definitely need to obtain the appropriate permission from the bank.

Easements

From a legal point of view, this term means a restriction under which a land plot is given by the owner for use to a third party.

Let's note some features:

• This type of encumbrance most often arises as a result of the laying of any communications on the land plot.
• This method is used in as a last resort, as practice shows, when laying utility networks trying to avoid entering private territory through engineering solutions.
• In fact, this encumbrance is quite unpleasant and can cause the owners of the site a very significant number of problems.

Rent

What can be seen in the legislation regarding this situation? Let's look at the features of the annuity in more detail:

• In the event that a citizen acquires real estate on which there is a rent agreement as an encumbrance. Then all rent obligations naturally fall on the new owner. In this case, all points must be complied with without fail.
• Rent is a very serious type of encumbrance; it is worth once again weighing all the pros and cons when purchasing such objects.

Pledge

Often found on the market and mortgaged property As a rule, it is required to conclude an agreement when borrowing funds.

In this case, the borrower can be:

• Legal entity, for example, micro credit organization
• Any private person

Property seizure

A slightly less common encumbrance, but nevertheless it also deserves special attention:

• With such an encumbrance on the property, a ban is imposed on carrying out any actions with the property.
• Such a ban is imposed by a bailiff, court or other authorized body.
• It will be possible to sell such property only after the seizure of the property is lifted.
• The owner is required by law to keep the property under arrest in proper condition and in complete safety.

How can I find out about encumbrances?

Naturally, when purchasing real estate, you need to carefully check all the information about the property you are purchasing, otherwise there is a risk of getting into a lot of problems.

There are two options by which you can establish the presence of encumbrances:

1. Enlist the help of a special agency that deals with real estate transactions. This method is beneficial for the buyer in that the inspection will be carried out by a professional who has sufficient experience and knows all the inspection algorithms. However, there is still a certain amount of risk, for example, a large number of unscrupulous or simply inexperienced specialists have appeared on the market.
2. Carrying out self-check can also give the correct result. To do this, you will need to obtain an extract and a Unified State Register. You can even order such a document via the Internet.

The certificate will contain the following information:

• All property owners. This will help establish whether the seller actually has title to the property.
• Technical data of the object.
• The presence of any restrictions or encumbrances.

How to remove the encumbrance?

The encumbrance on the apartment is removed after the citizen has fulfilled the obligations assigned to him. For example, payment of a mortgage or other loan, death former owner(in the case of an annuity contract), etc.

What restrictions do encumbrances impose?

The following restrictions may be imposed on real estate:

• Possibility of transferring real estate to other people, including for money
• Prohibition on sales and other transactions
• Transferring an object by inheritance
• Any interventions that will affect general condition object. Even repairs or reconstruction are prohibited.

Features of selling an apartment with encumbrances

As a rule, we are talking about mortgaged apartments. It is worth noting that in this situation the bank is absolutely not interested in real estate, only the return of money is important.

The procedure itself has the following differences from the standard one:

• It is necessary to rent two separate cells for the seller and for the bank
• Funds are deposited into a safe deposit box intended for the bank, after which a document is issued confirming the fact of repayment of the loan
• The concluded agreement between the seller and the buyer is concluded without the participation of the bank; its registration is carried out in Rosreestr
• The new owner receives documents confirming the fact that the encumbrance has been lifted.

Advantages and disadvantages of encumbrances

The positive or negative aspects of encumbrances depend solely on each specific case. For example:

• When buying an apartment with a mortgage, you can buy real estate at a price much lower than the market price.
• For example, if an encumbrance in the form of rent is imposed on an apartment, then the new owner of the property will be assigned certain obligations. Such real estate cannot be called positive. The difficulty is that the mortgagee has the right to cancel the agreement if certain conditions are met.
• The purchase of residential real estate with third parties registered in it also does not bode well, especially if those registered are minors or incapacitated.

Encumbrance of property rights - what is it?

Have you decided to buy an apartment? Be sure to check if it is encumbered, otherwise you risk losing your money. In this article we will talk about what an encumbrance on real estate is, in what cases it is imposed and how to avoid unpleasant surprises when making a transaction.

A little theory

What is an encumbrance? This is the process of creating certain rights to property from a third party. At the same time, this third party does not receive real rights to the property and cannot realize it without a court decision. To paraphrase, we can say that an encumbrance refers to special conditions that come into force under certain circumstances. They limit the rights of the property owner by introducing the rights of a third party.

When purchasing property, be sure to check whether it is encumbered

In what cases may this occur? this situation? Then, when the owner of the property signs some kind of agreement or contract, and also receives judicial act, limiting his rights.

Important: Often, an encumbrance not only limits the owner, but also imposes certain obligations on him. For example, a mortgage encumbrance forces the owner to make regular payments to a financial institution.

What types of encumbrance exist?

Let's list key types restrictions for owners that occur most often:

1. Mortgage credit lending.
2. Seizure of movable and immovable property.
3. An annuity agreement (for example, lifelong maintenance).
4. A ban on certain actions with an apartment (for example, a ban on sales).
5. Lease contract.
6. An agreement under which property is transferred to trust management.
7. Pledge.

Let's take a closer look at these situations. When you take out a mortgage on an apartment, in most cases it belongs to the bank until the loan is fully repaid and is collateral. If payments stop, the bank can evict the debtors from it and sell the property at auction.

The seizure is imposed by a court decision if the owner violates the law or has debts. The owner of the property can quickly repay the debt and then the seizure will be lifted. The rent agreement also imposes an encumbrance on the ownership of the property - the apartment actually belongs to the new owner if he fulfills his obligations. Such agreements are often concluded by pensioners - the family takes on the responsibility of caring for him, receiving an apartment in return after death.

A prohibition on performing certain actions with real estate may be present in a deed of gift or other similar documents. Limits the rights of the owner and the lease agreement. It is noteworthy that when concluding a long-term contract (for a period of more than 1 year), the transaction must be registered and even a fee must be paid for it.

How exactly are restrictions introduced?

In fact, the owner can perform any actions with the property under encumbrance only with the consent of a third party who has the appropriate rights. For example, the owner of a house that is pledged can sell it or transfer it for temporary use only on the condition that the mortgagee allows him to do this, or such a clause is specified in the contract.

If a person refuses to pay the mortgage, the bank can sell the apartment and cover the debt, but according to the requirements Russian legislation, the creditor may request a delay from the court for up to 1 year in order to find a new place of residence. Thanks to the lease agreement, the owner is also partially limited in his rights - he cannot sell the apartment if the tenant complies with the conditions, makes payments on time and does not violate public order. More precisely, he can sell the apartment, but only the lease agreement will fall on the new owner as an encumbrance. In addition, when extending the lease term, the previous tenant has priority over potential tenants, even if the terms of the contract change.

Encumbrance is a restriction of the owner's rights

In order to consider all types of encumbrances on rights to real estate, it will take a lot of time, so we describe only the key ones. The above-mentioned common types also include rent. Just as with a lease, the rent is transferred from the old owner to the new owner. It is the new owner of the property who must monitor its condition - this is his encumbrance (in addition to payment under the rent agreement).

Separately, I would like to highlight the arrest procedure. If it is attached to the property, the owner will not be able to do anything with it. Only the authority that imposed it can lift the arrest. If the owner does not pay off the debt, then his property is sold at auction, the debt plus interest for servicing is deducted from the amount received, and the remainder is returned to his account.

How to remove restrictions correctly

Since encumbrances are temporary restrictions, in order to eliminate them it is necessary to fulfill the requirements specified in the agreement/court decision. Let's take a closer look:

1. Mortgage real estate can be released in case of full repayment of the debt, destruction of the apartment or its sale with subsequent payment of the debt. If the owner sells a mortgaged apartment, then he and the buyer come to the bank, pay off the existing debt, financial institution issues a document on the removal of the encumbrance, the buyer transfers the remaining amount to the ex-owner and re-registers it in his name.
2. To end the arrest imposed by court order, you need to pay off existing debts or fulfill other requirements of the bailiff. The same practice applies when introducing a ban on various actions with real estate.
3. The lease agreement can be terminated unilaterally only if such a possibility is provided for in it. In this case, the landlord must notify the tenant of his decision. It is noteworthy that a family with small children cannot simply be evicted in the winter - it is necessary to either find housing for them or wait for the warm season.

How to sell real estate correctly

Since the encumbrance of property is certain restrictions on the rights of the owner, you need to carefully study the legislation and the contract. It all depends on what type of restriction is imposed on the property and whether there is a clause in the contract allowing its implementation. For example, some banks have restrictions on the sale mortgage real estate, but usually they accommodate clients halfway and allow them to be sold by paying off existing debts. The bank still does not lose anything - the apartment is its property. You can also rent out a mortgaged apartment or register family members in it, but everything related to alienation is done exclusively with the consent of the financial institution.

In order to sell real estate that is in rent for the owner's lifetime, the buyer must contact a notary and re-sign the rental agreement. If the purchase and sale agreement was concluded for an apartment that is under arrest, it is cancelled. If you have entered into a lease agreement, you should know what is an encumbrance on a house does not imply eviction of the property until the end of the agreement. A person may refuse to move, and you will not do anything about it, except perhaps pay him compensation for the inconvenience.

In some cases, arrest prohibits the owner from using the apartment

What documents are required

If you want to sell a property that is under restrictions, you need to collect the following set of documents:

1. Contract of sale.
2. Notification of the existence of an encumbrance.
3. The act of transferring property.
4. Certificate that confirms your property rights(if it is with you and not with the bank).
5. Application for re-registration of property from two participants (selling and buying parties).
6. An extract from the housing office about the number of people registered in the apartment.
7. Passports of both parties.
8. A check confirming payment of the state fee (2 thousand rubles for individuals).

Further, the set of documents depends on what restrictions are imposed on the property. If it is a mortgage, then permission from the bank to sell, if it is rent, then a certificate from a notary, if an arrest, then a resolution from the executive service to lift restrictions, etc. More detailed advice on this topic can be obtained from a notary or an experienced lawyer - in each case they can be various options solving the problem.

Now you know what encumbrance means, what it is like and how you can get out of the situation if you still need to sell your property. To avoid occurrence controversial situations, contact the person or organization that imposed the restrictions and get their permission in writing - after that you can safely carry out the transaction without any consequences.

What does state registration of a restriction of right mean?

State registration of restriction of rights - what does it mean? , what restrictions there are and what is the procedure for carrying out this procedure, read in our article.

What is this - state registration of a restriction (encumbrance) of a right

The definition of the concept of “restriction (encumbrance) of right” was given in Art. 1 of the Law “On State Registration...” dated July 21, 1997 No. 122-FZ (now repealed due to the entry into force of the Law “On State Registration of Real Estate” dated July 3, 2015 No. 218-FZ, hereinafter referred to as Law No. 218-FZ). This is the presence of prohibitions and conditions that constrain a certain right holder of a specific property in the course of using the object or exercising other powers. The following conditions and prohibitions appear:

• according to direct instructions contained in legislative norms;
• based on the agreement of the subjects;
• at the initiative of authorized bodies.

In accordance with Art. 131 Civil Code In the Russian Federation, restrictions on rights require state registration:

• for real estate - mandatory;
• for movable things - in cases determined by law.

In addition, the same norm contains a provision according to which, in addition to general state registration, separate (special) records can be maintained for certain types of real estate. For example, accounting of the housing stock in accordance with the Decree of the Government of the Russian Federation “On State Accounting...” dated October 13, 1997 No. 1301.

Like any rules, the procedure for registering a restriction of rights implies exceptions. Thus, an encumbrance with a commercial lease of residential premises is not registered if such an agreement is concluded for a period of less than a year.

Thus, in current legislation There is no definition of the concept of “encumbrance of right,” but we believe that using the old definition will not contradict actual practice.

Types of restrictions (encumbrances) of rights

The main types of restrictions on the rights of the owner are:

• easement;
• mortgage;
• trust management;
• rent;
• concession agreement;
• seizure of property, etc.

They all have a different legal nature:

• An easement is a restriction of a property right;
• mortgage - securing the fulfillment of obligations;
• trust management, lease, concession agreement - contractual obligations.

As for arrest, this is a procedural measure taken by an official, aimed at complete, one might say, comprehensive restriction of the rights of the owner. The owner cannot do anything with his property, therefore, in the legal literature, arrest is often called an encumbrance in its pure form.

The methods for establishing restrictions on rights also vary. So:

• to provide the creditor with a preferential right to repay the debt, the debtor concludes a mortgage agreement from the value of the pledged property (which is registered in Rosreestr);
• To obtain the right to use someone else's land for passage or passage, an agreement is concluded between neighbors or a corresponding judicial act is adopted.

In any case, as a result of taking measures to limit rights, the rights of the property owner are compressed, and eligible persons have limited rights - in rem or obligations.

In the legal literature on the objects of limited property rights, there are 4 groups:

• the right to use other people's lands and other natural resources;
• the right to use other people's premises;
• security rights;
• the right to manage the owner's property.

They include all types of restrictions on rights specified in the Civil Code of the Russian Federation and other laws.

In some cases, the presence of an encumbrance remains even when the owner of the property changes (for example, Article 586 of the Civil Code of the Russian Federation).

Signs of limited property rights

Analysis of regulations and legal literature allows us to highlight following signs limited real rights:

1. In relation to property, only rights in rem can be limited.
2. The opportunities available to an authorized person are always limited and narrow.
3. Limited property rights can only arise if there is ownership of this thing. They cannot arise by themselves, but they can continue to operate when the owner changes.
4. The nature and content of the encumbrance and limited real rights are determined only by law.
5. The principle of publicity applies - mandatory registration of rights, their restrictions, etc. to real estate. All this information can be obtained by anyone who applies.

Thus, in order to protect the rights and interests of participants civil turnover Issues of encumbrance (limitation) of rights are regulated exclusively at the legislative level.

When state registration of restrictions on rights is mandatory

State registration of restrictions on rights to real estate is mandatory in cases specified by law:

1. Establishment of easement (Article 274 of the Civil Code of the Russian Federation).
2. Conclusion of a rental agreement for residential premises for a period of more than a year (clause 2 of Article 674 of the Civil Code of the Russian Federation).
3. Conclusion of a rental agreement for residential premises of a social housing stock (clause 4 of article 91.1 Housing Code RF).
4. Conclusion of a mortgage agreement (Article 19 of the Law “On Mortgages...” dated July 16, 1998 No. 102-FZ).
5. Conclusion of a leasing agreement for vehicle(Clause 48 of the order of the Ministry of Internal Affairs of the Russian Federation “On the procedure...” dated November 24, 2008 No. 1001).
6. Restriction of rights to an aircraft (clause 9 of article 33 of the Air Code of the Russian Federation).
7. Conclusion of a concession agreement (Part 15, Article 3 of the Law “On Concession Agreements” dated July 21, 2005 No. 115-FZ), etc.

Grounds for state registration of restrictions on rights

In accordance with paragraph 6 of Art. 1 of Law No. 218-FZ, the grounds for state registration of restrictions on rights are:

• acts of state and municipal authorities;
• contracts and other transactions in relation to real estate.

In addition, the following may serve as grounds for state registration of restrictions on rights (Article 14 of Law No. 218-FZ):

• certificates of privatization of residential premises;
• certificates of inheritance;
• judicial acts, including arbitration courts;
• the occurrence of circumstances specified in the law;
• other documents and acts.

Documents submitted for state registration of restrictions on rights, requirements for them

According to Art. 18 of Law No. 218-FZ, for state registration of encumbrance of rights, the following documents are submitted to Rosreestr:

• application according to the order of the Ministry of Economic Development of Russia dated December 8, 2015 No. 920 on on paper or electronically;
• documents that are the basis for state registration of restrictions on rights (in 2 copies);
• power of attorney, if the documents are submitted not by the applicant, but by his authorized representative.

Depending on the method of submission, the above list of documents may be supplemented with a copy of the passport.

If documents are sent by mail, then their authenticity, including the authenticity of the applicant’s signature, is certified by a notary (Clause 12, Article 18 of Law No. 218-FZ).

In cases in which the encumbrance is not imposed at the will of the property owner, to carry out its state registration it will be sufficient to obtain:

• resolutions of the bailiff, if the encumbrance arises for the purpose of executing a writ of execution;
• a court decision if one of the parties evades such state registration.

All documents must comply with the requirements of Russian legislation, must be written legibly, with full details of the applicants, and have no erasures, additions or crossed out words.

Features of registration of rights restrictions

The specifics of registering restrictions on rights are set out in certain provisions of Law No. 218-FZ.

1. Each encumbrance record is identified by an immutable and non-repeating registration number.
2. The record of encumbrance of rights contains information about the grounds for the occurrence and type of restriction of the right, the date and number of the registration of the restriction, and about the persons who have limited property rights.
3. If the encumbrance arises in connection with the adoption of the relevant act by a state or local government body, then it (the body) within 5 days after such a decision is made must send to Rosreestr an application for state registration with documents attached (clause 2 of article 19 of law No. 218- Federal Law).
4. Instead of a joint application from the lender and the borrower to register an encumbrance on the residential premises, if the loan issued/received is a targeted loan, such an application can be submitted by a notary (clause 3 of Article 59 of Law No. 218-FZ).
5. The state duty for state registration of restrictions on rights is established by the Tax Code of the Russian Federation. Currently, for individuals it is 2,000 rubles, for organizations - 22,000 rubles. (Subclause 22, Clause 1, Article 333.33 of the Tax Code of the Russian Federation).

How to find out about state registration of rights restrictions

Before Law No. 218-FZ came into force, Rosreestr had to notify owners about the state registration of restrictions on their rights if this did not happen according to their will (Order of the Ministry of Economic Development of Russia dated December 31, 2013 No. 802, no longer in force). Now he has no such responsibility.

Knowing about the likelihood of an encumbrance on the property, the owner can send a request to Rosreestr to obtain the information contained in the Unified State Register of Real Estate (for more information about this, read our article How to order and receive an extract from the Unified State Register (EGRN)? ).

The copyright holder receives information about the state of affairs in relation to his real estate at his personal choice: in the form of an extract or gaining access to the FSIS USRN.

The statement can be generated and sent in paper or electronic form.

Providing access to the FSIS can be carried out in the form of sending notifications about changes to the information contained in the Unified State Register (subclause 3, clause 16 of the procedure for providing information contained in the Unified State Register, approved by order of the Ministry of Economic Development of Russia dated December 23, 2015 No. 968).

Thus, provision of information, including notification of the state registration of real estate encumbrances, is possible only for applicants.

Let's return to the question once again, what is this - registration restrictions (encumbrances) of rights?The definition of this concept is given in paragraph 3 of Art. 1 of Law No. 218-FZ and it sounds like this: this is a legal act of recognition and confirmation of restrictions on rights and encumbrances of property.

Conditions and prohibitions that infringe on the rights of the owner of any property, in particular real estate, and their state registration are carried out only in the manner and forms established by law. The grounds for state registration are acts of government agencies and officials, contracts and other documents.

Depending on the type of encumbrance and the grounds for entering information about it, an application to Rosreestr is submitted by the copyright holder, the transferee, a government body, or an official.

Classification of restrictions and encumbrances of property rights

As stated above, the concept of restrictions (encumbrances) on property rights is given in Article 1 of the law on state registration of rights to real estate and transactions with it. This is the presence of statutory or authorized bodies in provided by law in accordance with the conditions that constrain the right holder in exercising the right of ownership or other real rights to a specific object of real estate. The following restrictions (encumbrances) of rights are given as examples: easement, mortgage, trust management, lease, seizure of property.

As noted, legal nature restrictions and encumbrances on property rights are different. The restriction constrains the subject of real rights mainly in the exercise of powers to dispose of real estate. The encumbrance, without limiting the possibility of exercising the powers to dispose of real estate, is associated with the object of the right and upon alienation of the object passes to the new right holder.

It is difficult to determine a single criterion for classifying restrictions and encumbrances of property rights. In the legal literature there is a classification of restrictions and encumbrances of property rights on various grounds.

Thus, depending on the grounds for the occurrence of restrictions and encumbrances, property rights can be divided into those arising from the law, regulations, and court decisions.

Another system of restrictions on property rights consists of restrictions and encumbrances on property rights that are subject to state registration and those that are not subject to state registration.

Depending on the content, it is possible to distinguish encumbrances of property rights, as a result of which the owner is obliged to refrain from certain actions, allow actions in relation to his property by third parties (passive encumbrances) or perform certain actions in favor of third parties (active encumbrances).

A restriction on the right of ownership is an arrest, which consists of an inventory of property, a declaration of a ban on its disposal, and, if necessary, a restriction of the right to use the property.

For example, the seizure of property by a court ruling entails a refusal to register the transfer of ownership with the justice authorities.

Example: By a court ruling in order to secure the claim of gr. E. to gr. X. on the collection of the amount of debt, a ban was imposed on the alienation of the apartment, prohibiting the institution of justice from registering property rights, registering any contracts and other transactions of transition, emergence, encumbrance of rights in relation to the specified property owned by gr. X. In confirmation of the fact that the property belongs to gr. X. in the case materials was presented with a certificate of state registration of the right.

Gr. L., who was not a party to the case in which the above ruling was made, applied to the court to lift the ban, since he could not dispose of the property at his own discretion. To justify this, he indicated that the apartment belongs to him by right of ownership, and not to the gr. Kh., in confirmation of which he provided an extract from the Unified State Register of Real Estate and transactions with it.

Court application gr. L. satisfied, since at the court hearing it turned out that the owner of the disputed apartment at the time of imposition of the ban was gr. L., not gr. X.

A mortgage restricts the owner's ability to dispose of real estate, both by virtue of contract and by force of law. By general rule disposal of the pledged object is possible only with the consent of the pledgee (clause 2 of Article 346 of the Civil Code of the Russian Federation). At the same time, the pledge also encumbers the real estate, since in the event of its alienation, the pledge is preserved, and the acquirer of the real estate takes the place of the mortgagor (Article 353 of the Civil Code of the Russian Federation).

Example: The bank, represented by a representative, filed a lawsuit against Mr. H. and gr. L. On recognition of the right of pledge, motivating his demands by the fact that gr. X. was provided by the bank targeted loan in the No amount for the purchase of real estate: a residential building and a land plot located in rural areas. The loan was provided on the terms of collateral for the purchased gr. X. property. According to the terms of the loan agreement gr. X. was obliged to report to the Bank on intended use credit, which they did not do. In addition, the defendant in this claim, when registering a contract for the sale and purchase of real estate purchased with credit cash, deliberately failed to submit to the registration authority loan agreement, in connection with which the mortgage that arose by force of law and against the will of the gr. X. on the basis of Part 3 of Art. 334 Civil Code of the Russian Federation; clause 2 art. 1, clause 2, 3 art. 11, clause 1 art. 64.1, paragraph 1 of Art. 77, Federal Law No. 102-FZ dated July 16, 1998 “On mortgage (real estate pledge)” was not registered. Subsequently gr. Kh., without the consent of the mortgagee, alienated the property of gr. L., which violated Art. 37 Federal Law of July 16, 1998 No. 102-FZ “On mortgage (mortgage of real estate).”

The plaintiff (Bank) believes that the transaction made by the defendant X. to alienate the disputed real estate does not terminate the pledge by virtue of clause 3 of Art. 38 Federal Law of July 16, 1998 No. 102-FZ “On mortgage (mortgage of real estate)” and Art. 353 of the Civil Code of the Russian Federation, in connection with which he asked the court to recognize the right of pledge.

The court refused to satisfy the claim because, by virtue of clause 2 of Art. 20 of the Federal Law of July 16, 1998 No. 102-FZ “On Mortgage (Pledge of Real Estate)”, a mortgage is subject to state registration by force of law.

Clause 2 art. 2 of the Federal Law of July 21, 1997 No. 122-FZ “On state registration of rights to real estate and transactions with it” establishes that state registration is the only evidence of the existence of a registered right.

Since the mortgage of disputed objects is in accordance with the procedure established by the Federal Law of July 16, 1998 No. 102-FZ “On Mortgage (Pledge of Real Estate)”, the Federal Law of July 21, 1997 No. 122-FZ “On State Registration of Rights to Real Estate and Transactions with It” is not registered, then there is no restriction (encumbrance) on the disputed real estate in the form of a pledge by force of law, therefore, there are no legal grounds for satisfying claims for recognition of the right of pledge.

In the case of disposal of real estate transferred under a lifelong maintenance agreement with dependents, the consent of the annuity recipient is required (Article 604 of the Civil Code of the Russian Federation). At the same time, rent is also an encumbrance, since upon alienation of property, obligations under the contract are transferred to the acquirer (Article 586 of the Civil Code of the Russian Federation).

Significantly limits the rights and trust management, the founder of which is deprived of the authority to use, own, and dispose of real estate in accordance with the agreement (Article 1012 of the Civil Code of the Russian Federation).

As encumbrances, you can include a loan (free use) (clause 1 of Article 700 of the Civil Code of the Russian Federation), lease (clause 1 of Article 617 of the Civil Code of the Russian Federation). The above does not limit the powers to dispose of real estate, but the obligations under these agreements are transferred to the acquirer of the property.

Private and public easements, as rights of limited use of someone else's property, are an encumbrance on the right of ownership and are preserved during the transfer of the latter.

Adoption by a government agency of a decision to seize land plots does not limit the owner’s rights to use, own and dispose of the land, but he and the potential buyer bear the risks of losses in the event of new construction or reconstruction before the seizure of the land plot (Article 280 of the Civil Code of the Russian Federation). This restriction is subject to state registration (clause 4 of article 279 of the Civil Code of the Russian Federation).

The rights of third parties that remain during the alienation of property significantly burden the right of ownership. These include, for example, the rights of family members of the owner of residential premises (Article 292 of the Civil Code of the Russian Federation), the right to use property by virtue of a testamentary refusal (Article 1137 of the Civil Code of the Russian Federation), the right of use of the tenant of residential premises (Article 675 of the Civil Code of the Russian Federation), etc. These encumbrances of property rights are not subject to state registration; they arise by force of law.

Independent real rights are not restrictions (encumbrances) on property rights: economic management and operational management of property, lifelong inheritable possession and permanent perpetual use land plot(Article 216 of the Civil Code of the Russian Federation).

It should be noted that in modern law individual species restrictions and encumbrances are quite common. It is not possible to consider them all in this work.

The article was written based on materials from the sites: nasledstvo7.ru, pravonaslednik.ru, ktonaslednik.ru, rusjurist.ru, vuzlit.ru.