[Case of the case] Who is priority to the lease rights in the mortgage right?

In January 2014, a furniture factory mortgaged A property to a bank to borrow and signed a contract with the bank to agree on the monthly repayment amount. In December, a furniture factory leased A property to Yang, and the lease contract stipulated that the lease period was 2033. Yang did not know that the property was mortgaged. In 2018, because a furniture factory failed to repay the bank loan in a timely manner, the bank sued it to the court. The court judged that a furniture factory repaid the bank loan by a furniture factory. The furniture factory has not fulfilled the repayment obligation, and the bank applied to the court for compulsory implementation. The furniture factory is difficult to operate, and the funding is not debt. The court auction A property in accordance with the law.

In 2020, Cao obtained A property and obtained A property ownership through judicial auctions. Due to the urgent use of the house, Cao asked the tenant Yang to move out of A property. Only when he knew the truth, Yang was confused, but he insisted that A property had been rented by himself during a judicial auction and is still in the lease period. He should not move out. The two sides had a dispute about this. In 2021, Cao complained Yang to Huanghua Court.

Court decision

The Huanghua Court heard that the house involved in this case was mortgaged and then leased. After the court auction was mortgaged, the plaintiff obtained the ownership of A property in accordance with the law. The facts involved in the case occurred before the implementation of the Civil Code. According to Article 190 of the Law of the People's Republic of China, if the mortgage property was leased after the mortgage right was established, the lease relationship shall not fight the registered mortgage right, and " Article 66 of the Supreme People's Court on the Application of Several Issues of the "Guarantee Law of the People's Republic of China" stipulates that "the mortgagor will rent the mortgaged property. . When the mortgagor will rent the mortgage property, if the mortgagor does not inform the lessee that the property is mortgaged, the mortgagor shall be liable for the lease of the leased mortgage; If the mortgaged, the mortgage right causes the lessee to be borne by the lessee himself. "Therefore, the house lease contract signed by the defendant Yang and a furniture factory is not binding to the assignee, that is, Cao Mou. Therefore, Cao's lawsuit was supported by the court, and the defendant Yang was empty and moved out of the plaintiff Cao's all A property. Later, Yang did not accept the appeal, and the Cangzhou Intermediate People's Court rejected the appeal and maintained the original sentence.

Judge

The mortgage right is compatible with the nature. The mortgage right is pursuing the value of the exchange, and does not require transferring the possession of the mortgage; the pursuit of the lease right is the value of the object, and at the same time transfer the possession. When the two conflicts, the rights should be prioritized based on the establishment of the two.

First, the establishment of mortgage rights is preceded by lease rights. Article 190 of the Law of the People's Republic of China stipulates: "If the mortgage property has been leased before the mortgage contract has been concluded, the original lease relationship is not affected by the mortgage right. Registered mortgage rights ". According to this article, in this case, a furniture factory was leased to Yang after the mortgage of A property A. The establishment of the mortgage right is preceded by the lease right. force.

The second is the establishment of the lease rights. Article 405 of the Civil Code stipulates: "Before the establishment of mortgage, if the mortgage property has been leased and transferred to the possession, the original lease relationship is not affected by the mortgage right." This inherited the "Property Law" 180 In the case of the basic spirit of the article, when the leased party realizes the actual possession of the leased property and the "mortgage is established", the lease relationship first applies to the principle of "mortgage does not break the lease". use.

In daily life, in order to avoid these "pits" encountered when renting in the case, we must polish our eyes and do a good job of investigation of house property rights. After determining the goal of renting a house, you can go to the real estate registration agency to confirm whether the house is seized or mortgaged before deciding whether to rent the house. Secondly, we must sign a written lease contract. This is not only the direct evidence of the lease relationship, but also an important basis for protecting its own rights. In addition, the relevant vouchers should be retained, transferred to the actual performance of rent payment vouchers, transfer occupation of house evidence, and various cost payment vouchers to prove the authenticity of the lease relationship.

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