Mortgage Agreement Research Articles

Post-COVID Syndrome as a Defect of a Transaction Through the Example of a Mortgage Agreement

Introduction: currently, society is faced with a very important and urgent task: formatting the established foundations of civil circulation with the participation of individuals in connection with the manifestation of the negative consequences of a new coronavirus infection. Representatives from the medical community have stated that the emergence of a new disease can have negative consequences for a person’s mental health. The concern of law enforcement officers is caused by the fact that over the past 3–5 years, the cases of court proceedings for invalidation of a transaction on the grounds of Article 177 of the Civil Code of the Russian Federation have become more frequent, as committed at the time of ignorance and misunderstanding of the consequences of the transaction not related to the indicators of the individual’s legal capacity as a whole. Undermining the stability of civil circulation, especially in terms of concluding and executing transactions, increases when one of the parties is a capable citizen who, due to a previous coronavirus infection, has deviations from a normal mental state (post-COVID syndrome). The potential for nullifying such transactions and, subsequently, disrupting the dynamics of civil circulation highlights the necessity for the development and implementation of a set of methods and mechanisms that are not primarily legislative in nature but rather focus on flexible enforcement. These methods and mechanisms should be designed to address the negative manifestations, including those caused by the deterioration of an individual’s mental health following a SARS-CoV-2 infection, in the context of significant structural changes in social, environmental, and economic activities. In light of the above, one of the challenges for civilists is the humane and fair application of the provisions on invalidation of the transaction due to the inability of a person to realize and bear responsibility for decisions made due to deviations from the norm of mental health as a result of a coronavirus infection. Of particular importance in the light of the issue under study is the analysis of judicial practice, which allows studying the specifics of law enforcement on this issue and identifying blocks of perspectives in the judicial review of such disputes, taking into account the opinions of representatives of medicine focused on identifying negative consequences in human mental health. Thus, to a greater extent in the practice of civil law than in science, there is a need to formulate the problems of the legal regulation of invalidation of a transaction on the grounds of Article 177 of the Civil Code of the Russian Federation and propose fair, wise, and objective ways to resolve judicial conflicts, which is the purpose of the study. Methods: the methodological framework for the study is a set of methods of scientific cognition, among which the main ones are analysis, synthesis, generalization, and comparative jurisprudence. Results: the author has studied the judicial practice of modern times on the issue of invalidation of transactions through the example of a mortgage agreement. The analysis has made it possible to recognize that the consequences of a coronavirus infection can affect the psychiatric and mental state of a legally capable person in such a way that the person is unable to realize and understand the consequences of the actions performed. The main result is the conclusion that within the framework of resolving the issue of invalidation of the transaction due to the inability of a person to realize the consequences of his actions, it is necessary to consider in detail the arguments of the person who has applied for judicial protection, including taking into account those medical indicators that normally do not affect the legal capacity of an individual but have a negative effect on mental health.

Effectiveness Of Article 42 Sentence (1) Uu No. 6 Of 2023 On The Creation Of Work Regarding The Implementation Of The Basis Of Legal Certainty In The Mortgage Agreement By The Banks With The Act Of Binding Agreement Of Sale And Purchase

PT Bank Tabungan Negara (Persero) Tbk (Bank BTN) is a State-Owned Enterprise (BUMN) which operates in the banking sector, committed to being a bank that serves and supports housing sector financing. The mission carried out by Bank BTN is to actively support the government in advancing the welfare of the Indonesian people through home ownership and realizing the life that millions of Indonesians dream of through providing decent homes. One type of credit that is still in demand and needed by the public is KPR (Home Ownership Credit). Bank BTN as a bank that focuses on housing financing certainly fully supports the One Million Houses Program launched by the government. It is proven that currently Bank BTN is a bank with market share The largest Home Ownership Credit (KPR) in Indonesia. In order to improve and optimize services to the community with the development of the KPR business and support Bank operations both in terms of business processes and maintaining document quality, there are conditions where it is not possible to make a Sale and Purchase Deed (AJB) so that a temporary binding agreement is needed, namely a Sale and Purchase Agreement ( PPJB). This research aims to determine the implementation of KPR agreements by Bank BTN with sale and purchase binding deeds (PPJB) according to Article 42 paragraph (1) of Law no. 6 of 2023 concerning Job Creation at Bank BTN Kediri. This type of research is empirical juridical legal research and the specifications in this research are descriptive. The source and type of data in this research is primary data obtained from field studies in the form of interviews with Bank BTN Kediri employees. And secondary data was obtained from literature studies related to the theory of legal certainty. The results of this research are that the implementation of the KPR agreement by Bank BTN with the PPJB deed based on Article 42 paragraph (1) of the Job Creation Law does not fully meet the requirements stipulated in Article 42 paragraph (2) of the Job Creation Law.

The Unfairness of Personalised Price Terms in Consumer Credit Products

Abstract This article examines whether, and if so to what extent, a lender can engage in the algorithmic personalised pricing of consumer credit products (PP) under the Unfair Contract Terms Directive (UCTD) and the Consumer Credit Directive (CCD). To this end, the author first analyses the economic literature to discuss the mechanics of PP and the economic impacts on different consumer groups. This overview is followed by an examination of the UCTD and the CCD, in the broader context of EU regulatory law, as these Directives apply to the practice and the contractual terms. Subsequently, the author applies the considerations of the European Court of Justice (CJEU) in the jurisprudence regarding price terms in credit and mortgage agreements to personalised price terms. Finally, the author concludes that the Directives indeed limit the extent to which a lender can engage in PP, but that the frameworks in the broader EU regulatory context would be better suited than the Directives to address the negative economic impacts of the practice.

Protecting Home Loan Seekers in South Africa: Combating Unlawful Mortgage Lending Practices by Financial Institutions

All over the world, home loans and mortgages are part and parcel of the products and services being offered by the financial institutions-such as banks and homeowner mortgage institutions to their numerous customers. Prior, during and post home loan transactions, they owe their customers the duty to ensure full disclosure of all the terms and conditions in the mortgage agreements without withholding any information. This paper examines any act contrary to uberrimae fidei-utmost good faith in the transactions. Uberrimae fidei requires the highest standard of good faith on both the lender and borrower to disclose all material facts that could influence the decisions of the other party in seeking and granting home loans and mortgages. Failure might result in severe consequences by exploring both the civil and criminal responsibilities and liabilities of the party who acted mala fide-in bad faith. Against this backdrop, this paper examines the protection offered by the laws to ensure level playing field prior, during and after mortgage lending transactions.

Keabsahan Pendaftaran Kapal sebagai Objek Jaminan Hipotek

Mortgages with collateral as collateral for ships are one of the credit agreements that support business activities in the current era of globalization and free trade. Ship mortgages can of course also support business activities in Indonesia because it is an archipelagic country which, when distributing goods between one island and another, uses ship transportation facilities. However, in Indonesia there is no separate law that regulates mortgage guarantees, so legal protection for creditors is very lacking because the mortgage regulations in BW are in practice less relevant for the increasingly rapid development of the business world. In particular, legal protection regarding the execution of mortgage guarantees if the debtor defaults is deemed to be very lacking. Therefore, the Notary as an official authorized to make a mortgage deed must truly understand his duties in order to achieve justice and legal protection for the parties contained in the mortgage agreement deed.

Раздел долговых обязательств, возникших в результате совместной предпринимательской деятельности супругов

The article outlines certain aspects of the application of the rules of family law on the division of debt obligations arising in connection with the implementation of joint entrepreneurial activity by spouses. On the basis of interpretation of general provisions of private law the position on the possibility of attributing debts arising from entrepreneurial activities to the joint property of spouses in their division is substantiated. A number of problems complicating the equal and proportional participation of spouses in joint business, the distribution of debt obligations (proof of bad faith conduct of one of the spouses in connection with the emergence and performance of disputed credit obligations, significant improvements in the property acquired with borrowed funds under the mortgage agreement as a basis for attributing the mortgage obligation to joint) are highlighted; the need for the Russian Supreme Court to develop additional criteria and conditions allowing to unambiguously decide.

Mortgage for Land Plots

The information discussed relates to the legal aspects of mortgaging land plots located in Ukraine. The joint ownership of land implies the division of the land plot into shares between co-owners. A land plot may be mortgaged with the consent of all co­owners in accordance with the current legislation of Ukraine, namely the Civil Code of Ukraine, the Land Code of Ukraine, the Family Code of Ukraine, the Law of Ukraine "On Mortgage”, the Law of Ukraine "On Notaries”.
 The designated purpose of a land plot plays an important role in its use for intended purpose; if the land plot is used for another purpose, it is necessary to change the designated purpose based on the current legislation of Ukraine. Changing the designated purpose of a land plot can be a complicated process and requires good reasons. In particular, agricultural land plots may be pledged only by banks with a relevant license.
 According to the applicable laws of Ukraine, mortgagors are not restricted in their rights in connection with the signing of the mortgage agreement and have the right to use the land plot for its intended purpose, to construct houses, estates, buildings, etc. on the mortgaged land plot, unless otherwise provided for in the agreement. In the case of a mortgage of land plots with existing buildings, structures and plantations owned by third parties, their rights and obligations may be transferred to the mortgagee upon foreclosure on such land plot only in the event of failure to comply with the terms of the loan and mortgage agreement.
 When entering into a mortgage agreement, under the current legislation of Ukraine, the said agreement must be notarized. The documents required for the notarization of a mortgage agreement for a land plot include the location, composition and designated purpose of the plot, its value and title, etc.
 When reviewing this information, it is important to keep in mind that a mortgage on a land plot has its own specific restrictions and requirements based directly on the current legislation of Ukraine.

Pelaksanaan Perjanjian Gadai Pada PT. Pegadaian UPC. Tanjung Seneng Bandar Lampung

Pawn agreements at this time are agreements that are often carried out by the majority of people in order to fulfill a growing number of needs, the same is true for the services of PT. UPC Pawnshop. Tanjung Seneng Bandar Lampung, which provides solutions to people who are in need of funds by only providing a guarantee of valuable objects that have a value that matches the loan. In practice, several things become the subject of the problems discussed in this study, namely whether the form of a pawning agreement at PT. UPC Pawnshop. Tanjung Seneng and how is the settlement of non-performing loans at PT. Pegadaian UPC Tanjung Seneng.Efforts made in discussing and solving the problems in this study were carried out using two kinds of approaches, namely juridical/normative and empirical approaches. The normative approach is carried out by studying and reviewing the provisions in the form of laws and regulations that apply in a formal juridical manner relating to the implementation of mortgage agreements and efforts to settle problem loans at PT. Pegadaian UPC Tanjung Seneng. While the empirical approach is carried out by looking at the facts that apply to legal regulations related to the implementation of pawn agreements. The data sources used in this research are primary data and secondary data. The research phase includes library research, namely research intended to obtain secondary data and field research, namely a way to obtain primary data to support secondary data. Data collection techniques include document studies and interviews. Data collection tools in library research are in the form of notes on the results of an inventory of legal materials and data collection tools in field research are in the form of a list of questions, then recorded via a tape recorder and flash disk. Data analysis using juridical-qualitative method.The form of a pawn agreement at PT. UPC Pawnshop. TanjungHappy applies the standard form of agreement, the pawnshop has prepared all the requirements by default in the form, and contained in the Credit Proof (SBK) and Pawning Proof (SBG) with the intention that the borrower must agree to all the terms contained in the form. The form of a standard agreement does not conflict with statutory regulations, because the Civil Code and other statutory provisions also do not prohibit a person from making an agreement in the particular form he wants. Settlement of problem loans at PT. UPC Pawnshop. TanjungHappy is through persuasive efforts.

Legal regime of business partnership property (considering international experience)

The article concludes that property as a special object is a separate thing, a set of things, as well as property rights and obligations. This understanding, despite the existence of certain terminological differences, coincides with its general understanding in the system of legal knowledge of certain countries of the Romano-Germanic legal family, in particular, countries with a pact system of law, and corresponds to the content of Article 1 of Protocol 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms. In the legal literature, it includes any economic benefits, objects of both the material and intangible world, which are in the state of appropriation of a person. At the same time, the word “property”, as used in Article 1 of Protocol 1 to the Convention, refers to an object of economic value. In this sense, property is an economic category and synonymous with the economic concept of “ownership”. This is also indicated by the use of such concepts as “assets”, “funds”, “profit”, “goodwill”, “accumulated intangible assets of the enterprise”, “property of economic value” in the ECHR judgments to describe the category of property.
 From the legal point of view, it is justified that only things, collections of things, and animals are considered by the legislation and doctrine of the countries of the continental legal system as objects of property rights or other property rights. They are the only ones empowered with a legal regime of things. Such types of benefits as property rights (legal claims) and obligations cannot be owned by a person on the basis of property rights. They may have the legal regime of objects of intellectual property relations, obligations, corporate relations, but not ownership or other property rights.
 It has been established that property rights are not the only means of securing the assets of business entities. They may also be owned by the latter on the basis of other rights (e.g., obligatory rights). It has been proved that in this case, a business company is not an owner, but, for example, a lessee (tenant), a user under a loan agreement, a mortgage agreement as a mortgagor, etc.

Missing in action? Mortgage enforcement under section 126 of the Consumer Credit Act 1974

Abstract This paper sets out the true ambit of section 126 of the Consumer Credit Act 1974, noting that it requires virtually all residential mortgage agreements to be enforced by court order. Despite this, numerous commentaries on the English law of mortgage omit reference to section 126. The implications of our findings are profound. Not least, many accounts of the law of mortgage will require substantial revision, including recognition of the fact that cases such as Ropaigealach v Barclays Bank plc and Horsham Properties Group Ltd v Clark were reversed as long ago as 2008. More significant is the need to ensure that accurate knowledge of section 126 is conveyed to those who advise mortgagors at risk of possession. This is particularly the case given the ‘cost of living crisis’ and the backlog of possession claims arising out of the Covid-19 pandemic. Any mortgagees tempted to expedite recovery of mortgaged property by enforcing the mortgage extra-judicially should be directed to section 126 and the requirement it imposes to obtain a court order.

The Legal Consequences of Debtor Transfer Carried out under the Agreement, House Ownership Loans

Mortgage agreements often find cases, including the transfer of rights to the mortgage object, namely the house, which is carried out under the hands of the debtor to another party before the mortgage is paid off without the knowledge of the bank. This research aims to examine the validity of the house sale and purchase agreement on house ownership loans (KPR), through the debtor transfer process and to examine the legal consequences of the transfer of debtors carried out under the hands of a mortgage agreement, and also to examine the efforts have been taken by the bank to overcome it. This research used normative legal research. The results of this research showed that the transfer of debtors in general can occur with the knowledge of the bank and without the knowledge of the bank (under the hands). It can be concluded that the debtor transfer process is a form of sale and purchase agreement made between the old debtor, who is still bound by the bank credit agreement, and the new debtor. The process of transferring debtors legally must be carried out between three parties, namely the bank, the old debtor and the new debtor. The debtor transfer process must meet the requirements for a valid credit agreement, which is based on Article 1320 of the Civil Code. If there is a transfer of the debtor without the knowledge of the bank, legal remedies must be taken by the new debtor by filing a lawsuit against the old debtor and the bank to the District Court. This decision from the District Court which has permanent legal force (inkracht) is evidence of the existence of an agreement between the old debtor and the new debtor, and can be the basis for the bank to submit certificates and other documents to the new debtor. In order to avoid problems in the future, people who want to transfer debtors to mortgages can do so after obtaining approval from the bank as creditor.

Understanding the Economic Situation of People Who Took a Foreign Currency Mortgage in Hungary and Poland

In this article we show that significant differences between the foreign currency mortgage agreements in Hungary and Poland led to significant differences in monthly mortgage payments after the Global Financial Crisis (GFC) erupted. Hungarian banks were able to add a variable markup to the LIBOR3M that was connected to bank risk on top of the usual fixed markup. We compare the monthly mortgage payments and LTV levels of people who took out a CHF mortgage with those who obtained a local currency mortgage during the mortgage boom years of 2006–2008. We find that in the initial years of the mortgage CHF mortgages were cheaper than local currency mortgages, which allowed more people to buy housing. However, the GFC led to a deterioration of the exchange rate, and monthly payments and LTV levels (consequently?) increased. We analyse the mortgage costs and LTV levels of the 2006-2008 foreign currency (FX) mortgage vintages in Hungary and Poland between 2006 and 2020 and compare them to local currency mortgages. We also simulate the effects of changing housing prices and wages on mortgages in the cities of Budapest and Warsaw.

Charakter prawny umowy deweloperskiej w prawie hiszpańskim

The present work is supposed to describe the legal nature of contract for the sale of property in Spain. The article refers mainly to the contracts for the sale of new apartments which are still under construction, or have only just been planned without any building works having been started yet, so – called ‘developing contracts’ in Polish. Contracts for the sale of real properties are of utmost importance in the economy of the country in many different regards. First, because of the legal complexities involved in this process, very often connected with signing the mortgage agreement at the same time. Second, from the economic point of view, since in most cases it is the most important financial decision in the life of the purchaser of the apartment. Third, just looking at this process from the human side, because apartment is the place where the buyer and his family spend most of their time. Taking all that into consideration, the Spanish law maker decided to regulate this matter in a very thorough way. There are many legal acts involved in regulating this process, like Spanish civil code, Act 1/2007 on protection of consumers, Act 515/1989 on the information duties in the contract for the sale of real property, Act 38/1999 on construction, and Act 57/1968 on advance payments. All of them create legal complexities of the contract for the sale of real properties, which as has been emphasized in the article is, as a rule, a contract for the sale of future thing in Spanish law. Generally, Spanish regulation concerning this type of contracts should be evaluated in a very positive way, since the consumer stands there in the first position and is protected against the abuses and malpractices coming from the developer not only by a number of regulations created by the lawmaker, but also by a rich body of rulings passed by judges in this area of law.

Contractual grounds for the emergence of housing ownership

The study provides the theoretical analysis of such secondary grounds for the emergence of housing ownership as civil law contracts. It is established that a civil law contract constitutes the most common basis, which delineates the general will of the contracting parties in a single expression of will, aimed at the transfer of housing ownership. There is a good reason that the contract constitutes a legal fact, a form of legal relations, a document that consolidates the rights and obligations of the parties, and the regulator of the relationship of transfer of housing. The study analysed and proposed to supplement the current system of civil law contracts as grounds for the housing ownership by such contractual forms as a pledge agreement (mortgage), donation agreement, a hire-purchase agreement, inheritance agreement, and marital agreement. In addition, the study established the differences between the housing barter contract and the housing exchange contract. The authors emphasised the imperfections of the current legislation in this regard and concluded that these contractual structures have different legal nature, because the barter agreement serves as the basis for the housing ownership, and the exchange agreement serves only as the basis for the right of use. Distinguishing the gift agreement as the basis for the ownership of housing and wills, it was concluded that the gift agreement may be concluded in the event of the donor’s death in the future, as the law does not make provision for such a prohibition. That is, the contracting parties may stipulate in the housing gift agreement that the housing passes to the donee from the moment of death of the donor. Special attention is paid to the features of the gift agreement as the basis for the housing ownership, which is reflected in the right of the donor to determine the purpose of use of housing, which is transferred to the ownership of the person under the contract. The purpose stated in the gift agreement must correspond to the purpose of the housing. The study considered the specific features of inheritance and marriage contracts as grounds for the emergence of ownership of housing. Civil law contracts are proposed as a basis for the emergence of housing ownership to be classified as housing purchase and sale contracts; housing barter agreements; perpetual maintenance agreements; housing rental agreements; housing gift agreements; housing mortgage agreements; housing donation agreements; hire-purchase agreements; inheritance agreements; marital agreements; construction agreements; agreements on joint activities

Problems of the definition and characteristics of the contractual basis for the limitation and encumbrance of ownership of real estate in Ukraine

Introduction. The legal description of the contractual grounds for restrictions and encumbrances on the right of ownership of real estate can be provided only after a comprehensive study of the common features of the contractual structures, which establish the relevant rights and obligations of the parties. The main common feature of such agreements is the emergence of appropriate property benefits for the owner, which is to enable the owner to satisfy their interests at the expense of someone else's real estate, resulting in restrictions and encumbrances on property subject to the contract. It should also be emphasized that each subjective right has its limits of exercise, including the subjective right of ownership, as well as other real property rights. Of course, the nature of such restrictions must be different and depend on the content and nature of the restricted right, its object and the grounds for the restrictions. That is, restrictions on property rights and other property rights cannot be the same. Restrictions on property rights are established in the interests of society and arise by law, as well as in the interests of individuals (on the basis of law, contract, court decision), and restrictions on other property rights are primarily due to protection of the property from which they originate and the legitimate interests of the owner. In our opinion, the category of real contracts should include those types of contracts relating to real estate, including contracts of encumbrance of property rights on the basis of which the rights subject to state registration arise. Purpose and objectives of the study The main common feature of such agreements is the emergence of appropriate property benefits for the owner, which is to enable the owner to satisfy their interests at the expense of someone else's real estate, resulting in restrictions and encumbrances on property subject to the contract. Therefore, we can argue for the existence of a certain generalizing type of contract, the features of which are inherent in all its subspecies, in particular, contracts for the establishment of easements, superficies, emphyteusis, mortgage agreement. Such an agreement in the legal literature is called by some authors as a real contract. However, issues concerning its legal nature, place in the system of civil law contracts remain debatable. Research methods. The research carried out in the article is based on the assessment of generally accepted approaches to defining the characteristic features of problematic issues of contractual grounds for the emergence of restrictions and encumbrances of property rights to real estate. It should be emphasized that these issues are controversial due to the lack of clear legislative regulation, which leads to imperfect legal regulation and violations of the rights of participants in property turnover. Research conclusions. As a result of the study, the idea is given that in the current legislation of Ukraine due to the lack of a clear concept of the relationship between the category of "encumbrance" and "restriction" of property rights, as well as the uncertainty of property rights, some questions remain about the classification of certain rights accordingly, about the types of material contract, this issue is debatable and needs further study. It is possible to make about polystructurality of the real contract that causes division of this type of the civil law contract into kinds and subspecies. In our opinion, such a division depends on the legal nature and scope of the relevant types of restrictions and encumbrances on the right of ownership of real estate, which are proposed by current civil law.

Changes to the regulation and the declaration of unfair terms in mortgage agreements: an event study approach to the Spanish Banking Industry

This paper investigates how the European Union and Spanish changes to the regulation and the declaration of some unfair terms in mortgage loan agreements have affected the valuation of the Spanish banking industry. This paper has a dual legal and economic focus, and could consequently be of interest not only to financial institutions but also to the administrator of justice, which oversees the correct functioning of the financial system and the protection of consumer rights, in this case, mortgage holders. The empirical analysis was carried out using a sample of Spanish companies composed of 11 financial institutions that are listed, or have been listed, on the Madrid stock exchange and 24 non-financial companies listed on the IBEX-35 index. The period analysed was from December 2009 to March 2019. One of the main conclusions was the observation that, in general, the abnormal negative returns of financial institutions are greater when dealing with a decision from the Court of Justice of the European Union rather than from the Spanish Supreme Court. The events referred to as unfair terms that have had the most impact as a whole on the returns of shareholders were, because of their impact of the valuation of financial institutions, in order of importance, those relating to default interest charges, followed by rounding up, and, in last place, the unfair terms of floor clauses, mortgage constitution expenses and multi-currency loans.

I ‘Notice’ You ‘Noticing’ Me: A Critical Analysis of the Section 129 Notice of the National Credit Act, and Recomendations for the Implementation of a ‘Specialised’ Foreclosure Notice

Section 129 of the National Credit Act provides that a creditor may not commence any legal proceedings to enforce a credit agreement before first issuing a section 129(1)(a) notice to the debtor. Thus, in a foreclosure context, should a mortgagee wish to enforce a mortgage agreement, he must first comply with section 129(1) and deliver a section 129 notice to the mortgagor. Should this not be done, any ensuing foreclosure proceedings could potentially be excipiable. Accordingly, section 129 has been described as the gateway to litigation and compliance with this section is paramount for debt enforcement. Unfortunately, section 129 has been the subject of much criticism and uncertainty due to its ambiguous wording and the resulting interpretation. Much of the uncertainty relates to the way in which the notice must be delivered and the contents of the notice. With specific regard to foreclosure proceedings, section 129 fails to alert the debtor about his rights and remedies and fails to notify the debtor of the full consequences of foreclosure. Consequently, the section has been amended several times. Unfortunately, the amendments have not resolved all the loopholes in section 129, and some of these amendments have created more uncertainty and ambiguity. Case law has, however, provided some direction as to the interpretation of section 129. Despite the amendments and case law developments, uncertainty still exists, and clarity is urgently required in relation to the interpretation and application of section 129 during foreclosure proceedings. It is accordingly suggested that certainty can only be achieved by implementing a specialised ‘foreclosure notice’.

Akibat Hukum Pencairan Kredit Yang Didasarkan Pada Covernote Notaris

Tujuan penelitian ini ialah untuk mengkaji dan menganalisis akibat hukum pencairan kredit yang didasarkan pada covernote notaris. Tipe penelitian yang digunakan dalam penelitian ini ialah penelitian yuridis normatif dengan menggunakan pendekatan undang-undang, pendekatan konseptual, dan pendekatan kasus. Hasil dari penelitian Covernote yang dibuat atas dasar kesepakatan Notaris dan Bank dalam pencairan kredit adalah sah, namun hanya berkedudukan sebagai surat keterangan dari notaris dan tidak memiliki kekuatan hukum karena tidak ada kewenangan Notaris dalam pembuatan suatu Covernote. Akibat hukum pencairan kredit yang didasarkan pada covernote Notaris adalah apabila tidak dapat diselesaikan pengurusan hak tanggungan sesuai dengan covernote yang dibuat oleh Notaris, maka berakibat objek jaminan dalam perjanjian hak tanggungan tidak dapat dieksekusi langsung atau perjanjian hak tanggungan batal demi hukum sedangkan perjanjian kreditnya belum berakhir. Covernote Notaris tidak memiliki kekuatan hukum untuk memberikan perlindungan hukum bagi bank selaku kreditur dalam perjanjian kredit apabila terjadi wanprestasi pada saat proses pembebanan hak jaminan. Notaris dapat dimintakan pertanggungjawaban atas kesalahannya jika dalam penerbitan covernote tersebut terdapat unsur yang memuat keterangan yang tidak benar terhadap isi covernote tersebut.
 Kata Kunci: Covernote, Notaris, Perbankan

Parate Executie Clause in Mortgage Bond Versus Post-Default Authority to Sell ‒ Business Partners Limited v Mahamba (4568/2016) [2019] ZAECGHC 17 (26 February 2019)

The purpose of this note is to consider a case that came before a full bench of the Eastern Cape Division of the High Court in Grahamstown – namely, Business Partners Limited v Mahamba ((4568/2016) [2019] ZAECGHC 17 (26 February 2019)). The case touched on the age-old debate surrounding the validity of parate executie (summary execution or private sale) clauses in agreements that hypothecate property as security for the payment of a debt. Even though such clauses are popular in pledge agreements pertaining to movable property (including the hypothecation of incorporeal movables via a cession in securitatem debiti), this case involved a mortgage bond pertaining to immovable property. Moreover, as explained below, the impugned clause in casu technically was not a parate executie clause but an agreement entered into after the debtor defaulted on a loan.A parate executie clause generally seeks to entitle the secured creditor to dispose of the hypothecated property through a private sale – that is, without going through the normal court processes – when the debtor defaults on payment obligations under the loan agreement. The validity of parate executie clauses has been debated since at least Roman-Dutch times, while the debate has also featured in modern South African case law and literature. More recently a constitutional dimension has been added to (and has revived) the controversy by virtue of the right of access to courts guaranteed in section 34 of the Constitution of the Republic of South Africa, 1996 (the Constitution). There is also a significant difference depending on whether a pledge of movable or a mortgage of immovable property is involved. It is moreover necessary to distinguish between parate executie clauses included in the bond itself and agreements subsequent to a debtor’s default in terms of which a debtor authorised a creditor to sell the property without having to go through the court processes.In view of the judgment in Business Partners v Mahamba (supra), it is arguably necessary to revisit the matter and to clarify some aspects surrounding parate executie clauses, such as the circumstances under which they are valid and invalid as well as how they differ from similar contractual arrangements between debtors and creditors. It is also necessary to affirm the difference in this regard between pledges of movable and mortgages of immovable property. The case note also comments on the implications, in the residential mortgage foreclosure context, of the difference between parate executie clauses in mortgage agreements, on the one hand, and post-default agreements allowing a creditor to sell the property privately, on the other.

Some issues of legal regulation of real estate mortgages that children have the right to use

The article deals with topical issues of mortgage agreements, according to which the mortgage is transferred to the mortgage, the right of use of which are underage children, and the study of problematic issues of further recourse to such housing. As a result of resorting to a comprehensive interpretation of individual regulations and court decisions, the degree of legal uncertainty that coexists with such terminological term as “Housing for children to enjoy” has been investigated. The article contains a study of the norms of the law that ensure the realization of the child's right to use the mortgaged property, which in particular concludes that the legislator has identified sufficiently specific restrictions on the rights of parents to dispose of real estate (housing) to which they are entitled to use to the child. It is also noted that the permission of the guardianship authority is required not only if the child is the co-owner of the real estate, but also if there is only registration of the child in the accommodation. Attention is drawn to the fact that the very fact of registration of a child in residential real estate (when the child is not even a co-owner) already speaks of the need for obtaining the permission of the guardianship authority. After all, such actions (deeds) of parents, which by their essence limit the property rights of the child, can in no case be carried out without the permission of the guardianship and guardianship bodies. But if the guardianship authority has been granted permission to enter into a mortgage agreement, which provides for the mortgagee's right to satisfy his claims by selling the mortgage / acquisition of title to it, it means that such authority simultaneously consented to and alienate such property upon the occurrence of the property provided for in such transaction. According to the results of the study, deficiencies in the legislative regulation of the above issues were identified and the risks of violating a child's right to use mortgaged housing were identified. This made it possible to provide guidance on the practical avoidance of situations where a mortgage agreement was invalidated due to a violation of children's rights. At the same time, Ukrainian legislation, some scientific works of scientists were analyzed, which made it possible to speak about insufficient level of attention of scientists to such problems as protection of the rights of the borrower (mortgagee) and members of his family - minor children and, at the same time, introduction of responsibility of parents in the sphere. violation of the rights of the child.