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

er deposit the compensation with a third party as mortgaged assets.

　　Once the mortgagor and the demolisher have reached agreement on settlement and compensation, the mortgagor shall reach agreement with the mortgage holder in accordance with the preceding paragraph. The mortgagor may receive compensation and replacement housing only after they have handed over to the demolisher their written agreement with the mortgage holder on the mortgage and the handling of the debt it guarantees.

　　If remortgage takes place in accordance with item one of paragraph of this Article the mortgagor and the mortgage holder shall sign a new mortgage contract. If there are more than two mortgages on the original mortgaged property the order shall be the same as originally registered.

　　Article 51　(Transfer of mortgages)

　　Mortgages may not be transferred independently from the debt or used as guarantees for other debts.

　　Mortgages may be transferred together with the principal contracted debt, and the party in receipt of the mortgage enjoys the same rights and interests as the original mortgage holder. Mortgage transfer contracts shall be registered with the real property registration authorities.

　　Principal contracted debt with maximum mortgage amount may not be transferred.

　　PART SIX　REALIZATION OF MORTGAGE RIGHTS

　　Article 52　(Conditions on exercise of mortgage rights)

　　When the debt falls due the mortgage holder may exercise the mortgage rights in any of the following circumstances:

　　The debtor has not fulfilled the debt on time;

　　The debtor is dead or has legally been declared dead, and the inheritors have not fulfilled the debt on time;

　　The debtor has been dissolved or declared bankrupt; or

　　Other situations in which the mortgage holder has not been repaid.

　　Article 53　(Exercise of rights to a single mortgage on a single mortgaged property)

　　In the case of a single mortgage on a single mortgaged property, a mortgage holder who has not been repaid by the due date can with the agreement of the mortgagor be repaid through discounting the mortgaged property or from the money realized through auction or selling off of the mortgaged property.

　　Article 54　(Exercise of two or more mortgage rights on a single property)

　　In the case of two or more mortgages on a single property, when a mortgage holder who has not been repaid by the due date exercises their mortgage rights they shall notify the other mortgage holders and reach agreement with all of th

em on how to deal with the mortgage and the debt it guarantees. If agreement cannot be reached the mortgage holder may with the agreement of the mortgagor take action through auction or selling off of the mortgaged property.

　　The order of priority for repayment from the money realized through auction or sale of the mortgaged property shall follow the order of mortgage registration.

　　The money realized through auction or sale of the mortgaged property shall be dealt with as follows:

　　To clear the debt which has fallen due to the mortgage holder;

　　In the case of the other mortgage holders the mortgagor may with their agreement repay the debts guaranteed to them early, or may with their agreement deposit the money realized from disposal of the mortgaged property with a third party as mortgaged assets.

　　Article 55　(Disposal of mortgaged property)

　　If the mortgagor and mortgage holder choose to dispose of the mortgaged property through auction this shall be done in accordance with national and municipal regulations on auctions.

　　If the mortgagor and the mortgage holder choose to dispose of the mortgaged property through sale or discounting, this must not be in violation of municipal regulations on transfer of real property.

　　Article 56　(Priority right to buy)

　　When the mortgagor and the mortgage holder agree to dispose of the mortgaged property through discounting or sale, the following natural persons, legal persons or other economic organizations shall under the same conditions enjoy the right to purchase the property in accordance wth the law:

　　The other joint owners of the property in accordance with their share in the property; and

　　The lessee already renting the property prior to the mortgage.

　　Before the mortgagor and mortgage holder dispose of the mortgaged property through discount or sale they shall ask the parties with priority right to buy (as listed above) whether they will exercise this right.

　　Article 57　(Collection of interest by mortgage holders)

　　If the debt has fallen due and failure by the debtor to repay it leads to closure in accordance with the law by the people's court, the mortgage holder has the right to collect interest on the mortgaged property from the day it is closed down. If the mortgage holder fails to inform the party responsible for repayment of statutory interest of the fact that the mortgaged property has been closed down, they have no right to this interest.

　　In the above paragraph, the costs of realizing the interest shall be collected before the interest.

　　Article 58　(The part of money from disposal of mortgaged property represented by income from the land)

　　If the mortgage is on fixed property along with administratively allocated leasehold, when the mortgage holder disposes of the mortgaged property they shall pay a sum equivalent to that for transfer of the State-owned leasehold and may only then take priority in repayment from the money remaining.

　　Article 59　(Income from auction of additional housing)

　　When mortgaged real property must be auctioned, additional housing on the land may be auctioned together with the mortgaged property in accordance with the law. But the mortgage holder has no right to priority in repayment from the money realized from auction of the additional housing.

　　Article 60　(Allocation of money from disposal of mortgaged property)

　　Money from disposal of mortgaged property shall be allocated in the following order of priority:

　　Cost of disposal of the mortgaged property;

　　Taxes that shall be paid on disposal of the mortgaged property;

　　Money equivalent to that for transfer of State-owned leasehold;

　　Debts owed on construction of the construction project; and

　　Repayment of principal debt and interest, penalty for violation of the agreeme

nt, compensation for damage; and

　　The remainder to the mortgagor.

　　The debtor is responsible for repayment of that part of the debt guaranteed by the mortgage in excess of the money realized through disposal of the mortgaged property.

　　Allocation of money from disposal of housing with limited property rights must not violate national and municipal regulations.

　　Article 61　(Repayment to mortgage holders on transferred leaseholds)

　　If after the mortgagor has mortgaged a transferred leasehold they build and mortgage new housing on that land, repayment of the debt to the holder of the mortgage on the transferred leasehold shall be limited to the cost of the transferred State-owned leasehold. If additional housing has been built and mortgaged on some of the land, repayment to the holder of the mortgage on the transferred leasehold shall be limited to the cost of transferred State-owned leasehold on the proportion of that land occupied by additional housing.

　　Article 62　(Handling of leases when mortgaged property is disposed of)

　　When real property that is already rented out is mortgaged, once the mortgaged property is disposed of the original registered lease shall continue in effect.

　　When real property that is already mortgaged is rented out, the original lease shall automatically be terminated once the mortgaged property is disposed of unless the buyer agrees to continue the original lease.

　　Article 63　(Mortgaged property after bankruptcy)

　　If the mortgagor goes bankrupt, real property mortgaged prior to the bankruptcy shall not be considered bankrupt assets. But any sum realized from disposal of the mortgaged property in excess of the debt guaranteed by the mortgage shall be considered bankrupt assets, except where other laws and regulations apply.

　　Article 64　(Exercise of mortgage rights on rural real property)

　　In the case of mortgages on the factory buildings or other housings of township and village enterprises on rural collective land, and on the leaseholds of the land they occupy, disposal of such mortgaged property shall abide by national and municipal regulations on transfer of real property on collective land. Once the mortgaged property has been disposed of the collective ownership of the land and its use must not be changed unless the statutory process has been undergone.

　　PART SEVEN　LEGAL LIABILITIES

　　Article 65　(Liability for violation of agreements)

　　Once the mortgage contract comes into effect the mortgagor and the mortgage holder shall abide by it. If any party does not, or does not completely do so, they shall be liable for violation of the agreement and recompense the other party for economic losses suffered thereof.

　　If through the fault of the mortgagor or the mortgage holder the mortgage contract cannot be fulfilled, the party at fault shall recompense the other party for economic losses suffered.

　　Article 66　(Liability for causing mortgages to become invalid)

　　If the mortgage contract becomes invalid the party at fault shall recompense the other party for econo

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