Uniube+ Direito das Coisas - Semana 13.1

Summary

This lesson delves into the technicalities of mortgage law, specifically the sale of mortgaged properties. It explains that while a mortgaged property can be sold, the mortgage remains attached to the property. The buyer may either assume the mortgage debt or negotiate its release through payment. The lesson also covers the rights of the parties involved, including the property owner, creditor, and buyer, in relation to mortgage redemption and clearing the property of any encumbrances. Legal provisions and timeframes for these actions are referenced, offering a clear understanding of the procedures in property transactions involving mortgages.

Takeaways

• 😀 A mortgaged property can still be sold, as the mortgage attaches to the property, not the owner.
• 😀 The mortgage stays with the property even when it is transferred to a new owner. It follows the property wherever it goes.
• 😀 A clause can be added to the contract stating that in case of a sale, the mortgage debt may become due immediately.
• 😀 When selling a mortgaged property, the seller may have to pay the bank before receiving the remaining balance from the sale.
• 😀 The new buyer of the mortgaged property can either assume the mortgage debt or negotiate a reduced price and pay the bank to clear it.
• 😀 If the buyer assumes the mortgage debt, they have the right to pay off the remaining debt directly with the bank, freeing the property of the mortgage.
• 😀 If the buyer does not want to assume the debt, they can rely on the seller to continue making mortgage payments.
• 😀 A buyer can release themselves from any further obligations by opting not to take on the mortgage debt, though this could lead to complications if the seller fails to pay the bank.
• 😀 In cases of mortgage foreclosure, a buyer can relinquish responsibility by depositing the property with creditors and formally exiting the process within 24 hours after being notified.
• 😀 To avoid disputes and delays related to property evaluations, the buyer and seller may agree in advance on the property's value for the purposes of mortgage redemption.

Q & A

What is the main topic discussed in the transcript?

The main topic discussed is the legal concept of 'hipoteca' (mortgage) in property law, focusing on the sale of mortgaged properties and the process of debt assumption or remission.

Can a mortgaged property be sold?

Yes, a mortgaged property can be sold. The mortgage remains attached to the property, meaning it follows the property wherever it goes.

What does the concept of 'remissão' (remission) refer to in the context of mortgaged property?

Remissão refers to the process where the debtor, a second mortgage holder, or the buyer of the property pays off the mortgage debt to free the property from the lien.

What happens if a buyer purchases a mortgaged property but does not assume the mortgage debt?

If the buyer does not assume the mortgage debt, the original debtor remains responsible for it. However, the buyer can choose to pay off the debt (remission) to release the property from the mortgage.

What is the legal foundation for the sale and transfer of mortgaged properties?

The legal foundation is based on Article 1475 of the Civil Code, which allows the sale of a mortgaged property, although it may trigger early repayment of the mortgage under certain conditions.

What is the typical outcome when a buyer assumes the mortgage debt?

Typically, when a buyer assumes the mortgage debt, the amount of the debt is deducted from the purchase price, and the buyer then pays off the bank to clear the mortgage and take full ownership of the property.

How long does the buyer have to pay off the mortgage after acquiring the property?

The buyer has up to 30 days after registering the property acquisition to pay off the mortgage and release the property from the lien, as per Article 1481 of the Civil Code.

What should the debtor do if they are cited in a foreclosure process involving the mortgaged property?

The debtor has 24 hours after being cited in a foreclosure process to deliver the property to the creditors in a symbolic manner (by handing over the keys), thereby removing themselves from the legal process.

What role does the second mortgage holder play in the remission process?

The second mortgage holder may decide to remit the property if it is at risk of being auctioned, especially if their credit might be left uncovered in the auction. They can pay off the debt to protect their interest.

How can parties avoid disputes over the value of the property when remitting the mortgage?

To avoid disputes, the parties involved can agree in advance on the property’s value for the purpose of remission, including any adjustments for interest and inflation, as stipulated in Article 1484 of the Civil Code.