On the necessity of the state registration of real estate encumbrance by loan rights

The present article deals with the problem of the absence of requirements of the state registration of the contract of real estate loans and the corresponding encumbrance of ownership. This problem has very often been the subject of research. There is no unified point of view on the necessity of legislative requirements of the state registration of real estate loans in the theory of civil law. Also, current legislation is interpreted differently in this part. There are also different opinions on the matter in the legal practice. The absence of a unified approach to this issue could be the reason for the violation of the rights of citizens and organizations that participate in the relevant civil law relations. It already causes a violation of the uniformity in the law enforcement of judicial acts. It should be noted that the legislator attempted to resolve the issue, but still has not completed it. The author examines the existing points of view on the state registration of the contract of real estate loans and the corresponding encumbrance. An analysis of the current legislation was carried out regarding the existence of the rules of the loans registration as a general rule for all real estate, and in respect of specific objects (land, forest land, cultural heritage, accommodations). The author points out that the general rule is not enshrined in law, but there is a requirement in respect of certain types of real estate. The article presents arguments for the necessity of consolidation of the state registration of real estate loans as a general rule in legislation. In the first place, the state registration is necessary in order to inform third parties about encumbrances of the property. The absence of such a rule may cause a breach of the rights of persons who will acquire the title to the property (this kind of situations exists in practice). Meanwhile, such a rule is unnecessary in relation to the living accommodation loans due to the nature of these relations. The author points out the necessity of separation of the registration of the loan agreement and the registration of encumbrance of ownership in the form of loans. In this regard, it is emphasized that encumbrance shall be registered rather than the contract itself. The article also presents a situation when the lender has limited rights in rem or rights of obligation, which shall be registered.

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