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

itor's rights.

　　Principal creditor's rights contract with maximum amount of mortgage guarantees is limited to loan contracts and contracts signed for continuing transactions of a commodity within a stipulated time period.

　　"Maximum mortgage amount" shall refer to the guarantee on real property for continuing debt in a stipulated time period, not more than the maximum limit of debt, with the agreement of the mortgagor and the mortgage holder.

　　Article 22　(Mortgages of housing construction project options)

　　When real property development enterprises and other work units mortgage housing construction project options, the guaranteed principal creditor's rights shall be limited to the loan for construction of the project. But projects for which all construction costs have been paid shall not be subject to this limit.

　　Mortgages of housing construction project options must also fulfil the following criteria:

　　1. Over 25 per cent of total investment for development of the housing construction has been realized;

　　2. The construction project contract can take the form of an overall contract or overall building contract for housing for independent use; and

　　3.Commodity buildings within the construction project has not been pre-sold.

　　Maximum mortgage amounts may not be obtained for housing construction project options.

　　Mortgages of housing construction project options shall be in accord with national and municipal regulations on administration of contracts for construction projects.

　　Article 23　(Mortgages of pre-purchased commodity building options)

　　When the pre-purchaser mortgages pre-purchased commodity building options, the guaranteed principal creditor's rights shall be limited to the loan for purchase of the commodity building, except when the total house price has already been paid.

　　Maximum mortgage amounts may not be obtained for pre-purchased commodity building options.

　　Mortgages of pre-purchased commodity building options shall be in accord with national and municipal regulations on administration of pre-sale of commodity building.

　　Article

24　(Regulation of funds)

　　In the case of housing construction projects the mortgage holder shall regulate use of the loan in accordance with the contract specifically for the construction of that project.

　　Real property development enterprises in receipt of money from pre-sale and sale of commodity buildings shall appoint a specific organization to regulate use of these funds, which shall be used first in repayment of all loans for the housing construction project. When there are mortgages on the housing construction project and the leasehold for the land it occupies, the corresponding mortgage shall be cancelled.

　　The specific procedures for regulation of funds from pre-sale and sale of commodity building shall be formulated separately by the people's government at the municipal level.

　　The phrase "all loans" in paragraph two of this Article shall refer to mortgage loans on leasehold, housing construction project options and other loans on that construction project.

　　PART THREE　MORTGAGE CONTRACTS

　　Article 25　(The form of mortgage contracts)

　　A written mortgage contract shall be signed when setting up a real property mortgage.

　　Mortgage contracts may be inserted in the principal creditor's rights contract as a mortgage clause, or signed independently.

　　Article 26　(The main content of mortgage contracts)

　　Mortgage contracts shall contain the following:

　　1. Names (or titles) and places of residence of mortgagor and mortgage holder;

　　2. Type and amount of guaranteed principal creditor's rights;

　　3. Time limit on debtor's clearing of the debt;

　　4. Site, use, structure, floor area, boundaries and value of mortgaged property;

　　5. Housing and leasehold ownership, the way leasehold was obtained, real property rights certificate number;

　　6. Scope of guaranteed creditors' rights; and

　　7. Other matters agreed by the mortgagor and mortgage holder.

　　Mortgage contracts for housing construction project options shall contain the following in addition to those points in paragraph one of this Article:

　　1. Construction Project Planning Licence number;

　　2. Price of State-owned leasehold;

　　3. Cost of construction project agreed in the overall contract or overall building contract for the construction project;

　　4. Amount already invested in the project, not including cost of obtaining leasehold; and

　　5. Date of completion of construction project.

　　Mortgage contracts with maximum mortgage amounts of real property shall contain the following in addition to those points in paragraph one of this Article:

　　1. Period of continuing creditor's rights; and

　　2. Maximum limit on creditor's rights.

　　Mortgage contracts that do not contain all the stipulated contents in this Article may be rectified.

　　Article 27　(Matters mortgage contracts may not stipulate)

　　When concluding a mortgage contract the mortgagor and mortgage holder may not agree that when the debt falls due and the mortgagor has not cleared it, ownership of the mortgaged property is transferred to the mortgage holder.

　　Article 28　(Language of mortgage contract)

　　Mortgage contracts shall be written in Chinese and may at the same time be written in other languages.

　　Article 29　(Notarization of real property mortgages involving foreigners)

　　When the mortgagor or mortgage holder is a Hong Kong SAR, Macao SAR, Taiwanese or foreign natural person, legal person or other economic organization, the mortgage shall be notarized by a notary office of the municipality.

　　Article 30　(Invalid contracts)

　　The following mortgage contracts shall be invalid:

　　Mortgage contracts signed in violation of paragraph one of Articles 6 and 18, paragraph three of Article 22 or paragraph two of Article 23 of t

hese Procedures;

　　Mortgage contracts where the main contract is invalid, except where the contract stipulates otherwise; and

　　Other mortgage contracts signed in violation of the law.

　　Article 31　(Changes to mortgage contracts)

　　If the mortgagor and mortgage holder agree they may change the mortgage contract. When mortgage contracts are changed a written changed mortgage contract shall be signed.

　　Where a piece of property is mortgaged more than twice the mortgage holder needing to change the mortgage must obtain the agreement of all the other mortgage holders.

　　Article 32　(Cancellation of mortgage contracts)

　　If the mortgagor and mortgage holder agree they may cancel the mortgage contract. When mortgage contracts are cancelled a written mortgage cancellation contract shall be signed.

　　Article 33　(Termination of mortgage contracts)

　　Mortgage contracts shall be terminated in the following circumstances:

　　The guaranteed debt has been repaid;

　　The mortgage contract has been cancelled;

　　The creditor waives the debt; or

　　Other circumstances in which the law stipulates they be terminated or the parties involved agree they be terminated.

　　PART FOUR　REGISTRATION OF MORTGAGES

　　Article 34　(Validity of mortgage registration)

　　Real property mortgages shall be registered in accordance with the law. Mortgage contracts shall be valid from the date of mortgage registration.

　　Changes to mortgage contracts shall be registered in accordance with the law. Changed mortgage contracts shall be valid from the date of registration of the changed mortgage.

　　Article 35　(Mortgage registration authorities)

　　The mortgagor and mortgage holder shall register the mortgage with the municipal, district or county real property registration authorities in accordance with the limits of authority on real property registration.

　　Article 36　(Applicants for mortgage registration and materials to be submitted)

　　The mortgagor and mortgage holder shall apply jointly for mortgage registration. When applying for mortgage registration they shall submit proof of identity, the main contract, the mortgage contract and the following materials:

　　For mortgages on pre-purchased commodity buildings they shall submit the commodity building pre-purchase (or sale) contract;

　　For mortgages on housing construction project options they shall submit the real property rights certificate and the overall contract or overall building contract for the construction project;

　　For mortgages on leaseholds for unbuilt housing and other fixed structures on ground they shall submit the real property rights certificate and the leasehold contract; and

　　For mortgages on other types of real property they shall submit the real property rights certificate.

　　Article 37　(Applicants and materials required for registration of changes to mortgage contracts)

　　When there are changes to mortgage contracts the mortgagor and mortgage holder shall jointly submit an application for change of mortgage registration to the original mortgage registration authorities. When applying to change a mortgage registration they shall submit proof of identity, proof of mortgage rights and the changed mortgage contract.

　　Article 38　(Applicants and materials required to cancel a mortgage registration)

　　When mortgages are terminated the mortgagor and the

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