A mortgage loan agreement is an agreement for the provision of loans to consumers for the purpose of acquiring housing, leasing of the houses to consumers through financial leasing and granting loans to the consumers in case they provide a guarantee for the housing they own.
This type of contract is a common contract type when the housing market is considered in our country. Many people are mortgaging the house purchased as collateral for the housing loan or take out a personal guarantee. With the housing finance agreement, individuals are indebted for a considerable amount of time. In this context, the housing finance contract is an important contract type and is regulated in detail by laws and regulations.
The housing finance agreement is regulated in Article 32 of the Law No. 6502 on Consumer Protection. The housing finance contract is separated from the general provisions regarding the validity conditions of the contracts stated in the Turkish Code of Obligations no. In this context, according to the general provisions, unless a contract is explicitly stated in the law, it is a condition of proof that a contract is made in writing, whereas it is a condition of validity in terms of housing finance contract.
Similarly, although the law states that a housing finance contract is written as a condition of validity, even though the contract is not written, the housing finance institution cannot claim that the contract is not established against the consumer on the grounds that the contract was not established against the consumer. The law thus protected consumers from the practices of housing finance institutions against consumers.
Legal Nature of Housing Loan Contract
A housing loan agreement or a housing finance agreement is a voluntary agreement that imposes debts on both parties. Although there are various opinions in the doctrine, the consumer loan agreement is accepted as a profit agreement.
Types of Housing Finance Contracts
The housing finance agreement in the TKHK numbered 6502 was prepared on the basis of Article 57 of the Capital Markets Law No. 6362. In this context, the housing finance contract can be concluded in four ways. These;
-To extend credit to consumers,
– Leasing of housing to consumers through financial leasing,
– Consumers use credit by showing their houses as collateral,
– The use of credits for refinancing of loans granted in this way.
These contracts are called housing finance contracts.
Type of Housing Loan Agreement
According to Article 32/2 of Law No. 6502, the housing loan agreement (housing finance agreement) is not valid unless it is in writing. In this context, it is not possible to conclude an agreement since the written form is expressly stated in the law as a condition of validity.
Obligations of the Parties in the Housing Loan Agreement
1. Borrower’s Payables
– Debt informing the lender during the contract negotiations:
The borrower is obliged to provide the lender with the information requested by the lender in a complete, complete and correct manner in order to check the credit reliability during the contract negotiations.
– Credit acceptance debt:
The consumer is obliged to accept the loan offered by the lender after the loan request is accepted.
– Loan repayment debt:
The borrower is obliged to make regular payments to the lender in accordance with the payment plan agreed with the contract.
– Interest payment debt
Since the lender cannot use the amount he has paid to the borrower with the housing loan agreement, he is obliged to pay interest to the lender at the rate determined in the agreement. According to Article 36 of Law No. 6502, interest can be determined as variable or fixed interest.
– Debt showing guarantee:
Pursuant to Article 57 of the Capital Markets Law no. 6362, the lender is obliged to collect the necessary information and documents for the purpose of obtaining housing in accordance with the housing loan agreement and to secure the loan with the guarantees approved by the Capital Markets Board.
– Insurance debt:
Pursuant to the housing finance agreement, the lender can secure the loan by establishing a pledge right on the housing purchased by the borrower, as well as life insurance, building insurance and other insurances such as building insurance.
– Debt to pay contract costs:
The consumer is responsible for the expenses incurred in accordance with the housing loan contract and to be made during the contract.
2. Borrower’s Payables
– Informing the consumer before the contract debt:
In accordance with Article 33 of the Consumer Law No. 6502, housing finance institutions are obliged to inform consumers about the contract within a reasonable time before the credit agreement is established.
– Debt to pay the loan:
The lender is obliged to pay the amount of money agreed with the housing finance contract to the borrower as agreed in the contract.
-The debt of not changing the conditions agreed in the contract against the consumer:
The lender may not make any changes to the contract against the consumer in the contract concluded and agreed by the parties within the contract period. In this context, credit terms cannot be changed against the consumer.
-Secret storage debt:
The lender has learned about the borrower due to the housing loan agreement, income, assets etc. such information to third parties.
Termination of Housing Loan Contract
– Payment expiration:
The contract ends when the consumer receiving the loan pays the last installment in accordance with the payment plan made with the housing loan agreement. In this case, the guarantee given due to the contract is removed and the consumer can demand the pledge to be removed.
– Early payment expiration:
According to Article 37 of TKHK numbered 6502, the consumer has the right to pay the loan received in accordance with the housing finance contract early and demand a discount due to prepayment.
– Death, loss of verbal license, bankruptcy:
As a rule, the death of the consumer receiving credit does not terminate the contract. If the lending financial institution secures the loan with sufficient collateral, the death of the consumer will not terminate the contract and the legal representative and heirs of the consumer shall bear the debts of the consumer. However, if the consumer becomes incapacitated or insolvent without paying the debt before the loan is repaid, the lending financing institution may refrain from fulfilling its debt pursuant to TBK Article 9.8 of the Law no. 6098.
– Return without contract:
The loan agreement can be terminated with the return of the contract in case of the existence of the necessary conditions for the return of the contract. The most typical example of this is the default of the consumer in paying the debt.
Inability of the Consumer to Pay the Debt (Default)
If, in accordance with the housing loan agreement, the consumer installments fall in default, in other words the consumer cannot pay the installments, the housing finance institution may demand the payment of the remaining debt under certain conditions immediately. These conditions;
– The lending financing institution should state in the contract that it reserves this right,
– The credit lender must have fulfilled all contractual obligations,
The consumer must not have paid two consecutive installments,
– The lending financial institution must notify the consumer to pay at least thirty days, otherwise the remaining portion of the debt will become due.
In spite of this warning, if the consumer does not pay, the lending financing institution can immediately request the rest of the debt, that is, recall the loan. After this stage, the financing institution may convert the pledges secured by the loan with the contract. It should be stated in the same way that interest, commission and similar expenses are deducted from the installment amount that is due in the calculation of the amount to be paid by the consumer.
Affiliated Loans
According to Article 35 of TKHK No. 6502, the affiliated loan agreement is the agreement in which the housing loan agreement is made for the purchase of a certain house and the purchase and housing financing agreements constitute an objective economic union.
The law prevents forcing the consumer to buy a house he / she does not desire in case the house is not delivered at all or in an agreed manner within the scope of the affiliated loan, and prevents the borrower from lending to the bank for a housing loan. In other words, even if the consumer pays to the bank within the scope of the housing loan agreement, the seller from whom he will buy the house may not transfer the housing at all or may transfer it defective.
In such a case, if the housing is defective, the consumer may choose the right to discount at the rate of shame and request the same rate of discount from the housing loan installments or if the consumer has returned from the contract, he may ask for the payments made so far. The seller and the housing finance company are jointly responsible for the payment of this money to the consumer. However, the responsibility of the housing finance institution is limited to one year from the delivery of the housing.
Insurance
According to Article 38 of TKHK No. 6502, it is not possible for the consumer to take out insurance for housing loans without an explicit request from the consumer with a written or permanent data store. If the consumer wants to take out insurance, he is free to choose the insurance company of his choice. The financing institution is obliged to accept the collateral obtained from the insurance company of the consumer’s desire.
The issue of insurance implies a common problem. That is, financing institutions almost always make the purchase of insurances, which are not required by law, from the insurance company designated by them, a condition for credit, which brings additional cost to consumers and damages the economic interests of consumers. Although this attitude is against the law, financial institutions cannot force consumers to enter into contracts with certain insurance companies.
Opening a Bank Account
According to Article 39 of TKHK (6502), if there is no transaction other than credit related transactions made from the account opened for the amount to be transferred to the consumer in accordance with the housing finance agreement, this account closes automatically upon payment of the loan. The financing institution cannot charge the consumer any fees or charges for this account.
Result
A housing loan or housing finance contract is a very common type of contract that is often encountered in daily life, affecting many people in terms of the consequences that people often borrow for a long period of time to buy housing. In this context, this contract is regulated in detail by laws and regulations. A person who wants to buy a house, although the contracts are printed and long, must read the contracts in detail, know what responsibilities he has taken, examine the payment plan and be aware of the situations in case of conflict.
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