Legal Nature And Effectiveness Of Mortgage Pre-registration For Pre-sold Property

In the process of pre-sale commodity housing transactions,the registration of advance notice of mortgage plays an important role.Judicial practice and established doctrines differ on the nature of advance notice of mortgage and whether it has priority effect.The Explanation of Security System affirms the priority effect of mortgage registration,which provides a basis for resolving the controversial issues in judicial practice.In the case of China Everbright Bank Qingpu Branch vs.Chen Siqi and Shanghai Donghe Real Estate Co.,Ltd.,the parties have disputed two issues: 1.whether China Everbright Bank can claim priority compensation for the commodity housing involved based on mortgage pre-registration;and2.whether Donghe Company should bear joint tort liability.With the promulgation of the Interpretation of the Guarantee System,this judicial interpretation has not only directly affected the way banks realize their right to mortgage property,but also indirectly affected the assumption of development stage guarantee responsibility.First,the Interpretation of the Guarantee System affirms for the first time the effectiveness of the priority compensation for mortgage pre-registration.Banks need to pay attention to the 90-day invalid period if they want to claim priority compensation for the commodity housing involved,and they should actively exercise their rights within this period.Secondly,Article 52 of the Interpretation of the Guarantee System stipulates that the first registration of a developer’s building is the basis for the right to priority compensation for the right holder.If the developer still needs to assume a stage guarantee responsibility after processing the first registration of the building,it is unfair.Finally,in the litigation of false mortgage loans,the behavior of developers and homebuyers jointly defrauding banks constitutes fraud against banks.The loan contract should be a revocable contract,and banks as the defrauded party have the right to revoke it.If the bank claims priority compensation for the commodity housing involved based on the Interpretation of the Guarantee System,it can choose not to exercise its right of revocation and maintain the validity of the loan contract,thus making mortgage pre-registration effective.In addition,developers as the backstage operators of false mortgage loans and homebuyers who commit loan fraud together bear joint tort liability for the bank’s creditor’s rights.