Real estate perspective: whether the idle land of the mortgage can be recovered without compensation and the risk of loss of the mortgage is prevented.
Published:
2022-01-28
In order to make effective use of land, China's Land Management Law stipulates the prohibition of idle land and the system of free recovery of idle land. The conditions for free repossession have been discussed in the March 5, 2021 issue of "Land, How Can I Be" Idle ", please refer to the author. At the same time, land use right is also a kind of property right. After a real estate development company obtains the right to use state-owned construction land of a certain plot through transfer, it usually uses it as collateral to obtain loans from banks, and banks, insurance, trusts, etc. When various financial institutions conduct financing transactions with real estate development companies, in order to ensure repayment, they often require real estate development companies to provide mortgage guarantees for their debts with their land use rights. In view of this, a contradictory question arises: if a certain plot of land is idle land that has been mortgaged, can it be recovered? If it is recovered without compensation, does it affect the interests of the mortgagee? Which is more important, the civil effect of the mortgage and the administrative effect of the recovery without compensation? 1. legal provisions The second paragraph of Article 13 of the measures for the disposal of idle land stipulates: "if there is a mortgage on idle land, the municipal and county competent departments of land and resources shall notify the relevant mortgagee in writing when drawing up a plan for the disposal of idle land." Article 14 of the measures for the disposal of idle land stipulates: "if the development has not been started for two years, the municipal and county departments in charge of land and resources shall, in accordance with the provisions of Article 37 of the Land Administration Law and Article 26 of the Urban Real Estate Administration Law, after being submitted to the people's government with the power of approval, issue a" decision on the recovery of the right to the use of state-owned construction land "to the right of state-owned construction land. If the idle land has a mortgage, it shall be copied to the relevant land mortgagee." Article 24 of the measures for the disposal of idle land stipulates: "if the holder of the right to the use of state-owned construction land violates the provisions of laws and regulations, the contract agreement, and the provisions of the allocation decision, the municipal and county land and resources departments shall not accept the new land use application of the holder of the right to the use of state-owned construction land, and shall not handle the transfer, lease, mortgage and change registration of the land identified as idle land. Reply of the State Land Administration on the Request for Interpretation of Article 17 of the Interim Regulations on the Assignment and Transfer of State-owned Land Use Rights in the People's Republic of China Cities and Towns: "Mortgage rights are attached to land use rights. When the land use right as the main right is eliminated due to the administrative organ's punishment of recovering the land use right in accordance with Article 17 of the Interim Regulations on the transfer and transfer of state-owned land use right in the People's Republic of China cities and towns, the mortgage right set on the land use right shall be eliminated." According to the above provisions, the conflict between the mortgage and the recovery of idle land can be divided into the following two situations according to the "priority of mortgage setting. See Schedule 1 for details. 2. jurisprudence-the performance of the service, copy procedure, that is, the determination of the legal recovery of administrative procedures without compensation. Case:(2017) Min 08 Line Final 128 Name: "Longyan City Yongding District Land and Resources Bureau, Longyan City Land and Resources Bureau Resources Administration: Land Administration (Land) Second Instance Administrative Judgment" Referee's point of view: Before Yongding District Land and Resources Bureau made the decision to recover, the land use right involved in this case was used for mortgage loan. Because Guidong Electric Power transferred the relevant mortgage creditor's rights, the original mortgagee no longer enjoyed the mortgage right to the land use right involved. Therefore, Yongding District Land and Resources Bureau no longer needs to copy the decision to the original mortgagee, even if Guidong Electric Power transferred the relevant creditor's rights, however, since Guidong Electric Power had acquired 100 per cent of the appellee's equity before the recovery decision was made and became the appellee's company shareholder, yongding district Land and Resources Bureau delivered the decision to the appellee, and Guidong Electric Power, as the appellee's company shareholder, should also be aware of it. Therefore, it should be determined that yongding district Land and Resources Bureau has not violated the procedural provisions of sending a copy of the recovery decision to the relevant land mortgagee. According to the provisions of the measures for the disposal of idle land, the land and Resources Bureau of Yongding District determined that the parcel involved in the case was idle land in accordance with the law, and made a decision to recover it free of charge, and the procedure was legal. 3. on idle land mortgage loss risk prevention. As mentioned above, under the framework of the current free recovery system, the mortgagee's own legitimate rights and interests are not well protected. However, "there must be a way to get to the front of the mountain". As a mortgagee, he can also find his own way of relief under the existing normative framework. See Schedule 2 for details: The author's point of view: on the establishment of mortgage idle land can be recovered by the government free of charge, the author has been from the law, judicial jurisprudence and other aspects of the discussion. At present, in practice, it is more inclined to set up a mortgage, the land can still be recovered by the government free of charge, the mortgagee can not be based on the mortgage to defend, of course, the practice in the academic and other aspects also caused a lot of controversy. For the competent department of land resources, when exercising the procedures for the recovery of idle land, it is necessary to perform procedures such as announcement, written service, and copy in accordance with the provisions of the ''Idle Land Disposal Measures'' to avoid procedural violations; at the same time, it should also pay attention to departmental communication and coordination., To seek the best regulatory effect, especially to avoid conflicts with the effective judgment of the court. For the mortgagee, in the process of establishing the mortgage, it is best to do a good job of due diligence in the early stage, and understand the basic situation of the land from the mortgagee, including the use of the land, whether construction has started, whether it may constitute idle land, etc., from the source Control the risk that the mortgagee cannot claim rights after the mortgaged land is recovered free of charge. The above is the whole content of this real estate perspective. Here, on behalf of all members of the real estate perspective team of Zhongcheng Qingtai Law Firm, the author sends new year's greetings to all of you, wishing you all good luck in the new year, prosperity in the golden tiger and prosperity in the year of the tiger.
In order to make effective use of land, China's Land Management Law stipulates the prohibition of idle land and the system of free recovery of idle land. The conditions for free repossession have been discussed in the March 5, 2021 issue of "Land, How Can I Be" Idle ", please refer to the author. At the same time, the right to use land is also a kind of property right. After a real estate development company obtains the right to use the state-owned construction land of a certain plot through transfer, it usually uses it as collateral to obtain loans from banks, and banks, insurance, trusts, etc. When various financial institutions conduct financing transactions with real estate development companies, in order to ensure repayment, they often require real estate development companies to provide mortgage guarantees for their debts with their land use rights.
In view of this, a contradictory question arises: if a certain plot of land is idle land that has been mortgaged, can it be recovered? If it is recovered without compensation, does it affect the interests of the mortgagee? Which is more important, the civil effect of the mortgage and the administrative effect of the recovery without compensation?
1. legal provisions
The second paragraph of Article 13 of the "Measures for the Disposal of Idle Land" stipulates: "If there is a mortgage on idle land, the municipal and county land and resources authorities shall, when formulating the idle land disposal plan,The relevant mortgagee shall be notified in writing.”
Article 14 of the measures for the disposal of idle land stipulates: "if the development has not been started for two years, the municipal and county departments in charge of land and resources shall, in accordance with the provisions of Article 37 of the Land Administration Law and Article 26 of the Urban Real Estate Administration Law, after being submitted to the people's government with the power of approval, issue a" decision on the recovery of the right to the use of state-owned construction land "to the right of state-owned construction land. Where there is a mortgage on idle land,At the same time, copy to the relevant land mortgagee.”
Article 24 of the Measures for the Disposal of Idle Land stipulates: "The holder of the right to the use of state-owned construction land violates the provisions of laws and regulations, contractual agreements and allocation decisions."Malicious hoarding or speculation, the municipal and county land and resources authorities shall not accept the new land use application of the state-owned construction land use right holder before the processing is completed in accordance with the provisions of these measures,The transfer, lease, mortgage and change registration of land identified as idle shall not be handled.
Reply of the State Land Administration on the Request for Interpretation of Article 17 of the Interim Regulations on the Assignment and Transfer of State-owned Land Use Rights in the People's Republic of China Cities and Towns: "Mortgage rights are attached to land use rights. As the main right of the land use right, the administrative organ, in accordance with Article 17 of the Interim Regulations on the Assignment and Transfer of State-owned Land Use Rights in the People's Republic of China Cities and Towns,When the penalty of repossession of the right to use the land is extinguished, the mortgage created on the right to use the land is extinguished."
According to the above provisions, the conflict between the mortgage and the recovery of idle land can be divided into the following two situations according to the "priority of mortgage setting. See Schedule 1 for details.
2. jurisprudence-the performance of the service, copy procedure, that is, the determination of the legal recovery of administrative procedures without compensation.
Case:(2017) Min 08 Line Final 128
Name:"Longyan Yongding District Land and Resources Bureau, Longyan City Land and Resources Bureau Resource Administration: Land Administration (Land) Second Instance Administrative Judgment"
Referee's view:Before the decision to recover was made by the Yongding District Land Bureau, the land use rights involved in this case were used for mortgage loans,Because Guidong Electric Power has transferred the relevant mortgage creditor's rights, the original mortgagee has no longer enjoyed the mortgage right to the land use right involved in the case. Therefore, Yongding District Land Bureau does not need to send a copy of the decision to the original mortgagee. Even if Guidong Electric Power has transferred the relevant creditor's rights, Guidong Electric Power has acquired 100 percent of the appellee's equity and become the appellee's company shareholder before the decision is taken back,The Yongding District Land and Resources Bureau served the decision on the appellee, and Guidong Electric Power, as the appellee's company shareholder, should also be aware of it, so it should be determined that the Yongding District Land and Resources Bureau did not violate the procedural provisions of copying the recovery decision to the relevant land mortgagee.According to the provisions of the Measures for the Disposal of Idle Land, the Land and Resources Bureau of Yongding District determined that the parcel involved in the case was idle land in accordance with the law,And make a decision to recover without compensation, the procedure is legal.
3. on idle land mortgage loss risk prevention.
As mentioned above, under the framework of the current free recovery system, the mortgagee's own legitimate rights and interests are not well protected. However, "there must be a way to get to the front of the mountain". As a mortgagee, he can also find his own way of relief under the existing normative framework. See Schedule 2 for details:
Author's point of view:On the issue of whether the idle land with mortgage can be recovered by the government without compensation, the author has discussed from the aspects of law and judicial precedent. At present, in practice, it is more inclined to set up a mortgage, the land can still be recovered by the government free of charge, the mortgagee can not be based on the mortgage to defend, of course, the practice in the academic and other aspects also caused a lot of controversy.
For the competent department of land resources, when exercising the procedures for the recovery of idle land, it is necessary to perform procedures such as announcement, written service, and copy in accordance with the provisions of the Measures for the Disposal of Idle Land to avoid procedural violations; at the same time, it should also pay attention to departmental communication and coordination., To seek the best regulatory effect, especially to avoid conflicts with the effective judgment of the court.
For the mortgagee, in the process of establishing the mortgage, it is best to do a good job of due diligence in the early stage, and understand the basic situation of the land from the mortgagee, including the use of the land, whether construction has started, whether it may constitute idle land, etc., from the source Control the risk that the mortgagee cannot claim rights after the mortgaged land is recovered free of charge.
The above is the whole content of this real estate perspective. Here, on behalf of all members of the real estate perspective team of Zhongcheng Qingtai Law Firm, the author sends new year's greetings to all of you, wishing you all good luck in the new year, prosperity in the golden tiger and prosperity in the year of the tiger.
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