Zhongcheng Qingtai. Real estate perspective: the real estate mortgage advance registration, whether to enjoy the right of priority compensation?
Published:
2020-10-26
At present, many buyers pay the purchase price to the developer through bank loans, and at the same time agree to mortgage the purchased property to the bank. However, because the house has not yet been completed when the house purchase contract is signed, the developer generally provides the buyer with a phased guarantee. The sold house shall be registered in advance of mortgage notice, and then the formal mortgage registration (also known as "mortgage registration") shall be handled after the house is completed. The biggest difference between mortgage registration and mortgage notice registration is that mortgage notice registration is set to guarantee the realization of future claims, while mortgage registration is to face the reality of the creditor's rights to mortgage security. This leads to a question, that is, before the registration of the advance notice of mortgage is converted into the registration of the mortgage, the mortgage is disposed of, whether the price of the mortgage auction and sale has the priority of compensation? In practice, if there is no formal registration of the mortgage, and there is a situation of interruption of supply, the loan bank can enjoy the priority of compensation for the commercial housing based on the advance notice of mortgage registration?
Case one:
Qujing Century Tianhao Real Estate Development Co., Ltd., China Minsheng Bank Co., Ltd. Qujing Branch Financial Loan Contract Dispute Retrial Review and Trial Supervision Civil Ruling Letter-(2020) Supreme Fa Min Shen No. 57
Court decision: In this case, the mortgage on the house involved in the case was only registered for the advance notice of mortgage of presale commercial housing, but the mortgage on the house involved in the case was not effectively established. At this time, Qujing Branch of Minsheng Bank, as the right holder of mortgage advance notice registration, enjoyed the right to request the registration of mortgage on the house involved in the case. The court of first instance ruled that Minsheng Bank Qujing Branch had the right to exercise the right of priority compensation was obviously wrong. Although Jingyuan Company did not appeal against this, the first-instance judgment that Minsheng Bank's Qujing Branch has the priority to be compensated will damage the legitimate rights and interests of Jingyuan Company and third parties outside the case. The court of second instance corrected this ex officio and did not violate the law. Although the reason for applying "violation of legal prohibitive provisions" when the court of second instance corrects is flawed, the final judgment result is correct and should be maintained. The retrial claim of Tianhao Company cannot be established and this court will not support it.
Case two:
Dalian Housing Provident Fund Management Center, Citibank (China) Co., Ltd. Dalian Branch Retrial Review and Trial Supervision Civil Ruling-(2019) Supreme Fa Min Shen No. 1049
Court decision: This court believes that the reasons for the provident fund center to apply for retrial cannot be established. The people's court may take enforcement measures for the property of the person subject to execution for which other persons enjoy the mortgage, while the mortgagee may participate in the distribution of the price sold at auction and claim priority compensation to safeguard his legitimate rights and interests, but cannot exclude enforcement. In this case, the provident fund center only registered the advance notice of mortgage right for the house involved in the case, and has not yet enjoyed the mortgage right. According to the provisions of the aforementioned judicial interpretation, the people's court can obviously take enforcement measures. ..., as mentioned above, the provident fund center is only the right holder of the advance notice registration of the mortgage right of the house involved in the case. In the case that it has not provided evidence to prove that it has met the conditions for completing this registration, the original trial requested confirmation of the house involved in the case. The litigation request for priority compensation was not supported, and there is nothing improper. The Provident Fund Center claims that the reasons for applying for retrial of the original trial to determine the facts and the application of legal errors are not valid.
Case three:
China Everbright Bank Co., Ltd. Shanghai Qingpu Sub-branch v. Shanghai Donghe Real Estate Co., Ltd. and Chen Siqi Guarantee Contract Dispute-Supreme People's Court Bulletin, No. 9, 2014 (Total No. 215)
Court decision: Whether the appellant Everbright Bank can exercise the mortgage on the property involved. The court of second instance held that the registration of the mortgage notice set on the disputed property has a different legal nature and legal effect from the registration of the establishment of the mortgage. According to the "the People's Republic of China Property Law" and other relevant laws and regulations, after the advance notice registration, if the real estate is disposed of without the consent of the right holder of the advance notice registration, the real right effect will not occur. 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. That is, the advance registration of the mortgage is not a real mortgage, but a request for a change in the mortgage in the future, which has exclusive effect. Therefore, the appellant Everbright Bank, as the obligee of the advance notice registration of the mortgage right of the disputed house, before the registration of the establishment of the mortgage right of the house, enjoys the right to apply for the registration of the mortgage right of the disputed house when the mortgage registration conditions are fulfilled or the agreed period expires, and can exclusively resist the disposition of others against the disputed house, but does not enjoy the real mortgage right of the disputed house, the judgment of the first instance that Everbright Bank has the right to exercise the mortgage is wrong and should be corrected.
All of the above instruments in force determine that the registration of the advance notice of mortgage is not a real mortgage, but a claim for future changes in the mortgage, and does not enjoy the right of priority compensation without a formal mortgage registration.
Opinion of our lawyers:
According to Professor Wang Liming, "Although Article 187 of the Property Law provides for the registration of mortgages on buildings under construction together with the registration of mortgages on general buildings, this does not mean that the nature of the two is exactly the same. Because the object of the mortgage has not yet been finalized when a building is being mortgaged, the registration made when a mortgage is created on a building under construction is not this registration." We agree with this view that notice registration and this registration are two different forms of registration, so the procedure for transferring from notice registration to this registration is stipulated, and mortgage notice registration and mortgage establishment registration have different legal nature and legal effect. The obligee of the advance notice registration of the real estate mortgage, before the registration of the establishment of the real estate mortgage, enjoys the right to request the registration of the mortgage of the disputed real estate when the mortgage registration conditions are fulfilled or the agreed period expires, and can exclusively oppose others The disposition of the disputed real estate does not enjoy the actual mortgage.
In summary, we believe that only real estate mortgage advance registration, do not have the right of priority compensation.
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