问答题
1.Mr Dong, the majority shareholder of Lide Company, provided his residential house as a mortgage for a loanagreement between Lide Company and the Bank. Both parties appropriately registered the loan agreement and themortgage agreement with the relevant government agent.
Before the loan agreement matured, Mr Dong intended to sell the mortgaged house to Ms Lee and disclosed to Ms Lee the fact that the house had been mortgaged. Mr Dong also notified the Bank with respect to the transactionbetween Ms Lee and himself. Mr Dong and Ms Lee entered into a sales contract of real estate to proceed with thetransaction. However, their application for registration was denied by the relevant government authority, because theBank did not give consent in writing to this transaction.
Required:
In accordance with the relevant provisions of the Property Law:
问答题
(a)State whether the real estate contract was a valid one if the Bank disagrees with the transaction betweenMr Dong and Ms Lee.(2 marks)
【正确答案】The real estate contract was a valid one even if the Bank disagrees with the transaction between Mr Dong and Ms Lee.According to the Property Law, if a contract to create, modify, assign and terminate rights in immovables, it shall take effectupon conclusion of the contract; the fact that no registration has been made shall not affect the validity of such contract.
【答案解析】
问答题
(b) Explain whether the government authority should register the contract if Ms Lee promises to repay theoutstanding amount of the loan, even though the Bank did not give consent to this transaction.(2 marks)
【正确答案】The relevant government authority could lawfully refuse to register the real estate contract, even though Ms Lee promised torepay the outstanding amount of the loan. According to the Property Law, if a mortgagor transfers the mortgaged propertyduring the mortgage term, it shall receive the consent of the mortgagee or the transferee pays off the debts. Since the Bankrefused to give consent and Ms Lee merely promised to pay off the debts, the conditions to transfer a mortgaged propertywere not satisfied.
【答案解析】
问答题
(c)State whether the government authority should register the contract if Ms Lee repaid the outstanding amountof the loan, even though the Bank refused to give consent to this transaction.(2 marks)
【正确答案】Since Ms Lee repaid the outstanding amount of the loan and extinguished the mortgage, the government authority shouldregister the contract, as the conditions to transfer the mortgaged property have been satisfied.