Hello LSX. Nowadays, land is becoming a matter of great concerns to many individuals. I learned that the law on mortgage of land use rights is one of the basic rights of land users. Now my family’s business is at a loss, so we have to mortgage our land use rights. So about the matter “Registering mortgage of land use rights under Vietnam law” Let’s find out with LSX in the article below.
Legal grounds
- Land Law 2013
- Civil Code 2015
- Decree 102/2017/ND-CP
What is land use right?
The 2013 Land Law stipulates: Land belongs to the entire people; and owned by the State. The State thereby grants land use rights to the people through the form of land allocation or land lease. The law also recognizes land use rights for stable land users; and regulations on general rights and obligations of land users.
Although the land law does not clearly define the concept of land use rights; but the law also introduces the concept of land use right price which is the amount calculated per unit area of land due to; The State regulates or forms in the transaction of land use rights. The value of land use rights is the monetary value of land use rights per unit of defined area; within a certain period of use.
Land users are entitled to own the value of land use rights; be allowed to transfer land use rights for the allocated areas; commensurate with its obligations to the State.
Conditions for mortgage of land use rights
Clause 1, Article 168 of the 2013 Land Law stipulates: Land users are entitled to transfer rights; lease, sublease, donate, mortgage; capital contribution to land use rights upon obtaining the Certificate. Thus, a prerequisite for a land user to make a mortgage is to have a Certificate.
Pursuant to Article 188 of the Land Law 2013 stipulates as follows:
“Article 188. Conditions for exercising the rights to exchange, transfer, lease, sublease, inherit, donate or mortgage land use rights; capital contribution with land use rights
1. 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.
2. 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.
3. 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, in addition to having a certificate of land use right; to mortgage land use rights to borrow from banks, Article 188 of the 2013 Land Law stipulates; land users must have additional conditions including: land is not disputed; land use rights must not be distrained to ensure judgment enforcement and must still have land use term (mortgage; mortgage within the land use term)
Registering mortgage of land use rights under Vietnam law
The land registration office in the district under the Department of Natural Resources and Environment is the place to receive and have the authority to post mortgage of land use rights.
After receiving the application, the recipient checks the validity of the registration dossier. If the registration dossier is valid, the recipient will enter the Receipt Book and issue the registration requester with an Appointment Form to return results.
In case the application for registration is invalid, the recipient shall guide the requester for registration to complete the application directly or make a document guiding the completion of the application in accordance with law.
What does a mortgage of land use right include?
Pursuant to Article 39 of Decree 102/2017/ND-CP, the applicant for mortgage registration shall submit 1 set of documents, including the following documents:
– Registration request form, made according to Form No. 01/DKTC (1 original).
– Notarized or authenticated mortgage contract or mortgage contract in the case prescribed by law (1 original or 1 certified true copy).
– Original certificate (Red book, pink book).
– A notarized or authenticated written agreement between the land user and the owner of the property on land on the creation of the property on land in case of mortgage of the property on land which the user The land user is not concurrently the owner of assets attached to the land (1 original or 1 certified copy or 1 uncertified copy with the original for comparison).
– Proof of documents in the following cases:
+ Power of attorney in case the registration requester is an authorized person (1 original or 1 authenticated copy or 1 uncertified copy with the original for comparison);
+ One of the papers proving that he/she is not required to pay fees when registering a security interest.
Order and procedures for mortgage of land use rights
Step 1: Submit your application
Place of application: Land registration office
Step 2. The agency receiving the application
The land registration office in the district under the Department of Natural Resources and Environment is the place to receive and have the authority to post mortgage of land use rights.
Step 3. Appraisal of documents
The registration agency, providing information on security interest, shall be responsible for processing the application for registration of the requester.
Note:
– In case of submitting the application for registration of security interest in land use rights and land-attached assets at the People’s Committee of the commune, ward or township (hereinafter collectively referred to as the People’s Committee of the commune) or If the application is filed at the Department of receiving and returning results under the one-stop-shop mechanism, the time limit for processing the registration dossier shall be counted from the date the land registration office receives the dossier by the commune-level People’s Committee or by the provincial-level People’s Committee. receive and return results according to the one-stop-shop mechanism.
– The time limit specified in Clause 1 of this Article is counted from the date the registration authority receives a valid registration dossier.
Step 4. Financial obligation claimant
The requester must pay the security transaction registration fee, the fee for providing information about the secured transaction, the fee for the issue of copies and the fee for the issuance of a code for using the secured transaction database in accordance with the law. on fees and charges.
Step 5. Return registration results, provide information about security interest
*Return method
Results of registration and provision of information about security interests shall be paid by the registration agency to the registration requester by one of the following methods:
– Directly at the registrar.
In case the application is submitted at the Department of receiving and returning results under the one-stop-shop mechanism or the People’s Committee of commune, the Division receiving and returning results according to the one-stop mechanism or the People’s Committee of the commune shall return the results for the registration requester;
– By post;
– Other methods agreed upon by the registration authority and the registration requester.
*Time limit for processing application for registration and provision of information on security interests
The registration agency returns the dossier and provides information on the day of receiving the valid dossier; if the application is received after 15 o’clock, the registration and provision of information shall be completed within the next working day; in case the processing time must be extended, it shall not exceed 03 working days.
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Please see more
- What is a land database in Vietnam?
- Rights and obligations of households, individuals using land in Vietnam
- Procedure for partial transfer of land use rights in Vietnam
Frequently asked questions
According to Point g, Clause 1, Article 179 of the 2013 Land Law, households and individuals using land in one of the following types of land are entitled to mortgage their land use rights at banks, other economic organizations or individuals, including including:
Agricultural land allocated by the State within the limit;
Land allocated by the State with land use levy;
Land is leased with one-off payment for the entire lease period;
Land recognized by the State with land use rights;
Land received for conversion, transfer, donation, inheritance.
Pursuant to Clause 1, Article 319 of the Civil Code 2015, a property mortgage contract takes effect from the time of signing, unless otherwise agreed or otherwise provided by law.
As for the mortgage of land use rights, Clause 3, Article 188 of the 2013 Land Law clearly stipulates:
The conversion, transfer, lease, sublease, 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 date of registration. from the time of registration in the cadastral book”
Thus, the mortgage of land use rights must be registered at the land registration office (Land registration office) and takes effect from the time of registration in the cadastral book.
Article 317 of the 2015 Civil Code provides for mortgage of property as follows:
“first. Mortgage of property means the fact that one party (hereinafter referred to as the mortgagor) uses property under his/her ownership to secure the performance of an obligation and does not hand over the property to the other party (hereinafter referred to as the mortgagee). .
The mortgaged property is kept by the mortgagor. The parties may agree to assign a third person to keep the mortgaged property.
Accordingly, mortgage means the mortgagor uses property under his/her ownership to secure the performance of an obligation (mainly to secure a loan) and does not deliver the property to the mortgagee. The Civil Code 2015 does not stipulate “namely” who can receive the mortgage
Conclusion: So the above is Registering mortgage of land use rights under Vietnam law. Hopefully with this article can help you in life, please always follow and read our good articles on the website: lsxlawfirm.com
