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

mortgage holder shall jointly submit an application to the original mortgage registration authority to cancel the mortgage registration. When applying to cancel a mortgage registration they shall submit proof of identity, proof of mortgage rights and the following materials:

　　If the guaranteed debt has been cleared or waived by the creditor in accordance with item 1 and 3 of Article 33 of these Procedures they shall subm

it written proof issued by the creditor;

　　If the mortgage contract has been cancelled in accordance with item 2 of Article 33 of these Procedures they shall submit the mortgage cancellation contract; and

　　In other circumstances where termination is by law or by agreement between the parties involved in accordance with item 4 of Article 33 of these Procedures they shall submit the relevant materials.

　　When the mortgagor submits an application to cancel the mortgage registration, but the mortgage holder does not, the registration authority may accept the application and shall instruct the mortgage holder to cancel the registration within a certain time. If the mortgage holder has not cancelled the registration within the stipulated time, the registration authority may examine and approve the application of the mortgagor in accordance with the law.

　　Article 39　(Issue of, changes to and collection of proof of mortgage rights)

　　The real property registration authority shall in accordance with the law decide whether to grant registration within the stipulated period from the date of acceptance of the mortgage registration application. If registration is granted it shall issue proof of mortgage rights; if it is not it shall notify the applicants in writing.

　　The real property registration authority shall in accordance with the law decide whether to grant a change of registration within the stipulated period from the date of acceptance of the change of mortgage registration application. If a change in registration is granted it shall alter the mortgage rights certificate; if it is not it shall notify the applicants in writing.

　　The real property registration authority shall in accordance with the law decide whether to grant a cancellation of mortgage registration within the stipulated period from the date of acceptance of the application for cancellation of mortgage registration. If a cancellation of registration is granted it shall collect the mortgage rights certificate; if not it shall notify the applicants in writing.

　　Article 40　(Safekeeping of real property rights certificates and mortgage rights certificates)

　　Real property rights certificates for mortgaged property shall be kept by the mortgagor.

　　Mortgage rights certificates issued by the real property registration authority shall be kept by the mortgage holder.

　　Article 41　(Registration fees)

　　When registering mortgages and changing mortgage registrations the mortgagor and the mortgage holder shall pay a registration fee to the real property registration authority in accordance with the relevant regulations.

　　Article 42　(Consultation of information on mortgages)

　　Materials on mortgage registration, and on changes to or cancellation of mortgage registration, shall be available for public consultation. The precise method to be employed shall be in accord with the relevant people's government regulations.

　　PART FIVE　OCCUPATION AND CARE OF MORTGAGED PROPERTY

　　Article 43　(Occupation and care of mortgaged property and its responsibility)

　　Mortgaged property shall be occupied and cared for by the mortgagor.

　　While occupying and caring for the mortgaged property the mortgagor shall ensure that the property is secure and in good condition.

　　The mortgage holder shall have the right to inspect, monitor and check the occupation and care of the mortgaged property in accordance with the mortgage contract.

　　Article 44　(Renting of mortgaged property)

　　Mortgagors renting out mortgaged property during the term of the mortgage shall inform the lessee in writing of the fact that it is mortgaged.

　　Article 45　(Transfer of mortgaged property)

　　Mortgagors may transfer mortgaged property except when stipulated in paragraph 2 of Article 18 of these Procedures. Except in the case of pre-sale and sa

le of commodity building by real property development enterprises, the mortgagor shall inform the mortgage holder in writing in advance when transferring mortgaged property during the term of the mortgage and shall notify the transferee of the fact that the property is mortgaged. The transfer shall be invalid if the mortgagor has not informed the mortgage holder or the transferee in advance.

　　The mortgagor may agree with the mortgage holder to use the money received for transfer of mortgaged property to clear the mortgage debt early, and may also agree with the mortgage holder to deposit this money with an agreed third party as mortgaged assets.

　　When the mortgagor notifies the mortgage holder they shall at the same time propose a price for and method of transfer of the mortgage and discuss these matters with the mortgage holder.

　　The mortgage holder shall reply in writing to the mortgagor within 15 days of receipt of the notification and may put this on file with the real property registration authority. Failure to reply within the stipulated period shall be regarded as an agreement. If the mortgage holder believes the price for transfer of the mortgage is clearly less than its value they may ask the mortgagor to provide a new guarantee. If the mortgagor does not agree to this the mortgage holder may refuse to grant transfer of the mortgaged property.

　　When the mortgagor applies to the real property transactions administration authority to transfer ownership, or to register on file the pre-purchase of commodity building transfer contract, they shall provide proof of their agreement with the mortgage holder on the method of dealing with the transfer sum or of the fact that they have notified the mortgage holder and the mortgage holder has not replied within the stipulated period. The real property transactions administration authority shall on this basis transfer the case to the real property registration authority for change of registration for real property transfer or registration and filing of the pre-purchase of commodity building transfer contract.

　　The portion of the sum obtained by the mortgagor for the transfer of mortgaged property in excess of the debt shall belong to the mortgagor. Any shortfall shall be repaid by the debtor.

　　Article 46　(Inheritance of mortgage contracts)

　　When there are changes to a mortgagor legal person or non-legal person organization, the succeeding entity shall continue to implement the original mortgage contract.

　　When a mortgagor natural person dies or is declared legally dead, the person inheriting or granted the mortgaged property in accordance with the law shall continue to implement the original mortgage contract, except when the party concerned renounces the inheritance or gift.

　　Article 47　(Responsibility for notification of changes to mortgaged property and mortgagor)

　　In any of the following circumstances the mortgagor or their successor shall inform the mortgage holder in writing:

　　When a mortgaged property is designated to be demolished in accordance with the law;

　　When inheritance or division of the estate occurs because a mortgagor natural person dies or is declared legally dead; or

　　When there is succession because of changes to a mortgagor legal person or non-legal person organization.

　　Except in the case of natural wear and tear the mortgagor shall immediately take effective measures to minimize the loss resulting from destruction of or damage to a mortgaged property, and shall inform the mortgage holder.

　　Article 48　(Remedying destruction of or damage to mortgaged property)

　　A mortgage is annulled by destruction of the mortgaged property. If the mortgagor and mortgage holder agree the mortgagor may repay the guaranteed debt to the mortgage holder early from compensation received for the destruction or damage. Compensation can also b

e deposited with a third party as mortgaged assets.

　　If the mortgagor is remiss in his duty of pursuing compensation from the party responsible for the destruction of or damage to the mortgaged property, the mortgage holder may seek compensation on his behalf.

　　If destruction of or damage to the mortgaged property is the fault of the mortgagor and the mortgagor cannot fulfil the debt in full or part, the mortgagor shall provide a new mortgaged property or additional mortgaged property to make up for that part of the value of the original mortgage.

　　Article 49　(Limitations on demolition and rebuilding of mortgaged property)

　　The mortgagor may not demolish or rebuild the mortgaged housing without the written consent of the mortgage holder, except when urban construction requires such demolition.

　　Article 50　(Demolition of mortgaged housing for clearance)

　　When housing is legally included in demolition for clearance during the term of the mortgage it shall be dealt with as follows:

　　If there is compensation through exchange of assets the housing received in exchange shall be remortgaged;

　　If there is compensation in money the mortgagor may with the agreement of the mortgage holder repay the debt guaranteed by the mortgage early. The mortgagor can also with the agreement of the mortgage hold

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