Real estate mortgage loan refers to the act that the mortgagor provides the mortgagee with debt performance guarantee in the form of legal real estate without transferring possession. That is, the mortgagee sets the mortgage as a restrictive property right on the mortgaged real estate on the premise that the mortgage does not transfer the ownership. In this behavior, the debtor is the mortgagor and the creditor is the mortgagee. Once the debtor has fulfilled his debt and paid off the principal and interest, the owner has obtained complete property rights.
The main difference between the two is whether there is a transfer of ownership in the process of lending, which also determines that their legal relationship and operation have different characteristics.
Legal differences between the two.
Because mortgage will transfer ownership, but mortgage will not change all relations, so the legal status and rights of both parties are different. In the mortgage, the beneficiary of the mortgage becomes the owner through ownership transfer and enjoys the ownership of the collateral, while the mortgagor only enjoys other real rights to the collateral; There is no transfer of ownership in the process of mortgage, and the mortgagor still retains the ownership of the collateral, while the mortgagee and the non-owner only enjoy the mortgage, that is, the right to control the collateral.
According to China's General Principles of Civil Law, ownership belongs to property rights, while other property rights such as mortgage belong to "property rights related to property rights". Therefore, in the legal relationship, the beneficiary of the mortgage enjoys the main property rights, while the mortgagor mainly enjoys the "property-related property rights". In mortgage, on the contrary, the mortgagee only enjoys "property rights related to property rights", and the property rights belong to the mortgagor. Therefore, the legal status and right direction of mortgage beneficiary and mortgagor are basically opposite to that of mortgagee and mortgagor.
The difference between the two in operation and purpose
The basic purpose of mortgage guarantee in lending is to ensure the performance of debts. Once the debtor fails to perform the debt, the realization of the creditor can be guaranteed by the proceeds from the sale of the collateral. At this point, mortgage loans and mortgage loans are basically the same.
As far as the purpose of borrowing is concerned, mortgage loan and mortgage loan are not exactly the same. Real estate mortgage usually refers to housing mortgage, and the scope of real estate mortgage is much wider. The goal of the mortgagor is often the same as that of the mortgaged property. The purpose of borrowing money is to buy a house and obtain the property right of the house. The mortgagor mortgages real estate with mortgaged property rights, and its purpose is not to mortgage, but to borrow money for other purposes. This difference is reflected in the degree of operation, which is manifested in the operational differences between the two loan methods.
Real estate mortgage should be handled with land use right certificate and house ownership certificate. The basic procedure is to handle other warrants on the premise that the mortgagor obtains the property right certificate first, and hold other warrants with the property right certificate as collateral. The mortgagor mortgages without obtaining the property right certificate. Generally, other property certificates are used as collateral first. After paying off the purchase price, the real estate development unit will transfer the property right to the mortgage beneficiary, and all property certificates will be held by the mortgagor.
In addition, mortgage loans and mortgage loans involve different parties. Mortgage generally involves two parties: the mortgagor and the mortgagee. Generally, there is no need for a guarantor. Simply put, it is "borrowing things and returning them". Mortgage loan is carried out under the condition that the mortgagor and the mortgage beneficiary have not yet obtained the ownership of the house, and the original owner or owner needs to be the intermediary in order to realize the operation in the state of separation of money, property and rights.