Is it possible to agree on the realization of collateral that is off-plan properties in Vietnam?
How to realize collateral that is off-plan properties in Vietnam?
Pursuant to Article 55 of Decree No. 21/2021/ND-CP stipulating the realization of collateral that is off-plan properties as follows:
Realization of collateral that is off-plan properties shall conform to agreements of parties. These agreements may contain following details:
- In case collateral that has not been created or has not been issued with certificates after being created are required by the law for registration, secured parties may transfer property sale agreements and other contracts regarding establishing rights for off-plan properties, receiving collateral to replace fulfillment of secured obligations or realizing off-plan properties as per the law;
- In case collateral has been created and securing parties have established ownership for the collateral, secured parties may receive this collateral as substitute for fulfillment of secured obligations or realize currently available properties according to general provisions on realizing collateral.
Thus, realization of collateral that is off-plan properties shall conform to agreements of parties.
Is it possible to agree on the realization of collateral that is off-plan properties in Vietnam?
How to realize mortgaged properties under investment in Vietnam?
Pursuant to Article 56 of Decree No. 21/2021/ND-CP stipulating the realization of mortgaged properties under investment as follows:
- In case investment in mortgaged properties results in creation of new properties or additional properties created from investment (hereinafter referred to as “created properties”) are not affiliated to mortgaged properties according to mortgage agreements, proceed as follows:
+ In case created properties can be separated from mortgaged properties without causing loss or reduction in value of mortgage properties, realization of properties shall not include created properties which are handed over to investors by the secured parties;
+ In case created properties cannot be separated as specified under Point a of this Clause, properties to be realized shall include the created properties and investors shall receive payment for the created properties incurred by the secured parties.
- In case created projects are used both for mortgaging and as security for fulfillment of other obligations simultaneously, comply with regulations on one property used as security for fulfillment of multiple obligations.
- In case created properties are no longer used for mortgaging but are still used as security for fulfillment of other obligations, proceed as follows:
+ In case created properties can be separated from mortgaged properties without causing loss or reduction in value of the mortgaged properties, secured parties may then separate the properties which they receive as security;
+ In case created properties cannot be separated as specified under Point a of this Clause, properties shall be realized according to Point b Clause 1 of this Article. Value of created projects shall be paid by mortgagees to other secured parties.
- Mortgagees shall receive damages taken from profits generated by realization of collateral.
How to realize collateral that is integrated objects; properties with attaching properties; rights for demanding debt repayment, collectible, other payments?
Pursuant to Article 54 of Decree No. 21/2021/ND-CP stipulating the realization of collateral that is integrated objects; properties with attaching properties; rights for demanding debt repayment, collectible, other payments; valuable instruments, securities, deposit balance; bill of lading and transport documents as follows:
- Secured parties may simultaneously realize all parts and sections of collateral that is integrated objects. In case collateral includes multiple attaching properties which can be divided, realize each property individually otherwise realize all properties simultaneously.
- Secured parties have the rights to request third parties who hold obligations to make payments, repay debt or other obligations to transfer money or other properties to the secured parties. Secured parties must prove their rights at request of obligors.
- Secured parties shall realize collateral that is valuable instruments, securities, balance of deposit in credit institutions or branches of foreign banks according to agreements of parties or Article 52 of Decree No. 21/2021/ND-CP.
- Secured parties upon exercising possessory right for commodities specified on collateral which is bill of lading or transport documents shall have obligations to present bill of lading or transport documents according to maritime laws, aviation laws or relevant law provisions. In case law provisions mentioned above do not prescribe, realization of commodities specified bill of lading or transport documents shall conform to Article 52 of Decree No. 21/2021/ND-CP.
- In case secured parties are also persons with payment obligations, secured parties may offset obligations originating from generated money or properties.
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