Mortgagee Liability for Not Registering a Real Estate Mortgage

DOI: https://doi.org/10.62517/jel.202414201

Author(s)

Zhuoer Li

Affiliation(s)

China Jiliang University law school, Hangzhou, Zhejiang, China

Abstract

According to the principle of distinction, the failure of the parties to register a mortgage on immovable property does not affect the validity of the mortgage contract. The purpose of the parties' mortgage contract is to create a mortgage to secure the realization of a claim, and the mortgage contract does not have the effect of creating security other than a mortgage. Therefore, in the absence of registration, but the mortgage contract is effective, the creditor has the right to request the mortgagor to assume the liability for breach of contract due to the failure to fulfill the obligation of registration. The liability for breach of contract can be assumed in two ways: continuation of performance and liability for damages, both of which have no limitation in their application, and the creditor can choose freely. At the same time, the scope of the mortgagor's damages should be limited to the value of the collateral.

Keywords

Mortgage Registration; Immovable Property; Mortgagor Liability; Liability for Default; Security Liability

References

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