Changing the subject of pledge during the term of the mortgage agreement does not entail the termination of the right of pledge. New in collateral practice

Article 345. Replacement and restoration of the subject of pledge

Commentary on Article 345

1. The norm of paragraph 1 of the commented article establishes an obvious rule that the parties to the pledge agreement can agree on the replacement of the subject of pledge. At the same time, of course, those terms of the pledge agreement that were originally negotiated by the parties in relation to the former subject of pledge are preserved, unless the parties agreed otherwise or otherwise follows from the essence of the new subject of pledge.
1.1. At the same time, the transfer of the previously arisen right of pledge to a new object cannot infringe on the right of other pledgees who have previously received the right of pledge to the same object in order to secure their claims. So, for example, if the debtor pledged his car to the bank as security for the debt (and the bank was the senior pledgee under this pledge), and then agreed with the bank to transfer the right of pledge to his boat, the bank will be the junior pledgee if, before agreeing to such a transfer, this boat was pledged to another mortgagee (for example, a supplier who granted a deferred payment) and the bank should have known about the existence of this lien (for example, by virtue of registration of a boat pledge notice).
1.2. If the new subject of pledge is, for example, an immovable thing, and the previous subject of pledge was movable property, then in order for the pledge to continue to exist, an entry in a special register is required. The same applies to cases where, as a new subject of pledge, exclusive rights subject to registration, book-entry securities or shares in the authorized capital of an LLC or other property, the pledge of which is subject to title registration, are provided as security (see commentary to Article 339.1 of the Civil Code of the Russian Federation).
2. The norms of paragraph 2 of the commented article continue to develop the principle of the elasticity of collateral (see the commentary to paragraph 2 of article 334 of the Civil Code of the Russian Federation). In this paragraph, we are talking about such a manifestation of elasticity as the preservation of collateral when changing (including physical) the subject of collateral. Actually, the key provision of the commented paragraph is the provision that the pledge applies to any property that was created as a result of any change (including processing) of the pledged property. The expression "other change" used in the norm should be understood as broadly as possible: for example, a building constructed from pledged building materials should be considered as being pledged to the pledgee of the materials (of course, subject to the requirement for state registration of a mortgage in relation to the erected building). If the pledged shares were converted into other securities or into a share in the authorized capital of an LLC (during the reorganization of a joint-stock company into a limited liability company), then the corresponding securities or a share in the authorized capital of the LLC should be considered pledged.
As another example, we can cite cases of changing a land plot (dividing, joining, etc.), combining a set of premises into one room, as well as dividing or connecting rooms in a building, processing a movable thing, reconstructing an immovable thing, etc. In all of these cases, the bond will be retained, encumbering the physical "surrogate" of the original bond. For the application of this manifestation of the idea of ​​the elasticity of collateral in relation to the case of restructuring a building that was the subject of a mortgage, see the Definition of the State Revenue Committee of the Armed Forces of the Russian Federation dated September 20, 2016 No. 18-KG16-125.
In this case, in the event of a change in the subject of a pledge, a new legal pledge for a new subject does not arise, but the previously valid contractual pledge continues to be maintained. From the conclusion that a pledge that continues to exist due to the principle of elasticity is not a legal pledge, another rather important practical conclusion follows: if an immovable thing becomes a new subject of pledge (a new land plot instead of a divided one; a new building instead of previously pledged premises; new premises instead of a divided building; premises transferred under an investment contract), then the registration of a mortgage in respect of this property will not be carried out in accordance with the rules of the Mortgage Law on the registration of a legal mortgage (with the submission of a corresponding application by the mortgagee, etc.), but by the registration authority real estate rights ex officio. That is, the rights registration authority will be obliged to independently transfer, in relation to the new subject of mortgage, all entries on encumbrances that were in the register in relation to the previous objects of mortgage (for example, all encumbrances that lay on the plots from which it was educated). This obligation follows from the norms of the Civil Code of the Russian Federation on the preservation of collateral when changing the subject of collateral.
At the same time, in such a situation of the transformation of property, the pledge of which was not subject to registration, into property, the pledge of which is subject to registration, the question arises whether the pledge is preserved during the period of time between the disappearance of the former subject of pledge and the registration of the pledge on the changed object. Apparently, it should be recognized that in such a situation the pledge is preserved, and a gap in the existence of pledge rights does not arise.
Of course, when a pledge is extended to a changed subject of pledge, due to the principle of elasticity, seniority and all other conditions of the pledge are preserved (with the exception, apparently, of those that were closely related to the previous legal regime of the subject of pledge).
2.1. The provisions of sub. Clause 1, paragraph 2 of the commented article helps to resolve another conflict. We are talking about a situation where a land plot was pledged, and subsequently structures or buildings were erected on it, the rights of the pledger for which were not registered. In accordance with Art. 219 of the Civil Code of the Russian Federation, the right of ownership to a newly erected building arises from the moment of state registration in the register (the so-called principle of entry, clause 2, article 8.1 of the Civil Code of the Russian Federation). Thus, if the owner of the land plot, who pledged it under a mortgage agreement, erected buildings or structures on it, then before registering the rights to these objects, they should be considered as constituent parts of the land plot (Article 133 of the Civil Code of the Russian Federation), and the modified plot with all newly created improvements on it (in the form of constituent parts) shall be considered to be pledged to the pledgee as one thing.
2.2. The provision that in the event of the withdrawal of the subject of pledge for state (municipal) needs, the property provided to the pledgor in exchange for the withdrawn property will be considered to be in the pledge, repeats the rule of paragraph 2 of Art. 334 of the Civil Code of the Russian Federation with the only clarification that the very requirement for the issuance of compensation is also considered to be pledged.
At the same time, in this case, apparently, the question is more debatable whether the extension of the right of pledge to a new thing transferred to the ownership of the pledgor will continue the existence of the old property right of pledge or a new pledge will still arise here on the same conditions.
2.3. Special attention should also be paid to a new (for the Civil Code of the Russian Federation, but previously existing in the Law on Pledge of 1992) provision that in the case of a pledge of a property right, everything that will be provided by the debtor under the pledged right is also considered to be pledged. In fact, paragraph 2 of Art. 334 of the Civil Code of the Russian Federation. For example, if the pledgor's right to demand from the car dealership the transfer of a car under a sale and purchase agreement is pledged, then the car transferred to the pledger's ownership will be a new subject of pledge (instead of the terminated right from the sale and purchase agreement). At the same time, however, it is necessary to comply with the requirement to register a pledge, if the pledge of rights to the property transferred to the pledgor is subject to title registration (for example, real estate).
Also quite debatable is the question of whether the extension of the pledge to the received property will be a new pledge or the continuation of the existence of the old pledge.
No matter how this issue is resolved, it is obvious that such a transfer of the right of pledge from the right of claim to a thing will automatically entail a significant change in the content of pledge rights, since the regulation of the pledge of obligations and the pledge of things is fundamentally different.
3. The right of pledge gives the pledgee quite serious management capabilities in relation to the activities of the pledger. In particular, he gains control over the pledgor's activity in changing (processing) the pledged property (such control will be especially complete in the case of the so-called total pledge), which, as follows from the commented paragraph, may be limited by the pledge agreement. Such conditions, in particular, may include the provisions of the pledge agreement on the need for preliminary coordination with the pledgee of certain actions with the pledged property, which can change it physically (and thereby change the value of the subject of pledge, in which the pledgee may not be interested).
3.1. A sanction for violating the conditions for agreeing on the change and processing of the subject of pledge established in the pledge agreement is the emergence of the pledgee's right to early demand of the debt secured by the pledge, and - in the event of default on the secured obligation - the right to foreclose on the subject of pledge.
4. Replacement of the subject of pledge may also be carried out by the will of the pledgor. This right is granted to him if the subject of pledge is lost or damaged due to circumstances for which the pledgee is not responsible. Otherwise, the pledgor who is a debtor under a secured debt may set off his debt to the creditor by claiming the pledgee for compensation for losses caused by the destruction of the subject of pledge.
However, it is wrong to consider such a replacement of the subject of pledge as a unilateral action of the pledger, since the law gives the pledgee the right to refuse to accept new property as pledge. Such behavior of the pledgee may be due, for example, to doubts about liquidity or about the adequacy of the value of the property offered as collateral to the size of the secured obligation. However, of course, the refusal of the pledgee to accept new property as a pledge can also be assessed from the point of view of the standard of good faith behavior (clauses 3 and 4 of article 1, article 10 of the Civil Code of the Russian Federation); the consequence of recognizing the refusal of the pledgee to accept new property as pledge will be the termination of the pledge.
4.1. When the subject of pledge is replaced by the pledgor, the terms of the pledge agreement shall be preserved in relation to the new subject of pledge.
At the same time, the question of whether a new pledge will take place here or the old property right will be preserved may cause controversy (For this, see the commentary to paragraph 1 of this article).
4.2. If the pledgor did not exercise his right and did not provide a new subject of pledge to replace the lost (or deteriorated), the pledgee has the right to claim the secured debt ahead of schedule and levy execution on the subject of pledge. However, the pledgee does not have the right to demand the provision of a new subject of pledge to replace the deceased.
5. The provisions of paragraph 5 of the commented article provide that the terms of the pledge agreement remain in force in relation to the new subject of pledge, the seniority of pledges is preserved.
Here, the legislator also points out the peculiarity of determining the moment from which the provided new subject of pledge will be considered encumbered with the rights of the pledgee: if the new subject of pledge is already in the ownership of the pledgor, then it is considered pledged from the moment an agreement is reached on replacing the subject of pledge; if the subject of pledge is future property, then it will be encumbered from the moment the pledger's right of ownership to it arises (see also the commentary to Article 335 of the Civil Code of the Russian Federation). If, however, the right of ownership to the pledged item arises from the pledgor only after special registration (for example, the right to real estate), then the pledge will also arise not earlier than such registration (see commentary to Article 339.1 of the Civil Code of the Russian Federation).
5.1. In relation to the latter case, the pledgee must be especially vigilant and actively participate in the procedure for registering the pledger's rights to a new subject of pledge so that in respect of this property an encumbrance record is also made (at the request of the pledgee); otherwise no bond will arise.
5.2. The terms of the pledge agreement developed by the parties in relation to the former subject of pledge will not apply to the new subject of pledge if they contradict the mandatory norms of the law. For example, if instead of a pledged non-residential premises, a residential premises was pledged, which is the only one of the pledgor, the condition of the pledge agreement on the out-of-court procedure for levying execution on the subject of pledge will not be applied (see paragraph 3 of article 349 of the Civil Code of the Russian Federation and commentary thereto) .
6. Paragraph 6 of the commented article contains an obvious rule that instead of replacing the subject of pledge with all agreements regarding the terms of the pledge remaining in force, the parties have the right to terminate their previous pledge relations and conclude a new pledge agreement in relation to the new subject. This will be expedient, for example, in a situation where the new pledge has such serious differences from the previous one that it is more expedient to work out new conditions for the pledge than to adapt the previous provisions of the pledge agreement to the new pledge. For example, if rights were pledged under an agreement on participation in shared construction, then after the transfer of the premises to the shareholder, it is more expedient to conclude a new mortgage agreement.
6.1. The condition on the obligation to conclude a new pledge agreement may be contained in the original pledge agreement; in case of evasion from concluding a new pledge agreement, the pledgee has the right to file a corresponding claim (clause 1, article 421 of the Civil Code of the Russian Federation).
7. The discretion of the provisions on the replacement of the subject of pledge is emphasized by paragraph 7 of the commented article, indicating the possibility in the pledge agreement to establish the right of the pledgor to replace the subject of pledge unilaterally, without the consent of the pledgee.
This is a rather atypical provision, contrary to the nature of the pledge as a property right. The protection of the pledgee in the event of the presence of such a condition in the pledge agreement will be only the rules of good faith.

Civil law allows the provision of obligations with a penalty, a deposit, a guarantee and other measures. Another security measure is bail. Its essence boils down to the fact that in case of violation of obligations, the creditor sells the collateral and compensates for the losses incurred.

What is not allowed

Only those things, items and property that can be sold and that are allowed for sale on the territory of our country can be the subject of a pledge.

In particular, article 336 of the Civil Code contains a list of items that are prohibited from being used as collateral:

• withdrawn from civil circulation;
• claims for payment that are inextricably linked with the personality of the creditor are not allowed;
• property rights and things, the assignment of which is expressly prohibited by regulatory enactments.

The first category is not very broad. Withdrawn from circulation are those things that belong exclusively to the state. For example, the resources of the continental shelf, products of the defense complex, nuclear weapons, protected areas, National parks etc.

General concepts

To understand what things can be the subject of a pledge, it is necessary to understand the term. The word "collateral" means a way to secure obligations. If the debtor improperly fulfills or does not fulfill obligations at all, then the creditor has the right to satisfy them at the expense of collateral.

It is possible to receive pledged property in kind, referred to as a pledge, only in cases expressly specified in regulatory documents. In other situations, the pledge is sold through auctions, and the proceeds are transferred to the lender.

Kinds

On the subject, a pledge of rights or property is distinguished. According to the location of the property, there are:

• solid, that is, without transferring the thing to the creditor, for example, a pledge of goods in circulation;
• a pledge that secures the transfer of an item to a creditor, such as a pledge in a pawnshop.

There is a classification according to the degree of connection with the earth:

• movable property;
• real estate.

Grounds for the emergence

Legal relations in the field of pledge arise on the basis of an agreement. The Civil Code also provides for bail on the basis of the law. The simplest example is the purchase of goods in a store on credit. The buyer is the owner and pledger, the subject of pledge is the acquired thing.

Another example: under a shared construction agreement, the land plot and the real estate under construction are pledged to equity holders. The same situation is with the purchase of municipal real estate in installments.

Subject of the contract

According to the provisions of Article 336 of the Civil Code, the subject of pledge is any property, including property rights. The exceptions are those items for which collection is not allowed. The simplest example is alimony.

The subject of a pledge can even be rights or things that will be acquired in the future.

Extrajudicial order

Most often, agreements with a pledge are found in legal relations with banks. To resort to an out-of-court procedure, such a condition must be stipulated in the contract itself. However, in some cases extrajudicial procedure cannot be applied at all. In particular, they cannot take away the only housing, even if it is the subject of a pledge agreement.

In other cases, for the implementation of an extrajudicial order, several conditions must be met:

• the contract must contain the conditions for the sale of property;
• the value of the collateral;
• in the absence of a price, the procedure for determining it is described.

On the example of an agreement with a bank, the following stages of the implementation of an extrajudicial collection of collateral can be distinguished:

1. Written notification of the borrower and the mortgagor (these parties may not coincide in one person). Regulations do not contain requirements for such a document, so it is drawn up in free form. Usually, the notification contains the details of the contract, the obligation secured by the pledge, the chosen method of selling the property and its price are indicated. The borrower has 10 days to review the notification, unless otherwise specified in the document.
2. The pledgor transfers the property or documents on it to the bank. An act of acceptance and transfer must be drawn up.
3. The Bank sends a notification to the borrower about the planned date and place of the auction.
4. Auctions are held at which the subject of pledge is sold. If the proceeds at the auction were not enough to cover the entire debt, the bank has the right to foreclose on other property of the debtor. If the amount is greater, then the resulting difference after the auction is returned to the pledgor.

The bank has the right to purchase the collateral if the auction does not take place. If the lender does not want to buy the property or keep it, then repeated auctions are held.

court order

Foreclosure on the subject of pledge can be carried out in court, even if the contract provides for an out-of-court procedure. Step by step, everything looks like this:

• The bank is suing. He has the right to demand to secure the claim by seizing the property.
• At the end of the hearing, a decision is made. The defendant has the right to ask for a delay. If the application is granted, then during this period interest will still accrue.
• Based on the writ of execution, the bailiff enforces the court decision, or rather seizes the property for further sale of the subject of pledge at auction.

The borrower has the right to repay debts and reimburse all costs of the creditor at any stage of judicial and extrajudicial recovery.

Contract Requirements

The current legislation requires that a pledge agreement be drawn up according to certain rules. It must contain the prerequisites:

• subject of pledge;
• the price of the obligation or the procedure for calculating the cost;
• deadlines;
• obligations secured by property.

If the contract is complex, then it includes several obligations. Collateral security may relate not only to the main obligation, but also to expenses that are associated with the maintenance of property. In any case, such conditions should be stipulated in the agreement.

The subject of a pledge can be any thing that can be sold, if they are not prohibited from sale by the current legislation.

If the goods are in circulation

Legislation allows the provision of collateral in the form of goods that are in circulation. That is, the creditor does not take the property, and the debtor continues to use it. He retains the right to dispose of property, change its composition and make certain adjustments. In fact, we are talking about the transformation of raw materials or inventories into finished products.

The main condition is that the value of the property should not decrease compared to that specified in the contract. After the sale of the property, it ceases to be collateral.

Register of pledged property

Since 2014, a registry of movable property that is pledged has been operating on the Internet. It is very popular with motorists, because there you can check the vehicle for restrictions.

All information is on the web. For example, you can find information about a car on a specific tab by entering the VIN of the car. You can also find out information by the data on the pledgor or by the details of the notification of the pledge of movable property.

The service is paid, the price depends on the number of pages of the document requested by the person concerned. For one sheet you will have to pay 40 rubles.

Advantages and disadvantages

Benefits of making a mortgage:

• guarantees for the creditor;
• the subject of pledge can be both movable and immovable property, with the exception of those things that are prohibited for sale or withdrawn from civil circulation;
• first of all, claims that are secured by a pledge are satisfied, and only then claims that are not secured by anything;
• disposal of property that is pledged is not allowed, with the exception of property that is in circulation;
• the pledgor may be not only the debtor, but also another person.

The main disadvantage is that if the pledgee does not receive the pledged movable property, then there is a huge risk that it will be alienated to an unscrupulous buyer. In the future, problems may arise with the establishment of a new owner.

The second disadvantage is a very complicated and time-consuming procedure for the sale of mortgaged property.

Equity securities may undergo some significant changes during their “life”:

Conversion of a security of one type into a security of another type;

Change in the par value of a security;

Redemption of a security or its replacement with other property.

In the above situations, from a formal legal point of view, there is a change and (or) replacement of one property with another.

At the moment, the norms of the Civil Code of the Russian Federation do not provide for the replacement of the subject of pledge, with the exception of the rules on the pledge of goods in circulation. Therefore, changing the details of the pledged security or replacing it with other property should be qualified as the loss or destruction of the pledged property or as the termination of the pledged right.

In this situation, the pledgor has the right to use paragraph 2 of Art. 354 of the Civil Code of the Russian Federation, according to which, if the subject of pledge is lost or damaged, or the right of ownership to it or the right of economic management is terminated on the grounds established by law, the pledgor has the right to restore the subject of pledge within a reasonable time or replace it with other equivalent property, unless otherwise provided by the agreement.

If the pledgee has not used this right, then the pledge is terminated, and the pledgee has the right to demand early performance of the obligation secured by the pledge (Articles 351, 352 of the Civil Code of the Russian Federation).

As one of the options for getting out of this situation, the parties, concluding a pledge agreement valuable papers, enjoy the right granted to them by paragraph 6 of Art. 340 of the Civil Code of the Russian Federation, which provides for the possibility of pledging things and property rights that the pledgor will acquire in the future. However, it seems that "a pledge of securities acquired by the pledgor in the future is possible only in relation to those securities, the issue of which passed the state registration at the time of the conclusion of the pledge agreement." This is due to the fact that in the pledge agreement, securities must be individualized as a pledge item.

The current situation is not conducive to the popularity of the pledge of emissive securities. Currently, in order to prevent the risk of loss of the pledged security, the creditor-pledgee is forced to refuse to accept as a pledge such a security, in respect of which the events listed above are expected during the expected life of the underlying obligation. The consequence of this approach is that issuance securities are accepted as collateral to secure only short-term obligations.

Clause 14 of the Procedure for accounting in the system of maintaining the register of pledge of registered equity securities and making changes to the system for maintaining the register of changes regarding the transfer of rights to pledged registered equity securities, approved by Order of the Federal Financial Markets Service No. 11-10/pz-n dated 05.04.2011 (hereinafter - accounting for a pledge of registered issue-grade securities) suggests that the following pledge conditions may be specified in the pledge order:

The pledge extends to all or to a certain number of securities received by the pledgor as a result of the conversion of pledged securities;

The pledge extends to a certain number of securities of a certain type, category (type), series, additionally credited to the personal account of a registered person - pledger (including additional shares).

The thesis that the pledge is preserved even when the subject of pledge is changed is not easy to justify from the point of view of classical pledge law. The pledge is considered as a right to a specific object of civil rights, defined in the pledge agreement. When this object is changed, the newly created (replaced) object can no longer be considered pledged, because the parties in the pledge agreement have agreed that it acts as a security for the claim.

Of course, in this case there will be a fiction of replacing the pledge of property with a pledge of the right to a certain value. That part of the value of the subject of pledge, which was isolated in the pledge agreement when the thing was changed, does not disappear anywhere. And if the court can trace the connection between the old thing and the new thing, then the basis for considering the pledge terminated is not found.

Upon redemption or redemption of securities, they are replaced by cash (cash or non-cash). The Supreme Arbitration Court of the Russian Federation took the following position in this regard: cash do not have one of the essential features of the pledge agreement - the possibility of realizing the subject of pledge, and therefore cannot be the subject of pledge. Thus, when the securities are redeemed, the subject of pledge disappears, the pledge agreement is terminated.

It is necessary to pay attention to the fact that the expiration of the securities circulation period is not considered by the courts as the destruction of the pledged item and the basis for the termination of the pledge.

Thus, the Thirteenth AAC in its decision indicated that the termination of a pledge due to the expiration of the term for the circulation of the subject of pledge is contrary to the provisions of Art. 352 of the Civil Code of the Russian Federation and Art. 34 of the Law of the Russian Federation "On Pledge". The expiration of the bond circulation period does not terminate the owner's right to receive the par value. The bonds give the holder the right to receive the face value within the stipulated period. The law provides for liability of the issuer for untimely redemption of bonds. The list of circumstances entailing the termination of a pledge is established by Article 352 of the Civil Code of the Russian Federation. This list is exhaustive and not subject to expansion.

A very acute problem of modern pledge law is the preservation of pledge when changing the secured obligation without simultaneously changing the description of the secured obligation in the pledge agreement.

Until recently, the vast majority of courts proceeded from the fact that if the parties make any changes to the secured obligation, the changed circumstances should not be considered secured by the pledge.

In the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 6, the Plenum of the Supreme Arbitration Court of the Russian Federation No. 8 of 07/01/1996 "On some issues related to the application of part one of the Civil Code Russian Federation» states that in cases where the pledger is the debtor in the main obligation, the terms on the nature, amount and timing of the performance of the obligation secured by the pledge should be recognized as agreed if the pledge agreement contains a reference to the agreement regulating the main obligation and containing the relevant conditions.

Judicial practice quite strictly adhered to the opinion that if the pledgor is not a debtor under a secured obligation, then any change in the secured contract requires agreement with the pledgor, otherwise the pledge is recognized as an unconcluded transaction. The idea that the actions of the debtor and the creditor to change the terms of the obligation secured by the pledge should not affect the position of the pledgor finds its confirmation in the fundamental postulate of the law of obligations: an obligation cannot create obligations for persons not participating in it.

However, according to paragraph 13 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of February 17, 2011 No. 10 “On Certain Issues of the Application of Legislation on Pledge”, a change in the amount or deadline for fulfilling an obligation secured by a pledge (for example, due to a change interest rate on a loan or a change in the loan repayment period) in comparison with the way such a condition is defined in the pledge agreement, does not in itself constitute grounds for terminating the pledge.

In the aforementioned Resolution, the highest court spoke in favor of allowing a pledge with a floating amount of the principal obligation. Thus, the parties to the pledge agreement have the right to establish in the agreement that the pledge secures the obligation in the amount that will exist by the time the pledge is foreclosed. However, it is necessary that the pledge agreement contains the limits of such an increase.

At the same time, it must be borne in mind that, unless otherwise provided by the agreement, the pledge secures the claim to the extent that it has by the time of satisfaction, in particular, interest, penalties, compensation for damages caused by delay in execution, as well as compensation for necessary expenses. the pledgee for the maintenance of the pledged thing and the costs of collection (Article 337 of the Civil Code of the Russian Federation).

At the same time, according to Art. 337 of the Civil Code of the Russian Federation, the parties to the pledge agreement have the right to provide that the pledge secures not only the obligations arising from the agreement (for example, on the return of a loan and interest for its use), but also a claim for the return of what has been received (a claim for reimbursement in money for the value of the received) for such contract if it is invalid (clause 26 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated February 17, 2011 No. 10 “On Certain Issues of the Application of Legislation on Pledge”).

This position of the highest court practically nullifies the favorite procedural tactics of the defendants in claims for foreclosure on the subject of pledge - the recognition of the contract secured by the pledge as invalid.

Official text:

Article 345. Replacement and restoration of the subject of pledge

1. Replacement of the subject of pledge is allowed with the consent of the pledgee, unless otherwise provided by law or contract.

2. If the subject of pledge is lost or damaged, or the right of ownership to it or the right of economic management is terminated on the grounds established by law, the pledgor shall have the right to restore the subject of pledge within a reasonable time or replace it with other equivalent property, unless otherwise provided by the agreement.

Lawyer's comment:

Replacement of the subject of pledge under paragraph 1 of this article is one of the special cases of changing the pledge agreement. According to paragraph 1 of Article 450 of the Civil Code of the Russian Federation, a change in the contract is possible by agreement of the parties, unless otherwise provided by the contract. It follows from this that the treaty may also provide for a unilateral change. In particular, the pledge agreement may stipulate that the subject of pledge may be replaced (and, consequently, the agreement changed) without the consent of the pledgee.

Paragraph 2 of Art. 345 of the Civil Code of the Russian Federation contains a rule according to which the pledgor is granted the right to change the pledge agreement at his own discretion in the event of the destruction of the subject of pledge. The death of the subject of pledge means that the civil legal relationship is deprived of its object and cannot continue to exist without a corresponding change. In accordance with Article 432 of the Civil Code of the Russian Federation, an agreement is considered concluded if an agreement is reached between the parties on all essential terms of the agreement. In this case, the condition on the subject of the contract is considered essential. Therefore, the replacement of the subject of the pledge agreement is a change in the pledge agreement.

Clause 2 of Article 345, establishing that the pledgor has the right to replace the lost subject of pledge, thereby gives him the right to unilaterally change the pledge agreement. After such a replacement, the pledge agreement receives a new object, i.e. is an amended pledge agreement. It is important to emphasize that paragraph 2 of Article 345 does not require the consent of the pledgee to change the pledge agreement. He points out that the pledgor "has the right" to make a replacement. It follows from this that the pledgee is obliged to agree with such a change in the contract.

Paragraph 2 of Article 345 of the Civil Code of the Russian Federation leaves it at the discretion of the pledgor not only to decide whether or not to change the pledge agreement, but also, in the positive case, how to change it and in what period to make the change. The article states that the pledgor has the right to replace the item with "equivalent property". At the same time, it is not defined how and by whom this equivalence is established. Since the issue of changing the contract is decided unilaterally by the pledgor, he is thereby granted the right to decide which property is equivalent.

Article 345 does not give the pledgee any rights in this procedure, he is not endowed with the right to vote in the decision of the pledgor on the equivalence of property. A characteristic feature of paragraph 2 of this article is that it does not establish a fixed period during which the pledgor must resolve the issue of changing the pledge agreement.

As mentioned earlier, the subject of mortgage is real estate, the list of which is defined in the Civil Code. However, the most common subject of mortgage are buildings, structures and land. A feature of these real estate objects is that their owners often resort to the transformation of these objects in order to improve them in the form of reconstruction, their consolidation or, conversely, division for various purposes.

Buildings and structures are a separate type of real estate that can be subject to mortgage. It is these objects that most often undergo various changes, whether it be redevelopment, reconstruction or the legal division of such objects into several independent ones. Often in practice, the following question arises - does such a transformation of a property mean a change in the subject of mortgage or such a transformation should be considered as the legal death of one object (which is also the basis for terminating mortgage relations), and the resulting property is a new object not encumbered with mortgage rights? Mortgage legislation does not give a clear answer to this question, but there are a number of judicial acts that express different opinions on this issue.

Judicial practice in terms of the legal assessment of the fact of changing the subject of mortgage shows that courts assess this circumstance differently: a number of courts believe that changing the subject of mortgage in terms of dividing real estate objects into several independent objects is the destruction of property, while others believe that that this change cannot be identified with the death of the subject of mortgage. It is necessary to consider specific court cases in which these circumstances were assessed, and also to separately highlight which particular transformations of the pledged real estate should be considered as a change in the subject of mortgage and what is meant by the destruction of the subject of mortgage

In one of the court proceedings, the courts of first instance and cassation considered that when creating objects in the process of dividing an initially pledged real estate object into several independent objects, the non-residential premises mortgaged under a mortgage agreement ceased to exist as an object of civil rights, that is, this property was destroyed, in connection with which the bail was terminated. At the same time, the court of cassation referred to subparagraph 3 of paragraph 1 of Article 352 of the Civil Code of the Russian Federation.

This case was reviewed by way of supervision, the Presidium of the Supreme Arbitration Court indicated that the courts of the first and cassation instances did not take into account the following circumstance that, in accordance with subparagraph 3 of paragraph 1 of Article 352 of the Civil Code of the Russian Federation, the pledge is terminated in the event of the destruction of the pledged thing or the termination of the pledged right, if the pledgor did not use the right provided for by paragraph 2 of Article 345 of this Code. However, it follows from the materials of the case that the non-residential premises, which are the subject of pledge, were divided by the entrepreneur into two premises, however, the division of the subject of pledge into parts does not mean its death. In addition, the court drew attention to the fact that the pledgee agreed to the division of the premises subject to the preservation of the pledge, and the encumbrance of ownership of the premises No. 1 and No. no collateral terminated.

During the period of validity of the mortgage, there may be cases when the mortgaged property undergoes repairs or reconstruction, as a result of which the technical characteristics of the mortgaged property may change. In this regard, a controversial question arises - is such a reconstruction a change or, as a result of reconstruction, a completely new object is formed, different from the pledged property and, accordingly, the reconstruction should be considered as the destruction of the originally pledged property. To resolve this issue, one should turn to judicial practice.

In one of the cases, the plaintiff pointed to the reconstruction of the mortgage object, as a result of which a new object appeared, which was not an object of pledge, in connection with which, the mortgage ceased due to the destruction of the pledged thing. The court found that there had been a change in the technical characteristics of the pledged property as a result of the reconstruction. The court pointed out that this change does not mean the destruction of the pledged thing within the meaning of subpara. 3 p. 1 art. 352 of the Civil Code of the Russian Federation, the court concluded that the mortgage established on the property subjected to reconstruction was preserved in relation to the reconstructed object. The court noted that changing the subject of the mortgage during the period of the mortgage agreement does not mean either physical or legal death the subject of pledge, which, within the meaning of sub. 3 p. 1 art. 352 of the Civil Code of the Russian Federation entails the termination of the pledge.

In a similar trial, the court pointed out that a change in the parameters of the subject of mortgage (height, number of floors, area), even if proven, does not mean either the physical or legal death of the subject of pledge, which, within the meaning of subparagraph 3 of paragraph 1 of Art. 352 of the Civil Code of the Russian Federation entails the termination of the pledge.

In the next litigation, the subject of the mortgage was reconstructed - inseparable improvements were made, which significantly increased the value of the house. The court found that the extensions were inseparable improvements, as indicated in the expert opinion, and that these improvements should be considered as a change in the subject of mortgage, but not as its death.

In a similar way, a case was resolved in which, during the period of validity of the mortgage agreement, the pledger carried out the reconstruction of the mortgaged building, which resulted in the construction of a new building, different in its parameters from the originally mortgaged one.

From the above court decisions, it should be concluded that the transformation of mortgaged real estate in the form of its division into several independent objects, reconstruction, change in the parameters of the object, the courts consider it as a change in the subject of mortgage, and not its death. At the same time, in none of the above court decisions, the courts indicate how they were able to distinguish between such concepts as loss and change in mortgaged items. It should be assumed that these transformations by their characteristics do not fall under the concept of "death", the definition of which is not contained in the Civil Code, but is widely used in judicial practice. As the courts have repeatedly pointed out in their decisions, destruction or destruction should be understood as the irreversible physical cessation of the existence of a thing in its original form, making it impossible to satisfy the original, individual needs owner. Some courts also define death as the physical destruction of property, the cessation of its existence as an object of the material world.

Based on the foregoing, it can be concluded that since a change in the subject of mortgage in the form of its division, reconstruction, an increase or decrease in various parameters of the pledged property does not entail the physical destruction of real estate, but only means its transformation, such a change cannot be considered as the destruction of property and accordingly, such a change cannot serve as a basis for the termination of the mortgage obligation, which means that the mortgage in relation to the changed real estate objects continues to operate.

The most difficult in judicial practice is the question of whether it is possible to speak of the loss of property in the event that the pledged property was destroyed, and a new one was erected in its place, different from the originally pledged object. The main criterion for determining the loss of property in this case, based on the materials of judicial practice, is the complete destruction of the mortgaged subject of mortgage.

Consideration by the courts of the issue of such a change in the pledged property as the construction of a constructively new object on the site of the originally pledged one requires close attention. In one of the court cases, it was found that the owner of the building destroyed the mortgaged object and erected a new property in which not a single wall remained of the previous building. In order to determine whether the death of the pledged property occurred, the court appointed a construction and technical expertise. According to the conclusions of the judicial construction and technical death of the object - the building within the meaning of Part 1 of Art. 352 of the Civil Code of the Russian Federation, the debt property, which is the subject of the mortgage agreement (pledge) concluded between the parties, did not occur. This conclusion of the examination was due to the fact that the share of the reconstructed building mortgaged under the mortgage agreement in the existing building is a certain share of the original building (in terms of the foundation). At the same time, the merging of the subject of pledge with other property during the validity period of the mortgage agreement does not mean the destruction of the subject of pledge, and therefore is not a basis for terminating the pledge and, accordingly, the plaintiff's arguments that the subject of pledge has been destroyed are unfounded.

Similarly, a case was resolved in which the pledgor insisted that the subject of pledge was missing by the time of the trial, explaining that a fire had occurred in the mortgaged building, after which this building was practically destroyed by fire - only cinder block walls remained. At the same time, by the time of the trial, another building of a different design had already been built on the site of the building destroyed by fire. In this regard, the pledgor asked to refuse to foreclose on the building, since the mortgage was terminated due to the destruction of the pledged thing. The pledgee under this mortgage obligation took a different position, he explained that indeed a new building was built on the site of the old building, on the same foundation, however, he believes that the destruction of the pledged property did not occur, and the building was simply reconstructed. Based on the foregoing, the court concluded that unequivocal evidence confirming complete destruction of the mortgage object the court was not presented, and the newly erected building was considered as the result of the reconstruction of the originally mortgaged one. At the same time, the court drew attention to the fact that such a change cannot be considered as the death of the subject of mortgage within the meaning of subpara. 3 p. 1 art. 352 of the Civil Code of the Russian Federation, which entails the termination of the pledge. The court also pointed out that there was no need to enter any information about such a change in the mortgage agreement.

Thus, the fact of the death of the subject of mortgage requires detailed confirmation, in some cases, not only legal documents confirming such a death are required, but also a special technical examination, proving the complete destruction of the originally pledged real estate. Otherwise, the erected building or structure on the site of the lost mortgaged property will be considered as a reconstruction, and in this regard, the previously arisen mortgage obligation will apply to this object.

In a number of cases, such a change in the pledged property as a change in relation to the area of ​​the object is possible, while externally this object remains unchanged. Such a change is possible in two cases: the total area of ​​the building may increase due to previously unaccounted areas (for example, basement areas), by clarifying the areas and by dismantling internal structures (for example, walls or partitions). A change in such property must first be considered not in the context of the correlation of such changes with the loss of property, but within the framework of the possibility of recognizing a mortgage agreement as not concluded due to non-compliance with the mandatory requirements of the law when concluding it, namely, the absence in the agreement of data that would allow determining the subject of the agreement.

In one of the court cases. The defendant insisted on the recognition of the contract as not concluded in connection with the above circumstances. He pointed to the norms of the law, namely paragraph 2 of Art. 9 of the Federal Law "On Mortgage (Pledge of Real Estate)" No. 102-FZ, according to which the subject of mortgage is determined in the contract by indicating its name, location and a description sufficient to identify this subject. Sufficient for the identification of the subject of mortgage description, in his opinion, are: the parts that make up the premises, their designations, area, as well as the identification unique number of the property. The defendant insisted that the concluded mortgage agreement did not take into account the area of ​​the basement, which is also part of the total area of ​​the building - as a single object. The defendant explained that the basement is a full-fledged floor, its area should be included in the total area of ​​the building. The mortgage agreement does not agree on exactly which premises (parts of the premises) included in the building are the subject of mortgage, their designations, areas, numbers, letters are not defined. The total area indicated in the mortgage agreement also does not correspond to reality. After the conclusion of the mortgage agreement, as a result of the redevelopment and development of the technical basement, its functional purpose changed, namely, it became a basement, the area of ​​\u200b\u200bwhich began to be taken into account in the total area of ​​the mortgaged building.

The plaintiff's position in this case was as follows: the plaintiff pointed out that the legislation does not provide a deciphering of what is meant by a "sufficient description for identification" (Article 9 of the Federal Law "On Mortgage (Pledge of Real Estate)". In this regard, it is necessary to indicate that the subject of the mortgage agreement must be described in such a way that the features of the pledged object specified in the mortgage agreement allow it to be individualized from a number of similar objects.At the time the mortgage agreement was concluded, the description of the object fully complied with all title documents. that the subject of the mortgage must also indicate the basements for which the right of ownership was not registered are insolvent, because only that for which the right of ownership is registered can be mortgaged. which registered ownership, but there was only a technical basement, which according to the Instructions, the area of ​​the building is not included.

The court found that the description of the subject of mortgage corresponded to the technical documentation and was sufficient to identify it, as required by law. Also, the description of the subject of mortgage exactly corresponded to the description of the object of law, which was contained in the title documents. In view of the foregoing and taking into account that in the agreement all the essential conditions provided for by law for this type of agreement are agreed and observed by the parties, the court concludes that the mortgage agreement in this case is concluded. The courts also noted that the change in neither the Civil Code of the Russian Federation, nor the Federal Law “On Mortgage (Pledge of Real Estate)” requires, in order to maintain the force of the mortgage agreement, amendments to it regarding the description of the subject of mortgage, its assessment and registration of these changes.

Separately, the issue of changing the object of an unfinished object as a special type of real estate should be considered. This problem was first covered in 2005 in the Appendix to the information letter of the Presidium of the Supreme Arbitration Court dated January 28, 2005 No. 90. In paragraph 1 of this review, it was pointed out to the court proceedings in which the plaintiff asked the court to foreclose on the subject of pledge, namely, on the object of construction in progress, which by the time of the trial had been completed and put into operation. The district court rejected the claim, justifying its position by the fact that since the object has already been completed and the ownership right is no longer on the object of construction in progress, but on the office building, the pledge should be recognized as terminated.

However, the Court of Appeal overturned this decision and indicated that "what was created by completing the construction of the pledged object of construction in progress" is considered to be pledged. In addition, the court emphasized that the completion of the facility cannot be considered the loss of property, as provided for in paragraph 1 of Art. 352 GK. The court also noted that the Federal Law “On Mortgage” provides for cases of maintaining a pledge when its subject is changed (for example, Article 76, Clause 4, Article 64, Article 65). This is also confirmed by the court's argument that the legislation does not provide for the possibility of repayment by the authorities for registration of rights to real estate and transactions with it in the Unified Register of an entry on the registration of a mortgage agreement on an object of construction in progress in the event of completion of its construction.

It seems that the position of the appellate instance, in terms of the fact that the mortgage of the object of construction in progress extends to the new real estate created by completing the construction of this object, is the only correct one. Other judicial bodies also followed the path of such an interpretation of the norms of the Civil Code and the Federal Law “On Mortgage”.

Thus, the Komsomolsky District Court of Togliatti indicated that, according to Art. 76 of the Federal Law “On Mortgage”, upon completion of the construction of a residential building, the mortgage on it does not stop. At the same time, the pledgor’s arguments that a different house has now been built, which, in terms of its parameters and technical specifications does not coincide with the object of a residential building in progress, which deprives the mortgagee of the right to claim the house as an object of mortgage, the court finds untenable.

The position of the Central District Court of Kemerovo is interesting, which accurately pointed out the possibility of maintaining a pledge on the object created by completing the construction in progress, moreover, he separately noted the impact of changing the subject on the mortgage agreement itself: when mortgaged on the construction in progress, the mortgage is preserved in relation to the completed construction without making amendments to the mortgage agreement regarding the description of the subject of mortgage and its valuation. The court also considered that a similar approach should be taken to resolving the issue of the fate of the mortgage of a completed construction object, if subsequently this mortgaged object was reconstructed, which resulted in a change in the parameters of capital construction objects, their parts (height, number of floors, area, production capacity indicators , volume) and quality of engineering and technical support (subclause 14, article 1 of the Town Planning Code of the Russian Federation) and led to the emergence of a new property.

The widespread erroneous position of pledgees that the completed object of construction in progress should be considered lost was expressed in a number of court decisions. The mortgagee considered that the subject of the mortgage does not exist, since at the time of the conclusion of the mortgage agreement the subject of the mortgage was the property belonging to the unfinished construction of a non-residential building, consisting of a brick building and a one-story brick building, he believed that this object was lost, since its currently changed total area and number of storeys. However, the court believes that a change in the subject of mortgage during the term of the mortgage agreement does not mean either the physical or legal death of the subject of pledge, which, within the meaning of subparagraph 3 of paragraph 1 of Article 352 of the Civil Code of the Russian Federation, entails the termination of the pledge. Moreover, according to Article 76 of the Law “On Mortgage”, when granting a loan or a targeted loan for the construction of a residential building, a mortgage agreement may provide for securing the obligation with an unfinished construction facility and materials and equipment belonging to the mortgagor that are prepared for construction. Within the meaning of this article, a mortgage agreement, the subject of which was a residential building under construction, without making any changes and additions to it in terms of the description of the subject of mortgage and its assessment, and without registration of such changes and additions, extends to the completed residential building.

There is also the possibility of changing the object of construction in progress due to the implementation of construction work on it, which, however, did not lead to the possibility of registering this object as an object of completed construction (buildings, structures). In this situation, judicial practice shows that a change in the characteristics of an object under construction (as a result of construction work being carried out on it) in the absence of rights to it registered in accordance with the established procedure does not allow considering it as such an object that was actually subject to mortgage on the basis of contracts. Moreover, as explained in paragraph 1 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 28, 2005 No. 90, if the subject of the mortgage was an object of construction in progress, then upon completion of its construction, the mortgage remains in force and its subject is a building (structure) erected in as a result of the completion of construction.

Separately, it is worth paying attention to the regulation of the issue of preservation and termination of rights and encumbrances on land plots during their division, allocation, consolidation, redistribution, which is regulated by Art. 11.8 of the Land Code of the Russian Federation. This article stipulates that the right of permanent (unlimited) use, the right of lifetime inheritable possession, the right of gratuitous fixed-term use in relation to newly formed land plots arises without any administrative actions by the owners of these plots. Similarly, an encumbrance in the form of an easement remains: “easements established in relation to land plots, from which land plots are formed during division, amalgamation, redistribution or allocation, remain in relation to the formed land plots within the former boundaries.” In other cases, according to paragraph 6 of article 10.8 of the Land Code, the encumbrances of rights to land plots arising from the contract must be established by concluding a new contract, and other encumbrances remain automatically.

Reading this article raises a lot of debatable questions: if we resort to a literal interpretation of the norms contained in it, we can conclude that the contractual mortgage will be terminated when the land plots are changed, while the legal one will be preserved. Obviously, the legislator forgot to provide in this article such an encumbrance as a mortgage, in connection with which it became necessary to interpret this article by the courts. However, in none judgment Supreme Arbitration Court does not contain an answer to the question of what happens to the mortgage in the event of a change in the land.

However, RS Bevzenko, one of the theorists of pledge law, tried to answer this question. In his opinion, the law should provide for the following: when changing the land plot, the pledge should be automatically transferred to the new land plot, as this will save the creditor from the need to file a claim for compulsion to conclude a new pledge agreement and fully protect his interests from actions an unscrupulous debtor who, in the event of automatic transfer of pledge, will not be able to sell, lease or encumber his land plot with another pledge. In this case, it is possible to draw an analogy between the division, allocation and other changes in land plots with the change in such objects of mortgage as buildings or structures, which was cited above and according to a detailed analysis of which it was possible to find out that such a change does not entail the termination of mortgage obligations in relation to such objects. real estate.

In favor of this opinion, one can cite numerous judicial practice considering the possibility of maintaining a pledge on altered land plots. Moreover, a change in plots, based on judicial practice, is possible in several cases: in the event of a change in the area of ​​the site, in the event of a change in the category of land, in the event of a change in rights to a land plot (for example, from the right of lease to the right of ownership).

In one of the court cases, the court found that the fulfillment of the borrower's obligations under loan agreements was secured by mortgage agreements, the subject of which was the transfer of a land plot with a total area of ​​7,730 sq. m of land category settlements, with a permitted use for the operation of a warehouse of fuels and lubricants. Subsequently, a land plot with a total area of ​​7,730 sq. m from the category of lands of settlements, with the permitted use for the operation of a fuel and lubricants warehouse, was transformed by its owner with the consent of the mortgagee - into three plots with an area of ​​2,710 sq. m, 2 712 sq. m and 2,308 sq. m.

The court noted that, according to paragraph 9 of Art. 12 of the Federal Law of July 21, 1997 3122-FZ "On state registration of rights to real estate and transactions with it" in the event of a division, allocation of a share in kind or other actions corresponding to the legislation of the Russian Federation with real estate objects, records about objects formed as a result of these actions are entered into new sections of the Unified State Register of Rights and new cases of title documents with new cadastral numbers are opened, while each of the newly formed plots is subject to the same encumbrance that the original one had. Thus, when converting the above land plot for newly formed objects, it was necessary to make entries in new sections of the USRR, open new cases with new cadastral numbers and establish a burden in the form of a mortgage.

As follows from the materials of another court case, on March 21, 2007, a mortgage agreement was concluded between an individual entrepreneur and a bank, according to which a mortgage was established on the following property: a building and the right to lease a land plot. mortgage agreement, later, on the basis of a sale and purchase agreement, it was acquired by an individual entrepreneur in the property, which is confirmed by a certificate of state registration of the right.

Referring to the fact that the right to lease a land plot was terminated in connection with the acquisition of a land plot, and the individual entrepreneur did not apply with a corresponding application for registration of a pledge, the registration of the right of pledge to the disputed plot by the bank was illegal, the applicant applied to the arbitration court.

Refusing to satisfy the stated requirements, the court of first instance proceeded from the fact that the real estate registration service had no grounds for canceling the registration record on the mortgage of the right to lease a land plot, since such a change cannot lead to the termination of such an obligation as a pledge. The court pointed out that neither Art. 352 of the Civil Code of the Russian Federation, which establishes the grounds for terminating a pledge, nor the norms of the Federal Law "On Mortgage (Pledge of Real Estate)" do not provide for a change in the rights to the pledged property, in particular, from the right to lease to the right of ownership, as a ground for terminating a mortgage. In this regard, the subsequent change in the right to lease a land plot to the right of ownership to it cannot be the basis for the termination of pledge obligations that arose before the transfer of the right and in the manner prescribed by law.

It is also important to pay attention to the cases when the area of ​​the pledged land plot under the lease agreement decreases, which is an additional obligation in relation to the mortgage of the buildings located on it. Attention should be paid to the court proceedings in which the following circumstances took place: the pledgor terminated the lease agreement for the mortgaged land plot and on the same day concluded a new lease agreement with the owner of the same land plot with an area of ​​​​a smaller size. The new lease functionally serves the same properties as the old lease. The court found that in this case it is impossible to speak about the existence of grounds for terminating the pledge, since paragraph 3 of Article 34 of the Federal Law "On Pledge" cannot be applied to this dispute, since it establishes the termination of the pledge of property rights when they are an independent subject of pledge. In this case, the pledge of the right to lease a land plot is derivative due to the requirements of the current legislation, the main subjects of pledge are non-residential buildings. When the right to lease a land plot is terminated, the mortgage (mortgage of real estate) as a whole does not terminate.

In another case, the court found that the reference to a change in the area of ​​a land plot as a legally significant circumstance is not accepted by the court, since it does not change the subject of the pledge and does not terminate the pledge. Yes, Art. 352 of the Civil Code of the Russian Federation defines cases of termination of a pledge. Meanwhile, the change in the subject of mortgage, available at the time of the consideration of the case, during the period of validity of the mortgage agreement does not mean either physical or legal death of the subject of pledge, which, within the meaning of sub. 3 p. 1 art. 352 of the Civil Code of the Russian Federation entails the termination of the pledge. At the same time, the current legislation does not require, in order to maintain the force of the mortgage agreement, the introduction of amendments to it regarding the description of the subject of mortgage and its assessment, and the registration of these amendments. Thus, a change in the subject of mortgage, in connection with the conclusion of a lease agreement for a land plot under real estate objects owned by the plaintiff, but in a smaller amount, does not entail legal consequences in the form of invalidity of the mortgage agreement and additional agreements to it.

It is possible that such situations may arise when land was transferred from one category to another, as a result of which the subject of the real estate pledge agreement has changed, and the value of this property has increased significantly. In one of these cases, the court agreed with the position of the pledgee, who considered that changing the category of the land plot does not entail the termination of the pledge, and, therefore, is not a basis for satisfying the claim for recognizing the real estate pledge agreement as invalid. This follows from the literal interpretation of clause 1 of article 352 of the Civil Code of the Russian Federation and clause 67 of the Rules for maintaining the Unified State Register of Rights to Real Estate and Transactions with It, approved. By a Decree of the Government of the Russian Federation of February 18, 1998, the Court established that the current legislation does not provide for a change in the purpose and value of collateral as a basis for declaring a transaction invalid.