Julkiomistajan maalle rakennettu rakennus kiinteistöpanttauksen ongelmana – oikeusteknisistä ongelmista panttaussuostumukseen
Avainsanat:
esineoikeus, kiinteistö, panttaus, rakennus, salainen omistusAbstrakti
Building on someone else’s land as a problem for the mortgage holder – from technical problems to pledge agreement
According to juridical doctrine and legal practice, a building forms a part of real estate as an accession only if both the land and the building have the same owner. In the event one person, usually the landowners spouse, has built a building – or a part of it – on land owned by another person, the building or the part thereof is considered as personal property, and therefore a mortgage and a lien only covers the land and the landowner’s share of the building. This is a problem for a mortgage holder whose security may therefore be much less valuable than first presumed. However, it is not uncommon that all the parties want the lien to cover also the building. Therefore it is a problem that in Finnish juridical doctrine a building on someone else’s land is considered to be an object which cannot be separately mortgaged as itself. This is caused by technical problems, e.g., as the ownership of a building cannot be registered or as the possession of a building cannot be transferred to the creditor. Hence the security right of a creditor cannot be made public in an adequate manner, which is usually the main requirement in order for a pledge to be binding and efficient against third parties. In this article, however, the author claims that in certain cases it is possible for the owner of the building to enter into a so-called pledge agreement, which enables the mortgage holder to broaden the coverage of the lien so that it extends over the whole economic entity. This kind of pledge agreement can also be binding de facto against third parties, especially the building owner’s other creditors, despite the lack of publicity. This conclusion is based on the special characteristics of buildings which prevent the normal publication of creditors’ security rights.
