THẾ CHẤP QUYỀN SỬ DỤNG ĐẤT NHƯNG KHÔNG THẾ CHẤP NHÀ Ở LÀ TÀI SẢN GẮN LIỀN VỚI ĐẤT / MORTGAGE OF LAND

Legal issue: My spouse and I jointly own a piece of land on which a house has been built. Currently, we want to borrow a loan for business purposes, but we only want to mortgage the land and not the house on the land. Is that possible?

FDVN’s response:

Thank you for sending your question to FDVN Law Firm (“FDVN”). After researching the current legal regulations, FDVN has the following information:

According to Article 317 of the 2015 Civil Code, mortgage of property means the use by the mortgagor of property under the ownership of the obligor as security for the performance of an obligation to the mortgagee without transferring such property to the mortgagee. The mortgaged property shall be held by the mortgagor, or the parties may agree to deliver the mortgaged property to a third person to hold.

The mortgage of land use rights without mortgaging the residential house is stipulated in Article 325 of the 2015 Civil Code as follows: 

1. With respect to mortgages on land use rights without mortgage property on that land, if the land user is also the owner of the property on land, such property shall also be part of the realized property, unless otherwise agreed.

2. With respect to mortgages on land use rights, if the land user is not also the owner of the property on the land, such owner may keep using such land within his/her rights and obligations during the realization of the land use rights. The rights and obligations of the mortgagor in relation to the owner of the property on land shall be transferred to the transferee of the land use rights, unless otherwise agreed.

Thus, the law allows land users to mortgage land use rights without mortgaging the assets attached to the land. However, attention should be paid to the legal provisions on the handling of mortgaged assets as stipulated in Article 325 of the 2015 Civil Code.

The above are FDVN’s discussions regarding your issue. We hope the information provided will be useful to you.

According to Lawyer Pham Thao – FDVN Law Firm