According to the notice issued by the State Administration of Financial Supervision and Administration and the Ministry of Natural Resources on doing a good job in the mortgage loan of the right to use rural collective construction land, the mainland is now carrying out mortgage loans for the right to use rural collective construction land in pilot areas. In rural areas, land is the foundation of our peasants' survival, and with the planning of cities, the rural collective management construction land has been valued by the state, so that the rural collective management construction land has the same price, the same rights, and the same right to enter the market as the state-owned land.
Lawyer's interpretation
In accordance with the principle of close connection between financial reform and reform of the rural land system, we should adhere to the bottom line that the nature of collective land ownership will not change, the red line of cultivated land will not be broken, the grain production capacity will not be weakened, and the interests of farmers will not be damaged, and the work of mortgage loans for the right to use rural collective construction land should be carried out, and the rural collective construction land and state-owned construction land should be entered into the market on the same terms and at the same price with the same rights.
1. Mortgage registration
The registration of the mortgage of the right to use the land for rural collective operation shall be handled by the real estate registration center with reference to the relevant provisions on the registration of the mortgage of the right to use the state-owned construction land. However, under any of the following circumstances, the right to use land for collective management construction shall not be mortgaged:
(1) The ownership is unclear or disputed;
(2) It is sealed by the judicial organs in accordance with law;
(C) is included in the scope of demolition and relocation in accordance with the law;
(4) Changing the use without authorization;
(5) Other circumstances in which mortgages must not be handled.
2. There are risks in the mortgage of the right to use collective business construction land obtained by way of transfer accidentally
The mortgage of the right to use the land for collective construction land obtained by way of transfer is easier to understand, and the mortgage of land use right has a relatively complete institutional basis in the mortgage of state-owned land use right, and when the Land Management Law is revised, the method of obtaining the right to use land for collective construction land that can enter the secondary market is adopted by means of "transfer, etc.", which means that the right to use land for collective management construction land obtained through leasing, capital contribution and shareholding also has the legal basis for entering the secondary market for mortgage. However, in practice, there are risks such as the inability to enter the market for land use rights, the inability to distribute the profits from the transaction, or the defective entry of rights into the secondary market.
3. Policy risks that may be brought about by incomplete supporting policies for farmland entering the market
The relevant policies on the entry of farmland into the market stipulate that the acquisition of the right to use land for collective management construction land is divided into "entering the market" in the primary market, including transfer, lease, and purchase of shares at a price, and the secondary market is called "transfer", which includes the methods of sale, exchange, gift, lease, and purchase of shares at a price. In the process of promoting mortgage loans for rural collective management construction land, most of the specific supporting policies in various places are incomplete or even blank, or some policies do not match the system of our bank, which leads to difficulties in realizing mortgage rights in the later stage. In particular, the term of the lease of the land use right obtained through lease is shorter than the term of the right of use, and upon the expiration of the lease term, regardless of whether the creditor has claimed priority for repayment, the mortgaged land use right can no longer be disposed of through legal means such as discount, auction, or sale of the mortgaged property.
Fourth, how to prevent legal risks
The first is legal compliance, which should ensure that the mortgage loan for the right to use land for collective business construction complies with the provisions of relevant laws and regulations. Verify whether the borrower has the legal right to use the land for collective operation, and understand the attributes, term, and transfer restrictions of the right of use. The second is the clarity of ownership, which needs to be verified in the review to see whether the ownership of the right to use the collective business construction land is clear. The relevant policies on the entry of farmland into the market stipulate that the acquisition of the right to use land for collective management construction land is divided into "entering the market" in the primary market, including transfer, leasing, and buying shares at a price, and the secondary market is called "transfer", including selling, exchanging, donating, leasing, and buying shares at a price. In the process of promoting mortgage loans for rural collective management construction land, most of the specific supporting policies in various places are incomplete or even blank, or some policies do not match the system of our bank, which leads to difficulties in realizing mortgage rights in the later stage. In particular, the term of the lease of the land use right obtained through lease is shorter than the term of the right of use, and upon the expiration of the lease term, regardless of whether the creditor has claimed priority for repayment, the mortgaged land use right can no longer be disposed of through legal means such as discount, auction, or sale of the mortgaged property. Finally, the security of risk control and the establishment of a post-loan risk supervision mechanism.
To sum up: the mortgage loan for the right to use the land for collective management is not a risk-free loan method, and this risk is not only for farmers, that is, for lenders, but also for whether our bank has a sound supervision and management mechanism and collection methods. Therefore, we should still be cautious about the mortgage loan for the right to use the land for collective management construction in rural areas, and make sufficient preparations for the mortgage loan.
Director Shi reminded
Demolition and relocation is a long-term struggle that requires comprehensive professional knowledge, control of the overall situation, and rational application of the law. Even a lawyer with many years of litigation experience is constantly learning and updating, so that he can calmly analyze and make correct judgments in a case. And for non-law-abiding people, this is a huge subject that cannot be achieved by just a short period of time. Therefore, when encountering any demolition problems, you may wish to ask a lawyer and carry out professional rights protection under the guidance of a lawyer.