ASK
My father has a piece of land attached to a house worth 5 billion VND and has been granted a red book. 6 months ago, my father mortgaged this house to the bank to borrow 1 billion, but now he still has not paid the debt. So, can my father do the procedure to give me this house now?
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ANSWER
DHP LAW will answer your questions as follows:
Mortgage of land use rights and properties attached to land is a measure to secure the performance of civil obligations, currently specified in subsection 3, chapter 3 of the 2015 Civil Code. Accordingly, when mortgaged the property, the mortgagor has the rights and obligations towards the mortgaged property as prescribed in Articles 320 and 321 of the Civil Code. In case of donation of mortgaged property, the mortgagor of the property has the rights specified in Clause 5, Article 321 of the Civil Code as follows:
“To be sold, exchanged or given as a gift of mortgaged property that is not a circulating commodity in the course of production or business, if so agreed by the mortgagee or as prescribed by law.”
At the same time, the mortgagor has the obligations specified in Clause 8, Article 320 of the Civil Code: “Not to sell, replace, exchange or donate the mortgaged property, except for the cases specified in Clauses 4 and 5, Article 321. of this Code.”
So, in case you ask, because your father has a piece of land attached to the house that is being mortgaged at the bank, if your father wants to donate this land and this house to you, you need to get the consent of the bank. the customer is receiving a mortgage on the donation of that property. If the bank agrees, your father and you can carry out the procedures prescribed by law on the donation of land use rights and assets attached to the land. If the bank does not agree, your father needs to fulfill his debt repayment obligation to terminate the mortgage of the property, so that he can donate the land use right and assets attached to the land to you.
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