Real estate perspective: pre-purchase of commercial housing mortgage disputes, the developer's phased guarantee liability exemption situation.
Published:
2021-03-27
1. problem leads
In the sale of off-plan houses, because the house has not yet been completed at the time of signing the contract, it is impossible to register the establishment of mortgage rights, so banks and buyers often first register the advance purchase of commercial housing mortgage rights, and the developer provides phased guarantee responsibility for the loan. In this transaction mode, when the commercial housing presale contract and the mortgage loan contract are tried together, after the court decides to terminate the two contracts together, should the bank's mortgage loan be repaid by the real estate developer or by the buyer, that is, the borrower? The following will be explained through two judicial cases.
2. Case Retrieval
Case 1: On July 12, 2013, a branch of CITIC Bank and Xu signed a "CITIC Bank Personal Purchase Loan Contract (Pre-Mortgage plus Periodic Guarantee)", with Developer A acting as a guarantor to provide a periodic guarantee for the loan. At the same time, the H-house purchased by Xu from A Real Estate Company was registered with the advance purchase of commercial housing and the advance purchase of commercial housing mortgage. A branch of CITIC Bank was registered with the advance purchase of commercial housing mortgage. After Xu failed to repay the principal and interest of the loan as contracted, a branch of CITIC Bank sued the court, requesting Xu to repay the principal and interest, and confirmed that it has the right of priority to be paid for the H house, while the developer is jointly and severally liable.
The focus of the dispute in this case: should developer A bear the responsibility of stage guarantee?
According to the evidence submitted by both parties, the court found out that on December 26, 2014, the real estate administration bureau had issued a "real estate ownership registration certificate" to developer a, stating that the h house developed by the company met the conditions for real estate ownership registration and was allowed to register. According to the above-mentioned ascertained facts, the court believes that the original intention of the developer's phased guarantee system is to solve the problem of loan risk exposure period, reduce the risk of creditor's rights settlement caused by incomplete formal property registration, and urge the developer to complete the project development and construction in time, thus speeding up the process of real estate transaction. It is a guarantee with release conditions. If the bank's loan risk can be solved through the real estate itself and other relief channels, the developer's liability for security is meaningless. In this case, the building where the house involved is located already has the conditions for handling the real estate certificate and other certificates, and there is no evidence to prove that the house involved has not been formally mortgaged and registered as the reason for the developer A. Therefore, the loan risk of CITIC Bank can be relieved through the priority compensation of the real estate and other means. In this case, the court believes that the periodic guarantee liability of the developer A can be exempted.
Case 2: In 2003, Pan Mou, B developers and a branch of China Construction Bank jointly signed a personal housing loan contract, a loan and a guarantee undertaking, agreeing that Pan Mou borrowed 560000 yuan from a branch of China Construction Bank, and Pan Mou used the W house he purchased as collateral and went through the advance notice registration of the mortgage right of the pre-purchased commercial housing. Developer B provides phased guarantee, the guarantee liability shall be from the date of entry into force of the contract to the date on which the property mortgaged by the borrower is officially delivered for use, the mortgage registration procedures of the property are completed, the certificate of other rights of the mortgaged property is obtained and handed over to a branch of the Construction Bank for safekeeping. After Pan failed to repay the loan principal and interest, B developer also failed to fulfill the corresponding guarantee responsibility. In addition, it was found that a branch of the Construction Bank and the developer B unanimously confirmed that the main reason for the failure to register the property was that the developer B failed to carry out the completion acceptance settlement with the builder. A branch of the Construction Bank sued the court, requesting Pan to immediately repay the principal and interest, confirming that it has the right of priority compensation for the W house, while the developer B bears joint and several liability for the above-mentioned debts.
The focus of the dispute in this case: Should Developer B bear joint and several liability for the above debts?
The court of first instance held that: Pan provided the pre-purchased house as a mortgage, and has been in the housing management department for the pre-purchase of commercial housing mortgage registration, a branch of the Construction Bank of the mortgage to enjoy the priority of compensation. Developer B provides guarantee for Pan's debts. According to the contract, the guarantee responsibility starts from the effective date of the contract to the date when the mortgaged property of the borrower is officially delivered for use, the mortgage registration formalities of the property are completed, the other rights certificate of the mortgaged property is obtained and handed over to a branch of China Construction Bank for safekeeping. It can be confirmed from the date when a branch of China Construction Bank requires Developer B to provide guarantee to ensure the establishment of its mortgage. As long as the mortgage is established, the guarantee liability of developer B is relieved. Since it has been confirmed that a branch of the Construction Bank has a mortgage on the mortgage, the request of a branch of the Construction Bank to require the B developer to assume the responsibility of the guarantee is not supported.
A branch of China Construction Bank refused to accept the judgment of the first instance and appealed to the Intermediate people's Court. The court of second instance held that the guarantee period of the developer's phased guarantee is limited to the time when the mortgage contract of the buyer takes effect until the house is completed and the property right registration and other certificates are handled. After the commercial house is completed and delivered to the buyer for the title certificate, the developer's joint liability guarantee will be terminated, and the bank's mortgage right to the mortgage right to the existing house, the original intention of the establishment of phased guarantee is to reduce the risk of creditor's rights settlement caused by incomplete formal property right registration, urge developers to complete the project development and construction in time and actively assist in handling the property right registration procedures. However, the reason why the property involved in this case failed to formally handle the property right registration is that Developer B failed to handle the completion acceptance settlement procedures with the builder. Therefore, the original judgment exempts B developer from the guarantee liability is not only inconsistent with the contract agreement, but also contrary to the contractual purpose of the phased guarantee, which increases the risk of creditor's claim settlement during the period of advance registration of mortgage right, and should be corrected.
3. the views of our lawyers
In the case of pre-purchase commercial housing mortgage loan disputes, the bank signs a house purchase loan guarantee contract with the buyer and the developer, and the bank issues a loan to the buyer for the purchase of the house. The buyer provides a mortgage guarantee for the loan, and the developer provides a phased guarantee for the loan, and the problem derived from the effectiveness of the pre-mortgage registration of the pre-purchased commercial housing is the determination of the effectiveness of the developer's phased guarantee. Pre-purchase commercial housing mortgage loan contracts often agree that before the commercial housing in question is formally registered, the developer of the presale commercial housing will provide a joint and several liability guarantee, the guarantee period is generally from the buyer's mortgage contract to the completion of the house and the registration of property rights and other rights certificates. The original intention of the developer's phased guarantee system is to reduce the risk of incomplete formal property rights registration leading to debt settlement, so that the developer can complete the project development and construction in time and actively assist the bank and the buyer to handle the property rights registration procedures. Therefore, it can be seen that the developer's phased guarantee responsibility is a guarantee contract with cancellation conditions. When the commercial housing has been completed, accepted and delivered, and has the conditions for handling the real estate certificate and other certificates, formal mortgage registration can be handled, the stage guarantee responsibility of the developer shall be terminated. If the commercial house fails to handle the formal mortgage due to the buyer's own reasons (delayed or not handled at all), the developer shall not bear any guarantee responsibility, except that there is evidence to prove that the house has not handled the formal mortgage registration is caused by the developer.
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