How to deal with the mortgage loan contract when the commercial housing sales contract is terminated?
"The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Sales Contract Disputes", Article 24 The commercial housing sales contract is determined to be invalid or has been revoked or eliminated, resulting in the failure of the purpose of the commercial housing loan guarantee contract. If both parties request to cancel the commercial housing loan guarantee contract, they should be supported.
Article 25 If one of the parties to a commercial housing sales contract with loan guarantee as the payment method requests to confirm that the commercial housing sales contract is invalid or to revoke or terminate the contract, if the secured party has an independent right of claim, If the three people clearly lodge a complaint, the case shall be handled together with the commercial housing loan guarantee contract dispute case; if they do not clearly lodge a complaint, only the commercial housing purchase and sale contract dispute case shall be resolved. If the secured party files a separate lawsuit regarding a commercial housing loan guarantee contract dispute, it may be handled jointly with the commercial housing purchase and sale contract dispute case.
After the commercial housing sales contract is determined to be invalid or has been revoked or terminated, and the commercial housing loan guarantee contract is canceled, the seller shall refund the privately received housing loan and the principal and interest of the down payment. Security holders and home buyers. What are the contract forms of a house sales contract?
The subject amount of a house sales contract is relatively large and it is a relatively important contract, so laws and regulations should be signed in writing. Article 40 of the "Urban Real Estate Management Law" stipulates: "When transferring real estate, a written transfer agreement shall be signed...". Article 28 of the "Urban Real Estate Development and Operation Management Regulations" requires: "For commercial housing sales, both parties shall sign a written contract. ..." The above provisions are legal provisions that determine that housing sales contracts should be in written form. According to the provisions of the law and relevant legal provisions, the written form of a house sales contract should include the following types:
Announcement of the house sales contract The announcement of the house sales contract is the basic type of written form of the house sales contract, and the specific content generally includes The basic terms of the house sales contract, such as the location, structure, total construction area, contract price, payment deadline, house acquisition deadline, product quality standards, property rights transfer record, etc. Although relevant laws and regulations do not require both parties to use a unified house sales contract, when applying for property rights transfer registration, the house property rights registration administrative agency usually needs to apply the standardized contract template uniformly formulated by the construction authority. Otherwise, the application will not be processed. Handle records and filings.
However, the inability to use a unified contract template does not affect the creation and legal validity of a written house sales contract. In practice, when buying and selling commercial housing, it is required that the format text uniformly produced by the construction authorities must be used. However, before the contract template is issued and signed, real estate developers often provide subscription agreements, purchase agreements and other reservation contract texts that require house buyers to sign. Some of these reservation contracts already have contract characteristics and are equivalent to house sales contracts.
The contract form for the sale of second-hand houses is not uniformly stipulated. The parties to the transaction will generally draft a house sales contract together based on consensus recommendations, which will be effective upon signature and official seal of both parties, and will be executed accordingly. The standard contract filled out by the property rights registration administrative agency is only used as a filing document.
Reservation contracts with special conditions: Article 5 of the Supreme People's Court's "Interpretations on Several Issues Concerning the Application of Law in the Trial of Disputes over Commercial House Sales Contracts" (hereinafter referred to as the legal provisions on the sale of commercial houses) requires: "Subscription of commercial houses If the agreement for purchase, reservation, etc. has the main contents of the commercial housing sales contract stipulated in Article 16 of the "Commercial Housing Sales Management Measures", and the seller has purchased the money privately for the house as agreed, the agreement should be deemed as a commercial housing sales contract. ”
According to the position of the First Civil Tribunal of the Supreme People’s Court, commercial housing subscription, purchase, reservation and other agreements must be completed after the real estate developer obtains project approval, overall planning, construction approval procedures, and obtains a commercial housing sales license. Contracts with predetermined features signed previously (in fact, the signing of the reservation contract is not limited to this period).
In order to ensure the safety of transactions, safeguard the rights and interests of owners, and promote the signing of reservations, reservation contracts that require actual performance of the contract should be recognized as this contract. Although this requirement of the legal provisions has a beautiful effect, its effect is mediocre and can easily lead to fraud.
First of all, Article 16 of the "Measures for the Administration of Commercial Housing Sales" stipulates that there are as many as 13 main contents in the commercial housing sales contract. However, reservation contracts such as subscription agreements are standard clauses drawn up by real estate developers, and the probability of having all 13 specific contents at the same time is very rare. , there are few opportunities for home buyers to protect their rights and interests in accordance with this requirement. Secondly, the important basis for determining the nature of the contract is the content of the contract, not the name of the contract.
If the reservation contract contains the main contents of the commercial housing sales contract, it should be regarded as a commercial housing sales contract and will no longer have reservation characteristics. Third, "the seller has already paid for the private purchase of the house as agreed", indicating that the sales agreement has been actually implemented. Even if the reservation contract does not contain the main contents of the commercial housing sales contract stipulated in Article 16 of the "Commercial Housing Sales Management Measures", as long as the collateral is established and the contract payment is clear, the establishment of a housing sales contract between the two parties can be determined in accordance with the relevant provisions of the Security Law. If the machinery and equipment are subject to the provisions of this legal provision, it will result in the establishment of a house sales contract according to the Guarantee Law, but the establishment of the contract cannot be determined according to this legal provision. Other written forms of house sales contracts
According to the provisions of Article 3, Paragraph 3 of the "Electronic Signature Law", official documents "involving the transfer of real estate rights and interests such as land resources, housing, etc." are not suitable for "electronic signatures" , data message”. There is no doubt that the house sales contract expressed in the form of "data message" has been cleared.
Materials such as letters that describe each other’s property purchase and sale activities and are expressed in a tangible way shall be deemed to be other written forms of property purchase and sale contracts. Under certain conditions, there is no written contract, and it is difficult to determine the existence of an oral contract. The house purchaser considers that the house purchase contract is established because of the receipt or tax receipt for the purchase of the house.
At this time, the receipt or tax receipt for the purchase of the house held by the buyer is the form of a written contract and is direct evidence of the actual performance of the contract. If the location of the house stated in the receipt or tax receipt In fact, if the house contract payment is established, it should be deemed that the house sales contract between the two parties has been established. To determine the establishment of other written housing sales contracts, there must be written evidence to prove three facts.
The house sales contract is a special sales agreement. The seller transfers the property rights of the house sold to the buyer, and the buyer pays the corresponding contract price; the house sales contract belongs to the commitment contract and the mutual contract. and paid contracts; the collateral is real estate, and the transfer of house ownership must be registered; the house sales contract is an important civil act stipulated by law.