Among the loan guarantees, the best known is certainly the mortgage because it is particularly used in home loans to individuals. However, this guarantee is also adequate for professionals who wish to acquire a professional property.
Definition of the mortgage
The mortgage is, like the pledge of goodwill, a real guarantee. It is taken by the creditor on real estate in case of unpaid bills. It is formalized in a notarial act stipulating the nature of the “base” (mortgage taken on an immovable or on a property right available such as usufruct, ownership or bare ownership), the amount, the conditions of the credit mortgage or real estate (maturities and fixed rates, variable rate).
Any mortgage is subject to land registration and is subject to a tax of 0.715%. The notary then proceeds to his registration with the mortgages. Its duration is equivalent to the duration of the loan.
In the event of default by the borrower, the mortgage is “realized”: the creditor can request the seizure of the property and an auction follows, ordered by the competent court.
Types of mortgages
Several forms of mortgages have been created to meet specific financing needs.
The conventional mortgage
The conventional mortgage is the subject of an agreement between two parties in the form of a notarial deed. It guarantees the creditor the payment of his debt in the event of unpaid debts of the debtor. The latter retains the enjoyment of his property during the period of execution of the guarantee by respecting his repayment obligations. It is this form that is particularly adapted to the financing of a professional real estate property.
The rechargeable mortgage
The rechargeable mortgage is required for a second real estate acquisition or consumer credit. The notarial deed called “Reloading Agreement” is published in Mortgage Retention. The principle is to repay all or part of the first credit to reuse the sum as collateral for other loans without incurring additional costs. The reloading agreement then provides for several possible creditors.
The commercial mortgage
The commercial mortgage is used in business financing. It can guarantee a simple cash loan or commercial capital for 40 years, avoiding the sale of assets. Of course the guarantee can not be taken on a property already mortgaged.
The legal mortgage
The legal mortgage comes from article 2724 of the civil code. When a specific claim remains unpaid, the public treasury or social agencies may request it. This is a privileged legal mortgage. There is also the legal mortgage between spouses and the legal mortgage of the incapable.
The judicial mortgage
The judicial mortgage results from a judgment following the seizure of the enforcement judge when the creditor wishes to prevent the insolvency risks of his debtor. The creditor will then have to obtain an enforceable title to obtain the seizure of the property in the event of unpaid debts.
Mortgage life loan
The habitable dwelling is secured by a mortgage to obtain a capital or an annuity. The borrower has no obligation to repay during his lifetime, he must only be at least 65 years old to benefit from this device. The heirs will then be able to buy back the credit upon the death of the borrower.
The rights conferred by the mortgage
To the creditor
The right of preference : in the case of unpaid debts, the creditor may request the realization of the mortgage by requiring a forced sale of the immovable at auction and demanding its payment before other creditors of the debtor.
The resale right : the borrower is bound to his repayment obligations. Otherwise, it is forbidden to sell the mortgaged property unless it finds the property. As for the creditor, he can by bailiff, take back the property even if there is a change of ownership.
Ranking : When several creditors hold a mortgage on the same property, rank determines the order of payments when the property is sold. This order can however be changed by a simple agreement, except in the case of a company liquidation where some creditors hold privileges.
To the debtor
Release : One year after the last loan term, the mortgage registration disappears. In the case of a no-maturity loan of the cash facility type, the maximum term of validity of the mortgage is 50 years.
If the sale of the property occurs before the end date of the credit, the seller will have to apply to the Mortgage Retention to release the registration and pay a release fee.