Mortgage of forward house refers to the behavior that the buyer pays the remaining house price after paying the down payment, and mortgages the purchased commercial house to the loan bank as a guarantee for repayment of the loan. The mortgage of forward house is different from the general mortgage of existing house, but the mortgagor uses the property that will soon acquire ownership as the mortgage to repay the loan and interest issued by the mortgagee to the forward house in installments. The mortgage of forward house has the nature of financing, and the buyer mortgages the loan with forward house, which makes the seller's development funds and advance payment integrate into one, forming a virtuous circle of funds, which is a new type of credit relationship.
First of all, it analyzes the legal relationship of forward mortgage.
The legal relationship of faster mortgage is that the buyer and the seller agree with the bank that the buyer will mortgage the property that has paid part of the purchase price in advance as the guarantee for the buyer to pay off the bank loan on time, so that the rights and obligations between the mortgagor and the mortgagee can be generated according to law, including subject, object and content.
1. The main body of the mortgage of forward house is banks, buyers and developers selling commercial houses. They are the parties to the faster mortgage.
2. The object of faster mortgage is the subject matter that the rights and obligations of the parties point to mortgage-faster. The auction here refers to the auction in which buyers sign commercial housing sales contracts with commercial housing developers and obtain some rights and interests.
3. The content of the faster mortgage, that is, the rights and obligations enjoyed by the mortgagor and mortgagee. The mortgagor (buyer) has the obligation to perform the debts according to the contract. During the performance of the debts stipulated in the contract, if the mortgagor fails to perform the debts, the mortgagee (bank) may demand the mortgaged commercial house to enjoy the priority of compensation by selling, auctioning, discounting, etc. When the debtor fails to perform his debts.
Four, several problems that should be paid attention to in handling the mortgage of forward house.
1. The mortgagor is the buyer of the auction house.
In the faster mortgage, the mortgagor can only be the pre-buyer, not the developer of the pre-sale house. In real life, because real estate development needs huge funds, in order to obtain development funds, developers must make it clear that this legal act is "mortgage of construction in progress", that is, mortgage set under the condition that the house has not been sold, not mortgage of auction house. For commercial housing that has been pre-sold, developers can no longer set mortgages. Because, if real estate developers are allowed to reuse the pre-sold houses for mortgage, it will inevitably lead to the conflict between the pre-buyer's purchase right and the developer's mortgage right, which will hinder the realization of the preemptive right. According to the theory of property law, subsequent property rights can't interfere with prior property rights, so subsequent mortgage can't be established, which is also the reason why real estate developers can't set mortgage on their forward houses.
2. A valid pre-sale contract for commercial housing must be signed.
As the mortgage contract of forward delivery house is a subsidiary contract to guarantee the main contract, it must be based on the validity of the main contract, that is, the pre-sale contract of commercial housing. The validity of the pre-sale contract of commercial housing must include: on the one hand, the pre-buyer and the pre-seller signed an auction contract and paid a certain proportion of the purchase price according to the contract; On the other hand, the developer's pre-sale behavior must comply with the law. Article 44 of China's "Urban Real Estate Management Law" stipulates: "The pre-sale of commercial housing shall meet the following conditions: (1) All land use right transfer fees have been paid and land use right certificates have been obtained; (2) Holding a construction project planning permit; (three) according to the pre-sale of commercial housing, the investment in development and construction has reached more than 25% of the total investment in engineering construction, and the construction progress and completion delivery date have been determined; (4) Go through the pre-sale registration with the real estate management department of the people's government at or above the county level and obtain the pre-sale permit certificate of commercial housing. "
3. Mortgage registration is required for faster mortgage.
Faster mortgage belongs to the category of real estate mortgage. According to China's "Real Estate Management Law" and "Guarantee Law", within 30 days from the date of signing the real estate mortgage contract, the mortgage parties shall go to the real estate management department where the real estate is located to register the real estate mortgage. The production of real right should follow the principle of publicity, and there are two ways of real right publicity: delivery and registration. As the mortgage of the faster house does not transfer the possession of the mortgaged property, it cannot be publicized by delivery, and it can only be registered. Mortgage registration is a necessary way for mortgage to gain credibility, which is of great significance for giving full play to the guarantee function of mortgage, maintaining transaction safety and protecting the interests of third parties. The mortgage of forward house is based on the houses that have not yet been built. Because of the particularity of its collateral, the registration authority should record it in the contract. If the mortgaged real estate is completed during the mortgage period, after the mortgagor obtains the certificate of real estate ownership, the parties concerned shall re-register the real estate mortgage.
4. The auction house used for mortgage has certain risks.
Due to the shortage of funds in the real estate market, the completion and delivery progress of auction houses depends on the availability of funds by real estate developers, and is also affected by a series of factors such as national real estate macro-control. In fact, real estate developers delayed the completion time. Delayed delivery, even bankruptcy and non-delivery are also common, which makes the auction house as the subject of mortgage not necessarily become an existing house, and may lead to the risk of collateral loss.
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