How does the law regulate mortgage before lease

China's law has a provision that the sale does not break the rent, but the mortgage is different from the sale. If the lease comes first and the mortgage comes later, the lease contract continues to be valid for the transferee of the mortgage during the validity period after the mortgage is realized, and the mortgage does not break the lease. On the contrary, if the mortgage comes first and the lease comes later, the mortgage can break the lease, that is, the mortgagee has the right to terminate the lease relationship after realizing the mortgage.

Therefore, the mortgage right is a kind of property right, and the lessee in the lease relationship is a kind of creditor's right based on the lease contract, in this regard, the Supreme Court has made a special judicial interpretation, Article 65 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Security Law of the People's Republic of China stipulates that if the mortgagor mortgages the leased property, after the mortgage is realized, The lease contract shall continue to be valid against the transferee of the collateral during the validity period; Article 66 stipulates that if the mortgagor leases the mortgaged property, the lease contract shall not be binding on the transferee after the mortgage is realized.

In this case, the mortgage came first and the lease came later, so the transferee had the right to terminate the original lease relationship. After the lease relationship is terminated, if the lessor informs the lessee at the time of leasing, the lessee shall bear the damages, and if the lessor fails to do so, the lessor shall bear the losses.

In civil law, it is legal to mortgage first and then lease.

If the ownership of the leased property changes during the period of possession of the lessee in accordance with the lease contract, the validity of the lease contract shall not be affected. The lessee may continue to perform the contract. If the lessee uses the leased property in accordance with the agreed method or according to the nature of the leased object, resulting in the loss of the leased object, it shall not be liable for damage.

1. The legal provisions on mortgage before lease later.

1. If the mortgaged property has been leased and transferred to possession before the mortgage is established, the original lease relationship shall not be affected by the mortgage;

2. If the debtor fails to perform the debts due or the mortgage is realized as agreed by the parties, the mortgagee may agree with the mortgagor to be repaid in priority with the price obtained from the discount of the mortgaged property or the auction or sale of the mortgaged property. If the agreement harms the interests of other creditors, the other creditors may request the people's court to revoke the agreement.

2. The legal provisions on the priority of mortgage repayment.

Where the same property is mortgaged to two or more creditors, the proceeds from the auction or sale of the mortgaged property shall be repaid in accordance with the following provisions:

1. If the mortgage has been registered, it shall be repaid in the order of registration; If the order is the same, it will be repaid according to the proportion of the bonds;

2. The mortgage has been registered before the unregistered payment;

3. If the mortgage is not registered, it shall be repaid in accordance with the proportion of the creditor's rights.

3. How to deal with the conflict between mortgage and lease rights?

1. Create a mortgage first and then create a lease.

In the case of a registered mortgage, the lease relationship does not hinder the realization of the mortgage too much. However, if the mortgaged items are leased, the lease term will still affect the mortgage right because the lease term exceeds the mortgage realization period.

If the lessor fails to inform the lessee of the fact of the mortgage at the time of conclusion of the lease contract, the lessor shall be liable for damages; If notified, it is the responsibility of the lessee.

2. Set the lease right first and then set the mortgage right.

If the mortgaged property has been leased before the conclusion of the mortgage contract, the original lease relationship shall not be affected by the mortgage. This shows that the leasehold is adversarial, and the sale does not break the lease. The original lease contract is still binding on the new transferee of the mortgaged property.

Before the expiration of the lease contract, the transferee shall not terminate the lease contract at will, nor may it unilaterally change the rent and lease term.

The basis of the law of Fazihe:

Civil Code of the People's Republic of China

Article 707: Where the lease period is more than six months, it shall be in writing. If the parties do not adopt a written form and cannot confirm Article 707 If the lease term is more than six months, it shall be in written form. If the parties do not adopt written form and cannot determine the term of the lease, it shall be deemed to be an indefinite lease.

If the lease term is fixed, it shall be regarded as an indefinite lease.

The effect of mortgage before lease is that the lease contract is not binding on the assignee.

When the mortgagor leases out the mortgaged property, if the mortgagor fails to inform the lessee in writing that the property has been mortgaged, the mortgagor shall be liable for the losses caused to the lessee by leasing the mortgage; If the mortgagor has informed the lessee in writing that the property has been mortgaged, the lessee shall bear the losses caused by the realization of the mortgage.

Mortgage refers to an agreement between the mortgagor and the creditor in writing not to transfer the possession of the property mortgaged against the judgment and to use the property as security for the creditor's rights.

Lease refers to the act of the lessor transferring the right to use the asset to the lessee to obtain rent within the agreed period.

Civil Code of the People's Republic of China

Article 726 Where a lessor sells a leased house, it shall notify the lessee within a reasonable period of time before the sale, and the lessee shall have the right of first refusal to purchase the property under the same conditions; However, this does not apply where the co-owners of the house exercise the right of first refusal or the lessor sells the house to close relatives. If the lessee fails to make a clear statement of purchase within 15 days after the lessor has fulfilled its notification obligation, it shall be deemed that the lessee has waived the right of first refusal. Article 724 In any of the following circumstances, if the leased property cannot be used due to reasons attributable to the lessee, the lessee may terminate the contract:

1) The leased property is sealed or seized by the judicial or administrative organs in accordance with law;

2) The ownership of the leased property is disputed;

3) The leased property violates the mandatory provisions of laws and administrative regulations on the conditions of use. Article 734 If the lessee continues to use the leased property upon the expiration of the lease term and the lessor does not raise any objection, the original lease contract shall continue to be valid, but the lease term shall be indefinite.

At the expiration of the lease term, the tenant of the house has the right of priority to lease on the same terms. Article 736 The contents of a financial lease contract generally include the name, quantity, specifications, technical performance, inspection method, lease term, rent composition and payment period and method, currency, and ownership of the leased property before the expiration of the lease term.

The financial lease contract shall be in written form.

Legal analysis: According to the regulations of China, if the house is auctioned during the lease period, if the house is leased first, it will not affect the validity of the lease contract, and after the lease is mortgaged, the lease contract cannot oppose the mortgage.

Legal basisCivil Procedure Law of the People's Republic of China

Article 242:If the person subject to enforcement fails to perform the obligations set forth in the legal documents in accordance with the enforcement notice, the people's court has the right to inquire about the property of the person subject to enforcement, such as deposits, bonds, **, and **shares, from the relevant Bird Imperial Reserve Order. The people's courts have the right to seize, freeze, transfer, or sell the property of the person subject to enforcement according to different circumstances. People's courts must not inquire about, seize, freeze, transfer, or sell property beyond the scope of the obligations that the person subject to enforcement shall perform.

When a people's court decides to seize, freeze, transfer, or convert property, it shall make a ruling and issue a notice of assistance in enforcement, and the relevant units must handle it.

Article 244:Where the person subject to enforcement fails to perform the obligations set forth in the legal documents in accordance with the enforcement notice, the people's court has the right to seal, seize, freeze, auction, or sell the part of the property that the person subject to enforcement shall perform the obligations of. However, the necessities of life for the person subject to enforcement and the family members they support shall be retained. The people's court shall make a ruling on the adoption of measures to destroy the funds before the precursor is employed.

Analysis of the law: If the ownership of the leased property changes during the period of possession of the lessee in accordance with the lease contract, the validity of the lease contract will not be affected. The lessee may continue to perform the contract.

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

Article 725 If the ownership of the leased property changes during the period of possession of the lessee in accordance with the lease contract, it shall not affect the validity of the lease contract.

Article 400 Where the mortgaged property has been leased and transferred to possession before the mortgage is established, the original lease relationship shall not be affected by the mortgage.

Summary. Dear, I'm glad to answer for you: the legal provisions of mortgage before lease are: if the mortgage is mortgaged before and leased later, the lease contract is not invalid, but the lease contract shall not oppose the mortgagee's mortgage right. <>

I am happy to answer for you: the legal provisions of mortgage before lease after mortgage are: the mortgage mortgage is in front of the lease in the middle, and the lease contract is not invalid, but the lease contract shall not be against the mortgagee's mortgage right to dismantle the book. <>

Kiss, the law repents: Article 405 of the Civil Code of the People's Republic of China, before the establishment of the mortgage, the mortgaged Minxin property has been leased and transferred to possession, the original lease relationship is not affected by the mortgage. <>