Is the bank a good third party?

The question is that the real estate transfer transaction is invalidated but the transferee has been granted a certificate of house ownership and land use rights and has mortgaged the house and land use rights to the bank according to the law. in accordance with the provisions of the law. So, is that mortgage invalidated?

Mortgage transaction is not void

In Section 1, Part II of Official Letter No. 64/TAND-PC in Viet Nam dated April 3, 2019, the Supreme People's Court clearly answered in Clause 2, Article 133 of the Civil Code, providing:

"2. In case a civil transaction is invalid but the property has been registered at a competent state agency, then it is transferred by another civil transaction to a bona fide third party who, based on the registration sign that but establish and perform a transaction, that transaction will not be invalidated.

In case the property subject to registration has not been registered at a competent state agency, the civil transaction with the third party will be invalidated, unless the third party in good faith receives this property through auction. price at a competent organization or transaction with a person who, according to a judgment or decision of a competent state agency, is the owner of the property but then this subject is not the owner of the property because of the judgment or decision. , the decision is canceled, corrected…”.

According to the explanation of the Civil Code Project 2015 in Viet Nam of the Drafting Board, the provisions of Clause 2, Article 133 of the Civil Code are aimed at ensuring fairness and reasonableness for people of good faith and sincerity, and ensuring the integrity of the people. stability in civil relations (Civil Codes around the world recognize the protection of an honest third party in civil transactions).

Therefore, the phrase "transfer by another civil transaction" in Clause 2, Article 133 of the Civil Code must be applied in a broad sense. This means that there are not only transactions to transfer ownership such as contracts to buy, sell, donate, exchange or contribute housing as capital; transfer, conversion, capital contribution with land use rights, but also transactions aimed at transferring ownership rights to properties or rights to use land plots.

The bank is the third person?

At the same time, property mortgage is a security measure. According to the provisions of Article 31 of the Civil Code, the content of property mortgage is that the mortgagor uses the property under his/her ownership to secure the real estate. perform an obligation to the mortgagee without delivering the property to the mortgagee. However, in Clause 6, Article 320 of the Civil Code, the obligations of the property mortgagor are: "To hand over the mortgaged property to the mortgagee for handling when it falls into one of the following cases: ensure the provisions of Article 299 of this Code”; Clause 7 Article 323 of the Civil Code stipulates the right of the mortgagee: "Dispose of the mortgaged property in the cases specified in Article 299 of this Code".

Thus, the purpose of a mortgage is that the obligor uses the property under his/her ownership to secure the performance of an obligation towards the mortgagee, in case such obligation is not performed or performed by the mortgagor. If it is not true, the mortgaged property must be handed over to the mortgagee for handling in order to ensure the interests of the mortgagee. Therefore, the mortgage of the property must be considered as a conditional transfer of property; In order to ensure the interests of the righteous mortgagee, it is necessary to understand that the provision "transfer by another civil transaction" in Clause 2, Article 133 of the Civil Code is applicable even in the case of mortgage transactions. asset.

Therefore, according to Official Letter No. 64/TAND-PC dated April 3, 2019 of the Supreme People's Court, in case the real estate transfer transaction is invalid, but the transferee has been granted a certificate of house ownership and rights If you use land and have mortgaged that house or land use right to the bank in accordance with law, such mortgage transaction is not void.

Another situation is as follows: The house and land are owned by husband and wife A, B. Mr. A forged Mrs. B's signature to transfer the house to C. The forged signature has been proved through the inspection. . After the transfer, Mr. A and Mrs. B still own and use the land. Then, C used this property as collateral for a loan at the bank. So is the mortgage transaction at this bank void? If invalid, is it contrary to Section 1, Part II of Official Letter 64/TAND-PC dated April 3, 2019 of the Supreme People's Court mentioned above?

The contract of mortgage of the property is void

In Section I, Part II of Official Letter No. 02/TANDTC-PC dated August 2, 2021, the Supreme People's Court answered as follows: Article 123 of the 2015 Civil Code stipulates: Civil transactions have purposes and violations violate the prohibition of the law, contrary to social morality, it is invalid.

The prohibition of the law is the provisions of the law that do not allow the subject to perform certain acts. Ethics are common standards of conduct in social life, which are recognized and respected by the community.

Clause 2, Article 133 of the 2015 Civil Code provides:

"2. In case a civil transaction is invalid but the property has been registered at a competent state agency, then it is transferred by another civil transaction to a bona fide third party who, based on the registration signed, but establish and perform a transaction, such transaction will not be invalidated."

In this case, Mr. A forged Ms. B's signature to transfer the house to C without Ms. B's consent, so based on Article 123 of the 2015 Civil Code, the above house transfer transaction is invalid.

Banks are not a good third party

After receiving the transfer, C used this property to mortgage the loan at the bank, but when signing the mortgage contract, the bank did not appraise and verify but there was no document to prove that Mr. A and Mrs. B knew about the mortgage. mortgage this property. In this case, the mortgagee (bank) is not a bona fide third party as prescribed in Clause 2, Article 133 of the Civil Code and Section 1, Part II of Official Letter 64/TAND-PC dated April 3, 2019 of the Supreme People's Court. Therefore, the property mortgage contract is also void.

The practice of civil trial has the Court to recognize the bank as a bona fide third party to declare that the mortgage contract is not void; yes The Court does not recognize the bank as the third party declaring the mortgage contract void. These problems need to be guided in the uniform application of the law by the Resolution of the Council of Judges of the Supreme People's Court.

Lawyer NGUYỄN HỒNG HÀ

Source: Lsvn.vn

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