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The main mortgage is an agreement where the financial institution gets a residential or commercial property dedicated to the satisfaction of his or her debt in kind, where he or she might apply to ordinary lenders and the following financial institutions in order to obtain the right of the rate of that residential or commercial property in any hand.
The home loan is a contract concluded between the mortgagor and the mortgagee lender which gives the mortgagee right in rapid eye movement in the residential or commercial property, with all advantages and genuine security over the mortgage product. Additionally, the mortgagor has the right to follow the mortgaged residential or commercial property if it is transferred to a 3rd party. The mortgagor keeps ownership and belongings of the mortgaged residential or commercial property however is limited in their disposal rights to make sure the mortgagee's interests are safeguarded.
The distinction between the official home loan and the possessory mortgage
The official home mortgage is created through an official agreement, that must be notarized in a notary public workplace.
While the right of possessory home mortgage is developed through informal agreement. Whereas the ownership and belongings of the mortgaged residential or commercial property in the official home loan right stays in the hand of the owner (debtor), and the possession in the possessory home loan is transferred to the financial institution.
The main home mortgage is limited to realty, while the possessory home mortgage can cover both properties and movable residential or commercial properties.
The commitments of the mortgagor and the mortgagee financial institution in the main home loan
The Egyptian Civil Law No. 131 of 1948 and its amendments regulate the obligations of the mortgagor and mortgagee in Chapter Two as follows:
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The Mortgager's responsibilities:
The mortgagor is obligated to provide the mortgaged residential or commercial property to the financial institution or to a designated representative picked by both Parties in the agreement.
The legal requirement for a seller to provide a sold item will be used to the mortgagor's responsibility to deliver the home loan item to the mortgagee.
If the mortgaged residential or commercial property is gone back to the mortgager's belongings, the home mortgage will be ended, unless the mortgagee proves that the residential or commercial property has actually been returned for a reason not planned to end the mortgage.
The mortgagor ensures the stability and enforceability of the home mortgage, and the mortgagor shall not take any action that diminishes the worth of the home loan or hampers the creditor's workout of his rights under the contract. In case of seriousness, the mortgagee lender may take all needed measures at the mortgager's cost, to maintain the mortgage product. The mortgagor will be accountable for the loss or damage of the home loan product if such loss or damage is due to his fault or arises from force majeure act.
The provisions of Articles No. 1048 and No. 1049 relating to the loss or damage of the mortgaged residential or commercial property under an official home mortgage, and the transfer of the lender's right from the home loan product to any replaced rights will apply to the possessory home mortgage.
The Mortgagee's commitment:
Upon getting the mortgaged residential or commercial property, the mortgagee is bound to work out the very same level of care and maintenance in its preservation as would a prudent individual. and he is responsible for the loss or damage of the mortgage product unless it is proven that such loss or damage was triggered by an external element beyond his control.
The mortgagee is not allowed to derive any advantage from the home mortgage item without compensation, he should invest it fully unless otherwise agreed Any net profits or advantage derived by the financial institution from using the home mortgage product shall be deducted from the amount secured by the home loan, even if the due date has not yet come, supplied that the deduction will be made from the expense of preserving and fixing the residential or commercial property and its repairs, then from costs and interest, and then from the principal of the financial obligation.
If the home loan product produces earnings and the parties concur that all or part of the revenue will be used to balance out the interest, in, this agreement shall stand within the maximum limitations of lawfully permissible legal interest.
The mortgagee shall assume the management of the mortgaged residential or commercial property, and he should exercise in that the care of a sensible person. The mortgagee can not customize the mortgage item's usage without the mortgager's approval. He needs to promptly notify the mortgagor of any matter needing his intervention.
If the mortgagee abuses this right, mis-manages the residential or commercial property, or commits gross carelessness, the mortgagor deserves to request that the item be placed under custody or to reclaim it upon payment of the exceptional financial obligation. if the quantity protected by the home mortgage does not bear interest and has actually not yet become due, the mortgagee is entitled only to remaining amount after subtracting the worth of interest determined at the legal rate for the duration between the day of payment and the due date of the financial obligation.
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The mortgagee shall return the mortgaged product to the mortgagor after the mortgagor has fully discharged their obligation including all expenses and payment associated to the right.
Effects of the official mortgage in the Egyptian law
The impact of the mortgage in between the contracting parties:
Firstly: The mortgager:
The mortgagor might dispose of the mortgaged residential or commercial property as long as such actions do not impair the mortgagee's right.
The mortgagor retains the right to manage the mortgaged residential or commercial property and to collect its returns and leases granted by the mortgagor are not enforceable against the mortgagee unless it was notarized before the registration of the expropriation notification.
However, if the lease was not notarized in this way, or it was concluded after notarizing the notification and the lease was not paid ahead of time, so it will not work unless it can be considered part of the excellent management work. If the lease term prior to notarizing the home mortgage notification goes beyond 9 years, it will not be effective versus the mortgagee financial institution except for a duration of nine years just unless it was signed up before the home loan was signed up.
The mortgagor is accountable for ensuring the security of the home mortgage residential or commercial property. The mortgagee lender can object to any actions or neglect by the mortgagor that might considerably diminish the worth or security of the residential or commercial property, and in immediate cases the mortgagee may take necessary protective measures and look for reimbursement from the mortgagor, from any costs incurred.
If the mortgagor negligently triggers the damage or damage of the mortgaged residential or commercial property, the mortgagee creditor has the alternative to demand adequate insurance to cover the loss or to immediately gather the complete outstanding debt.
When the damage or damage to the mortgaged residential or commercial property is triggered by an external element and the mortgagee refuses to accept the debt without insurance, the mortgagor has the option to offer appropriate insurance or settle the financial obligation immediately before the due date. If the financial obligation has no interest, the mortgagee is just entitled to the principal amount without legal interest for the period in between the real payment date and the original due date.
Secondly: The mortgagee creditor:
A third-party mortgagor's personal assets are exempt from seizure for the debtor's financial obligation. The mortgagor can not substitute payments for the debtor unless concurred upon.
Upon informing the debtor of the arrearage, the mortgagee has the right to foreclose on the mortgaged residential or commercial property and demands its sale in accordance with the and timelines stated in code of Civil Procedures. If the mortgagor is a 3rd celebration besides the debtor, he can avoid any foreclosure procedures by willingly surrendering the mortgaged residential or commercial property according to the treatments and rules governing residential or commercial property surrender.
Any agreement that grants the mortgagee the right to take ownership of the mortgaged residential or commercial property at a fixed price upon financial obligation default or to sell it without following the legally mandated procedures is invalid, even if entered into after the home mortgage contract. However, after the debt or a part of it has actually developed, the debtor and mortgagee can concur that the debtor will transfer the mortgaged residential or commercial property to the mortgagee in fulfillment of his financial obligation.
The main home loan and its effect to the third party:
A main home loan is only enforceable versus third celebrations if the mortgage agreement or judgment establishing the home mortgage is signed up before the 3rd party gets a right in rapid eye movement in the residential or commercial property. This lacks prejudice to the provisions of insolvency laws.
Additionally, 3rd parties can not assert claims based upon an unregistered safe right, the replacement of one lender for another in this right, or the project of registration concern to another lender unless such actions are kept in mind in the margin of the initial registration.
The procedures for registration, renewal, cancellation, and cancellation a main home loan, in addition to the impacts thereof, are governed by the provisions of the Real Estate Registration Law. The costs of registration, renewal, and cancellation of an official home loan are borne by the mortgagor unless otherwise concurred upon.
The termination of the main mortgage:
An official mortgage terminates upon the satisfaction of the protected debt or the nullification of the underlying cause for the debt. However, any authentic rights gotten by 3rd parties during the duration in between the home mortgage's expiration and its prospective reinstatement stay unaffected.
If foreclosure procedures are completed, the main mortgage is definitively extinguished, even if the residential or commercial property ownership modifications hands. When the mortgaged residential or commercial property is sold through a forced auction, the mortgage rights end upon the deposit of the auction proceeds or their payment to qualified registered creditors.
Cela supprimera la page "The Official Mortgage"
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