ORDER OF THE MINISTRY OF JUSTICE OF THE RUSSIAN FEDERATION

of June 15, 2006 No. 213

About approval of the Instruction about procedure for state registration of mortgage of real estate units

According to the Federal Law of July 21, 1997 N122-FZ "About State Registration of the Rights to Real Estate and Transactions with It" (The Russian Federation Code, 1997, N 30, Art. 3594; 2001, N 11, Art. 997; 2001, N 16, Art. 1533; 2002, N 15, Art. 1377; 2003, N 24, 2244; 2004, N 27, Art. 2711; 2004, N 30, Art. 3081; 2004, N 35, Art. 3607; 2004, N 45, Art. 4377; 2005, N1 (h 1), Art. 15, 2005, N1 (h 1), Art. 22; 2005, N1 (h 1), Art. 40; 2005, N1 (h 1), Art. 43; 2005, N 50, Art. 5244; 2006, N 1, Art. 17; 2006, N17 (h 1), N 1782), the Presidential decree of the Russian Federation of October 13, 2004 N1313 "Questions of the Ministry of Justice of the Russian Federation" (The Russian Federation Code, 2004, N 42, Art. 4108; 2005, N 44, Art. 4535; 2005, N52 (h 3), Art. 5690; 2006, N 12, Art. 1284; 2006, N 19, the Art. 2070), the order of the Government of the Russian Federation of April 9, 2001 N273 "About Approval of the Federal Program of Step-by-step Development of System of State Registration of the Rights to Real Estate and Transactions with It" (The Russian Federation Code, 2001, N 16, 1602) I order to the Art.:

Approve the enclosed Instruction about procedure for state registration of mortgage of real estate units.

Approved by the Order of the Ministry of Justice of the Russian Federation of June 15, 2006 No. 213

The instruction about procedure for state registration of mortgage of real estate units

I. General provisions

1. The instruction about procedure for state registration of mortgage of real estate units (further - the Instruction) is developed according to the Federal Law of July 21, 1997 N122-FZ "About State Registration of the Rights to Real Estate and Transactions with It" * (1) (further - the Law), the Federal Law of July 16, 1998 N102-FZ "About Mortgage (Pledge of the Real Estate)" * (2) (further - the Law on mortgage), the Rules of maintaining the Unified State Register of Rights on real estate and transactions with it approved by the order of the Government of the Russian Federation of February 18, 1998 N219 "About Approval of Rules of Maintaining the Unified State Register of Rights on Real Estate and Transactions with It" * (3) (further - Rules of maintaining EGRP).

2. The instruction is directed to establishment of single practice of state registration of the mortgage arising based on the agreement or the law including in case of concession of the rights under the agreement on mortgage and concession of right to claim according to the obligation provided with mortgage, transition of the rights regarding mortgage, the certificate of the mortgage of the rights of the pawnbroker according to the obligation provided with mortgage and entering into the Unified State Register of Rights on real estate and transactions with it (further - the Unified State Register of Rights) records about legal owners of the mortgage.

3. Provisions of the Instruction extend to mortgage of the real estate specified in Item 1 of Article 130 of the Civil code of the Russian Federation (further - the Code) * (4), article 1 of the Law, including on: parcels of land, companies as property complexes, buildings, constructions, premises, objects of construction in progress.

The instruction is applied to mortgage of the companies as property complexes taking into account provisions of Rules of introduction of records about the rights to the company as property complex and transactions with it in the Unified State Register of Rights on real estate and transactions with it and the interaction between Federal registration Service and its territorial authorities approved by the order of the Ministry of Justice of the Russian Federation of March 4, 2005 N16 "About Approval of Rules of Introduction of Records about the Rights to the Company as Property Complex and Transactions with It in the Unified State Register of Rights on Real Estate and Transactions with It and Interaction between Federal Registration Service and Its Territorial Authorities" * (5).

The procedure for state registration of mortgage of the parcels of land on which real estate units which part the residential and non-residential premises which are subjects of agreements of participation in shared-equity construction are are created arising in connection with the conclusion of the specified agreements, is regulated by the order of the Ministry of Justice of the Russian Federation of June 9, 2005 N82 "About Approval of the Instruction about Features of State Registration of Agreements of Participation in Shared-equity Construction, It Is Right, Restrictions (Encumbrances) of the Rights to Real Estate Units in connection with Shared-equity Construction of Real Estate Units" * (6).

4. Based on article 334 of the Code pledge arises either owing to the agreement, or based on the law in case of approach of the circumstances specified in it if it is provided in the law what property and for what ensuring execution of the obligation is recognized being in pledge.

5. The mortgage can be established on the property specified in article 5 of the Law on mortgage which belongs to the pledger on the property right or on the right of economic maintaining (Item 1 of article 6 of the Law on mortgage). Proceeding from provisions of article 5 of the Law on mortgage:

under the agreement on mortgage the real estate specified in Item 1 of article 130 of the Code, the rights to which are registered according to the procedure, established for state registration of the rights to real estate and transactions with it including on can be pledged: the parcels of land, except for the parcels of land specified in article 63 of the Law on mortgage; the companies, and also buildings, constructions and other real estate used in business activity; the apartment houses, apartments and parts of apartment houses and apartments consisting of one or several isolated rooms; dachas, garden houses, garages and other structures of consumer appointment;

buildings, including apartment houses and other structures, and the constructions which are directly connected with the earth can be mortgage subject on condition of observance of rules of article 69 of the Law on mortgage;

if other is not provided by the agreement, the thing which is mortgage subject is considered pledged together with accessories (article 135 of the Code) as a unit;

part of property which Section in nature is impossible without change of its appointment (indivisible thing) cannot be independent subject of mortgage;

rules about mortgage of real estate are respectively applied to pledge of the rights of the lessee according to the lease of such property (the lease right) as other is not established by the Federal Law and does not contradict being of the rent relations.

The mortgage extends to all inseparable improvements of subject of mortgage if other is not provided by the agreement or the Law on mortgage (Item 6 of article 6 of the Law on mortgage).

The participant of common ownership can pledge the share in the right to common property without the consent of other owners (Item 2 of article 7 of the Law on mortgage).

In case of apartment mortgage in the apartment house which parts according to Item 1 of article 290 of the Code are in common ownership of the pledger and other persons pledged the respective share in the right of common property to this house (article 75 of the Law on mortgage) is considered along with premises.

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