Deleting a mortgage

According to the law and the legal doctrine, the formation of a mortgage comprises two phases – the conclusion of a mortgage contract and its entry. The mortgage always implies a receivable that is secured. It creates the opportunity for a reliable collateral of the creditor to satisfy all of the real estate of the debtor if he does not execute the mortgage contract. It does not matter in which hands is the property – whether the debtor or a third person.

Or, otherwise, a bank that has given a loan to a person to buy a property and in whose favor a mortgage has been set up is entitled to become the owner of the property if the loan is not extinguished.

Many people think that having repaid their loan, the mortgage is automatically deleted. However, it is also a burden on the mortgage contract. That is why, and rarely, people who sell their property after having returned their credit are surprised to find that their mortgage is on record. This circumstance is rarely scared by buyers who, in a legitimate and natural way, check in the filing offices whether the property they choose to buy does not bear any weight. And here comes the confusing situation where vendors begin to prove that they have long repaid the credit that there should not be a mortgage. There are similar cases, even when the DSK credits (which at that time only granted loans) were taken and paid back many years ago. And the mortgages are suspended in the lot of the respective real estate. And in fact, when a person wants to buy a property and check in the filing office, it will turn out to be heavy on it, and there is a mortgage – even if the loan is paid off.

It is therefore necessary for everyone interested to know at least basically the procedure for canceling the mortgage. This may not be the person who was the owner of the property when a mortgage was formed, that is, the token loan. He may be a subsequent buyer of the property.

According to Art. 179 of the Obligations and Contracts Act, the entry of the mortgage is deleted on the basis of the consent of a creditor, which must be given in a notarized form or on the basis of a legally enforceable court decision. Where a creditor is a state authority, signature certification is not required.

The deletion shall be made on an application to which the act of consent or a copy of the judgment shall apply. The deletion is made by specially marking the mortgaged property. The marking is made out of the document, indicating the document on the basis of which it was made and the time when it was done. It is signed by the record judge.

The cancellation extinguishes the mortgage. However, there is a possibility that if the act – the consent or judgment on which the cancellation is based – is declared null and void, the mortgage may be reintroduced.

It is necessary to know that the banks that have granted loans and for the benefit of which a mortgage has been established collect special fees in order to give consent to its deletion, even though all the contributions have been paid for a long time. For example, DSK collects a fee of BGN 27.50 for the consent and movement of the cancellation documents, even if it is a loan received and paid even after more than 10 years.

It is interesting to note that under the Law on Obligations and Contracts and the Regulation on Registers, when 10 years have elapsed since the date of registration of the mortgage and it has not been renewed, the deletion is at the request of the interested party, without any other evidence.

Something that contradicts the mandate of the mortgaged creditor to make the cancellation. Either way, it is assumed that such consent must be given in order to make the note in the batch book.

There is a special rule for deleting a mortgage on a real estate sold on a public sale. It must be certified that the sale has been validated by an enforceable decision.

The law allows only a partial cancellation of the mortgage (only for part of a property or if it is made for a group of properties, it is raised for one of them, etc.). It is done in the same way as deletion entirely.

Source: Sega newspaper, lawyer Krassimir Dobrev