Sell of mortgage flat by owner
jitendra dave
(Querist) 21 November 2012
This query is : Resolved
what are the step and legality involved when the owner wants to sell his flat on loan is taken and mortgage by the bank ,to other person who also want to take loan from other bank.please guide.
Dr J C Vashista
(Expert) 21 November 2012
Since there is charge on the flat you shall have to repay the loan first, take back the hypothecated documents qua flat from the bank and then may proceed to sell and execute documenets.
RAJU O.F.,
(Expert) 21 November 2012
The buyer will get the flat, subject to mortgage to bank on previous loan. No bank will be happy to grant loan on a property with existing mortgage to nother bank. Better you have tripartite agreement with the buyer, his banker and yourself, for closure of your existing loan from the proceeds of the loan to be granted to the buyer, so that his bank will get the property without prior mortgage or charge.
K.K.Ganguly
(Expert) 21 November 2012
1) No. It can not be done,
2) When a property is mortgaged, the interest on it is transferred in favour of the mortgagee & a charge is also created thereupon.
3) So, a mortgaged property can not be sold before the mortgage is released,
4) Moreover, it is not practically possible since, when a property is kept under mortgage with a Bank, it is normally done by submitting the original title deed & in that case without having the original title deed, how the property can be sold to a third party?
Adv.K.K.Ganguly
High Court,Calcutta
Raj Kumar Makkad
(Expert) 28 November 2012
I strongly second the advice of Ganguly. Even tripartite agreement cannot set aside the interest of previous banker/mortgagee having first lien over the property mortgaged with it.
