9th Floor Diamond Plaza Building, 34 Le Duan, Ben Nghe Ward, District 1, Ho Chi Minh City
info@bkclaw.vn
0901 333 341
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Currently, There are many cases of transferring land and houses that are mortgaged at the bank. However, not everyone fully understands the regulations on transferring mortgaged land and houses and avoids unnecessary risks. So, how can one transfer a house and land that is mortgaged at the bank in compliance with legal regulations?
Basis: Article 320 of the Civil Code 2015 on the obligations of the mortgagee:
1. Deliver documents related to the mortgaged property in cases where the parties have agreed, unless otherwise provided by law.
2. Preserve and maintain the mortgaged property.
3. Take necessary measures to remedy, including suspending the exploitation of the mortgaged property if such exploitation risks causing loss or reduction in value of the mortgaged property.
4. When the mortgaged property is damaged, within a reasonable time, the mortgagor must repair it or replace it with other property of equivalent value, unless otherwise agreed.
5. Provide information on the actual condition of the mortgaged property to the mortgagee.
6. Deliver the mortgaged property to the mortgagee for handling in any of the cases of handling secured property as provided in Article 299 of this Code.
7. Notify the mortgagee of any third-party rights over the mortgaged property, if any; if not notified, the mortgagee has the right to cancel the mortgage contract and claim compensation for damage or maintain the contract and accept the third-party rights over the mortgaged property.
8. Not sell, replace, exchange, or gift the mortgaged property, except in the cases provided in Clauses 4 and 5 of Article 321 of this Code.
In addition, pursuant to Article 321 of the Civil Code 2015 on the rights of the mortgagor as follows:
“4. Be entitled to sell, replace, or exchange the mortgaged property if such property is circulating goods in the course of production or business. In this case, the right to demand payment from the buyer, the proceeds received, property formed from the proceeds, replaced or exchanged property shall become the mortgaged property.
In case the mortgaged property is a warehouse, the mortgagor is entitled to replace goods in the warehouse but must ensure that the value of the goods in the warehouse complies with the agreement.
5. Be entitled to sell, exchange, or gift the mortgaged property that is not circulating goods in the course of production or business, if consented by the mortgagee or as provided by law.”
Accordingly, based on the above legal provisions, the transfer of mortgaged house and land at the bank can be carried out in compliance with the law **if the bank consents**.
Therefore, to safely carry out the purchase and sale of house and land at the bank and avoid arising disputes, you (the buyer) and the seller need to negotiate with the bank and sign a tripartite agreement on the payment of the loan amount in order to withdraw the Certificate of land use rights, ownership of houses and other assets attached to land, and thereafter execute the house and land sale and purchase contract at the notary office.
Procedure for transferring mortgaged house and land at the bank?
Step 1: Sign a tripartite commitment (you, the seller, and the bank) regarding the content related to the payment for the house between you and the seller, as well as payment of the seller’s loan debt to the bank; this commitment must bear the signatures of all three parties.
Step 2: You and the seller jointly go to the notary office to prepare the house and land sale and purchase contract.
Both parties need to bring the following documents: identity cards, household registration books, Certificate of land use rights, certificate of marital status or marriage certificate.
Step 3: Pay personal income tax and registration fee at the Tax Department where the real estate is located.
Step 4: Carry out the title transfer procedure at the Land Registration Office.
The title transfer dossier includes the following documents:
– Notarized and certified sale and purchase contract
– Original Certificate of land use rights.
– Personal income tax declaration form, registration fee declaration form.
– Identity cards, household registration books
– Application for registration of changes
– Application for issuance of a new Certificate of land use rights
However, in practice, the transfer between the parties is often carried out as follows:
Step 1: The two parties will proceed to make a deposit for the transfer of the house and land;
Step 2: The buyer or the seller will proceed to release the mortgaged property from the mortgage;
Step 3: The two parties proceed to sign the notarized transfer contract at the notary office;
Step 4: Proceed with registration of title transfer and handover of the house and land.
The above transfer method still contains many **legal risks**. Therefore, the parties need to fully understand and minimize risks to protect their own interests, such as:
Signing a tripartite agreement, signing a notarized contract at the bank, agreeing on terms allowing the buyer to replace the seller in receiving the Certificate when the property is released from mortgage.
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41 Rockets, Binh Tri Dong B, Binh Tan District, Ho Chi Minh City.
info@bkclaw.vn
0901 3333 41
9th Floor, Diamond Plaza Building, 34 Le Duan, Ben Nghe Street, District 1, Ho Chi Minh City.
info@bkclaw.vn
0901 3333 41