Point of View | The real estate is "unfinished". Is it legal for the owners to set off a wave of suspension of loans?
Published:
2022-07-25
Recently, "owners of uncompleted residential buildings are forced to stop lending" rushed to the hot search. "The wave of supply and loan suspension has hit, involving many properties in many places across the country. According to incomplete statistics, at least 52 owners of unfinished and suspended buildings have issued a notice of compulsory suspension of loans to the authorities and banks. Including Zhengzhou, Wuhan, Xi'an, Taiyuan, Changsha, Xianning, Shaoyang, Suqian, Qingdao, Jinan and other cities, including a number of developers. Subsequently, a judgment (2019) min again No. 245 issued by the judicial committee of the Supreme People's court was screened on the social platform. The judgment held that in the case of the termination of the housing guarantee loan contract, the developer should bear the obligation to return the principal of the housing loan, and the house buyer should not have the obligation to return the principal of the loan to the commercial bank. The above judgment is diametrically opposite to the original judgment. The original judgment holds that the loan contract relationship is established between the buyer and the commercial bank. According to the principle of relativity of the contract, when the loan contract is terminated, the buyer should return the paid loan principal to the commercial bank. The judicial interpretation of the commercial housing sales contract says that "after the commercial housing sales contract is confirmed to be invalid or canceled or terminated, if the commercial housing guarantee loan contract is also terminated, the seller shall return the principal and interest of the received house purchase loan and house purchase money to the security right and the buyer respectively" should be understood as a third party (developer) to perform on its behalf. In the case that the developer fails to follow the instructions of the buyer to perform the loan principal return obligation in time, the corresponding debt has not been eliminated, and the buyer should still perform the loan principal return obligation to the commercial bank. In the face of the above two judicial views, is it legal for the owners to refuse to repay the remaining loans after the unfinished real estate? What legal consequences will the owners face after they stop lending? 01 The legal relationship involved in the interruption of the loan. There are two main legal relationships in the "down payment commercial loan" purchase model: The first level of legal relationship is the contractual relationship between the buyer and the developer for the sale of commercial housing, which stipulates that in addition to paying the down payment to the developer, the buyer also needs to apply for a house purchase loan from a commercial bank, and the bank will directly issue a loan to the developer. The second level of legal relationship is the secured loan contract relationship between the buyer and the bank, and the secured loan contract relationship can be subdivided into: the loan contract relationship and the mortgage guarantee relationship, which may also involve the developer's phased joint and several guarantee liability. After the bank issues the loan, the buyer needs to make a "monthly payment" in accordance with the loan contract and pay off the loan in installments. 02 The focus of legal controversy over the suspension of loans. The focus of the dispute in such cases is whether the buyer should bear the responsibility for the repayment of the remaining loan after the termination of the individual purchase loan and guarantee contract. Judgment Point 1: According to Article 21, paragraph 2 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Sales Contract Disputes": "After the commercial housing sales contract is confirmed to be invalid or revoked or terminated, the commercial housing guarantee loan If the contract is also terminated, the seller shall return the principal and interest of the received house purchase loan and house purchase money to the security right holder and the buyer respectively." The property was unfinished, and the developer was unable to deliver the house to the buyer due to the bankruptcy liquidation procedure, resulting in the termination of the commercial housing sales contract. The judgment supported the buyer to terminate the personal purchase loan and guarantee contract. At the same time, the guaranteed loan contract was deemed invalid due to the bank's unilateral format clause. The final judgment was that the developer should bear the responsibility for returning the remaining loan and paying interest. Referee opinion 2: According to the principle of relativity of the contract, after the loan guarantee contract is terminated, the buyer should return the purchase loan to the developer. The provisions of Article 21, paragraph 2 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Disputes over Commercial Housing Sales Contracts shall be understood as the developer's return on behalf of the developer (I. e. the third party's performance on behalf of the third party), and the buyer shall not be exempted from the repayment responsibility. 03 Understanding and interpretation of the focus of controversy In the past two years, there has been no lack of similar judgments in judicial practice. The legal basis for the judgment of such cases lies in Article 21 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Sales Contract Disputes. Judging from the content of the judicial interpretation, the buyer does not bear the responsibility of repayment. In addition to the termination of the commercial housing sales contract and the secured loan contract, the above clause cannot be understood as a "third party to perform on behalf of" clause, otherwise the developer cannot In the case of directly returning commercial loans to the bank, the buyer still has the obligation to repay the loan to the bank. Regarding the termination of the purchase contract, that is, the guarantee loan contract, the real estate is unfinished, the buyer can terminate the purchase contract according to the agreement on the developer's overdue delivery in the commercial housing sales contract or on the grounds that the purpose of the contract cannot be realized. Although the guaranteed loan contract and the commercial housing sales contract are two relative contracts signed by the buyer with the loan bank and the developer respectively, after the cancellation of the purchase contract, the buyer can base on the judicial interpretation of the commercial housing sales contract that "the purpose of the commercial housing guaranteed loan contract cannot be realized because the commercial housing sales contract is confirmed to be invalid or canceled or canceled, so that the purpose of the commercial housing guaranteed loan contract cannot be realized. If the party requests the cancellation of the commercial housing guaranteed loan contract, it should be supported, request the release of the secured loan contract. In the case that the house purchase contract and the secured loan contract are terminated, the direct legal consequence is to return the house purchase loan to the bank. The commercial housing sales contract stipulates that the "seller" shall be returned, but some referees believe that the "seller" return stipulated in the judicial interpretation It is performed on behalf of the buyer, and if the developer cannot return it, it should still be returned by the buyer. This view is based on the interpretation of the dual legal relationship in the sale of commercial housing, which has been stated in the first part of this paper. This view is based on the relativity of the contract, although it is reasonable to some extent, there are also obvious conflicts of legal value:(1) the developer should have a major fault in the performance of the contract for the sale of commercial housing due to poor management;(2) under the commercial housing presale system, the buyer pays the down payment to it and applies for the commercial bank to lend directly to it, which acts as the direct recipient of the purchase interest;(3) After the cancellation of the purchase contract and the secured loan contract, if the developer still enjoys the purchase benefits due to his own fault, and the buyer assumes the obligation to return the loan, the rights and obligations are obviously unequal. There is a suspicion that "the buyer pays for the developer's fault", and there is a conflict of legal value goals. To sum up, the author tends to think that when the commercial housing sales contract and the secured loan contract are terminated, the developer should bear the obligation to return the loan to the bank, and the buyer does not need to repay the remaining loan to the bank. 04 Lawyer Summary The real estate is unfinished, although the buyers do not have any fault behavior, and it seems that there is nothing wrong with the compulsory suspension of supply, but the one-way sending the "notice of cut off the supply" to the bank has no substantial legal effect. Although in recent years, there have been a number of cases in which buyers no longer repay loans after unfinished buildings, it is not a unified rule of judgment in judicial practice, and there is a certain degree of uncertainty as to whether the court will judge according to this idea. In the absence of a loan suspension agreement or without a court decision, the buyer has a legal risk of default and may be sued by the lending bank and enforced to repay the loan. For the majority of home buyers, in the event of unfinished real estate, at the level of judicial relief, the court should be requested to terminate the commercial housing sales contract and the secured loan contract in accordance with the law, and request the court to rule that the developer directly assume the obligation to return the house purchase loan to the bank, and obtain court support After that, the legal obligation to repay the principal and interest in the original loan guarantee contract can be eliminated.
Recently, "owners of uncompleted residential buildings are forced to stop lending" rushed to the hot search. "The wave of supply and loan suspension has hit, involving many properties in many places across the country. According to incomplete statistics, at least 52 owners of unfinished and suspended buildings have issued a notice of compulsory suspension of loans to the authorities and banks. Including Zhengzhou, Wuhan, Xi'an, Taiyuan, Changsha, Xianning, Shaoyang, Suqian, Qingdao, Jinan and other cities, including a number of developers.
Subsequently, a judgment (2019) min again No. 245 issued by the judicial committee of the Supreme People's court was screened on the social platform. The judgment held that in the case of the termination of the housing guarantee loan contract, the developer should bear the obligation to return the principal of the housing loan, and the house buyer should not have the obligation to return the principal of the loan to the commercial bank. The above judgment is diametrically opposite to the original judgment. The original judgment holds that the loan contract relationship is established between the buyer and the commercial bank. According to the principle of relativity of the contract, when the loan contract is terminated, the buyer should return the paid loan principal to the commercial bank. The judicial interpretation of the commercial housing sales contract says that "after the commercial housing sales contract is confirmed to be invalid or canceled or terminated, if the commercial housing guarantee loan contract is also terminated, the seller shall return the principal and interest of the received house purchase loan and house purchase money to the security right and the buyer respectively" should be understood as a third party (developer) to perform on its behalf. In the case that the developer fails to follow the instructions of the buyer to perform the loan principal return obligation in time, the corresponding debt has not been eliminated, and the buyer should still perform the loan principal return obligation to the commercial bank. In the face of the above two judicial views, is it legal for the owners to refuse to repay the remaining loans after the unfinished real estate? What legal consequences will the owners face after they stop lending?
01
The legal relationship involved in the interruption of the loan.
There are two main legal relationships in the "down payment commercial loan" purchase model:
The first level of legal relationship is the contractual relationship between the buyer and the developer for the sale of commercial housing, which stipulates that in addition to paying the down payment to the developer, the buyer also needs to apply for a house purchase loan from a commercial bank, and the bank will directly issue a loan to the developer.
The second level of legal relationship is the secured loan contract relationship between the buyer and the bank, and the secured loan contract relationship can be subdivided into: the loan contract relationship and the mortgage guarantee relationship, which may also involve the developer's phased joint and several guarantee liability. After the bank issues the loan, the buyer needs to make a "monthly payment" in accordance with the loan contract and pay off the loan in installments.
02
The focus of legal controversy over the suspension of loans.
The focus of the dispute in such cases is whether the buyer should bear the responsibility for the repayment of the remaining loan after the termination of the individual purchase loan and guarantee contract.
Judgment Point 1: According to Article 21, paragraph 2 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Sales Contract Disputes": "After the commercial housing sales contract is confirmed to be invalid or revoked or terminated, the commercial housing guarantee loan If the contract is also terminated, the seller shall return the principal and interest of the received house purchase loan and house purchase money to the security right holder and the buyer respectively."The property was unfinished, and the developer was unable to deliver the house to the buyer due to the bankruptcy liquidation procedure, resulting in the termination of the commercial housing sales contract. The judgment supported the buyer to terminate the personal purchase loan and guarantee contract. At the same time, the guaranteed loan contract was deemed invalid due to the bank's unilateral format clause. The final judgment was that the developer should bear the responsibility for returning the remaining loan and paying interest.
Referee opinion 2: According to the principle of relativity of the contract, after the loan guarantee contract is terminated, the buyer should return the purchase loan to the developer. The provisions of Article 21, paragraph 2 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Disputes over Commercial Housing Sales Contracts shall be understood as the developer's return on behalf of the developer (I. e. the third party's performance on behalf of the third party), and the buyer shall not be exempted from the repayment responsibility.
03
Understanding and interpretation of the focus of controversy
In the past two years, there has been no lack of similar judgments in judicial practice. The legal basis for the judgment of such cases lies in Article 21 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Sales Contract Disputes. Judging from the content of the judicial interpretation, the buyer does not bear the responsibility of repayment. In addition to the termination of the commercial housing sales contract and the secured loan contract, the above clause cannot be understood as a "third party to perform on behalf of" clause, otherwise the developer cannot In the case of directly returning commercial loans to the bank, the buyer still has the obligation to repay the loan to the bank.
Regarding the termination of the purchase contract, that is, the guarantee loan contract, the real estate is unfinished, the buyer can terminate the purchase contract according to the agreement on the developer's overdue delivery in the commercial housing sales contract or on the grounds that the purpose of the contract cannot be realized. Although the guaranteed loan contract and the commercial housing sales contract are two relative contracts signed by the buyer with the loan bank and the developer respectively, after the cancellation of the purchase contract, the buyer can base on the judicial interpretation of the commercial housing sales contract that "the purpose of the commercial housing guaranteed loan contract cannot be realized because the commercial housing sales contract is confirmed to be invalid or canceled or canceled, so that the purpose of the commercial housing guaranteed loan contract cannot be realized. If the party requests the cancellation of the commercial housing guaranteed loan contract, it should be supported, request the release of the secured loan contract.
In the case that the house purchase contract and the secured loan contract are terminated, the direct legal consequence is to return the house purchase loan to the bank. The commercial housing sales contract stipulates that the "seller" shall be returned, but some referees believe that the "seller" return stipulated in the judicial interpretation It is performed on behalf of the buyer, and if the developer cannot return it, it should still be returned by the buyer. This view is based on the interpretation of the dual legal relationship in the sale of commercial housing, which has been stated in the first part of this paper. This view is based on the relativity of the contract, although it is reasonable to some extent, there are also obvious conflicts of legal value:(1) the developer should have a major fault in the performance of the contract for the sale of commercial housing due to poor management;(2) under the commercial housing presale system, the buyer pays the down payment to it and applies for the commercial bank to lend directly to it, which acts as the direct recipient of the purchase interest;(3) After the cancellation of the purchase contract and the secured loan contract, if the developer still enjoys the purchase benefits due to his own fault, and the buyer assumes the obligation to return the loan, the rights and obligations are obviously unequal. There is a suspicion that "the buyer pays for the developer's fault", and there is a conflict of legal value goals.
To sum up, the author tends to think that when the commercial housing sales contract and the secured loan contract are terminated, the developer should bear the obligation to return the loan to the bank, and the buyer does not need to repay the remaining loan to the bank.
04
Lawyer Summary
The real estate is unfinished, although the buyers do not have any fault behavior, and it seems that there is nothing wrong with the compulsory suspension of supply, but the one-way sending the "notice of cut off the supply" to the bank has no substantial legal effect. Although in recent years, there have been a number of cases in which buyers no longer repay loans after unfinished buildings, it is not a unified rule of judgment in judicial practice, and there is a certain degree of uncertainty as to whether the court will judge according to this idea. In the absence of a loan suspension agreement or without a court decision, the buyer has a legal risk of default and may be sued by the lending bank and enforced to repay the loan.
For the majority of home buyers, in the event of unfinished real estate, at the level of judicial relief, the court should be requested to terminate the commercial housing sales contract and the secured loan contract in accordance with the law, and request the court to rule that the developer directly assume the obligation to return the house purchase loan to the bank, and obtain court support After that, the legal obligation to repay the principal and interest in the original loan guarantee contract can be eliminated.
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