A Conflict Between Rent Right And Mortgage Right

Summary: The right to rent real estate is that the right of the owners of real estate rent it to the leaseholder and get the rental from them. The right to rent real estate seeks the use value of real estate, and the right to mortgage real estate seeks exchange value of real estate, meanwhile transfers real estate. And the right to mortgage real esteta seeks exchanhe value of real estate, and don't transfer real estate. So the right to rent real estate and the right to mortgage real estate can be in the same real estate. But,when creditorspunish real estate because debtors can't fulfildue debt, it is possible to come out the situation, which mortgagors can't fullt achive their rights in time because of rent right, or becausd of carrying out mortgage right, it affects renters go on renting real estate, so there is a conflict between the rent right and the mortgage right.When there is a conflict between the rent right and the mortgage right, which one has priority? The mortgage right and the rent right contain each other. Mortgage seeks the exchange value of hostage, but doesn't transfer the own of hostage. But rent seeks the use value of rent, meanwhile transfers the own. The relationship between the two right is like this: Mortgage is set up before rent. No. 66 of the interpretation to guarantee of our country provides: " If mortgagors rent the mortgage possessions after mortgage is fulfil, lease contract can't restrain rerenters. When mortgagors rent the mortgage possessions, if mortgagors don't tell the renters that the possessions have been rented in writing,mortgagors will bear liability to pay compensation; if mortgagors have told the renters that, the lose of renters after mortgage has been fulfiled, the renters will bear by themselves."According to No. 66 of Highest People's Court interpretation about several questions about applying to guarantee of People's Republic of China, it provides the situations " after mortgage has been fulfiled". But about how to fulfil mortgage, there is no detail in it. The crux of the mortgage is getting the benefit from the money of selling off hostage, and realize the creditor's rights, In this case, there is no situations, which mortgagors are favor of the right, the plaintiff buy first, can get mortgagoess to attain the goal of realizing the creditor's rights.