China's "Security Law" provides that the parties to the land use rights, urban real estate or township (town), village enterprises, such as buildings, forests, aircraft, ships, vehicles, as well as the enterprise's equipment and other movable assets, shall be for the registration of collateral, the mortgage contract shall enter into force from the date of registration. If the parties pledge other property, they may voluntarily register the collateral and the mortgage contract shall take effect from the date of signing. If the parties have not registered the collateral, it shall not be used against the third party.
It means that after the real estate mortgage relationship is set, the parties in accordance with the real estate registration management authority to the city or district or county real estate registration authority for the registration of other rights of real estate.
Real estate mortgage registration is divided into three cases, one is the two sides signed a mortgage contract after the right to set up registration; the second is the right to change the content of the change registration; the third is the elimination of the right to cancel the registration.
According to Article 41 of the Law of the People's Republic of China on Guarantees, real estate mortgages shall be registered, and the mortgage contract shall come into effect from the date of registration.
Registration of real estate mortgage includes registration of real estate mortgage creation, registration of real estate mortgage cancellation and disposal of real estate mortgage registration.
(1) real estate mortgage registration. Real estate mortgage must be registered in order to have legal effect, otherwise even after the signing of the mortgage contract, after the mortgage contract notarization, also can not play a security role. Therefore, the parties to the real estate mortgage contract shall apply for real estate mortgage registration after the signing of the mortgage contract, to receive the "real estate other right certificate". Article 61, paragraph 1 of the Urban Real Estate Management Law stipulates that when real estate is mortgaged, the mortgage shall be registered with the department prescribed by the local people's government at or above the county level.
(2) Real Estate Mortgage Cancellation Registration. After the main claim secured by the mortgage is extinguished due to payment, set-off, exemption and other reasons, the parties to the real estate mortgage contract shall promptly apply to the real estate mortgage registration authority for cancellation registration. After the cancellation of registration, real estate mortgage in the form of annihilation.
(3) after the disposal of real estate transfer registration. The debtor can not repay all debts due, the mortgagee can be based on the notary public according to law to give enforcement effect of the "real estate mortgage contract" to the people's court to apply for compulsory execution, the auction of mortgaged real estate. Once the mortgaged real estate is auctioned, the change of ownership of real estate will take place, and the new real estate rights holder and the mortgagee shall apply to the real estate management department and the land management department for transfer registration.
2 acceptance unit
"Urban Real Estate Management Law" stipulates that real estate mortgages should sign a written mortgage contract and mortgage registration. The Property Law stipulates that the mortgage right is established from the time of registration. Real estate mortgage is not registered, the mortgage does not take effect. The mortgage does not have the right of first refusal. In view of China's land and real estate management system varies greatly, there are a variety of management mode, the law provides for urban real estate or township (township), village enterprises, such as plant buildings mortgage, the registration authority by the people's government at or above the county level. Since the mortgage is set from the ownership of this property right on the other rights - security rights, that is, the restriction of property rights, its main role is to limit the mortgagee on the mortgage real estate disposal rights, without the consent of the mortgagee, the mortgage shall not be transferred, leased and other dispositions, in order to avoid the security overhang, so the registration authority can only be designated from the immovable property of the transaction ownership registration authority can only be appointed from the real estate, and cannot be entrusted to other departments. The Urban Real Estate Management Law stipulates the statutory procedures for the transfer or change of real estate, i.e., applying for the registration of the change of property first, and applying for the registration of the change of land use right with the changed certificate of ownership of the house. In order to simplify the procedure and facilitate the parties to apply for, but also to ensure the security of the mortgage registration, some places provide that the real estate management department shall be the mortgage registration authority for the mortgage of the real estate in which the house and the land are combined; the mortgage of the land use right of the land without attachment on the ground shall be handled by the land management department which issues the land use right certificate for the registration of the mortgage.
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3 Registration Materials
According to the Measures for Housing Registration, application for registration of mortgage shall be submitted with the following materials:
(1) application for registration;
(2) proof of the applicant's identity;
(3) certificate of ownership of the house or certificate of ownership of the real estate;
(4) Mortgage contract;
(5) Contract of the main claim;
(6) Other necessary materials.
The registration authority shall examine the applicant's application, the examination mainly includes: whether the mortgaged property meets the conditions of being permitted to enter the mortgage transaction market; whether the documents proving the rights of real estate provided by the mortgagor are in line with the contents of the record of ownership file, checking the authenticity of the certificate of ownership, etc., and shall be signed by the examiner on the record. If the conditions for registration are met, the registration shall be approved and entered into the register and the certificate of other rights shall be issued within the statutory period.
4 Registration Procedures
The basic procedures for registration of real estate mortgages are as follows:
1. Application for Mortgage Registration
The following documents shall be submitted to the registration authority for the registration of real estate mortgages:
(1) application for registration of real estate mortgages;
(2) proof of identity of mortgaged parties or proof of legal personality;
(3) mortgage contract;
(4) Certificate of State-owned Land Use, Certificate of House Ownership or Certificate of Real Estate;
(5) documents and certificates that can prove that the mortgagor has the right to create a mortgage;
(6) information that can prove the value of the mortgaged real estate;
(7) any other documents that the registration authority considers necessary. .
2. Acceptance of the application
Examine whether the documents submitted by the applicant are true and complete, the application documents do not comply with the provisions of the application is not admissible; application documents in line with the provisions of the application is admissible to the number of the application and give the return receipt, the return receipt indicating the documents received, the date of acceptance and number.
3. Audit
(1) the registration authority from the real estate register to find out the application for the transfer of real estate rights, such as one of the following circumstances, the application for the transfer of registration is rejected:
A. The nature of the source of the title is restricted mortgage (including welfare housing, micro-enterprise housing, administrative allocation of land, land premium reduction) without obtaining the consent of the relevant departments;
B. According to urban planning, the government decided to withdraw the right to use the land;
C. Judicial and administrative organs ruled in accordance with the law, decided to seize or other forms of restriction of the right to real estate;
D. *** have real estate without the written consent of the other *** owner;
E. ownership of the disputed;
F. Laws and regulations or municipal or district government regulations prohibit the transfer.
Rejection of the application for registration shall be notified to the applicant in writing within a specified period of time from the date of acceptance of the application.
(2) After ascertaining the status of the rights of the real estate for which the mortgage registration is applied from the real estate register or computerized records, the following documents shall be examined to see if they are true, complete and valid:
A. Proof of identity;
B. Real estate certificate or other certificates of rights of the real estate;
C. Whether the application for registration of the mortgage is filled in according to the requirements;
D. Whether the mortgage contract complies with the relevant laws and regulations or the municipal or district government's rules prohibiting transfer of the real estate. D. Whether the mortgage contract is in accordance with the provisions of relevant laws and regulations.
After examination and compliance with the provisions shall be approved for registration, and notify the mortgagee.
4. Registration
(1) approved for registration of mortgages, in the real estate rights certificate stamped with a special seal of mortgage, and in the real estate registry for mortgage records. The mortgage record shall include the mortgagor, the mortgagee, the name of the mortgaged property, the area, the value, the amount of the mortgage and the duration of the mortgage.
(2) When a pre-purchased real estate is mortgaged, a special seal for mortgage shall be stamped on the contract of sale.
5. Fee Issuance
(1) The registration fee shall be charged in accordance with the relevant national or local regulations.
(2) The certificate of real estate rights which has been stamped with the special seal for real estate mortgages shall be returned to the mortgaged party within the specified time (to be collected by the mortgaged party with the return receipt, proof of identity and proof of payment of fees).
6. Filing and archiving
The files of land and real estate registration are established in accordance with the regulations.
5 change
Administrative department
1, the state council administrative department of construction (building did not the ministry): responsible for the management of the national city towel real estate: mortgage management;
2. Provinces, autonomous regions, the administrative department of construction (Department of Construction): the administrative region in charge of the management of real estate mortgages in the city towel;
3, city , (district) county people's government real estate administrative department (city land and housing bureau or (district) county land and housing bureau) is responsible for the management of urban real estate mortgage management within its jurisdiction.
Related subjects
1. mortgagor, refers to the real estate acquired in accordance with the law to provide the mortgagee, as a guarantee for the performance of their own or a third person's debt;
2. mortgagee, refers to the acceptance of real estate mortgages as a guarantee for the performance of the debtor's debt to the citizens, legal persons or other organizations.
Basic workflow
1. If the property right of the premises is transferred or changed during the mortgage period, the parties concerned shall, within 30 days from the door of the transfer and change, go to the administrative department of the original registration to apply for the registration of the transfer or change by holding the documents certifying the mortgagee's consent to the change of its transfer.
2. If the parties to a real estate mortgage change, i.e., the subject of the contract changes, the parties shall, within 30 days from the date of the change, hold the contract of transfer of the mortgage and the relevant documents to the original administrative department in charge of registration to re-apply for the registration of the mortgage;
3. If the parties to the mortgage change the content of the mortgage contract, they shall, within 15 days from the date of the change, go to the original administrative department in charge of registration to handle the registration procedures for the change.
4. After the mortgaged real estate is disposed of. The original mortgagee shall, within 15 days from the date of disposal, go to the original administrative department in charge of registration for cancellation registration.
5. Has been registered as a mortgage of real estate, the mortgagee will be its claim and mortgage transfer to a third party, should be in the mortgage transfer contract signed, to the original administrative department for registration of mortgage change registration formalities. Since prior consent of the mortgagor is not required for the assignment of the mortgage, the registration of the change of mortgage shall be carried out by the mortgagor and the third person to whom the mortgage is assigned at the original administrative department for registration of the change of mortgage.
Documents
The mortgagee and the third party to be transferred for the registration of mortgage change should submit the following documents and information:
1. The mortgagee's real estate license of other rights;
2. Mortgage and the third party to be transferred to the proof of identity;
3. Original mortgage contract;
4. Claims and mortgage assignment contract;
5. Other documents prescribed by the Municipal Land and Housing Bureau.
Additional Notes
1. If the Other Rights License is lost, the mortgagee shall report the loss in writing to the competent administrative department for registration and declare it invalid in the relevant newspaper, and the competent administrative department for registration shall issue a replacement of the Other Rights License after 30 days from the publication of the declaration.
2. After the mortgagee registers the mortgage and obtains the License of Other Rights, the mortgagee's certificate of ownership of the premises shall not be seized.
6 Frequently Asked Questions
Since the implementation of the Property Law and the Housing Registration Measures, the practice of real estate registration has a very strong guidance. Many new issues have arisen in the practice of real estate mortgage registration.
I, how to distinguish between the registration of the establishment of the mortgage and the registration of the change of the mortgage
Mortgage as a form of security, due to the many advantages and is widely used, and has become China's most common, the most active form of financing. For the registration of the establishment of the mortgage and the registration of the change of the mortgage should be how to make a distinction? We can distinguish between the two from the definition and essential features.
Mortgage establishment registration refers to the mortgage party according to the application of the registration agency in accordance with the law will be recorded in the register of mortgage establishment.
Mortgage change registration, refers to the real estate mortgage subject (mortgagor, mortgagor, mortgage) does not change, only the object and content of the mortgage changes (such as the mortgagee's name, address, address, area of the collateral change, etc.), the mortgage change registration matters recorded in the mortgage registration book of behavior.
In the registration practice, the need for real estate mortgage change registration are mainly the following cases: the mortgagee's name, address changes in real estate mortgage changes, such as the mortgagee's company restructuring, name change, etc.; mortgages, address, area changes; mortgage changes, including mortgage changes, mortgage continuity changes, mortgage scope of change. Change in the scope of the mortgage, etc.
According to the laws and regulations, there are cases of establishment, change, transfer and cancellation (revocation) of house ownership, usufructuary right and security right. The registration of the establishment of the mortgage is a necessary condition for the effectiveness of the mortgage, the unregistered mortgage is not effective. So the registration of the establishment of mortgage and mortgage registration, simple understanding, the relationship between the two is similar to the ownership of the initial registration and ownership of registration, is a kind of successive relationship, subordinate relationship, only first for the establishment of the mortgage registration, there are conditions to change the registration of the mortgage.
Second, for the same house on the record has successively set up two mortgages, in the first mortgage for the amount of the claim for the reduction of the change registration, change registration time later than in the later mortgage, does it mean that it is after the right of subjugation
Priority right is the mortgagor of the mortgaged house enjoys one of the important rights. In the same house to set more than one mortgage, once the mortgagor can not fulfill the debt caused by the mortgagor needs to realize the mortgage, after the auction, the sale of mortgaged house proceeds from the auction, first by the first mortgagee in accordance with the amount of the claim has been registered priority, after the mortgagee in order of priority to be compensated. This means that if the first mortgagee has been sold by the mortgage proceeds of all the compensation, the second mortgagee will not be able to realize the right to mortgage, suffer economic losses. Therefore, the priority is to decide whether the mortgagee can realize the key of the mortgage.
Article 199 of the Property Law stipulates that if the same property is mortgaged to more than two creditors, the order of settlement of the price obtained after the auction and sale of the mortgaged property shall be as follows: 1. if the mortgage is registered, the mortgage shall be settled in the order of registration; if the order is the same, the mortgage shall be settled in proportion to the claim; 2. the mortgage registered is settled before the unregistered one; 3. if the mortgage is not registered, the mortgage shall be settled in proportion to the claim; 4. if the mortgage is not registered, the mortgage shall be settled in proportion to the claim; 5. if the mortgage is not registered, the mortgage shall be settled in proportion to the claim. (c) If the mortgage is not registered, it shall be paid in proportion to the claim. According to this provision, registered mortgages are paid in priority to unregistered mortgages, while the time of registration determines the order of payment in the same registered mortgages. The time of registration is the time when the registration agency approves the registration of the mortgage and enters it in the register.
To solve the problem of whether the order of payment is changed due to the registration of the change in the amount of the reduction of the claim by the mortgage registered first and the time of registration of the change is later than that of the mortgage registered second, the first thing we have to determine is whether the registration of the change in the amount of the reduction of the claim affects the subordination of the mortgage, and the time of registration depends on the time of the registration of the establishment of the mortgage or the time of the registration of the change of the mortgage.
Registration of change in reduction of the amount of claim is one of the contents of registration of change of mortgage. According to the foregoing understanding of the registration of change of mortgage, it does not produce a change in the subject of the mortgage, only the object of the mortgage and the content of the change, and does not affect the civil legal relations between the parties to the mortgage. At the same time, the registration of the establishment of the mortgage and the registration of the change of mortgage is a sequential and subordinate relationship. The author believes that the effect of the mortgage is generated at the beginning of the registration of the establishment of the mortgage, and the registration of the change of the mortgage does not change the effect of the mortgage. Therefore, due to the amount of the claim to reduce the registration of the mortgage change does not have an impact on the mortgage subordination, mortgage subordination of the registration time should be based on the time of the registration of the establishment of the mortgage.
But it should be noted that Article 194 of the Property Law also provides that the mortgagee may waive the mortgage or the mortgage right of subordination. Therefore, the registration of the change of mortgage due to the mortgagee's waiver of the subordination of the mortgage has, of course, produced a change in the subordination of the mortgage.
Three, private schools, hospitals and other units of real estate can be mortgaged and mortgage registration
On the scope of real estate mortgages, China's "Guarantee Law", "Property Law" and "Housing Registration Measures" have made prohibitive provisions. Among them, schools, kindergartens, hospitals and other public welfare institutions, social organizations for the purpose of education facilities, medical and health facilities and other public welfare facilities made prohibited mortgage provisions. How to correctly understand this provision and apply to real estate mortgage registration practice is very important.
First of all, we have the "Security Law", "Property Law" and "Housing Registration Measures" of this provision to understand thoroughly. In my opinion, to meet this requirement need to have three conditions: First, the property must be for the purpose of public welfare; Second, the property is an educational facility, medical and health facilities and other social welfare facilities; Third, these properties must be for the institutions, social organizations all. Fulfillment of these conditions, the scope of prohibited mortgages in accordance with the above laws and regulations clearly stipulated.
So, public schools, kindergartens, hospitals, obviously belong to the scope of laws and regulations prohibit mortgage. However, with the reform of China's education system and medical system, there are more and more private schools and hospitals, this new type of education, medical units due to their own characteristics often appear financing needs, and their own assets to mortgage loans is undoubtedly an important way of financing. So in the registration practice encountered this kind of mortgage demand, the registration agency for its mortgage registration? The author believes that should be recognized from the following aspects.
First of all, we should recognize the nature of private schools, private hospitals. According to the "Chinese people's *** and the state of private education promotion law" stipulates that the state institutions other than social organizations or individuals, the use of non-state financial funds, for the community to hold schools and other educational institutions belong to the private education business. Private education is a public welfare undertaking and an integral part of socialist education. Private schools have the same legal status as public schools.
It can be seen from this that schools and kindergartens run in the name of individuals and social organizations also need to be set up in accordance with the Law of the People's Republic of China on the Promotion of Private Education, the Regulations for the Implementation of the Law of the People's Republic of China on the Promotion of Private Education and the Regulations for the Administration of Kindergartens and other laws and regulations and related provisions, and also belong to the public welfare undertaking, and all of their educational facilities (e.g., teaching buildings, experimental buildings, etc.) are part of the realization of the public welfare undertaking of running private educational institutions. All of their educational facilities (e.g. teaching buildings, laboratory buildings, etc.) are the fundamental guarantee for realizing the purpose of running schools. Similarly, according to the "Regulations on the Administration of Medical Institutions" of the State Council, medical institutions should aim at saving lives, preventing and treating diseases, and serving the health of citizens. Therefore, private hospitals likewise aim at social welfare. Therefore, schools and hospitals, whether public or private, fall within the scope of prohibited mortgages under laws and regulations. Also within the scope of prohibited mortgages include other social welfare facilities, such as public *** library, science and technology museums, workers' cultural centers, homes for the elderly and other facilities for social welfare purposes.
Secondly, we also need to note that, according to "the supreme people's court on the application of < the Chinese people's *** and state security law > the interpretation of a number of issues" article 53: "schools, kindergartens, hospitals and other public welfare for the purpose of public institutions, social organizations, with its educational facilities, medical and health facilities and other social welfare facilities If an institution, social organization such as a school, kindergarten or hospital, which has a public welfare purpose, uses its educational facilities, medical and healthcare facilities and other social welfare facilities as collateral for its own debts, the people's court may find the collateral valid." This explains that the exceptional permissible mortgage situation needs to satisfy two conditions: first, to satisfy that the mortgages are properties other than educational facilities, medical and health facilities and other social public welfare facilities; and second, to satisfy that the purpose of the mortgages is to create mortgages for the debts of the institutions and social organizations themselves.
7 write-off registration
If the previous family also has a loan and has not been paid off, you need to pay off the loan to the previous family before you can carry out the transfer transaction. If there is a loan from the previous owner that has not been paid off, the loan must be paid off and the mortgage must be registered for cancellation before the second step of the closing process described above.
A step
①Apply for early repayment of the loan (if the upper home repayment of the loan for a full year, you can generally apply for early repayment of the loan; if you do not repay a full year, according to the agreement of the upper home loan contract, to pay the liquidated damages or not be able to repay the loan at all)
②If you repay the loan for a full year, you can apply for early repayment of the loan.
③To the bank within 3-5 working days after the loan to get the information required to cancel the mortgage registration.
④Go to the bank to get the information required for mortgage cancellation registration to the transaction center for mortgage cancellation registration.
Second, to the bank to get the information is generally
① proof of other rights of real estate (other certificates)
② application for cancellation of registration of mortgage
③ the power of attorney given by the bank
④ copy of the bank's business license
⑤ proof that the customer has repaid the loan
⑥ the original insurance policy
Third, to the transaction center for the cancellation of the mortgage registration information required
① bank out of the cancellation of the mortgage registration information required
② cancellation of the person's original identity card and a copy
③ need to go through the cancellation of the mortgage registration procedures for the original certificate of property rights
Note: Luwan District, the trading center of the Putuo District to provide the property rights of the house
If the owner entrusted the company personnel to cancel the mortgage registration, you need to provide the following additional information:
1) the owner's power of attorney
2) entrusted by the company's personnel ID card and a copy [1]