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

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 sold 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 creditor'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 these 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 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 submit 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 sale 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 be 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 holder 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 them 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 agreement, 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 economic losses suffered thereof. If both parties are at fault they shall each bear the corresponding liability.

Article 67　(Liability for concealing the circumstances of a mortgaged property)

If the mortgagor conceals the fact that the mortgaged property is already mortgaged or rented out, causing losses to others, recompense shall be paid by the mortgagor.

Article 68　(Exemption from liability)

If the mortgaged property is wholly or partially destroyed, damaged or depreciated because of force majeure, the mortgagor shall inform the mortgage holder in a timely fashion. Once proof has been obtained the mortgagor can be exempt from the liability to provide new or additional mortgaged property.

Article 69　(Handling of disputes)

If there is dispute between the mortgagor and the mortgage holder over implementation of the mortgage contract or mortgage rights, this shall be resolved through discussion. If this is unsuccessful appeal may be made in accordance with the law to the people's court.

PART EIGHT　ADDITIONAL PROVISIONS

Article 70　(Mortgage of State-owned real property)

Regulations on administration of State-owned assets shall also apply to mortgage of State-owned real property.

Article 71　(Effective date)

These Procedures shall be effective as of 1 January 2000. The Shanghai Municipality, Real Property Mortgage Procedures promulgated by the Shanghai Municipal People's Government on 22 August 1994 shall be repealed as of that date.