Legal analysis: Because farmers own houses and can dispose of their own houses, the houses can be mortgaged. The right to use the homestead can be transferred. However, according to the laws of our country, the homestead can only be transferred with the transfer of house ownership. That is, when the ownership of the house is transferred due to sale, reciprocity, gift and inheritance, the right to use the homestead will be transferred to the new owner along with the ownership of the house. At this time, the parties should not only go to the real estate management department to register the transfer of housing property rights, but also go to the land management department to register the use of homestead.
The right to use the homestead shall not be transferred separately, and it is forbidden for users of the homestead to transfer, lease or mortgage the idle homestead. Any agreement between the parties to transfer the idle homestead is invalid, and the owner of the homestead (that is, the collective economic organization) has the right to recover the illegally transferred homestead.
Legal basis: Civil Code of People's Republic of China (PRC).
Article 667 A loan contract is a contract in which the borrower borrows money from the lender, repays the loan at maturity and pays interest.
Article 680 usury is prohibited and the loan interest rate shall not violate the relevant provisions of the state. If there is no agreement on the payment of interest in the loan contract, it shall be deemed that there is no interest. If the loan contract does not specify the payment method of interest, and the parties cannot reach a supplementary agreement, the interest shall be determined according to the local or the parties' trading methods, trading habits, market interest rates and other factors; Loans between natural persons are regarded as interest-free.
Second, can the homestead house be mortgaged?
Legal analysis: the house on the homestead can be mortgaged, but the effect of mortgage can not reach the right to use the homestead within the occupied area of the house. Once the debtor fails to pay off the debt, the debt will be given priority as movable property.
Legal basis: Civil Code of People's Republic of China (PRC).
Article 394 In order to guarantee the performance of the debt, if the debtor or a third party does not transfer the possession of the property, and uses the property to offset the due debt or realize the mortgage right according to the agreement of the parties, the creditor has the right to use the third party as the mortgagor and the creditor as the mortgagee, and the secured property is as follows.
Article 395 The following properties that the debtor or a third party has the right to dispose of may be mortgaged: (1) Buildings and other land attachments; (2) the right to use sea areas; (4) Production equipment, raw materials, semi-finished products and products; (5) Buildings, ships and aircraft under construction; (6) means of transportation; (seven) other property not prohibited by laws and administrative regulations. The mortgagor may mortgage the property listed in the preceding paragraph together.
Article 400 To establish a mortgage, the parties shall conclude a mortgage contract in writing. A mortgage contract generally includes the following clauses: (1) the type and amount of secured creditor's rights; (2) The time limit for the debtor to perform the debt; (3) The name and quantity of the mortgaged property; (4) the scope of the guarantee.
Article 419 During the limitation of action for principal creditor's rights, the mortgagee shall exercise the right of mortgage. If it is not exercised, people will not be protected.
Third, whether the rural homestead can be mortgaged.
Some fields can be mortgaged, including the mortgage of farmers' housing property rights, including the mortgage of homestead use rights. However, it should be noted that when realizing the mortgage right, the above-mentioned the State Council document clearly stipulates that "the transferee is limited in principle within the scope of relevant laws and regulations and the State Council regulations", and the documents of seven departments also clearly stipulate that "the transferee is limited in principle within the scope of relevant laws and regulations and the State Council regulations". It can be seen that when the mortgage is realized, the transferee scope of farmers' housing ownership and homestead use right is strictly limited. Strictly speaking, only those who meet the application conditions of homestead in the collective can be transferee, which is consistent with our strict homestead management policy.