Specific features of property rights succession encumbered by real estate mortgage

Abstract

The author of the article has defined specific features of property rights succession encumbered by real estate mortgage. It has been substantiated that inheritance relations significantly affect real estate mortgage obligation, which is, first of all, manifested in the narrowing of legal opportunities to apply the general procedure of vindication on real estate mortgage’s subject matter, and secondly, in additional grounds for terminating real estate mortgage not provided by the special law.
It has been proved that real estate mortgage is terminated in case of the creditor’s non-observance of the application terms to the debtor’s lawful heirs under the main obligation established in the Art. 1281 of the Civil Code of Ukraine.
Termination of bail relations in the field of inheritance law under the rules of Part 1 of the Art. 523 of the Civil Code of Ukraine is associated with a set of the following conditions: the death of the debtor under the main obligation secured by real estate mortgage; acceptance of the assets by the debtor’s lawful heir in the manner and terms specified by civil law; the property guarantor did not agree to ensure the fulfillment of the obligation by the new debtor – the lawful heir; the property guarantor is not the debtor’s lawful heir.
It has been argued that the specified features do not indicate about narrowing the legal opportunities of the creditor and do not violate the balance of interests of the mortgage holder and the debtor’s lawful heirs. The law enshrines sufficient terms for the creditor to file claims against the debtor’s lawful heirs. Such terms are calculated not from the time of commencement of succession, such as the term for acceptance of an inheritance, but from the date when the lawful heir receives the certificate on inheritance right for all or part of the inherited property, regardless of the due date or from the date when the creditor becomes privy to the acceptance of an inheritance or about the receipt of the certificate on inheritance right by the heir. Besides, the creditor may directly seek to the lawful heirs who accepted the inheritance, and to the notary (official of the local self-government agency, consul). Moreover, if the heir who accepted the inheritance has no certificate on inheritance right, it does not deprive the ancestor’s creditor of the opportunity to apply to the lawful heir, who delays in obtaining the certificate, with claims to levy of execution on inherited property, which is the subject matter of real estate mortgage.