in hello Lawyer X. I have a question about the procedure for a bank loan as follows, looking forward to your lawyer’s answer. What types of land can and cannot be mortgaged for bank loans? Can I mortgage this land to get a loan? Mortgage of agricultural land in Vietnam for bank loans? Looking forward to the lawyer’s answer, I sincerely thank you!
Thank you for sending questions to Lawyer X. At the article below, we will answer your questions. Hope this article brings a lot of useful things to you.
Legal grounds
- Land Law 2013
Types of land that are not mortgaged to borrow money
(1) Failing to qualify for a mortgage.
According to the provisions of Clause 1, Article 188 of the 2013 Land Law, land users may mortgage land use rights when meeting the following conditions:
- Have a Certificate.
- The land is not disputed.
- The land use right is not distrained to secure judgment enforcement.
- During the land use period.
Thus, if one of the above conditions is missing, it will not be eligible to mortgage land use rights.
(2) Heritage management is the right to use land.
Pursuant to Point b, Article 617 of the 2015 Civil Code, which prescribes the obligations of the estate administrator appointed in the will or appointed by the agreement of the heirs as follows:
“Preservation of heritage; may not sell, exchange, donate, pledge, mortgage or otherwise dispose of property without the consent of the heirs in writing”.
Therefore, the administrator of the estate as a land use right may not mortgage such land use right without the written consent/acceptance of the heirs.
(3) Land use rights formed in the future.
Pursuant to Article 8 of Decree 21/2021/ND-CP stipulating that assets used to secure the performance of obligations include:
- Existing assets or assets to be formed in the future, except for cases where the Civil Code or other relevant laws prohibit the sale, purchase, transfer or other transfer of ownership rights at the time of establishment of the security contract. , security measures;
- Property sold in a property sale and purchase contract with title retention;
- The property subject to the obligations in the bilateral contract is breached with respect to the lien measure;
- Property under the ownership of the entire people, if so provided for by relevant laws.”.
In addition, in Clause 4, Article 10 of this Decree, it is also stated that the security of the performance of obligations with assets formed in the future does not apply to land use rights.
Thus, land use rights formed in the future cannot be used as collateral.
(4) Land of religious establishments and residential communities.
Pursuant to Clause 2, Article 181 of the 2013 Land Law, which stipulates that religious establishments and residential communities using land may not convert, transfer, lease or donate land use rights; may not mortgage or contribute capital with land use rights.
Therefore, even if the land of a religious establishment or residential community has a Certificate or is eligible for a Certificate, it cannot be mortgaged.
(5) Land for civil aviation activities.
Pursuant to the provisions of Clause 1, Article 156 of the 2013 Land Law, land in service of civil aviation activities at airports and airfields includes:
Land for construction of headquarters of state management agencies operating regularly at airports and airfields.
Land for construction of airport and airfield infrastructure items.
Land for construction of facilities and works in service of aviation service business at airports and airfields.
Land for construction of works in service of non-aviation service business.
In addition, according to the provisions of Clause 4, Article 156 of the 2013 Land Law, organizations and individuals using land at airports and airfields must use the land for the right purposes; may not convert, transfer, donate or lease land use rights, mortgage or contribute capital with land use rights.
Thus, according to regulations, organizations and individuals using land at airports and airfields are not allowed to mortgage land use rights.
(6) Land leased with annual payment.
Unlike land leased with land rental payment for the entire lease period, land users with annual rental payments do not have certain rights such as not being compensated for land when the State recovers land for national defense and security purposes, land recovery for socio-economic development for national and public interests, not to mortgage land use rights.
6 types of land are mortgaged to borrow money
Pursuant to Clause 1, Article 179 of the 2013 Land Law, households and individuals may mortgage their land use rights at credit institutions, individuals or organizations other than credit institutions for the following types of land if: eligible:
(1) Use agricultural land allocated by the State within the limits prescribed in Article 129 of the 2013 Land Law.
(2) Land allocated by the State with collection of land use levy (residential land).
(3) Land is leased by the State with one-off rental payment for the entire lease period.
The State shall lease land to households and individuals with annual land rental or one-off land rental for the entire lease period in the following cases:
Households and individuals using land for agricultural production, forestry, aquaculture, and salt production.
– Individuals and households that wish to continue using agricultural land in excess of the assigned quota specified in Article 129 of the Land Law 2013.
– Households and individuals using commercial or service land; land used for mineral activities; land for production of building materials and pottery; non-agricultural production base land.
Individuals and households using land to build public works for business purposes.
(4) Land recognized by the State as the right to use land.
According to regulations, the State’s recognition of land use rights is the granting of land use rights by the State to a person who is using land on a stable basis without origin and has been allocated or leased land by the State through the issuance of a certificate. (Pink book, red book) for the first time for the determined land plot.
(5) Land received conversion.
Land use right conversion is a form of land use right transfer in which households and individuals in the same commune, ward or township; transferring agricultural land use rights to each other (for agricultural land exchange), the parties are both the convertor but also the recipient of the conversion.
(6) Land is transferred (purchased), donated, or inherited.
Can I mortgage agricultural land to get a bank loan?
According to the provisions of Point g, Clause 1, Article 179 of the 2013 Land Law, on the rights and obligations of households and individuals using land, in which households and individuals use agricultural land allocated by the State within a certain period of time. level; land allocated by the State with collection of land use levy, leased out with one-off rental payment for the entire lease term, and recognized by the State with land use rights; Land that is converted, transferred, donated or inherited has the following rights and obligations:
g) Mortgage of land use rights at credit institutions licensed to operate in Vietnam, at other economic organizations or individuals as prescribed by law;
In addition, Article 188 of the 2013 Land Law stipulates conditions for exercising the rights to exchange, transfer, lease, sublease, inherit, donate and mortgage land use rights; capital contribution by land use right as follows:
- Land users may exercise the rights to exchange, transfer, lease, sublease, inherit, donate or mortgage land use rights; contribute capital with land use rights when the following conditions are met:
a) Having a Certificate, except for the case specified in Clause 3, Article 186 and the case of inheritance specified in Clause 1, Article 168 of this Law;
b) Undisputed land;
c) The land use right is not distrained to secure judgment enforcement;
d) During the land use term.
- In addition to the conditions specified in Clause 1 of this Article, when exercising the rights to exchange, transfer, lease, sublease, inherit or donate land use rights; the right to mortgage land use rights or contribute capital with land use rights must also satisfy the conditions prescribed in Articles 189, 190, 191, 192, 193 and 194 of this Law.
- The exchange, transfer, lease, sub-lease, inheritance, donation, mortgage of land use rights, capital contribution with land use rights must be registered at the land registration agency and take effect. from the time of registration in the cadastral book.
Thus, according to the above provisions, households and individuals using agricultural land allocated by the State within the limit can mortgage the use rights to borrow from banks when they meet the prescribed conditions cited in this Decree.
Please see more:
- Transfer of investment projects associated with the transfer of land use rights in Vietnam
- Guidance on procedures for transferring land use rights in Vietnam
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Frequently asked questions
At Point g, Clause 1, Article 179 of the 2013 Land Law, households and individuals have the right to:
Mortgage of land use rights at credit institutions licensed to operate in Vietnam, at other economic organizations or individuals as prescribed by law.
The time when the land user is entitled to mortgage the land use right is after:
Having a certificate of land use rights, ownership of houses and properties attached to land;
In case of conversion of agricultural land use rights, the land user may mortgage after the decision on land allocation or land lease is issued;
In case of receiving land use right inheritance, the land use right mortgage may be mortgaged upon obtaining a certificate of land use right or meeting all conditions for issuance of a certificate of land use right, ownership of houses and other assets attached to the land. attached to the land;
Land users who are late to fulfill their financial obligations or have their financial obligations debited must fulfill their financial obligations before mortgaging land use rights.
Conclusion: So the above is Mortgage of agricultural land in Vietnam for bank loans. Hopefully with this article can help you in life, please always follow and read our good articles on the website: lsxlawfirm.com
