Inquired about the relevant information, your situation should belong to the following third category, you can refer to it:

The practice of buying second-hand houses by mortgage

In recent years, due to the rising housing prices, it is difficult for many people to pay off all the purchase price at one time when buying a house, so most people choose bank loans, which leads to the problem of mortgage in most second-hand houses circulating in the market at present.

The house mortgage mentioned here means that the buyer mortgages the house he bought to the loan bank as a guarantee of creditor's rights in order to borrow money from the bank to buy a house. When the buyer can't repay the loan to the bank, the bank has the right to discount the house or give priority to compensation with the price of auction or sale. Banks are the so-called mortgagees. Therefore, to buy and sell mortgaged second-hand houses, it is necessary to repay the remaining loans of the loan bank first, then the bank and the owner go through the formalities of mortgage cancellation, and then go through the formalities of house ownership transfer according to the agreement between the buyer and the seller. But when buying and selling second-hand houses, which party should repay the bank loan first? How can we ensure the security of the transaction?

Mortgaged housing involves loan banks, buyers, sellers, real estate agencies and even guarantee companies. There are many and complicated trading links, and if one link is not handled well, disputes may arise. In the seller's market environment, the risk that buyers take when buying second-hand houses with mortgages is much greater.

When I provided legal services for second-hand housing transactions in recent years, I found that there are many legal problems and risks that need to be avoided in second-hand housing transactions. However, due to space constraints, I can't go into details. Here, I often come into contact with several trading methods to provide you with a simple operation idea for your reference when buying mortgaged second-hand houses.

The first seller pays off the bank loan under the name of the transaction house at his own expense.

This way means that the seller of the house repays the bank loan under the name of the house at his own expense and goes through the formalities of mortgage cancellation, and then the buyer and the seller go through the formalities of payment, transfer and delivery according to the stipulations of the house sales contract signed by both parties.

This way is the least legal risk for buyers. Buyers should pay attention to the following issues when signing a house purchase contract with sellers:

1. The lending bank requires the seller to know the process and time of prepayment in detail (some banks need to apply for prepayment about one month in advance).

2. The detailed agreement on the real estate transaction flow shall include the date when the seller applies for advance payment.

Period, date of mortgage cancellation, notification obligation after mortgage cancellation and handling after mortgage cancellation.

The time limit for the acceptance procedures of real estate transfer, etc.

3. stipulate in detail the liability for breach of contract between the buyer and the seller, including deferred repayment procedures and deferred performance.

Know the amount or calculation method of overdue liquidated damages for obligations and delays in handling transfer acceptance procedures, and agree in detail.

Conditions for unilaterally claiming to terminate the contract and the amount of liquidated damages.

The second is to repay the bank loan in the name of the transaction property, and the expenses shall be borne by the guarantee company.

This way means that the buyer and the seller find a guarantee company, and the guarantee company pays the bank loan in advance and goes through the mortgage cancellation procedures, and then the buyer and the seller go through the transaction procedures according to the agreement of the house sales contract signed by both parties. When using this method, the guarantee company will charge a service fee according to a certain proportion of the advance amount. At present, the buyer usually pays the service fee.

When trading in this way, we should pay attention to the following issues:

1. Choose a guarantee company carefully, and understand the guarantee company from the aspects of service quality, company reputation, business scale, registered capital, charging standard, and advance fund flow.

2. At present, the guarantee company will require the buyers to deposit part of the purchase price into the account designated by the guarantee company for supervision. Therefore, buyers should carefully understand the prepayment process of the guarantee company and carefully sign the format prepayment agreement provided by the guarantee company to avoid disputes arising from the prepayment link and make themselves suffer losses.

3. In the real estate sales contract or intermediary service contract, it should be stipulated in detail which party entrusts the guarantee company, and if necessary, it should also stipulate the name of the guarantee company selected by * * *, the payer of the advance service fee, the notification obligation after the mortgage is released, and the time limit for handling the property transfer acceptance formalities after the mortgage is released.

4. Specify in detail the liabilities of the buyer and the seller for breach of contract, including the amount or calculation method of overdue liquidated damages for overdue repayment procedures, overdue performance of notification obligations and overdue transfer acceptance procedures, and specify in detail the conditions for unilaterally claiming to terminate the contract and the amount of liquidated damages.

The third is that buyers repay bank loans in advance in the name of trading real estate.

This way means that after the buyer and the seller sign the house purchase contract, the buyer advances money to repay the bank loan in the name of trading the house property, and then the seller goes to the bank to cancel the mortgage right of the house property in time, and then the buyer and the seller go through the relevant transaction procedures according to the signed house purchase contract.

This kind of transaction is the most risky for buyers, but it is often encountered in actual transactions. Therefore, careful operation is very necessary for buyers:

1. Before making advance payment, go to the property ownership registration center to check whether there are any defects in the property ownership status (mainly to check whether the property has other mortgages such as preservation and seizure besides the mortgage of the loan bank). )。

2. Do not transfer the advance payment into the seller's bank repayment account.

3. Directly transfer the advance payment to the seller's bank repayment account through his own bank account, and ask the seller to issue a detailed receipt for payment, and ask a lawyer to witness it if necessary.

4. If necessary, the seller may be required to provide third-party guarantee or property guarantee.

5. Follow up the prepayment and cancellation of mortgage in person, and get the real estate license in time.

6. After the mortgage is cancelled, handle the transfer acceptance formalities of property right transaction in time according to the shortest period allowed by the ownership registration center.

7. Specify the liabilities of the buyer and the seller for breach of contract in detail, including the amount or calculation method of overdue liquidated damages for mortgage cancellation, notification and transfer acceptance, and stipulate the conditions and amount of liquidated damages for unilaterally claiming to terminate the contract.

8. Detailed agreement on the process of the seller returning the buyer's advance payment when the real estate transaction cannot continue.

How to buy and sell second-hand houses with mortgages?

House prices are falling, but in recent months, there has been a small climax of rebound. I dare not discuss the specific reasons in depth. First, I don't have enough facts. The second is fear of conflict with the "next big chess game". However, it is also true that trading is active. A friend saw a relatively cost-effective second-hand house and wanted to buy it, but found that the house was mortgaged, so he called to ask if such a house could be bought. My feeling:

First, second-hand houses that have not paid off their loans cannot be sold.

At present, in the case of domestic loans to buy a house, the loan bank will set up a mortgage on the original house. According to the second paragraph of Article 19 1 of the Property Law: "During the mortgage period, the mortgagor shall not transfer the mortgaged property without the consent of the mortgagee, except that the transferee pays off the debt and extinguishes the mortgage on his behalf." In other words, the owner of the house may not transfer the house without the consent of the bank unless the buyer is willing to pay off the debts of the bank for the owner of the house.

Second, how to turn the second-hand house that needs to be bought into a second-hand house that pays off the loan?

There are two ways to repay, one is to pay off at one time, and the other is to pay off several times when the economic strength is not enough. In the latter case, the original owner's loan is actually transferred to the new purchaser, that is, "re-mortgage". The seller sells the commercial house with outstanding loan, and the buyer continues to repay the loan of the commercial house. This method has less pressure on the capital demand of new buyers, but the problem is that it is basically not feasible in domestic practice at present. Hong Kong and other places can not only refinance mortgages, but even sell "uncompleted residential flats". However, in order to reduce their own risks, few services can definitely be refinanced.

Then the only feasible solution is to raise funds to pay off the house payment in one lump sum before the transaction. If the buyer is not strong enough, at the same time, the buyer has to borrow money from the bank. In essence, this is a form of prepayment that looks like a mortgage loan. This one-time payment can be divided into several situations:

The first type: the original owner takes out his savings, or borrows money from relatives and friends to pay off the bank loan, so that the mortgage can be lifted from the bank and the house can be sold.

The second type: with the help of intermediary companies, the real estate with loans will be listed and communicated with buyers after finding buyers. The buyer pays part of the house price in advance for the seller to repay the loan in advance.

The third type: the seller can't raise the loan himself, and no buyer is willing to pay the house price in advance, so the intermediary company can lend. Intermediary companies can use the company's liquidity to help sellers repay loans.

For property buyers, if the selected house has a bank loan, it will be very cautious to buy a house. Because according to the second way, if the seller proposes to repay the loan in advance, the buyer is quite risky. Since the property ownership still belongs to the seller after paying the purchase price, once the seller refuses to admit it or absconds with the money, the buyer will face huge losses, so try to avoid this kind of transaction.

However, the second way is advocated by intermediary organizations at present. In the current depressed market situation, there are fewer and fewer businesses that intermediaries can do. Therefore, even if some houses have potential risks to property buyers, in order to facilitate the transaction, the intermediary still makes a big fuss, saying that "it is so cheap because of the loan" and "the loan house has no risk to property buyers", so property buyers must be cautious. If the house is really reliable, then you can ask the intermediary to use the third method mentioned above to assist in the transaction.

Third, you can only trade if you have a room card.

The reason why this problem is mentioned is because many mortgaged houses can't produce real estate licenses. Some homeowners are newly bought houses, and often have not got the real estate license within one or two years after moving in. In this case, it is definitely not possible to trade. Because the state clearly stipulates that it is strictly forbidden to transfer houses that have not obtained property certificates, and new buyers cannot go through loan procedures without obtaining property certificates.

There are many cases where real estate licenses are taken away by mortgage banks. This practice depends on the real estate registration procedures in various places and is divided into several types. One is that there are two certificates after the loan, one is the real estate license, the other is the certificate, and the other will show the mortgage and mortgage situation of the house (such as Shanghai). When there is a mortgage loan, the real estate license is kept by the owner personally, and the other certificate is kept by the bank. After the loan is paid off, the other certificate will be cancelled by the Housing Authority. The other is that there is only one real estate license. After the mortgage, the mortgage bank will generally require the escrow of the real estate license.

Then, if you can tell whether there is a real estate license but it is kept by the bank or a transaction without a real estate license? In fact, it is very simple: in either case, the local housing and land management department will register, the public security department, the court and the procuratorate can access all relevant files with valid certificates, the property owner can access relevant information in the files with ID cards and real estate licenses, and the general public can query the simple information of the house with valid certificates for legitimate reasons such as house sales and litigation. Therefore, the buyer can ask the seller (that is, the property owner) to go to the housing and land management department to investigate whether the property is registered before the transaction, which is much more real than the copy of the so-called real estate license held by the seller. If the seller does not cooperate for various reasons, he can also entrust a lawyer to investigate. The advantage of lawyer's investigation is that besides mortgage, it can also investigate whether the contents of the real estate license are consistent with those recorded in the archives of the housing registration authority, whether the seller is the owner specified in the real estate license, and whether there are other * * * owners of the house (if any * * * owners have the preemptive right).

Hope to adopt

Further reading: How to buy insurance, which is good, and teach you how to avoid these "pits" of insurance.