How to deal with disputes over unregistered real estate mortgages

Article 15 of the Property Law stipulates that a contract between the parties relating to the creation, modification, transfer and extinction of real estate rights shall take effect upon the conclusion of the contract, unless otherwise provided by law or otherwise agreed in the contract. If the property right level is not handled, the validity of the contract shall not be affected. Article 14 stipulates that the creation, alteration, transfer and extinction of immovable property rights shall take effect when they are recorded in the immovable property registration book if they shall be registered in accordance with the provisions of the law. Article 9 stipulates that the creation, alteration, transfer and extinction of real estate rights shall become effective upon registration in accordance with law; Without registration, it shall not take effect, unless otherwise provided by law.

Article 187 stipulates that where a mortgage is made against the property provided for in subparagraphs (1) to (3) of the first paragraph of Article 180 of this Law or a building under construction as provided for in subparagraphs (5) of this Law, the mortgage registration shall be completed. The mortgage is created at the time of registration. Article 180 stipulates that the following property that the debtor or a third party has the right to dispose of may be mortgaged:

1) Buildings and other land attachments; (B) the right to use construction land; (3) Wasteland and other land contracting and management rights obtained through bidding, auction, public consultation, etc.; ·· 5) Buildings, ships, and aircraft under construction; ·· It can be seen that the mortgage contract is still valid because the mortgage contract is not registered after the real estate mortgage guarantee is signed, but the real right effect of the mortgage guarantee does not occur. How to protect the interests of the mortgagee without a mortgage? There may be a variety of circumstances for failure to register, such as the reasons of the registration authority, force majeure (such as **, flood, etc.), the mortgagee's reasons, the debtor's reasons, the mortgagor's reasons, etc.

If the mortgage is not established due to the failure to register in a timely manner due to reasons attributable to the mortgagor, the mortgagee may, in accordance with the provisions of Article 10 of the Contract Law on liability for breach of contract (3), and in accordance with Article 107 of the Contract Law, which stipulates that "one of the parties fails to perform its contractual obligations or the performance of its contractual obligations does not conform to the agreement", the mortgagor may be required to bear the joint and several liability of the debtor for failing to pay off the balance.

If the immovable property mortgage is not registered, the mortgage contract takes effect and the mortgage is not created.

1. What are the legal consequences of unregistered mortgage of immovable property?

1. The legal consequence of the mortgage of immovable property not being registered is that the mortgage registration formalities are not completed, and the debtor fails to perform the repayment obligation, the creditor cannot enjoy the right to discount the mortgaged house or to be repaid preferentially with the price obtained from the auction or sale of the mortgaged property.

2. Legal basis: Article 215 of the Civil Code of the People's Republic of China provides that a contract for the establishment, modification, transfer and extinction of immovable property rights between the parties shall take effect when the contract is established, unless otherwise provided by law or otherwise agreed by the parties; If the property right is not registered, the validity of the contract shall not be affected.

Article 216.

The immovable property register is the basis for the ownership and content of property rights.

The immovable property register is managed by the registration authority.

2. What information needs to be provided for real estate mortgage registration?

To handle the registration of real estate mortgage, the following documents shall be submitted to the registration authority:

1. Application for real estate mortgage registration;

2. The identity certificate or legal personality certificate of the mortgage party;

3. Mortgage contract;

4. State-owned Land Use Certificate, Housing Ownership Certificate or Real Estate Certificate;

5. Documents and supporting materials 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. Other documents deemed necessary by the registration authority.

Legal analysis: a mortgage on a property without registration has no legal effect.

Legal basis: Civil Code of the People's Republic of China

Article 400 To establish a mortgage right, the parties shall conclude a mortgage contract in written form.

Mortgage contracts generally include the following clauses:

1) The type and amount of the secured creditor's rights;

2) the time limit for the debtor to perform the debt;

3) The name and quantity of the mortgaged property;

4) Scope of Guarantees.

Article 402 Where the property provided for in subparagraphs (1) to (3) of the first paragraph of Article 395 of this Law is mortgaged or the building under construction as provided for in subparagraphs (5) of this Law is mortgaged, the mortgage registration shall be completed. The mortgage is created at the time of registration.

Article 408 Where the mortgagor's conduct is sufficient to reduce the value of the mortgaged property, the mortgagee has the right to request the mortgagor to stop its conduct; If the value of the mortgaged property is reduced, the mortgagee has the right to request that the value of the mortgaged property be restored, or to provide security corresponding to the reduced value. If the mortgagor does not restore the value of the mortgaged property and does not provide security, the mortgagee has the right to request the debtor to repay the debt in advance.

Disputes over unregistered immovable property mortgages can be handled through negotiation, arbitration or litigation, and if the mortgage of immovable property is not registered, the mortgage is not established, because the mortgage should be created at the time of mortgage registration.

1. What is the order of repayment of bankruptcy collateral?

The order of repayment of bankruptcy collateral is:

1. If the mortgage has been registered, it shall be repaid in the order of registration; if the order is the same, it shall be repaid in proportion to the creditor's rights;

2. The mortgage precedes the unregistered payment;

3. If the mortgage is not registered, it shall be repaid according to the proportion of the creditor's rights.

Collateral refers to the collateral transferred by the debtor to the creditor to secure the performance of an obligation. It can be tangible property, or it can be registered intangible property such as superficial rights, ** public bonds, life insurance, etc. In some countries, it is divided into chattel collateral and immovable property collateral.

2. How to confirm the validity of the mortgage right if it is a collateral before the creation of the mortgage.

1. The immovable property mortgage shall be subject to registration as an effective condition.

2. The mortgage of movable property does not require registration as a requirement for validity. For production equipment, raw materials, semi-finished products, finished products, means of transportation, ships under construction, and aircraft, regardless of whether the parties go through the registration of the mortgage or not, the chattel mortgage shall take effect when the mortgage contract takes effect.

However, the legal consequences of handling and not registering a mortgage are different, and failure to register a mortgage cannot be carried out against a bona fide third party.

3. What are the provisions of the state on the mortgage right of the house, and the provisions of the Civil Code of the People's Republic of China?

The sale and purchase of a house cannot be used against a mortgage. If the mortgage is real estate (real estate), it is necessary to go to the real estate registration agency to go through the mortgage registration, and the mortgage royal bench grinding right shall be established from the time of registration. Although the real estate sales contract is established and effective, the registration of the mortgage rights needs to be released before the registration of the transfer of real estate can be completed.

Therefore, the sale and purchase of real estate cannot be against a mortgage.

Article 402 of the Civil Code.

Where the property provided for in items 1 to 3 of the first paragraph of Article 395 of this Law is mortgaged, or the buildings under construction as provided for in item 5 of this Law, the mortgage registration shall be completed. The mortgage is created at the time of registration.

Article 394.

In order to guarantee the performance of the debt, if the debtor or the third party does not transfer the possession of the property and mortgages the property to the creditor, the debtor fails to perform the due debt or the mortgage rights are realized as agreed by the parties, and the creditor has the right to be repaid in priority for the property.

The debtor or third party provided for in the preceding paragraph is the mortgagor, the creditor is the mortgagee, and the property provided for by the guarantee is the mortgaged property.