Mortgage of property rights to real estate Cover Image

Іпотека майнових прав на нерухоме майно
Mortgage of property rights to real estate

Author(s): O. Surzhenko
Subject(s): Civil Law
Published by: Національний юридичний університет імені Ярослава Мудрого
Keywords: immobile property; ownership rights; mortgage; apartment; dwelling house; agreement; invalidity

Summary/Abstract: In the article are considered issues of problem of rights to immovable property as mortgage, property rights for real estate, which the mortgagor has not yet, analysed legal mechanisms of collateral rights to an apartment in a house that has not yet been launched, and the jurisprudence that has developed over the categories of disputes in recognition of the mortgage contracts invalid. Main emphasis is on the fact that the Law of Ukraine "On Mortgage" specifies the requirements for property that can be mortgaged, and the peculiarities of the mortgage object, as an object under construction. Although the spread of law regime to other immovable objects under this law does not say as such can serve other rights. They are in particular property rights to the property, which will become the property of the mortgagor after the conclusion of the mortgage contract; right to lease or use of real estate, which provides the tenant or person to build, own or dispose of immovable property. It is concluded that the real estate as mortgage offeredare considered a number of items: a) purely immovable things, i.e. those that match the attributes provided in the Civil Code of Ukraine; b) things that are within the fixed mode, though by their nature they are moving; c) property rights, i.e. other objects. Specified difficulty to consider the subject of ownership of real estate property rights, which mortgagor does not have. At least, no grounds for the assertion of that possibility is not provided the lack of "material substrate" of such proprietary rights. However, we have to value mortgage not only as its nature as real estate, but in terms of capacity to ensure proper performance of the contract. Especially considering that in fact, the property rights to immovable property, which does not exist at the time of the mortgage contract, is a potential thing. Argumented that claims for invalidation of mortgage agreements aimed at preventing the proper performance of the contract, secured by mortgage and foreclosure of its subject. Links to independent mortgaged thing thus can not be taken into account by the courts when resolving these disputes.

  • Issue Year: 2/2015
  • Issue No: 8
  • Page Range: 7-7
  • Page Count: 10
  • Language: Ukrainian