Viewpoint | Observation and Prospect of the "Transfer with Charge" Policy
Published:
2022-12-13
With the pilot and promotion of the "transfer of ownership" policy, more cities have begun to explore the local "New deal" model and its impact. Before the implementation of the Civil Code, second-hand housing transactions were restricted by Article 191 of the Property Law, that is, the mortgaged real estate must be released from the mortgage before the transfer procedures can be completed. This often makes the buyer have to prepay a considerable amount of house purchase money before the transfer of ownership, so as to remove the mortgage of the third party first, especially when the prepaid amount is large, more complicated additional guarantees and other procedures are required, therefore, many people believe that the restriction of "release first, transfer later" increases transaction costs, prolongs transaction time, reduces transaction opportunities, and is not conducive to the circulation of real estate. After the implementation of the Civil Code, the policy of "transfer with mortgage" has injected new vitality into the second-hand real estate market. On the one hand, the reason for the "transfer with mortgage" policy is the increase in the demand for second-hand housing caused by the flow of talents, and the contradiction between the long transaction cycle and high risk, which affects the prosperity and transaction security of the second-hand housing market; on the other hand, it is the need for the in-depth implementation of the principles of streamlining administration and delegating powers and administrative convenience. In the past two years, the epidemic has made real estate transactions more difficult, and the implementation of the "New Deal" has also played a positive role. 1. the process comparison of the two modes before and after. (I) traditional transaction processes Sign the contract for the sale of the stock of housing, the redemption of the building to raise funds, the seller to the bank to pay off the mortgage loan to redeem the property, obtain the real estate certificate, the buyer for the mortgage and exchange of the mortgage, pay off the purchase of the house, handle the transfer registration, the completion of the transaction. (II) "transfer with pledge" transaction process The buyer and seller sign the contract of sale, the buyer applies for a loan from the bank, the buyer deposits the purchase money into the fund supervision, the bank issues the "mortgage change agreement", the bank supervises the funds to settle the seller's loan principal and interest, the remaining funds are transferred to the seller's account, the buyer and the seller handle the housing transfer registration, the transaction is completed. New elements of the "transfer with mortgage" policy in 2. After the entry into force of the Civil Code, the law no longer requires the mortgagor to obtain the mortgagee's consent for the transfer of the mortgage, but puts this issue into the autonomy of the parties, and thus derives new content in the course of the transaction. The "New Deal" not only involves buyers and sellers, but also involves multiple entities such as banks, notary departments or guarantee agencies. The transaction links are complicated, and for multiple parties, the rights and interests are in an uncertain state before the transfer is completed, so the local government has introduced corresponding The supporting measures will be analyzed as represented by the policies implemented in Jinan. First, the introduction of capital supervision mechanism, significantly reducing the risk of buyers and sellers. The buyer and seller negotiate to determine a fund supervision agency, which can be a notary office, a bank or other financial institution, and the fund supervision agency directly controls the flow of the purchase price. Although the registration center does not directly supervise the funds, the registration center will only handle the transfer registration for the buyer and the seller after seeing the deposit certificate issued by the fund regulator. The flow of funds is closely linked with the process of real estate transfer: if the buyer and the house purchase loan bank do not pay the house purchase price in full, the fund supervision institution shall not issue the deposit certificate, the real estate registration center shall not handle the transfer, and the seller will still have the real estate rights of the target house; If the transfer is unsuccessful, the fund supervision institution shall return the funds to the original way, and the buyer need not worry about not prepaying the house purchase price but not obtaining the real estate rights, significantly reduces the risk for buyers and sellers. Second, the use of "new loans to repay old loans" model to facilitate, the buyer's down payment, the buyer's bank loans into the capital regulatory agencies, can be used to repay the seller's loans, reducing the financial pressure on both buyers and sellers. Third, although in principle, the consent of the lending banks of both buyers and sellers must be obtained before the transfer of ownership can be handled in accordance with the steps of the Jinan notice, with the lead of the registration center, a number of banks have explicitly agreed to carry out this business and have filed business records with the registration center, including Bank of China, Construction Bank, Industrial and Commercial Bank of China, Rural Commercial Bank, Minsheng Bank, and so on. In other words, as long as the buyer and seller's bank belongs to this column, they can handle the transfer with the charge, without the need to obtain additional bank consent. Fourth, transfer registration and buyer's bank mortgage registration can be combined, reducing the cost of communication between buyers and sellers and the registration center and saving transaction time. The Influence and Prospect of 3. "Transfer of Ownership with Charge" (I) New Model Injects New Vitality into Real Estate Transactions The "transfer with mortgage" policy uses the new transaction mode to solve the problem of the seller's financing difficulties in the old transaction mode, shorten the transaction cycle, ensure the transaction security, promote the smooth performance of the transaction, reduce the transaction cost of second-hand housing, prevent the sale of more than one house, improve the security of second-hand housing transactions, save money, time, worry and effort. For example, Jinan has introduced a corresponding fund supervision system to further reduce the transaction risk of buyers and sellers. It closely cooperates with fund supervision agencies and real estate supervision centers to break through information barriers, timely grasp the flow of funds and the status of real estate rights, and realize the first transfer and then The loan is released from the mortgage, which greatly reduces the transaction risk. There are still some problems in the implementation of different attitudes around the (II). In cities such as Beijing, Shanghai, and Guangzhou, although the real estate registration center has liberalized the transfer of mortgages at the policy level, because there is still no supporting mechanism (especially the fund supervision mechanism), whether the transfer of mortgages can be realized in a case still depends on The consent and cooperation of the seller's loan mortgage bank. Although there are sporadic precedents, through online inquiries, it is found that in practice, the seller's bank agrees to take the transfer of ownership and cooperates with the buyer and seller to sign the necessary documents. It should be noted that if the seller enters into a contract with the lending bank that expressly prohibits the seller from transferring real estate with a mortgage, it will block the "transfer with a mortgage" procedure. According to the judicial case of online inquiry, the court recognized the validity of this prohibition clause. The provisions of the Loan/Mortgage Guarantee Contract signed before the implementation of the Civil Code relating to the prohibition of transfer with a mortgage shall not be affected by the "transfer with a mortgage" of the Civil Code, and the buyer shall not have the right to request the bank to assist in the transfer, but shall still conduct the transaction in the form of a redemption. If the Loan/Mortgage Guarantee Contract signed after the implementation of the Civil Code stipulates that the transfer of collateral is prohibited or restricted, the policy of "transfer with mortgage" shall not apply, and the buyer shall not have the right to request the bank to assist in the transfer. New prospects for further opening of (III) in the future Although there are different opinions on the policy of "transfer with mortgage", and the implementation degree and attitude are different in different places, in general, the implementation of the policy of "transfer with mortgage" has increased the liquidity of real estate, improved the convenience of transaction, and provided the possibility of new transaction framework for urban renewal and disposal of distressed assets, it is also expected that other cities will make relevant policies in the region blossom in the future after summing up existing experiences and practices. Here, it is necessary to remind the parties involved in the transaction to pay attention to the provisions prohibiting the seller from transferring real estate with mortgage in practice, so as to avoid that the relevant procedures cannot be carried out due to failure to pay sufficient attention to the contents of the loan contract when signing the Loan/Mortgage Guarantee Contract or handling the mortgage loan due to failure to pay due diligence.
With the pilot and promotion of the "transfer of ownership" policy, more cities have begun to explore the local "New deal" model and its impact. Before the implementation of the Civil Code, second-hand housing transactions were restricted by Article 191 of the Property Law, that is, the mortgaged real estate must be released from the mortgage before the transfer procedures can be completed. This often makes the buyer have to prepay a considerable amount of house purchase money before the transfer of ownership, so as to remove the mortgage of the third party first, especially when the prepaid amount is large, more complicated additional guarantees and other procedures are required, therefore, many people believe that the restriction of "release first, transfer later" increases transaction costs, prolongs transaction time, reduces transaction opportunities, and is not conducive to the circulation of real estate.
After the implementation of the Civil Code, the policy of "transfer with mortgage" has injected new vitality into the second-hand real estate market. On the one hand, the reason for the "transfer with mortgage" policy is the increase in the demand for second-hand housing caused by the flow of talents, and the contradiction between the long transaction cycle and high risk, which affects the prosperity and transaction security of the second-hand housing market; on the other hand, it is the need for the in-depth implementation of the principles of streamlining administration and delegating powers and administrative convenience. In the past two years, the epidemic has made real estate transactions more difficult, and the implementation of the "New Deal" has also played a positive role.
1. the process comparison of the two modes before and after.
(I) traditional transaction processes
Sign the contract for the sale of the stock of housing, the redemption of the building to raise funds, the seller to the bank to pay off the mortgage loan to redeem the property, obtain the real estate certificate, the buyer for the mortgage and exchange of the mortgage, pay off the purchase of the house, handle the transfer registration, the completion of the transaction.
(II) "transfer with pledge" transaction process
The buyer and seller sign the contract of sale, the buyer applies for a loan from the bank, the buyer deposits the purchase money into the fund supervision, the bank issues the "mortgage change agreement", the bank supervises the funds to settle the seller's loan principal and interest, the remaining funds are transferred to the seller's account, the buyer and the seller handle the housing transfer registration, the transaction is completed.
New elements of the "transfer with mortgage" policy in 2.
After the entry into force of the Civil Code, the law no longer requires the mortgagor to obtain the mortgagee's consent for the transfer of the mortgage, but puts this issue into the autonomy of the parties, and thus derives new content in the course of the transaction. The "New Deal" not only involves buyers and sellers, but also involves multiple entities such as banks, notary departments or guarantee agencies. The transaction links are complicated, and for multiple parties, the rights and interests are in an uncertain state before the transfer is completed, so the local government has introduced corresponding The supporting measures will be analyzed as represented by the policies implemented in Jinan.
First,The introduction of capital supervision mechanism, significantly reducing the risk of buyers and sellers. The buyer and seller negotiate to determine a fund supervision agency, which can be a notary office, a bank or other financial institution, and the fund supervision agency directly controls the flow of the purchase price. Although the registration center does not directly supervise the funds, the registration center will only handle the transfer registration for the buyer and the seller after seeing the deposit certificate issued by the fund regulator. The flow of funds is closely linked with the process of real estate transfer: if the buyer and the house purchase loan bank do not pay the house purchase price in full, the fund supervision institution shall not issue the deposit certificate, the real estate registration center shall not handle the transfer, and the seller will still have the real estate rights of the target house; If the transfer is unsuccessful, the fund supervision institution shall return the funds to the original way, and the buyer need not worry about not prepaying the house purchase price but not obtaining the real estate rights, significantly reduces the risk for buyers and sellers.
Second,Using the "new loan to repay the old loan" model to facilitate, the buyer's down payment, the buyer's bank loan into the capital regulator, can be used to repay the seller's loan, reducing the financial pressure on both buyers and sellers.
Third,Although in principle, the consent of the lending banks of both buyers and sellers must be obtained before the transfer of ownership can be handled in accordance with the steps of the Jinan Notice, but led by the registration center, many banks have explicitly agreed to carry out this business and have handled the business with the registration center. Filing, including: Bank of China, Construction Bank, Industrial and Commercial Bank of China, Rural Commercial Bank, Minsheng Bank, etc. In other words, as long as the buyer and seller's bank belongs to this column, they can handle the transfer with the charge, without the need to obtain additional bank consent.
Fourth,Transfer registration and buyer's bank mortgage registration can be combined, reducing the cost of communication between buyers and sellers and the registration center and saving transaction time.
The Influence and Prospect of 3. "Transfer of Ownership with Charge"
(I) New Model Injects New Vitality into Real Estate Transactions
The "transfer with mortgage" policy uses the new transaction mode to solve the problem of the seller's financing difficulties in the old transaction mode, shorten the transaction cycle, ensure the transaction security, promote the smooth performance of the transaction, reduce the transaction cost of second-hand housing, prevent the sale of more than one house, improve the security of second-hand housing transactions, save money, time, worry and effort. For example, Jinan has introduced a corresponding fund supervision system to further reduce the transaction risk of buyers and sellers. It closely cooperates with fund supervision agencies and real estate supervision centers to break through information barriers, timely grasp the flow of funds and the status of real estate rights, and realize the first transfer and then The loan is released from the mortgage, which greatly reduces the transaction risk.
There are still some problems in the implementation of different attitudes around the (II).
In cities such as Beijing, Shanghai, and Guangzhou, although the real estate registration center has liberalized the transfer of mortgages at the policy level, because there is still no supporting mechanism (especially the fund supervision mechanism), whether the transfer of mortgages can be realized in a case still depends on The consent and cooperation of the seller's loan mortgage bank. Although there are sporadic precedents, through online inquiries, it is found that in practice, the seller's bank agrees to take the transfer of ownership and cooperates with the buyer and seller to sign the necessary documents.
It should be noted that if the seller enters into a contract with the lending bank that expressly prohibits the seller from transferring real estate with a mortgage, it will block the "transfer with a mortgage" procedure. According to the judicial case of online inquiry, the court recognized the validity of this prohibition clause. The provisions of the Loan/Mortgage Guarantee Contract signed before the implementation of the Civil Code relating to the prohibition of transfer with a mortgage shall not be affected by the "transfer with a mortgage" of the Civil Code, and the buyer shall not have the right to request the bank to assist in the transfer, but shall still conduct the transaction in the form of a redemption. If the Loan/Mortgage Guarantee Contract signed after the implementation of the Civil Code stipulates that the transfer of collateral is prohibited or restricted, the policy of "transfer with mortgage" shall not apply, and the buyer shall not have the right to request the bank to assist in the transfer.
New prospects for further opening of (III) in the future
Although there are different opinions on the policy of "transfer with mortgage", and the implementation degree and attitude are different in different places, in general, the implementation of the policy of "transfer with mortgage" has increased the liquidity of real estate, improved the convenience of transaction, and provided the possibility of new transaction framework for urban renewal and disposal of distressed assets, it is also expected that other cities will make relevant policies in the region blossom in the future after summing up existing experiences and practices.
Here, it is necessary to remind the parties involved in the transaction to pay attention to the provisions prohibiting the seller from transferring real estate with mortgage in practice, so as to avoid that the relevant procedures cannot be carried out due to failure to pay sufficient attention to the contents of the loan contract when signing the Loan/Mortgage Guarantee Contract or handling the mortgage loan due to failure to pay due diligence.
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