RULES OF CERTIFICATION OF MORTGAGE AGREEMENTS (MORTGAGES) OF PROPERTY IN THE GENERAL JOINT PROPERTY OF THE COUPLES

 Questions about the legal regime of the property of the couple is one of the most common consultants' online consultations portal. This article focuses on the issue of certification of collateral (mortgage) contracts for property jointly owned by the couple.

 To clarify this issue, we first turn to the provisions of the general legal acts. Part 1 of Article 575 of the CC states that a mortgage is a mortgage of immovable property that remains in the possession of the mortgagor or a third party. Article 577 of the Civil Code requires mandatory notarization of real estate pledge agreements. Also, the mortgage is subject to state registration in the cases and in the manner prescribed by law.
 In addition, jointly owned property can only be pledged with the consent of all co-owners. Article 369 of the Civil Code of Ukraine states that the consent of the co-owners to perform a transaction regarding the disposal of common property subject to notarization and (or) state registration, must be expressed in writing and notarized.

 More detailed provisions regarding the mortgaging of immovable property are contained in the Law of Ukraine “On Mortgage”. It states, for example, that a mortgagee is obliged, before entering into a mortgage agreement, to warn the mortgagee of all known rights and claims of other persons for the mortgage, including those which are not registered in the manner prescribed by law. In the event of breach of this obligation, the mortgagee has the right to demand early fulfillment of the principal obligation and compensation to the mortgagee for the losses incurred.

 These norms are taken into account by the Order of the Ministry of Justice of Ukraine dated February 22, 2012 No. 296/5, which approved the Procedure of committing notarial acts by notaries of Ukraine (hereinafter - the Procedure). Part 2 Chapter 2 Part 2 sets out the procedure for preparing for the certificate of deed of assignment and pledge of property, part 5 - the proper rules for the certificate.

 The notary must also check that underage or underage children are registered at the mortgaged property. If so, the agreement of the care and custody body is required to certify the contract.

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