Real estate perspective: in the case of pre-mortgage registration of the house, can the developer be relieved of its responsibility for the stage joint and several guarantee?
Published:
2021-03-14
In the case of commercial housing presale, it is difficult for buyers to complete the purchase through a one-time payment, but more use of bank mortgage loans. In order to ensure that the bank can recover the loan as scheduled, on the one hand, it must sign a loan contract with the buyer, requiring the buyer to set up a mortgage for the presale commercial house and obtain a notice mortgage registration; on the other hand, it also signs a mortgage loan cooperation agreement with the developer. The developer assumes the responsibility of phased guarantee. The stage in the stage guarantee liability generally refers to the date from the signing of the loan contract to the date on which the mortgage is validly created and the relevant rights supporting documents are delivered to the bank for safekeeping. Then, before the formal mortgage registration of the house, whether the developer can claim to relieve the responsibility of the phased joint and several guarantee with the pre-mortgage registration of the house, there are disputes in judicial practice.
Judicial opinion:
(I) Point 1: From the balance of entity rights and obligations and the stable development of the commercial housing presale system, since the bank has been ordered to enjoy the mortgage, it should be regarded as the developer's stage guarantee liability period has expired in advance, the developer no longer need to bear the guarantee liability.
Case: Civil Judgment of First Instance on Dispute over Financial Loan Contract between a Sub-branch of Industrial and Commercial Bank of China Limited and Huang and Qingdao Real Estate Development Co., Ltd.
[(2020) Lu 0281 Minchu No. 9340]]
Excerpt from the referee's point of view: the court believes that the mortgage advance notice for the house involved has been handled in this case. although the mortgage advance notice registration does not produce the legal effect of establishing the mortgage right, the third party can know that the real estate may establish the mortgage right in the future through the mortgage advance notice registration. therefore, it already has a certain publicity appearance and gives the creditor priority to the real estate under certain conditions, which does not violate the requirement of publicity right. The commercial housing involved in the case has the conditions for real right registration, but due to the buyer Huang, the mortgage can not be established objectively in accordance with the registration, in this specific case to give creditors the right of priority compensation for the disposal price of commercial housing, is conducive to the balance and protection of the interests of all parties, to ensure the security and stability of the transaction. Accordingly, the Court confirmed in accordance with the law that a branch of the creditor Industrial and Commercial Bank of China has the right of priority compensation for the price of the auction and sale of the real estate involved in the case.
...... The reason why the developer undertakes the periodic guarantee is that the house has not been built yet, so it cannot handle the formal mortgage. Therefore, in principle, when the developer completes the obligations of construction, completion and acceptance, the house objectively meets the conditions for handling the formal mortgage. However, China's mortgage registration regulations do not for the advance mortgage registration to mortgage registration for efficient and convenient adjustment, or require the mortgagee to sign on the spot, so some properties because the borrower is also the mortgagee's reasons can not do the certificate, this case belongs to this situation. Therefore, from the balance of entity rights and obligations and the stable development of the commercial housing presale system, since the bank has been ordered to enjoy the mortgage, it should be regarded as the developer's stage guarantee liability period has expired in advance, the developer no longer need to bear the guarantee liability.
(II) Point 2: The plaintiff's request to exercise the right of priority compensation for the property mortgaged by the defendant Huang is justified, and the Court also supports it. According to the first-hand housing loan contract, before Huang has completed the housing mortgage registration procedures, the guarantor shall bear joint and several guarantee liability for Huang's loan. Therefore, the plaintiff requires the defendant to bear joint and several guarantee liability, which is in line with the contract and does not violate the provisions of relevant laws and regulations, which is supported by the court.
Case: First Instance Civil Judgment on Dispute over Financial Loan Contract between a Sub-branch of Bank of China Limited and Huang and Yantai Real Estate Co., Ltd.
Excerpts from the referee's point of view: ...... the plaintiff's request to exercise the priority right of compensation for the property mortgaged by the defendant Huang is justified and supported by this court. According to the first-hand housing loan contract, before Huang has completed the housing mortgage registration procedures, the guarantor shall bear joint and several guarantee liability for Huang's loan. Therefore, the plaintiff requires the defendant to bear joint and several guarantee liability, which is in line with the contract and does not violate the provisions of relevant laws and regulations, which is supported by the court.
(III) viewpoint 3: the real estate involved in the case has not been formally registered, so the plaintiff, according to the contract, requires the defendant a real estate co., ltd. in Weifang city to assume joint and several guarantee liability within the maximum guarantee... although both parties in this case have already gone through the pre-mortgage registration procedures, they have not gone through the formal real estate mortgage registration procedures, so the plaintiff does not enjoy the mortgage right to the house involved in the advance notice registration, no right to give priority to the payment of the proceeds from the disposal of the property in question registered in advance.
Case: Civil Judgment of First Instance on Dispute over Financial Loan Contract between a Sub-branch of China Construction Bank Corporation and Gao Mou and Chen Mou
[(2020) Yue 20 Min Zhong No. 5586]]
Excerpts from the referee's point of view: The "Personal Housing (Commercial Housing) Loan Maximum Guarantee Contract" signed by the defendant Weifang Real Estate Co., Ltd. and the plaintiff is the true intention of both parties and does not violate the mandatory provisions of laws and administrative regulations. For a valid contract, both parties should perform it in full and in good faith. According to the contract, before the mortgage under the loan contract took effect, the defendant Weifang City Real Estate Co., Ltd. assumed joint and several guarantee liability for the defendant Gao's purchase of the property involved within the maximum amount of 50 million yuan. Formal mortgage registration, so the plaintiff required the defendant Weifang City Real Estate Co., Ltd. to bear joint and several guarantee liability within the maximum amount of guarantee according to the contract, the House supports it.
According to the second paragraph of Article 20 of the "the People's Republic of China Property Law", "after the advance notice registration, if the creditor's rights are extinguished or the registration is not applied for within three months from the date when the real estate registration can be carried out, the advance notice registration shall be invalid". This provision shows that the legal effect of mortgage notice registration and mortgage registration is not the same, although the notice registration is public, but did not cause the establishment and change of real property rights. The right holder of the mortgage notice registration enjoys the right to request the registration of the mortgage when the mortgage registration conditions are fulfilled, and does not enjoy the mortgage right to the house registered in advance. Although both parties in this case have gone through the pre-mortgage registration procedures, but did not go through the formal real estate mortgage registration procedures, so the plaintiff does not enjoy the advance registration of the housing involved in the mortgage, the right to advance the registration of the property involved in the disposal of the proceeds of priority compensation.
Counsel's opinion:
Our lawyers believe that the original intention of the establishment of the developer's phased guarantee is to reduce the risk of debt settlement due to incomplete formal property rights registration, to urge the developer to complete the project development and construction in a timely manner, and to actively assist in the registration of property rights, once the formal mortgage is established, the developer's phased guarantee will be lifted. Then in the case of pre-mortgage, the bank can enjoy the priority of payment of the mortgaged property price within the scope of the guarantee agreed in the loan contract, so it should also release the stage guarantee responsibility to the developer.
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