Viewpoint. Under the new rules of the interpretation of the guarantee system of the Civil Code, the effectiveness of the developer's phased guarantee liability is analyzed.
Published:
2023-11-07
This paper mainly analyzes the effectiveness of the developer's phased guarantee liability under the new rules of the interpretation of the guarantee system of the Civil Code.
Brief of the case
On August 1, 2017, a commercial bank of the lender and the borrower signed a "personal house purchase loan/guarantee contract", which stipulates that the borrower borrows 1.62 million yuan from a commercial bank to purchase a house developed by a developer. the contract also stipulates that if the borrower fails to repay the principal and interest of the loan in full and on time for three consecutive months or six times in total, the lender has the right to declare the contract to expire immediately, the borrower is required to pay off the outstanding amount and the interest, penalty interest and other expenses incurred. The developer provides a phased joint and several liability guarantee guarantee for the above-mentioned loan, the loan contract stipulates that the mortgage advance notice registration procedures have been completed, and the lender receives the supporting documents recording the above-mentioned mortgage advance notice registration information, the guarantor shall waive the guarantee liability for the borrower's debt. After the borrower of the commercial housing for the mortgage notice registration.
After 2021, due to the borrower's failure to repay the principal and interest of the loan on time, the commercial bank announced that the loan was due ahead of schedule and jointly sued the developer to the court: the borrower was required to repay the principal, interest and penalty interest of the loan in one lump sum, the developer was jointly and severally liable for the above debts, and at the same time confirmed that the loan bank had the priority to repay the proceeds from the auction and sale of the house under the borrower.
The result of the judgment: the court of first instance held that the loan contract was the true intention of both parties, was legal and effective, and should be protected according to law. The litigation request of the commercial bank requiring the borrower to repay the principal, interest and penalty interest of the loan was in line with the agreement of both parties and did not violate the law, and the court supported it. For the commercial bank's claim that the price of the house auction and sale is entitled to the priority of compensation, because the house involved in the case has already gone through the mortgage advance notice registration of the pre-purchased commercial house, and now the house has reached the delivery conditions, it should actually have the conditions for handling the ownership registration certificate and the formal mortgage registration. The reason for failing to handle the formal mortgage registration is not in the commercial bank and the developer. The adverse consequences of not handling the formal registration should not be borne by the bank and the developer, therefore, the bank should be considered to have the right of priority compensation. The developer has no fault in the process of house delivery, and the bank and the borrower have gone through the formalities of advance notice registration of the mortgage right of the house involved in the case in accordance with the contract, and the bank again requires the developer to bear the phased joint and several guarantee liability, which is unfounded in the law. the original trial court does not support it.
The court of second instance upheld the above judgment of first instance.
legal analysis
1. Law Link
Article 221 of the the People's Republic of China Civil Code stipulates that if the parties sign an agreement to buy or sell a house or sign an agreement on other real property rights, in order to ensure the realization of real rights in the future, they may apply to the registration agency for advance registration in accordance with the agreement. After the advance notice is registered, if the real property is disposed of without the consent of the right holder of the advance notice registration, the effect of the real property shall not occur.
After the advance notice registration, if the creditor's rights are extinguished or the registration is not applied for within 90 days from the date when the real estate registration can be carried out, the advance notice registration shall be invalid.
The Supreme People's Court on the application<中华人民共和国民法典>According to the first paragraph of Article 52 of the interpretation of the relevant guarantee system, after the parties have registered the mortgage advance notice, the obligee of the advance notice registration requests priority compensation for the mortgaged property. After examination, the property that has not been registered for the first time, the property that has been registered in advance and the property that has been registered for the first time, and the mortgage advance notice registration has been invalid, The people's court will not support it; if the first registration of the ownership of the building has been completed after examination, and there is no such situation as the failure of the advance notice registration, the people's court shall support it and shall determine that the mortgage right is established from the date of the advance notice registration.
Focus of Dispute in 2. Cases
Whether the mortgage has been established and the developer guarantees that liability can be waived.
Before the introduction of the interpretation of the civil code guarantee system, the prevailing view in practice was that "mortgage advance registration does not have the effect of priority compensation", and that before the formal registration of the mortgage right of the house, the creditor only enjoys the right to request the mortgage registration of the disputed house upon the completion of the mortgage registration conditions or the expiration of the agreed period, and can exclusively resist the disposition of others against the disputed house. At this time, if the housing loan is broken, the loan bank requires the developer to bear joint and several liability for repayment will usually be supported by the court, at this time the developer can only choose to start another recovery case to exercise the right of recovery to the buyer after the compensation. If the buyer is still unable to repay the debt, the developer will also encounter many problems in the process of choosing to recover the house. The termination of the contract is not smooth, or there are difficulties in vacating the house after the successful termination of the contract, and it is even possible to encounter the buyer in the process. Due to other debts, the purchased house has been seized, auctioned and other compulsory measures in other cases. At this time, the developer has to initiate another case to execute the objection application. The longer the delay, the greater the loss to developers.
After the implementation of the interpretation of the guarantee system of the Civil Code, it is established that the house has been initially registered, the house registered with the advance notice is consistent with the house at the time of the first registration of the ownership of the building, and there is no failure of the advance notice registration, the mortgage bank has the right to enjoy the priority of compensation for the house involved, and the time of the establishment of the mortgage right can be traced back to the time of the establishment of the advance notice registration. In this way, the interests of the lending bank can be protected through pre-mortgage registration rather than informal mortgage registration. Therefore, in the above-mentioned case, the court held that the mortgage right of the house in question had been established, supporting the right of the loan bank to claim priority compensation. At the same time, due to the establishment of the relief path, the phased joint guarantee liability provided by the developer was exempted due to the expiration of the guarantee period. The court rejected the bank's request for the developer to bear joint and several liability, maintaining the stability of the transaction order and balancing the parties. The rights of the developer are good news for the developer.
Risk Alert
1. adjust the contract text in due course and sort out the relevant expressions between the developer and the bank on the phased guarantee liability.
Previously, in the guarantee contract, the developer's guarantee period was generally limited to the date of completion of the formal mortgage registration procedures. Under the new framework set by the explanation of the guarantee system, the developer should reorganize the cooperation agreement signed with the commercial bank, revise and improve the agreement on guarantee liability through friendly communication, and strive to set the mortgage agreement as the date of mortgage advance notice registration, that is, the bank should be completed as the mortgagee, and the developer's phased guarantee liability can be relieved when the mortgage advance notice registration of the commercial housing involved in the case is completed. This will greatly reduce the risk of developers.
2. developers should do their duty to give reasonable notice and urge owners to apply for a certificate as soon as the conditions are met.
When the developer has completed the first registration of the ownership of the building, it shall promptly notify the owner in writing and other forms of the time limit for handling the "house property right certificate" and the formal mortgage registration for the bank. If the owner "neglects" to go through the relevant formalities and the development business has fulfilled its reasonable notice obligation, it is not at fault for the incomplete performance of the contract.
3. strengthen the dynamic supervision of contract performance and update relevant information in a timely manner.
Do a good job of communication with the bank. When the buyer breaks the supply, the bank is required to inform the developer in time that the developer can make various preparations for the termination of the commercial housing sales contract in advance, so as to avoid the situation that the purchased house is judicially sealed and the commercial housing sales contract cannot be terminated due to the debt dispute between the buyer and other people.
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