The Priority Legal Effect Of Pre-sale Mortgage Advance Notice

The pre-sale commercial housing mortgage system is set up to stimulate the development of China’s real estate market and realize the goal of "living in a certain place" as soon as possible.It combines the "uncompleted building" system in Hong Kong with the specific situation of commercial housing sales in the mainland.Its emergence provides a guarantee for the creditor’s rights of financial institutions providing loans(usually Banks).However,there are problems in practice.The construction period of a construction project is long and there are many risks.When the mortgage right cannot be established as scheduled due to non-bank fault,the buyer fails to make the payment.And in order to protect its own creditor’s rights,the bank claims the priority of repayment for the pre-sale houses.However,due to the lack of specific provisions of legal provisions,courts in different regions have made judgments with different attitudes based on different interest protection,and have recognized and denied the priority of repayment interests of Banks.Such a phenomenon of "different judgments in the same case" seriously damages the judicial authority.Therefore,this paper will start from such cases,summarize the basis and reasons under different judgment results,so as to demonstrate the author’s view that the priority of mortgage advance notice registration should be recognized under certain circumstances,and put forward targeted solutions to solve such disputes,in order to provide reference for judicial practice.This article specifically includes five parts:Part Ⅰ: This paper makes a quantitative analysis of the cases in which the bank is entitled to the priority of repayment based on the mortgage advance notice registration.According to different judgment results,the cases are classified into three categories: those who cannot support the priority of compensation,those who support the priority of compensation,and those who have the condition to support the priority of compensation.The reasons they hold are sorted out,and the conclusion that the phenomenon of "different judgment on the same case" is common in such disputes is drawn.Part Ⅱ: This paper expounds how to realize the interest of the holder of mortgage advance notice registration in the whole process of commercial house pre-sale.Inductive the obstacle of advance notice registration into the mortgage registration,and a targeted solution is proposed based on the recognition of “priority of compensation”,and compared with the proposal proposed by the party that does not agree with “priority of compensation”.It is summarized that when the mortgage advance notice registration has not been transformed into the mortgage this registration is not the right owner of the advance notice registration,the mortgage advance notice registration has not been invalidated,and the pre-sale houses have the conditions to execute,the solution that gives priority to the repayment effect is more beneficialPart Ⅲ: The party that does not agree that the mortgage advance notice registration has the priority to be repaid is mainly from the nature,effect of advance notice registration,the relationship between the mortgage of pre-sale merchandise building and the concurrency joint responsibility of the developers,the pre-sale commercial housing mortgage advance notice registration can be considered as construction project mortgage registration of this a few aspects to confirm their views;This paper demonstrates the necessity of the author’s viewpoint from the aspects of the system value of advance notice registration and pre-sale of commercial houses and the protection of Banks and homebuyers’ rights and interests..Part Ⅳ: To re-analyses the results of typical cases that listed in the first part,and analyses the differences and advantages and disadvantages between the original verdict and the result of judgment which is used the author’s point.Cases is used to verify that when certain conditions are met,the best solution to solve such disputes is to give the bank the priority of compensation for the pre-sold houses in the form of judgment.And the practical benefits of this solution are summarizedPart Ⅴ: Conclusion.Summarize the core points of the paper.