Divide inheritance for mortgaged real estate in accordance with Vietnamese law
How is the division of inheritance for mortgaged real estate regulated by law, because nowadays, disputes over inheritance are increasing, especially the division of inheritance for mortgaged real estate? Today, LSX Lawfirm will give you an article about “Divide inheritance for mortgaged real estate in accordance with Vietnamese law”, as follows:
Legal grounds
Civil Code 2015
What is the concept of mortgage?
According to Article 317 of the Civil Code 2015, the provisions on a mortgage of property are as follows:
- Mortgage of property means the use of property under its ownership by one party (hereinafter referred to as the mortgagee) to secure the performance of an obligation and not to hand over the property to the other party (hereinafter referred to as the mortgagee).
- Collateral is held by the mortgagor. The parties may agree to assign a third person to keep the mortgaged property.
According to Article 318 of the 2015 Civil Code, Collateralized property includes:
- In case of mortgage of the whole real estate; movable property with auxiliary objects, such auxiliary objects of immovable and movable property shall also mortgaged; unless otherwise agreed;
- In case of mortgage of a part of real estate; movable property with auxiliary objects, the auxiliary objects attached to such property shall mortgaged; unless otherwise agreed;
- In case of mortgage of land use rights where the property attached to the land belongs to the mortgagor; the property attached to the land is also the mortgaged property; unless otherwise agreed.
Thus, according to the provisions of Clauses 1, 2, 3, Article 318 of the 2015 Civil Code, the mortgaged property includes movable, immovable property, etc.
You are wondering about the division of inheritance for mortgaged real estate. Let’s find out with Lawyer X through the next part.
Is it possible to make a will to divide the inheritance for the mortgaged real estate?
According to the provisions of Clause 8, Article 320 of the Civil Code 2015, the mortgagor may not sell; exchange or donation collateral. However, in Clauses 4 and 5 of Article 321.
The law does not prohibit the mortgagor from making a will to designate the beneficiary of the estate as collateral, the mortgagor’s making a will does not affect the mortgagee’s rights, because:
If the estate is being mortgaged at the time of opening the inheritance; according to the provisions of Clause 1, Article 615 of the 2015 Civil Code; “The heirs are responsible for performing the property obligations within the estate left by the deceased, unless otherwise agreed.” Accordingly, the heir must inherit the obligations of the estate leaver; fulfill the mortgage obligation.
If the mortgagor has fulfilled the mortgage obligation before the time of opening the inheritance; the mortgagor entitled to receive back the certificate of land use rights attached to the property on the land; restore full rights to its property.
Thus, it is possible to make a will to inherit that land; however, there is confirmation from the bank that is accepting the home mortgage.
You are wondering about the division of inheritance for mortgaged real estate. We invite you to read the next part.
Divide inheritance for mortgaged real estate
Will the mortgage of real estate be terminated when the person leaving the estate dies?
According to Article 422 of the Civil Code 2015, the contract terminated in the following cases:
The contract has completed;
As agreed by the parties;
The individual entering into the contract dies; The legal person entering into the contract ceases to exist, but the contract must made by the individual; that legal person does; …
Thus, the mortgage contract only terminates when the individual entering into the contract dies; and that individual performs the contract; If an individual mortgages land use rights in his/her name, it does not terminate the mortgage contract. At the same time, the Civil Code does not prohibit the division of inheritance which is the mortgaged land use right.
Divide inheritance for mortgaged real estate
According to Article 615 of the Civil Code 2015 stipulating the performance of property obligations left by the deceased
- The heirs are responsible for performing property obligations within the estate left by the deceased, unless otherwise agreed.
- In case the estate has not been divided, the property obligations left by the deceased shall be performed by the administrator of the estate according to the agreement of the heirs within the scope of the estate left by the deceased.
- Where the estate has divided, each heir shall perform the property obligations left by the deceased in proportion but not exceeding the portion of the property he has received; unless otherwise agreed.
- In case the heir is not an individual inheriting the estate according to the will; must also perform the property obligations left by the deceased as an individual heir.
Thus, from the time of opening inheritance, individuals are entitled to inherit; will have to perform the rights and obligations left by the deceased. In particular, for property obligations, the heirs are responsible for performing within the scope of the estate left by the deceased; they will have to continue to perform the mortgage contract with the mortgagee and enjoy the remainder of the property.
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Related questions
Article 611 of the Civil Code 2015, stipulates: The time and place of the excess opening is the time of death of the person owning the property. In case the Court declares a person dead, the time of opening the inheritance is the date determined in Clause 2, Article 71 of this Code. According to Article 614 of the Civil Code 2015, The time when the rights and obligations of the heir arise is from the time of opening the inheritance.
In Article 676, the Civil Code stipulates the legal heirs.
1. The at-law heirs are specified in the following order:
a) The first line of inheritance includes: wife, husband, biological father, natural mother, adoptive father, adoptive mother, biological child, adopted child of the deceased;
b) The second line of inheritance includes: grandfather, grandmother, grandfather, grandmother, biological brother, sister, biological brother of the deceased; the biological grandchildren of the deceased and the deceased are grandfathers, grandmothers, grandfathers, grandmothers;
c) The third line of inheritance includes: paternal and maternal great-grandfathers of the deceased; biological uncle, biological uncle, biological uncle, aunt, biological aunt of the deceased; biological grandchild of the deceased and the deceased person is a biological uncle, biological uncle, biological uncle, aunt, biological aunt, great-grandchild of the deceased and the deceased person is a paternal or maternal great-grandfather.
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