Legal Analysis Of Transfer Of Advance Sale Commercial Housing

Transfer of advance sale of commercial housing is the kind of juristic acts and it meansthat a house not completed or being built is sold to a purchaser in advance. During thecourse, the purchaser pays a deposit or the total fund of house to the seller in advance, thenhe or she will own the house from the seller in future definite date. For a long time, the localization of legislation over the advance sale commercialhousing is not so clear in our country. As a heavy speculation, the transfer of advance sale ofcommercial housing, it may lead to "bubble economy". Especially, with the prevalence ofreal estate mortgage, numerous advance sales of commercial housing proceed during theloan of real estate mortgage, so the situation becomes more complicated. Transfer will makethose loaning banks involve in financial crisis because they can't appraise debtor's creditcorrectly and lacking of personal honor and institutions to assess civil credit standing. But inthe other side, with the quick development of the real estate market, the number oftransferring advance sales of commercial housing is increasing. The data of large quantityindicate that the transfer of advance sale of commercial housing has played an importantrole in the prosperity of the housing market. At the same time, the number of correlativecases increases, too. If lack of uniform legislation and we let the local markets operatethemselves, the authority of the law and the development of real estate marketing will beinfluenced. Therefore, it's time to make law on transferring advance sale of commercial 4housing. According to the theory of the civil law, the transfer of advance sale commercialhousing is not to transfer the realistic real right, but the creditor's rights and the expectationright of ownership right. From the different degree that buyers have already fulfilled thecontract during transfer, the natures of transfer are the shift of creditors'rights and the shift atthe generalizations of credit and debts. From a broad viewpoint of different countries, mostof them hold that it's permissible to the transfer creditor's rights. Most transfer of advancesale commercial housing in our country happened during the loan of real estate mortgage.During this course, many interests are involved in, some of them even conflict each other,especially advance sellers and lending bank. Therefore, it may bring some obstruction. Thisessay analyses the function of sellers and lending bank in transfer of advance salecommercial housing. Particularly, in the course of real estate mortgage, the identity ofadvance seller is the debtor and joint liability guarantor. No matter with which kind ofidentity when he or she appears, it has no influence to effect of transfer, unless a specificagreement between the advance seller and the guarantor has been reached. But in the otherhand, if the advance seller hasn't allowed the advance sale transferring, he or she will get theright to relieve the responsibility of joint liability. In the bank's side, because the meaning "real estate mortgage" in our country still belongs to the hypothec category in essence, theidentity of lending banks is the creditor and pledger. As the creditor, debtors must get theagreement of the bank when they transfer their debts; as the pledger, according to the theoryof the hypothec, bank has no right to prevent the transfer of the advance sale commercialhousing of the mortgage. Transfer of advance sale commercial housing is the transfer of creditor's rights inessence. There exist possibilities that the original buyers transfer advance sale commercialhousing to others before the realistic ownership realizes. Although the law has the relief 5system of breach to protect faith, the trade purpose that purchaser obtains the commodityapartment ownership of the advance sale can't be realized. By drawing lessons...