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How to remove the arrest on the ground?

How can I remove the arrest from the land (as collateral), imposed by the bank?

Meets Maria Gordienko, Lawyer, Law Firm Vronsky, Bronski and Partners

The Ukrainian Constitution and the Civil Code of Ukraine are to protect property rights and the emphasis on the inadmissibility of illegal deprivation of property rights.

Analyzing the situation, it should be noted that according to Art. 593 of the Civil Code of Ukraine the right to bail is terminated upon termination of an obligation which was secured by the pledge.

A similar rule is provided, and the Law of Ukraine "On Mortgage".

Article 599 Civil Code of Ukraine stipulates that the obligation to cease proper execution.

Consequently, since the first credit agreement (UAH) has been discontinued due execution (full repayment of the loan), on the basis of the above rules land mortgage agreement is also deemed to be terminated.

Current legislation provides that in case of termination of the right of pledge on real property, ie termination of the contract of mortgage on land in the State Register should be made to the relevant data (Art. 593 Civil Code of Ukraine).

Civil Code of Ukraine does not clearly state who it is (the mortgagee or mortgagor) must notify the notary of the termination of the mortgage.

According to Section 253 Instructions on how to notarial acts by notaries of Ukraine approved the Decree of Ministry of Justice of Ukraine № 283/8882 from 03.03.2004 years, the notary, among other things, removes the prohibition on alienation of immovable property which is subject to state registration, according to:

· Bank, another entity for repayment of the loan (credit);

· Mortgagor (the mortgagor) and the mortgagee (the mortgagee) to terminate the contract of pledge (mortgage) or a mortgagor (the mortgagor) in case of submission of the indisputable evidence of an obligation.

Article 545 Civil Code of Ukraine stipulates that after full repayment of the loan agreement the bank shall at the request of the debtor to provide him a receipt for the full performance of the obligation.

Such a receipt will be proof indisputability performance of an obligation to the bank.

Exclusion of records from the state registry is free.

If the bank refuses to grant the debtor a receipt for the full implementation of outstanding debt, the owner of the land has the right to appeal to the court for the protection of their violated rights.

Claims may include claims of termination of mortgage, terminate the right of pledge (mortgage) on land, the recognition of the owner the right to a judicial decision to address the demand (the statement) to lift the ban on the alienation of land, with the exception of records of the ban on the alienation of state register of mortgages and / or the Unified Register of prohibitions on the alienation of immovable property.

In our opinion the owner of the land should not lodge a counterclaim in dealing with the second loan agreement (in dollars), since according to Art. 123 HPA Ukraine in this case there is no reason to join the suit of the bank and the debtor's claim in one proceeding.

Their actions with respect to retention of the land bank could argue the desire to unilaterally change the contract of mortgage of land, which provide a second to register the loan agreement in the U.S..

In this situation, the applicable rules of law regarding the possibility of changes in terms of the agreement with the substantial change in circumstances.

Such bases are provided in Art. 651 Civil Code of Ukraine, according to which, modification or termination is permitted only with the consent of the parties, unless otherwise provided by law or contract.

According to the article. 19 of the Law of Ukraine "On Mortgage" changes and additions to the mortgage agreement be notarized.

Article 55 of the Law of Ukraine "On Banks and Banking Activities provides that the bank-client relationships are governed by Ukrainian law, regulations of the National Bank of Ukraine and the agreement (contract) between the client and the bank.

Banks are prohibited from unilaterally changing the conditions of prisoners customer contracts.

Consequently, the bank has no right to "reinsured" by holding the arrest on the land if the contract is terminated by the mortgage and do not make any changes on the second loan agreement with the consent of the parties.

If the seizure of land imposed by the court, which considers the requirements of the bank to the debtor on the second loan agreement (in dollars) as security for the debtor to challenge such a provision.

According to the article. 154 HPA Ukraine maintenance of the claim may be withdrawn by the court, which hears the case.

Landholder has the right to apply to the court to abolish the security or appeal to the appellate court ruling on interim relief in terms of seizure of their land.

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