Practical research on the removal of property leasing rights by first mortgaging and then renting out

On the afternoon of March 14, 2025, during the Denghu Classroom, Lawyer Lin Li brought a presentation on the topic of 'Practical Research on Removing Lease Rights from Real Estate after Mortgaging and Renting'. This sharing focuses on the legal practice issues in the intersection of real estate mortgage and leasing, and deeply analyzes the practical points of removing the right to lease property after mortgage, providing clear legal ideas for solving related problems.

At the beginning of the lecture, Lawyer Lin Li raised a question with a practical case: In March 2020, Zhang San borrowed 1 million yuan from a bank and used his property under his name as collateral; In May of the same year, Zhang San rented out the property to Li Si for a term of 20 years, with 10 years of rent collected in advance. At the beginning of 2023, Zhang San's loan was overdue, and the bank sued and entered the execution stage. The court found that the house had been rented out and notified the bank to auction it as it was. This case has triggered the thinking of colleagues attending the conference on the response strategies of banks, and also opened the prelude to this research sharing.

Lawyer Lin has provided a detailed review of relevant legal provisions, interpreting them from three aspects: property lease contracts, security interests, and enforcement procedures

1. In terms of real estate lease contracts, Article 20 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Disputes over Urban Housing Lease Contracts clearly states that if a mortgage right has been established before the rental of the house and ownership changes occur due to the realization of the mortgage right by the mortgagee, the lessee's request for the transferee of the house to continue to perform the original lease contract will not be supported by the court.

2. In the field of security rights, relevant provisions such as the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Security Law of the People's Republic of China, the Property Law, and the Civil Code all indicate that if the mortgaged property is leased after the establishment of the mortgage right, the lease relationship shall not be able to resist the registered mortgage right.