What is the key to success? - News about real estate, Kiev, Kyiv region. Real Estate In Ukraine

What is the key to success? - News about real estate, Kiev, Kyiv region. Real Estate In UkraineTo give the lender confidence in the successful execution by the debtor of contractual obligations may be secured by property past...The success ofTo give the lender confidence in the successful execution by the debtor of contractual obligations may be secured by property pastREASONBusiness is risky. Signing the contract, the business entity is always the risk that a counterparty will not meet their commitments. Fixing in the contract alone penalties are not sufficient if there are suspicions that the party to the contract is unable to perform it due to its insolvency. The edition reviewed is discussed at forum LigaBusinessInform the issue of conclusion of a lease agreement with a person, the solvency of which the lessor does not inspire confidence.The PLOTAt lease one person was transferred to another in the use of the premises for a fee. However, due to certain circumstances the company has doubts about the solvency of the tenant. A forum member asked a question: can the landlord and tenant to enter into a contract of pledge of furniture and equipment belonging to tenant, to enforce the obligation of the latter under the main contract, that is, to secure payment of tenant rent payments?What the creditor bail?The pledge, as security for the performance of obligations provided for in the norms of the civil code. Effect of pledge, the creditor (the pledgee) has the right in case of default by the debtor (pledger) obligations secured by collateral, to obtain satisfaction at the expense of the pledged property mainly before other creditors of the debtor (article 572 of the civil code). The pledge may be provided by a demand that will arise in the future (article 573 of the civil code).The sole discretion to determine the property that will be pledged. They have a wide selection: things, securities law, property law - anything that can be transferred to the mortgagee, and which may be levied (with the exception of national, cultural and historical values, the requirements that are personal in nature, as well as other requirements of the collateral which is expressly prohibited by law). All this is enshrined in article 4 of the Law "On pledge".Thus, the landlord and tenant are likely to ensure the execution of last its obligation to pay lease payments to conclude the contract of pledge furniture and office equipment belonging to the tenant.In accordance with the requirements of article 547 of the civil code, the pledge agreement must be concluded in writing (otherwise it would be null and void). The civil code also establishes certain requirements for its content: the parties should determine the nature, size and duration of the obligation secured by the collateral and to file the contract description of the collateral (paragraph 1 of article 584 of the civil code, article 12 of the Law "On pledge").In the case of non-payment by the tenant of the amount due rental payment within the prescribed period, the mortgagee (the landlord) has the right of foreclosure on the collateral - furniture and office equipment tenant. At the expense of the collateral, the pledgee may satisfy its claim in full, including payment of percent, penalties and compensation for damages caused by violation of obligations, and expenses incurred in connection with the claim.Is the key - you have the right!Although the conclusion of the pledge agreement and imposes on him the initiator of a hassle (the mortgagee must ensure that the pledged property belongs to the pledger of the property, to register the pledge in accordance with the established procedure, about which see below), yet the presence of such process gives the mortgagee significant advantages.First, the risk of accidental loss of the collateral or accidental damage is still the owner of the mortgaged property (unless otherwise provided by contract). That is, if the furniture and appliances are for some reason lost, the landlord (or mortgagee) by virtue of article 580 of the civil code may require you to provide collateral equivalent items. And this is besides the fact that in the contract, the parties may provide for compulsory insurance of the collateral at the agreed amount (paragraph 1 of article 581 of the civil code). When the insured event the collateral becomes the right of claim to the insurer.Secondly, to dispose of the collateral, the pledgor may only with the permission of the pledgee (part 2 of article 586 of the civil code).Thirdly, the pledgee shall have the right at any time during the term of the pledge agreement subject to prior written notification to the debtor should check and documented in nature, the presence, status, conditions of storage and use of the collateral (article 8 of the Law "On securing creditors' claims and registration of encumbrances").Finally, fourthly, according to section 4 of article 590 of the civil code a right of foreclosure on the collateral is maintained in the primary volume even in case of partial execution by the debtor of the obligation (if the tenant does not pay all the rent, but only a part).The importance of registryWhat if the mortgagor violates the provisions of the law and illegally sell the mortgaged property to third parties?The answer to this question depends on whether the advantage of the mortgagee granted him the right of registration of pledge of movable property. According to part 3, article 577 of the civil code, the pledge of movable property may be registered in the State register of encumbrances of movable property.According to article 9 of the Law "On securing creditors' claims and registration of encumbrances", registered encumbrance remains effective for the new owner (buyer) of movable property, except when:1) the burdensome consented to the alienation of the debtor's property without saving encumbrances;2) the expropriation is carried out during the debtor economic activity whose subject are systematic operations on the sale or other disposition of this property.Third parties are bona fide purchasers of the collateral and acquire ownership without restriction only when the encumbrance was not registered in the State register of encumbrances of movable property. Otherwise, such a provision is valid, and the mortgagee does not lose the right to satisfaction due to this property of its requirements.The alternative isThus, the essence of pledge of movable property is that the lender gets priority over other creditors the right to recover the outstanding amount by a predetermined value of the property. And while the debtor continues to use it, the lender is protected in the event of its insolvency. But how to protect themselves in case of his dishonesty? If the debtor is not paying rent payments, move out of the leased premises, together with the pledged equipment and furniture or without the permission of the mortgagee will sell the collateral, then the creditor is doomed to lengthy litigation with the debtor and (or) third parties.In this situation, a more reliable method of protection of creditor's rights is a type of mortgage of movable property, as the mortgage - transfer of property in the possession of the pledgee or at his direction - into the possession of a third party (section 2 of article 575 of the civil code).Note that the legislator has granted to the creditor who wishes to enforce the obligation by the debtor, and other ways, such as a guarantee or surety (article 546 of the civil code), and allowed the parties to set their own other types of collateral (section 2 of article 546 of the civil code).CONCLUSIONThe law does not limit participants in civil law relations in the use of this method of securing the obligations, as a pledge of movable property. The parties to the contract can enforce the main contract (including lease contract), independently identifying the collateral, which will be levied.

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