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1 Mr Dong, the majority shareholder of Lide Company, provided his residential house as a mortgage for a loan agreement between Lide Company and the Bank. Both parties appropriately registered the loan agreement and the mortgage 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 transaction between Ms Lee and himself. Mr Dong and Ms Lee entered into a sales contract of real estate to proceed with the transaction. However, their application for registration was denied by the relevant government authority, because the Bank did not give consent in writing to this transaction.
Required:
In accordance with the relevant provisions of the Property Law:
(a) State whether the real estate contract was a valid one if the Bank disagrees with the transaction between Mr Dong and Ms Lee.
(b) Explain whether the government authority should register the contract if Ms Lee promises to repay the outstanding amount of the loan, even though the Bank did not give consent to this transaction.
(c) State whether the government authority should register the contract if Ms Lee repaid the outstanding amount of the loan, even though the Bank refused to give consent to this transaction.
答案：
1 (a) 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 effect upon conclusion of the contract; the fact that no registration has been made shall not affect the validity of such contract.
(b) The relevant government authority could lawfully refuse to register the real estate contract, even though Ms Lee promised to repay the outstanding amount of the loan. According to the Property Law, if a mortgagor transfers the mortgaged property during the mortgage term, it shall receive the consent of the mortgagee or the transferee pays off the debts. Since the Bank refused to give consent and Ms Lee merely promised to pay off the debts, the conditions to transfer a mortgaged property were not satisfied.
(c) Since Ms Lee repaid the outstanding amount of the loan and extinguished the mortgage, the government authority should
register the contract, as the conditions to transfer the mortgaged property have been satisfied.
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