수익형 부동산의 담보권 실행에 있어서 임대차의 사전합의와 법적 취급 ― 미국법 상의 SNDA합의가 주는 시사점 ―

In American law, the type of real estate concept is different from ours. Therefore, it can not help but to stay in the discussion that the main issue is the real estate which is equivalent to the business building mainly in the classification of the existing discussion of our country. In this article, I examine the New York State and California State laws, which are the center of controversy in SNDA. The SNDA Agreement is the acronym for the Subordination, Non-Disturbance, and Attornment agreement. Real estate law can not be established by federal law, so it can not but be forced to review the unified state law. The legal relationship in the absence of an SNDA agreement in a mandatory enforcement procedure and a lease contract for a real estate mortgage must be reviewed for the absence of prior agreements between the mortgagor and the tenant as a premise to review the SNDA agreement. A subordination, non-disturbance, and attornment agreement (SNDA) addresses the priority of the rights of tenants and lenders. It deals with how and when the rights of tenants will be subordinate to the rights of lenders or, sometimes at lender’s option, senior to the rights of lenders. The non-disturbance portion assures tenants that their rights to their premises will be preserved (“non-disturbed”) on specified conditions within their control, even if the landlord defaults on its loan and the lender forecloses. The attornment component of the SNDA agreement provides that the tenant will continue their obligations under the contract in the event that a new landlord takes over the contract and may also specify that the lender or such purchaser will have certain specified rights thereafter. It assures a lender, generally, that the tenant will attorn to (that is, confirm privity of contract by agreeing to continue as tenant of the new landlord) the lender or a purchaser following a foreclosure. An SNDA agreement may also include other provisions for confirming or modifying further rights and obligations. What I am trying to say in this article is the legal treatment of the lease in real estate lien practice in this case. Needless to say, the SNDA agreement as a preliminary agreement is premised on the legal implications here. However, in order to review these legal functions, it is necessary to understand the preconditions. Particularly in the context of the SNDA agreement, it is necessary to be clear about the different circumstances of certain jurisdictions, such as New York and California. This will allow Koreans and Korean corporations to prevent unscrupulous losses in their transactions in the United States. I will try to review it in detail in this work. The purpose of this article is to clarify the legal form of the SNDA consensus and the legal functions it is responsible for. First of all, implications for the design of a desirable legal status should be drawn in the event that the foreclosure is executed by the lienor or mortgagor but then the subordinated lease is maintained. Specifically, I firstly examines the legal treatment of the lease right in the execution of the leased property if there is no (in the broad meaning) SNDA agreement. In addition, the theory of the SNDA consensus and its legal functions should be reviewed. As for the theory, I should examine the development process from the precedent to the present structure. Regarding the legal function, the main argument should be the discussion on the actual situation of the transactions that called for the creation of the SNDA agreement. Finally, I must draw some implications for us. In addition, I point out that there are limitations in the scope of the review and implications of the discussion.