Zhongcheng Qingtai, real estate perspective: has paid all or most of the purchase of the purchase of the consumer's "real right to expect" can fight the bank mortgage?
Published:
2020-09-25
Introduction
On June 27, 2002, the Supreme people's Court issued the reply of the Supreme people's Court on the priority right to compensation for the price of construction projects, which stated that "after the consumer has delivered all or most of the money for the purchase of commercial housing, the priority right of compensation for the project price enjoyed by the contractor on the commercial housing shall not be opposed to the buyer". At the same time, the approval made a statement that the construction contractor's priority payment of the project price is superior to the mortgage and other claims. Although the Supreme Court's approval does not directly indicate that the "property right expectation right" of the buyer who has paid all or most of the purchase price can be opposed to the mortgage, it makes it clear that the priority compensation right of the construction project price takes precedence over the mortgage right. In the following, our lawyers take the judicial decision as the observation window, return to the reality of the case, and discuss how to protect the "right of property expectation" of consumers ".
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Case Introduction:
On February 20, 2013, Wang mou signed a commercial housing sales contract with the company one day, agreeing that Wang mou would purchase a set of houses (hereinafter referred to as the houses involved in the case) developed by the company one day and located at unit 1, unit 3, building 39, 908 Shengli road, a new district. On the same day, Wang paid all the house money to the company one day.
On March 4, 2013, Wang mou moved into the house involved in the case and obtained the full invoice of the house involved in the case. In May 2013, Wang paid for property, utilities and heating costs.
On May 18, 2016, one day the company and a bank reached a civil mediation agreement under the mediation of the people's court. According to the mediation agreement, for the collateral provided by the company that still owes a bank loan on a certain day, a bank has the right of priority in the order of rights. Based on the above-mentioned "Civil Mediation Document", a bank applied for property preservation, and a provincial court sealed up 913 sets of mortgaged houses under construction on Shengli Road in a new district one day, including the houses involved in the case, for a period of three years. Subsequently, a bank applied to the provincial court for compulsory enforcement on January 3, 2017, and the provincial court issued an enforcement ruling on January 23, 2017, ruling that the above-mentioned "civil mediation statement" should be executed by the original court.
During the execution of the original court, Wang mou, an outsider, raised a written objection to the house involved in the seizure. The court of first instance issued an enforcement ruling on May 6, 2018, ruling to suspend the enforcement of the house involved in the case. A bank was not satisfied with the ruling and filed a lawsuit with the court of first instance against the execution of the executor of the case.
The court of first instance held that, according to Article 29 of the Provisions on Execution Objection and Reconsideration Cases, in the execution of monetary claims, if the buyer raises an objection to the commercial housing registered in the name of the executed real estate development enterprise, which meets the following circumstances and its rights can be excluded from execution, the people's court shall support it: (1) a legal and effective written sales contract has been signed before the people's court seals up; the commercial house purchased by the (II) is used for living and there is no other house for living in the name of the buyer; the price paid by the (III) exceeds the 50% of the total price agreed in the contract. This article is about the protection of the right to expect the right of housing consumers. The protection of the right to expect the right of housing consumers, also known as the protection of the weak, refers to the effect of giving consumers the right to expect the right to buy a house to exclude the implementation based on the maintenance of the higher value of the consumer's right to survival. This principle is derived from the Reply of the Supreme People's Court on the Priority of Compensation for Construction Project Price. Article 1 of the Reply stipulates that when hearing real estate dispute cases and handling enforcement cases, the people's court shall, in accordance with Article 286 of the the People's Republic of China Contract Law, determine that the priority of compensation of the contractor of construction project is superior to mortgage and other creditor's rights. Article 2 stipulates that after the consumer has delivered all or most of the money for the purchase of commercial housing, the priority right of the contractor to the project price of the commercial house shall not be used against the buyer. In accordance with the right protection order determined by the approval, the priority of the construction price takes precedence over the mortgage and other claims, and the priority of the construction price cannot be used against consumers who have delivered all or most of the purchase price.
After the trial court, rejected a bank's claim.
Referee's view:
According to Article 1 of the Reply of the Supreme People's Court on the Priority of Compensation for Construction Project Price, "the people's court shall, in hearing real estate dispute cases and handling enforcement cases, determine that the priority of compensation of the contractor of construction project is superior to the mortgage and other creditor's rights in accordance with the provisions of Article 286 of the the People's Republic of China contract Law" and Article 2 "after the consumer has delivered all or most of the money for the purchase of commercial housing, the contractor's priority right to compensation for the construction price of the commercial house shall not be opposed to the buyer", the right determined by the approval is that the priority right to compensation for the construction price takes precedence over the mortgage, and the consumer's right to expect the property right of the consumer who has paid all or most of the house price takes precedence over the right to compensation for the construction price.
Case extension:
1. In the case of the consumer delivering all or most of the housing payment for the purchase of commercial housing, the scope of the mortgagee of the construction in progress to exercise the right of priority compensation is limited to unsold real estate.
Referring to the dispute over the financial loan contract between a rural commercial bank co., ltd. and an investment co., ltd. [(2020) supreme law min Shen No. 1866], the court held that according to article 286 of the the People's Republic of China contract law and the provisions of the reply of the supreme people's court on the priority compensation right of construction project price, based on the maintenance of the higher value of consumers' right to survival, after consumers have paid most of the house price for commercial housing, the right of expectation of property rights shall take precedence over the right to be paid for the construction project price, and shall also take precedence over the mortgage and other claims, and the rights and interests enjoyed by the house purchased shall be protected first. According to the facts ascertained by the court of first instance, after the completion of the project under construction involved in the case, with the written consent of a rural commercial bank limited company, an investment limited company applied for the presale license of the project involved in the case and sold it to the outside world. Accordingly, the court of first instance held that the buyer purchased the house in good faith and its legitimate rights and interests should be protected, so it made a rural commercial bank co., ltd. as the mortgagee of the project under construction, exercise the scope of priority compensation limited to the unsold real estate of the project, which is in line with the actual situation of the case and is not improper.
2. The mortgaged house is used for demolition and resettlement, and the demolished person has actually occupied the mortgaged house, the right of the demolished person to request priority to obtain compensation and resettlement housing takes precedence over the bank mortgage.
Referring to the case of a contract dispute between the appellant's bank and the appellee he mou and a real estate development co., ltd. [(2020) hei 01 min zong no 4333], the court held that the reply of the supreme people's court on the priority of compensation for construction project price stipulates that "the 1. people's court shall, in hearing real estate dispute cases and handling enforcement cases, comply with the provisions of article 286 of the the People's Republic of China contract law, the priority of the contractor of the construction project is determined to be superior to the mortgage and other claims. After the 2. consumer has delivered all or most of the money for the purchase of the commodity house, the contractor's right of priority compensation for the construction price of the commodity house shall not be against the buyer......". The first paragraph of Article 7 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Disputes over Commercial Housing Sales Contracts stipulates that "the demolition party and the demolished party shall enter into a demolition compensation and resettlement agreement in the form of ownership exchange, which clearly stipulates that the demolition party shall compensate and resettle the demolished party with houses with specific location and purpose. If the demolition party sells the compensation and resettlement house to a third party, the demolition party requests priority, it should be supported." In this case, both parties clearly agree that the house involved in the case is used for demolition and resettlement, and He has actually occupied the house involved in the case. According to the provisions of the above laws and judicial interpretations, He's right to the house involved in the case based on demolition and resettlement takes precedence over the consumer's right of expectation based on the contract relationship of commercial housing sales as stipulated in the Supreme People's Court's Reply on the Priority Compensation of Construction Project Price, the approval stipulates that the consumer's right to expect property rights based on the contractual relationship between the sale of commercial housing takes precedence over the bank's mortgage.
Summary:
The "Approval of the Supreme People's Court on the Priority of Compensation for Construction Project Prices" issued by the Supreme People's Court specializes the rights of home buyers who have paid most or all of the house payment but have not yet registered their houses. When the buyer has not yet registered the house, although he does not yet enjoy the ownership of the house, he has the right to expect the acquisition of the house when he has paid most or all of the house price. This kind of property right expectation right of the purchase consumer takes precedence over the priority compensation right, mortgage right and other claims of the construction project price. Our lawyers believe that the starting point of the Supreme Court's approval is based on the consideration of protecting vulnerable groups. When buyers are facing strong developers and banks, the approval can effectively protect the rights of buyers and avoid the situation of "two empty houses" for buyers.
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