Meaning, Sides, Rights, Nature and Procedures, and Way Works of MORTGAGE

Meaning of Mortgage

Mortgage is a rights of materialism to the an object of which immobile, aim to take redemption a debt of ( earnings of sale) that object. Mortgage have the character of accessoir that is tail ad far from an agreement of which fundamental in the form of agreement borrow money. Which can made by mortgage object only immobile object which is not property of people which isn't it by self. A mortgage can only be given by owner of object ( section 1168 B.W.) In the letter, mortgage have to be explained to the amount of how many that mortgage is given. All agreement specifying, that people which isn't it will be able to have responsibility object is cancelation ( section 1178 B.W.) Agreement of Mortgage, have to be put down in an authentiec letter, that is a notary letter. So that he haves strength to third party people,mortgage have to be registered at officer of management of inversion of name ( overschrijviingsambtenaar) the region of covering place where located plot of land or underwritten house. Officer of management of inversion of the name inveterate is also told by officer of depositor of hipotek ( hypotheekbewaarder). For the registration above, which conducted by request which isn't it, have to be delivered by a passage of mortgage letter – named such passage “ borderel” - which must load: name of people which isn't it, name of people owing, amount of debts, directing of plot of land taken as responsibility according to cadasteral description and here in after rights what is special have been promised ( bedingan)<.

Sides in Mortgage

People which giving responsibility, named by inveterate giver of mortgage. Side accepting him named by taker or owner of mortgage. If there are some people owner of mortgage to the one plot of land, they that given by serial number according to date of each registration of mortgage. As have been explained, an un-registered to mortgage don't have any strength. Serial number owners of inveterate mortgage also named by level ( rang) and show to domicile each if performed the division of earnings of underwritten plot of land auction.

Rights in Mortgage

Rights which according to law may be promised (“ bedingan”) in an agreement of mortgage is:

• Rights giving power at owner of mortgage to sell by self ( him of without passing justice) plot of land of publicly and take redemption of earnings of auction, if people owing not coincide obligation of him. This agreement is named “van beding of eigenmachtige verkoop” and according to law only can be promised by owner of first mortgage.

• Demarcation of right is owner of plot of land to rent his plot of land, for example he may not rent for time more than five year. This named inveterate special agreement “huurbeding” and according to section 1185 B.W., he haves strength as a materialism rights, mean applying also to third party people. Presumably this matter is there is no need to explained, that a plot of land which tied by an agreement of renting for time old ones, when sold will very his price, and to prevent decline of plot of land price this is performed the huur beding”.

• Clearly, that the owner of plot of land remain to is entitled to sell the plot of land of to and whosoever of mortgage the above locatedness that plot of land will located fixed of him. However to buyer – if conducted publicly- by law given opportunity to ask “zuivering,”mean so that that plot of land is cleared of by mortgages exceeding the amount of that plot of land prices. Linking with this possibility, to owner of mortgage given the right to ask to be promised will not be conducted this sweeping. But this agreement, which named “van beding of niet-zuivering,” shall only be performed by owner of first mortgage and only addressed at sale of one free will, mean is not sale of direct.

• A owner of mortgage is entitled to ask to be promised by that if happened burning while house becoming responsibility have been insured, he will accept insurance money which isn't it to pawnbroker. Agreement a kind of this, which named “assurantie-beding,” besides arranged in B.W. is also arranged in Book of Commercial Laws ( W.V.K).

Nature of and Procedures of Mortgage

Mortgage have the character of accessoir, he earns to make a move if guaranteed addiction with that mortgage is removed at others. Evacuation this an addiction rights, must conducted with a cash letter. People which isn't it with mortgage, obliged beforehand take that redeem from earnings of sale of the underwriting plot of land and he do not be enabled confiscate objects is differ from people owing, when earnings of sale of the plot of land in the reality fall short. Intake of that redemption earn he conducts by way of confiscation of habit, that is passed judge, or – for owner of first mortgage- utilized absolute authority which have been promised by that he earn to sell self the underwriting plot of land. Concerning sale conducted by owner of first mortgage, Hope Raad embrace what is called “ last-gevings-theorie”. According to this teaching owner of mortgage selling that plot of land act as expert have the power the owner of plot of land. But an effect the theory which rather anomalous, rather than the owner of rightful claimant mortgage accept payment of sales revenue done by owner of that mortgage but exactly the owner of plot of land. More as according to real situation, owner of motgage selling that plot of land overtake alone him. And it is true in practice also have inveterate confessed, that a owner of mortgage is entitled to remove property of plot of land that selling of to the buyer of plot of land on the basis of auction process-verbal, which power shall be deemed to have been obtained by from the rights of to execute.