Hello lawyer, before, my family’s land was household land because my father was in the name of the land use right certificate. I have all 4 siblings. My younger brother mortgaged the household land while the rest of the members didn’t know anything. Is this contract void? When is the contract of mortgage of land use rights in Vietnam invalid? Looking forward to helping my counsel. I would like to express my sincere thanks to Lawyer.
Thank you for trusting our consulting service. We would like to answer your questions as follows:
Legal grounds
Law of the field 2015
Luaath Housing 2014
Contract of mortgage of property is land use right
Mortgage contracts in general and mortgage contracts on property being land use rights in particular are specific contracts, it arises from the main contract which is a contract with secured obligations (usually a loan contract, property loans or civil contracts and other types of economic contracts) and to secure the performance of civil obligations of the mortgagor to the mortgagee specified in the main contract.
Contents of the contract of mortgage of land use rights
The contract for mortgage of land use rights can be prepared by the parties themselves, but it is necessary to ensure that there are basic contents as follows:
Information of the mortgagors, including: Full name, year of birth, ID card/citizen identity card, address, phone number…;
Information about the mortgaged land plot: Number of land plots, number of map sheets, address of land plot, type of land, form of use…
Mortgage term: As agreed by the parties or until the termination of the obligation secured by the mortgage;
Rights and obligations of the parties in the contract;
Mortgage registration and payment of fees: clearly specifying the responsibility to pay fees and charges;
Disposal of collateral: The method of disposing of the collateral, and to whom in what order the proceeds from the disposal of the collateral will be paid;
Validity and termination of the contract;
Dispute resolution;
Terms of confidentiality, force majeure;
Other agreements in accordance with the law.
Rights and obligations of the parties in a land use right mortgage contract
Rights and obligations of the mortgagor
Rights of the mortgagor of the land use right
To use the land for the term of the mortgage (this is different from a normal property mortgage).
To receive loans by mortgaging land use rights according to the agreed method;
To enjoy the yield and income obtained, except for the case where the yield and income are also mortgaged.
To exchange, transfer, lease or sub-lease the mortgaged land use right with the consent of the mortgagee;
Get back the land use right certificate after fulfilling the mortgage obligation.
Obligations of the mortgagor of the land use right
Hand over the land use right certificate to the mortgagee.
Procedures for registration of mortgage; delete the mortgage registration when the mortgage contract terminates;
Use the land for the right purpose, without damaging or reducing the value of the mortgaged land;
Pay the loan on time and by the right method as agreed in the contract.
Rights and obligations of the mortgagee
The mortgagee has the right to:
Check and remind the mortgagee of the land use right to protect and preserve the land and use the land for the right purposes;
Priority is given to debt payment in case of handling mortgaged land use rights.
Obligations of the mortgagee:
– Together with the mortgagor to register the mortgage;
Return the certificate of land use right when the mortgagor has performed the obligation to secure the mortgage.
When the performance of the obligation secured by the mortgage of the land use rights is due but the mortgagor fails to perform or improperly performs the obligation, the mortgaged land use right shall be handled as agreed; if there is no agreement or it cannot be handled according to the agreement, the mortgagee has the right to initiate a lawsuit in court.
When does the mortgage contract take effect?
- A property mortgage contract takes effect from the time it is signed, unless otherwise agreed upon or otherwise provided by law.
- The property mortgage becomes effective against a third party from the time of registration.
The effective time of a mortgage contract is from the time of signing, unless otherwise agreed by the parties or otherwise provided for by law. In some specialized legal documents, there is a provision that the effective time of a mortgage contract is not the time of signing but another time, which must comply with the provisions of the law. For example, the Law on Housing 2014 in Clause 1, Article 122 stipulates: The house mortgage contract must be notarized and authenticated. The effective time of a house mortgage contract is from the time of notarization or authentication.
The time when the mortgage contract becomes effective against a third party is the time when the mortgage contract is registered at a competent state agency such as the registration of security transactions. The mortgagee must note that after the parties agree on the effective mortgage contract against a third party, the parties must register the mortgage at a competent state agency, although the law This transaction may not be required to be registered at a competent state agency.
A property mortgage contract has legal effect when it ensures the valid conditions of a civil transaction specified in Articles 117 of the Civil Code 2015 and does not fall into the cases where the civil transaction is invalid from Article 122 to Article 129 of this Code.
When is the contract of mortgage of land use rights in Vietnam invalid?
If a mortgage contract does not fully satisfy the conditions for a civil transaction to be valid, the mortgage contract will also be void in accordance with the law. Accordingly, a mortgage contract will be void if it does not fully satisfy the conditions mentioned in Article 117 of the Civil Code 2015, according to which, a mortgage contract is invalid when: the subject enters into the contract. Mortgage relationship does not have legal capacity and civil act capacity of an individual or in cases where the purpose and content of the mortgage contract is contrary to the provisions of law, contrary to the rules of ethics Vietnamese customs and traditions, or where the mortgagor and the mortgagee have other agreements specified in the mortgage contract.
Accordingly, the mortgage of the property will be terminated in the following cases: (1) The obligation secured by the mortgage is terminated, (2) The mortgage of the property is canceled or replaced by a security measure. other assets (may be asset auction, sale of security assets, etc. agreed upon by the parties), (3) Collateral has been disposed of as agreed by the parties or in accordance with the provisions of law. the law.
Protecting the rights of an honest third party when civil transactions are invalid
2. In case a civil transaction is invalid but the property has been registered at a competent state agency, then it is transferred by another civil transaction to a bona fide third party who, based on the registration sign that but establish and perform a transaction, such transaction will not be invalidated.
In case the property subject to registration has not yet been registered at a competent state agency, the civil transaction with the third party will be invalidated, unless the third party in good faith receives this property through auction. price at a competent organization or dealing with a person who, according to a judgment or decision of a competent state agency, is the owner of the property, but then this subject is not the owner of the property due to the sale. , the decision is canceled, corrected, etc.”
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Frequently asked questions
Mortgage of property means the fact that one party (hereinafter referred to as the mortgagor) uses property under his/her ownership to secure the performance of an obligation and does not hand over the property to the other party (hereinafter referred to as the mortgagee). challenge).
The mortgaged property is kept by the mortgagor. The parties may agree to assign a third person to keep the mortgaged property
According to Clause 1, Article 188 of the 2013 Land Law, a land user may exercise the mortgage right when fully meeting the following conditions:
Have a certificate of land use right
Undisputed land;
The land use right is not distrained to secure judgment enforcement;
During the land use period.
In addition, the mortgage of land use rights must be registered at the land registry office and takes effect from the time of registration in the cadastral book.
Conclusion: So the above is When is the contract of mortgage of land use rights in Vietnam invalid?. Hopefully with this article can help you in life, please always follow and read our good articles on the website: lsxlawfirm.com
