| Summary: | In the article are considered issues of problem of rights to immovable property
as mortgage, property rights for real estate, which the mortgagor has not yet, analysed
legal mechanisms of collateral rights to an apartment in a house that has not yet been
launched, and the jurisprudence that has developed over the categories of disputes in
recognition of the mortgage contracts invalid.
Main emphasis is on the fact that the Law of Ukraine "On Mortgage" specifies
the requirements for property that can be mortgaged, and the peculiarities of the
mortgage object, as an object under construction. Although the spread of law regime
to other immovable objects under this law does not say as such can serve other rights.
They are in particular property rights to the property, which will become the property
of the mortgagor after the conclusion of the mortgage contract; right to lease or use of
real estate, which provides the tenant or person to build, own or dispose of
immovable property.
It is concluded that the real estate as mortgage offeredare considered a number
of items:
a) purely immovable things, i.e. those that match the attributes provided in the
Civil Code of Ukraine;
b) things that are within the fixed mode, though by their nature they are
moving;
c) property rights, i.e. other objects.
Specified difficulty to consider the subject of ownership of real estate property
rights, which mortgagor does not have. At least, no grounds for the assertion of that
possibility is not provided the lack of "material substrate" of such proprietary rights.
However, we have to value mortgage not only as its nature as real estate, but in
terms of capacity to ensure proper performance of the contract. Especially
considering that in fact, the property rights to immovable property, which does not
exist at the time of the mortgage contract, is a potential thing.
Argumented that claims for invalidation of mortgage agreements aimed at
preventing the proper performance of the contract, secured by mortgage and
foreclosure of its subject. Links to independent mortgaged thing thus can not be taken
into account by the courts when resolving these disputes.
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