If a member of the household works or studies elsewhere and cannot get their signature on the mortgage contract, a written authorization to sign the mortgage contract is required.
To facilitate the signing of appendices and contracts amending and supplementing the mortgage contract, it is necessary to clearly state the content of the authorization as the authorization to sign the mortgage contract and appendices and documents amending and supplementing the mortgage contract. The term of the authorization contract lasts until the mortgage contract is deregistered at the request of VIB.
Based on the above legal provisions, if VIB only requires the head of household to sign a mortgage contract, it is very likely that this mortgage contract will be declared invalid if, in addition to the head of household, there are other members of the household over 15 years old.
Situation 2: Regarding the signing of a mortgage contract for land use rights of a household whose member has moved his/her household registration to another place
In the above case, we see that the land use right was granted to Mr. A's household. VIB needs to determine how many members Mr. A's household had at the time of land grant and how many of them are currently 15 years old, then ask these people to sign the mortgage contract. The fact that a person moves their household registration to another place does not terminate their rights to the land granted to the household. Therefore, these members who move must also sign the mortgage contract. In case for some reason they cannot directly sign the mortgage contract, they can authorize another person to sign.
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Situation 3: Regarding the signing of a mortgage contract in case 01 household member has died, the remaining members authorize the mortgage of land use rights to a member to sign the mortgage contract.
We see in this issue that land use rights and house ownership certificates are issued to households consisting of many people, so when one person dies, the remaining people are not automatically the owners of all that property because of a
This part of the property (the deceased's part) will belong to the first-order heirs of Mrs. B (including: father, mother, husband, children and grandchildren (inheritance, if any) of Mrs. B). Thus, in order for this property to be used as collateral at VIB, they need to do the following, in the following order:
First, all of Ms. B's first-order heirs must make a written agreement on the division of Ms. B's inheritance. This document must be notarized at a Notary Office or certified at the People's Committee at the commune level.
After having a written agreement on the division of inheritance, the co-owners in the household and the heirs carry out the procedures for registering the transfer of ownership of the property at the land use rights registration office. The new land use rights certificate can be in the name of one or more people depending on the written agreement/document of inheritance acknowledgment.
After having the new land use rights and house ownership certificates, the new owners of this property have the right to make a notarized authorization contract for someone to mortgage and borrow capital at VIB.
* Subject of land use rights mortgage contract
The subject of a land use rights mortgage contract is the land use rights. Information about the mortgaged land plot is often specified very specifically in the contract, including information in Article 2 of the VIB mortgage contract form issued with Decision 3639/2008/QD-TGĐ of the General Director of VIB, specifically as follows:
Article 2: Mortgaged assets
The mortgagor is the owner and legal user of the property according to the Certificate of land use rights and house ownership rights No. ....... issued by ......... on ......., specifically as follows:
1. Land use rights:
- Land plot number:
- Digital map sheet:
- Land plot address:
- Area: ...... m 2 ( ...... )
- How to use:
+ Private use: ...... m 2
+ Common use: ...... m 2
- Purpose of use:
- Expiry date:
- Origin of use:
- Restrictions on land use rights (if any):
2. Property is a house attached to land:
- House type
- Total usable area: ...... m 2
- Construction area: ......m 2
- House structure:
Number of floors:
3. All accessories, accompanying equipment and the value of the construction, renovation area, additional construction investment attached to the mortgaged land area are also mortgaged assets under this Contract [21].
The regulation is very clear, specifically describing the mortgaged property as land use rights in the mortgage contract to accurately identify the mortgaged property, the specific characteristics of the property limit the possibility of disputes arising due to confusion about the property to ensure safety for VIB when receiving the mortgage.
In addition, to ensure the rights of VIB after receiving the mortgaged assets to secure the customer's loan, the VIB land use rights mortgage contract also clearly states the terms to clearly regulate the management and use of the mortgaged assets, specifically:
Article 5. Management and use of mortgaged assets
1. The mortgagor is allowed to manage and exploit the property and to invest or allow a third party to invest in the property to increase the value of the mortgaged property.
2. The mortgagor may only lease or lend the mortgaged property after receiving written approval from VIB. VIB is required to require the mortgagor, lessee or borrower to stop leasing, lending, exploiting or using the mortgaged property, and must apply necessary measures to remedy or replace it with other assets or other security measures if the exploitation or use of the mortgaged property is at risk of losing value or decreasing the value of the mortgaged property. If the mortgagor, lessee or borrower fails to perform or fails to perform or fails to fully perform, VIB shall have the full right to dispose of the mortgaged property and collect the debt from the Borrower before the due date.
3. When the mortgaged property is devalued, destroyed or damaged, within 30 calendar days (including holidays, weekends and Sundays), or other time limit as required by VIB, the Mortgagor must repair the mortgaged property or replace it with other property of equivalent value, or other security measures; if not, VIB will have the full right to handle the mortgaged property and collect the debt from the Borrower before the deadline.
4. The mortgagor may not use the mortgaged property to mortgage or secure other obligations; may not transfer, sell, exchange, donate, contribute capital or have any form of
Any transfer of ownership or right to use of mortgaged assets, except in cases where there is written consent from VIB.
5. In case the revaluation of the collateral asset reduces the valuation value by 10% compared to the valuation value at the most recent time and does not ensure the approved ratio, the customer must be obliged to supplement the collateral asset or reduce the corresponding outstanding debt to ensure the security. Within 15 calendar days (including holidays, days off, Sundays) from the date of VIB's notification, if the customer does not supplement the collateral asset or does not reduce the corresponding outstanding debt, VIB has the right to refuse to disburse or collect the debt before the due date, unless otherwise approved by VIB.
6. In case during the mortgage period, the mortgaged property is planned, recovered by a competent authority, damaged, destroyed or devalued and compensation is required, all compensation and indemnity shall also be mortgaged property and must be transferred to VIB for debt recovery. By this Contract, the Mortgagor authorizes VIB to work with competent authorities and related organizations and individuals to receive the above compensation and indemnity amount [21].
* On the rights and obligations of the parties in the Contract of mortgage of land use rights of households at VIB
The provisions on rights and obligations in the VIB land use rights mortgage contract form are built on the basis of rights and obligations as prescribed in the 2005 Civil Code, and at the same time, there are additional provisions to maximize benefits and minimize risks for VIB in receiving mortgages, specifically as follows:
Article 6. Rights and obligations of the parties
1. The mortgagor has the following rights and obligations:
a) Must hand over all original documents proving ownership and right to use the mortgaged property to VIB for safekeeping before receiving the loan;
b) Must coordinate with VIB to carry out procedures for notarization, authentication, mortgage registration, additional mortgage registration, and bear all costs related to notarization, authentication, and mortgage registration in accordance with the provisions of the Law, including cases of extension, amendment, and supplementation of the Mortgage Contract;
c) Must notify VIB in writing of the Third Party's rights to the mortgaged property (if any). In case of no notification, VIB has the right to cancel this Contract and request compensation for damages or maintain this Contract and accept the Third Party's rights to the mortgaged property;
d) Not to destroy or reduce the value of mortgaged assets and must apply all necessary measures to preserve the value of mortgaged assets in case the assets are at risk of being damaged due to exploitation and use and must immediately notify VIB;
e) Must notify and obtain VIB's consent if wanting to repair or renovate the mortgaged property and assets attached to the mortgaged property. In case of violation, VIB has the right to handle the mortgaged property to recover the Borrower's debt before the due date;
f) Facilitate VIB to inspect the mortgaged property at any time during the mortgage period and provide information on the current status of the mortgaged property if requested by VIB;
g) Voluntarily hand over the mortgaged property to VIB and coordinate with VIB to handle the mortgaged property according to the agreement in Article 4 of this Contract; do not take any action to cause difficulties or hinder VIB from handling the secured property to recover the Borrower's debt;
h) Supplement other collateral assets in case VIB requests to ensure the Borrower's performance of debt repayment obligations under the Credit Contract(s), Guarantee Contract(s), LC and other documents;
i) The mortgage shall be cleared after the Borrower and/or Mortgagor have fulfilled all debt repayment obligations stated in Article 1 of this Contract.
2. VIB has the following rights and obligations:
a) To request the Mortgagor to provide information on the current status of the mortgaged property and to directly examine and inspect the mortgaged property;
b) Preserve and return the original documents of the mortgaged property to the Mortgagor after the Mortgagor has fulfilled its debt repayment obligations;
c) Check and request the Mortgagor to properly perform the obligations committed in this Contract;
d) To directly receive money or assets from a Third Party that the Third Party must pay or deliver to the Mortgagor to replace part or all of the debt repayment obligation;
e) Right to issue notices and enforce property recovery;
f) Handling mortgaged assets to recover the Borrower's debts in accordance with the cases and methods stated in Article 4 of this Contract [21].
Based on the provisions of law on handling mortgaged assets, VIB has specified this content in its land use rights mortgage contract (sample) to create favorable and proactive conditions for handling mortgaged assets in case the customer fails to properly fulfill his/her debt repayment obligations upon the due date specified in the Credit Contract. Specifically:
Article 4: Handling of mortgaged assets
1. The parties agree that the mortgaged property will be processed to recover the debt immediately upon the occurrence of one of the following cases:
a) When the debt repayment obligation is due, the Borrower fails to perform or improperly or incompletely performs the debt repayment obligation under the Credit Contract(s), Guarantee Contract(s), LC and other documents signed with VIB;
b) The Borrower must make early repayments to VIB according to the terms of the credit contracts, guarantee contracts, LCs, mortgage contracts and other agreements signed between the two parties or as prescribed by law;
c) When one of several persons belonging to the Mortgagor dies or goes missing (including cases of being declared dead or missing according to the provisions of law), or is directly or indirectly involved in lawsuits and/or disputes related to the mortgaged property and/or divorce;
d) The Mortgagor or the Borrower violates any provision of this Mortgage Agreement or relevant legal provisions;
e) Other cases as prescribed by law.
2. The parties agree that as soon as one of the cases mentioned in Clause 1 of this Article arises, VIB shall have the full right, but not be required, to handle the mortgaged property to recover the debt by one or more of the following methods:
a) The Mortgagor sells the mortgaged property with the witness of VIB. The sale contract will be made between 3 parties: Mortgagor, Buyer and VIB (related party). The selling price of the property is determined by the Mortgagor but must not be lower than the value of the secured civil obligation agreed upon in Clause 1, Article 1 of this Contract. In case the Mortgagor