上海市房地产抵押办法 Shanghai Municipality, Real Property Mortgage Procedures

上海市人民政府令第76号
(Shanghai Municipal People's Government Edict No. 76, promulgated on 6 December 1999)
颁布日期：19991206 　实施日期：20000101 　颁布单位：上海市人民政府

　　PART ONE　GENERAL PROVISIONS

　　Article 1　(Objective and basis of formulation)

　　These Procedures are formulated in accordance with the PRC, Administration of Urban Real Property Law, the PRC, Security Law and other relevant laws and regulations, and on the basis of the actual situation in the municipality, in order to strengthen the administration of real property mortgages in the municipality, to protect the legal rights and interests of those involved and to safeguard the order of the real property market.

　　Article 2　(Scope of application)

　　These Procedures apply to real property mortgages within the municipal administrative region.

　　Article 3　(Meaning of relevant phrases)

　　Meaning of the following phrases as referred to in these Procedures:

　　1. Real property mortgages shall refer to the provision by the debtor or a third party to the creditor of leaseholds, housing and housing options (hereafter referred to as "real property") in the form of non-transferable possession as guarantee of the creditor's rights. If the debtor does not fulfil his liability, the creditor shall have the right to dispose of the mortgaged property in accordance with the law and shall have priority in repayment from the proceeds obtained from so disposing of it.

　　2. Housing options shall refer to the right stipulated in the overall contract or the overall building contract for the construction project, or the commodity building pre-purchase (or sale) contract to take possession at a certain time in the future of completed housing. Housing options shall include housing construction project options and pre-purchase commodity building options.

　　Article 4　(Basic principles)

　　Real property mortgages shall abide by the principle of equality, voluntariness, impartiality and creditability.

　　Real property mortgage rights established in accordance with the law shall receive the protection of the law.

　　PART TWO　ESTABLISHMENT OF MORTGAGE RIGHTS

　　Article 5　(Real property that may be mortgaged)

　　The following types of real property may be mortgaged:

　　1. Legally acquired leaseholds for unbuilt housing and other fixed structures on ground;

　　2. Housing with legally acquired ownership and leaseholds for the land it occupies;

　　3. Legally acquired housing options; and

　　4. Other types of real property that may be mortgaged in accordance with the law.

　　Article 6　(Real property that may not be mortgaged)

　　The following types of real property may not be mortgaged:

　　1. Leaseholds for unbuilt housing and other fixed structures on ground acquired through administrative allocation;

　　2. Leaseholds for unbuilt housing and other fixed structures on ground owned by rural collectives;

　　3. Institutional work units designed for the public benefit such as schools, nurseries and hospitals, educational facilities and health facilities of non-governmental organizations, and other facilities for the public good;

　　4. Housing and leaseholds included in urban housing for demolition or in collectively-owned land for requisition in accordance with the law;

　　5. Real property administered by the government;

　　6. Housing and leaseholds not legally registered and certified;

　　7. Real property where ownership rights are unclear or in dispute;

　　8. Real property which has been closed down or regulated in accordance with the law, or real property where transfer is subject to other restrictions in accordance with the law;

　　9. Publicly owned housing which is already leased; and

　　10. Other types of real property which may not be mortgaged in accordance with the law.

　　Article 7　(Creditors' rights over mortgage guarantees)

　　Creditors' rights over mortgage guarantees include the principal creditor's rights plus interest, penalty for violation of the agreement, compensation for damage and costs of realizing the creditors' rights, except where the mortgage contract specifies otherwise.

　　Article 8　(Time limits on mortgage guarantees)

　　Mortgages and creditors' rights over their guarantees exist simultaneously and the mortgage expires when the creditor's rights expire.

　　Article 9　(Valuation of mortgaged property)

　　When taking out mortgages the value of the mortgaged property shall be discussed and agreed by the mortgagor and the mortgage holder; and when the mortgagor and mortgage holder fail to come to an agreement both parties can through discussion appoint a real property appraisal organization to determine the value, except where other laws and regulations apply.

　　Article 10　(Value of mortgaged property and guaranteed creditors' rights)

　　Guaranteed creditors' rights over mortgaged property may not exceed the value of the real property: guaranteed creditors' rights over mortgaged leaseholds may not exceed the sale price of State-owned leaseholds, and guaranteed creditors' rights over mortgaged housing construction project options may not exceed the construction project cost specified in the overall contract or the overall building contract for the construction project.

　　Once a mortgage has been set up the portion of the value of the real property in excess of the guarantee can be remortgaged, but the guaranteed creditors' rights over the remortgaged property may not exceed the excess value of the property.

　　Article 11　(Notification of remortgage)

　　When mortgaged real property is remortgaged, the mortgagor shall notify the remortgagee of the existing mortgage in writing.

　　Article 12　(Mortgage of rented real property)

　　When rented real property is mortgaged the mortgagor shall notify the lessee in writing and the original rental contract shall continue in effect.

　　Article 13　(Mortgage of time-limited real property)

　　When mortgage is on real property where there is a time limit on the leasehold, the time limit on the mortgage debt may not exceed that on the leasehold.

　　Article 14　(Mortgage of commonly-owned real property)

　　When portions of commonly-owned real property are mortgaged the mortgaged property shall be limited to that owned by the mortgagor.

　　When commonly-owned real property is mortgaged in total this must be agreed by all owners and the mortgagor shall be all the owners.

　　Article 15　(A single mortgage on more than two pieces of real property)

　　When a single mortgage is secured for more than two pieces of real property this shall be regarded as one mortgage. While the mortgage continues the common guarantee obligations shall be indivisible, except where the mortgagors and mortgage holder agree otherwise.

　　Article 16　(Mortgage of transferred leaseholds)

　　When sold leaseholds are mortgaged, guaranteed creditors' rights shall be limited to the loan for development and construction of that land, and may not violate national and municipal regulations on sale and transfer of leaseholds or the stipulations of the leasehold sale contract.

　　Article 17　(The relationship between mortgaged housing and leaseholds)

　　Housing and leaseholds for the land it occupies shall be mortgaged together. When a part of housing is mortgaged, the leasehold for the proportion of land that part occupies shall be mortgaged with it.

　　Article 18　(Mortgage of commodity buildings)

　　Real property development enterprises may not mortgage pre-sold commodity buildings.

　　When real property development enterprises mortgage completed commodity buildings the mortgaged property may not be s

old while the mortgage continues.

　　Article 19　(Additional housing after the mortgage contract is signed)

　　Housing added on land after the mortgage contract is signed shall not be included as part of the mortgaged property.

　　Article 20　(Mortgage of housing over which there are limited property rights)

　　When housing over which there are limited property rights is mortgaged this must be in accord with national and municipal regulations on rights over housing with limited property rights.

　　In the preceding paragraph "housing over which there are limited property rights" shall refer to housing over which the owner has complete right of occupation and use and limited right of penalty and benefit.

　　Article 21　(Maximum mortgage amount of real property)

　　The mortgage holder and debtor may set up a maximum mortgage amount for the real property. When a maximum mortgage amount is set up the mortgagor and mortgage holder shall agree on the maximum amount for the period of continuing debt and the guaranteed debt.

　　When the agreed time period of continuing debt ends, the mortgagor and the mortgage holder shall register the maximum mortgage amount. If time period of continuing debt is shorter than the stipulated time period, period of continuing debt shall be referred to. If time period of continuing debt is longer than the stipulated time period, the stipulated time period shall be referred to. If the existing accumulated debt is less than the maximum amount of debt, the existing accumulated debt shall be registered as guaranteed principal creditor's rights. If the existing accumulated debt exceeds the maximum amount of debt, the maximum amount of debt shall be registered as guaranteed principal cred

┨网页设计特效库┠ http://www。z┗co⊙l。com/网页特效/