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THE
MINISTRY OF NATURAL RESOURCES AND ENVIRONMENT
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SOCIALIST
REPUBLIC OF VIETNAM
Independence- Freedom- Happiness
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No.
06/2007/TT-BTNMT
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Hanoi,
July 2, 2007
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CIRCULAR
GUIDING THE IMPLEMENTATION OF A NUMDER OF ARTICLES OF THE
GOVERNMENT'S DECREE No. 84/2007/ND-CP OF MAY 25, 2007, ADDITIONALLY STIPULATING
THE GRANT OF LAND USE RIGHT CERTIFICATES, RECOVERY OF LAND, EXERCISE OF LAND
USE RIGHTS, ORDER AND PROCEDURES FOR COMPENSATION, SUPPORT AND RESETTLEMENT
WHEN LAND IS RECOVERED BY THE STATE, AND SETTLEMENT OF LAND-RELATED COMPLAINTS
Pursuant to the November 26,
2003 Land Law;
Pursuant to the Government’s Decree No. 84/ 2007/N'D-CPofMay25. 2007, providing
additional guidance on the grant of land use right certificates, land recovery,
exercise of land use rights, order and procedures for compensation, support and
resettlement when land is recovered by the State, and settlement of
land-related complaints;
Pursuant to the Government’s Decree No. 91/ 2002/ND-CP of November 11,
2002,defining the functions, tasks, powers, and organizational structure of the
Ministry of Natural Resources and Environment;
The Ministry of Natural Resources and Environment guides the implementation of
a number of articles of the Government’s Decree No. 84/2007/ND-CP of May 25,
2007. additionally stipulating the grant of land use right certificates,
recovery of land, exercise of land use rights, order and procedures for
compensation, support and resettlement when land is recovered by the State, and
settlement of land-related complaints (referred to as Decree No. 84/2007/ND-CP)
as follows:
I.
DETERMINATION OF THE STARTING TIME OF LAND USE IN A STABLE. MANNER DEFINED IN
CLAUSE 4 OF ARTICLE 3
If none of papers in Clause 2,
Article 3, of Decree No. 84/2007/ND-CP is available, the commune-level People's
Committee determine the starting time of land use in a stable manner as
follows:
1. In the process of
considering the grant of land use right certificates (referred to as
certificates, when carrying out the verification and certification of the
origin and starting time of land use, the status of disputes over the land plot
and the consistency with the approved land use planning as prescribed in Clause
2, Article 135, and Clause 2, Article 136, of Decree No. 181/2004/ND-CP of
October 29,2004, on the implementation of the Land Law (referred to as Decree
No. 181/2004/ND-CP), the commune-level People's Committee shall collect
opinions of inhabitants who have been living in the residential area since the
time the land plot starts to be used for the current purposes. Opinions of
these inhabitants must be recorded in writing according to a set form (not
printed herein) and publicized together with a list of cases eligible and
ineligible for the grant of certificates.
2. After finishing the
publication according to regulations, the commune-level People's Committee
shall consider opinions on the origin and starting time of land use for the
current purposes and make certification in the application for a certificate,
and send the application to the land use registration office together with the
written opinions of inhabitants in the residential area and other papers as
prescribed in Articles 135 and 136 of Decree No. 181/2004/ND-CP.
II. GRANT OF
CERTIFICATES DEFINED IN CLAUSE 2 OF ARTICLE 8
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2. A common certificate for
several agricultural land plots of one household or individual is granted as
follows:
2.1. The concerned household or
individual shall submit to the commune-level People's Committee or the land use
right registration office under the Natural Resources and Environment Section
of the locality where the land plot exists as prescribed in Clause 1, Article
135, or Clause 3, Article 122, of Decree No 181/2004/ND-CP one dossier set as
defined in Clause I, Article 135,or Clause I, Article 136, of Decree No.
184/2004/ND-CP; the certificate application must clearly state the land plot
for which a common certificate is applied for.
2.2 The order and procedures for
the grant of a common certificate for several agricultural land plots of one
household or individual comply with the provisions of Clauses 2 and 3, Article
135, or Clause 2, ArticIe 136, of Decree No. 181/2004/ND-CP.
2.3. The certificate will be
filled in with the following details:
a/ Section II (Land plots under
the use rights) of the certificate:
- Point 1 (Land plot No.): Write
"Having... (the total number of agricultural land plots of one land user)
land plots";
- Point 2 (Map No.), Point 3
(Address of the land plot), Point 7 (Land use duration) and Point 8 (Land use
origin): Leave this Point blank;
- Point 4 (Area): Write the
total area of all land plots stated in the certificate;
- Point 5 (Land use form): Write
the total area of all land plots defined in the certificate on Part
"Separate use";
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b/ Section IV (Notes): Write
"Detailed information on each land plot is shown in the list of
agricultural production land plots enclosed with this certificate”
c/ To make a list of
agricultural production land plots for which a common certificate is granted
according to form No. 02 issued together with this Circular (not printed
herein).
d/ Section V (Land plot map): It
is unnecessary to show the land plot map.
III.
MODIFICATION OF GRANTED CERTIFICATES OR GRANT OF NEW ONES AS PRESCRIBED AT
POINT C, CLAUSE 2 OF ARTICLE 11
1. In case the right
transferor can submit the granted certificate:
1.1. The land use right
registration office or the natural resources and environment agency (referred
to as the land use right registration office), for localities where a land use
right registration office has not yet been set up, shall modify the certificate
and hand over the modified certificate to the right transferee If the contract
or paper on land use right transfer state the transfer of land use rights of
the whole land plot;
1.2. The land use right
registration office shall base on the contract or paper on land use right
transfer to divide the land plot before carrying out procedures for the grant
of new certificates to the transferee and the transferor, in case of transfer of
land use rights of part of the land plot.
2. In case the right
transferor cannot submit the granted certificate:
2.1. The natural resources and
environment agency shall submit to the People's Committee competent to grant
certificates a decision annulling the certificate already granted to the
transferor .That decision will be sent to the transferor, the transferee, the
natural resources and environment agency, the land use right registration
office of the same level and the People's Committee of the commune where the
land plot exists;
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2.3. The land use right
registration office shall base on the contract or paper on the land use right
transfer to divide the land plot before carrying out procedures for the grant
of a new certificate to the transferee, in case of transfer of land use rights
of part of the land plot; at the same time, record the changes in the cadastral
dossier of the transferor. The transferor shall I carry out procedures for the
grant of a certificate for the remaining land area.
IV. GRANT OF
CERTIFICATES DEFINED IN ARTICLE 17
1. For currently used
land plots which were formed before the effective date of the decision on the
minimum area allowed for division, issued by the provincial-level People's
Committee, a certificate may be granted if all conditions specified by the land
law are met.
2. For land plots which
are divided from the currently used land plot by land users after the effective
date of the decision on the minimum area allowed for division, issued by the
provincial-level People's Committee, but are smaller than the minimum area
allowed for division, no certificate shall be granted and procedures for the
exercise of the rights to transfer, donate or lease land use rights or
mortgage, guarantee or make capital contribution with land use rights may not
be carried out.
3. In case the land user
applies for permission to divide a land plot into two or more land pieces
smaller than the minimum land area concurrently with consolidating one of these
land pieces with an adjacent land plot into a new land plot equal to or larger
than the minimum area allowed for division, he/she may be allowed to divide the
land plot concurrently with the consolidation and a new certificate shall be
granted for the new land plot.
V.
DETERMINATION OF LAND AREAS USED FOR PUBLIC PURPOSES DEFINED IN ARTICLE 20
1. Land areas used for public
purposes defined at Point a, Clause 1, Article 20, of Decree No. 84/ 2007/ND-CP
include:
Land for construction of roads
which are linked to public traffic systems and not separated by barriers of any
forms in order to restrict travel within the boundary of the investment work or
project;
1.2 Land used for construction
of parks, recreation centers, education and training establishments, medical
establishments, cultural establishments or physical training and sports
establishments which, however, are non-profit public facilities in service of
inhabitants living inside and outside the urban center or rural residential
area;
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VI.
WITHDRAWAL OF GRANTED CERTIFICATES SPECIFIED IN ARTICLE 21
1. After considering the
grant of a certificate upon written conclusions of an investigative or
inspection agency as specified in Clause l, Article 21 of Decree No.
84/2007/ND-CP, if the agency that has granted the certificate obtains grounds
to believe that the certificate was lawfully granted, it shall issue a written
reply to the agency that has made the conclusions.
3. Upon detection of an
illegally signed certificate which has not yet been handed over to the land
user or which the land user refuses to receive, the state agency competent to
grant that certificate shall issue a decision to annul the signed certificate;
that decision shall be sent to the natural resources and environment agency and
the land use right registration office of the same level. At the same time, a written
notice shall be sent to the applicant, clearly stating the reason for the
annulment of the certificate.
Vll. SALE OF
DWELLING HOUSES BUILT ON LAND LEASED BY THE STATE DEFINED IN ARTICLE 27
1. Investors being
domestic economic organizations or overseas Vietnamese that have been leased
land by the State in the form of land lease with annual land rent payment for
the execution of projects on building houses for lease but now wish to sell
dwelling houses built on these leased land areas shall shift to the form of
land allocation by the State with collection of land use levy; the prices of
residential land are determined under the provisions of Clause 1.Article 5, of
Decree No. I7/20067ND-CP amending and supplementing a number of articles of
decrees guiding the implementation of the Land Law and Decree No.187/2004/ND-CP
on transformation of state companies into joint-stock companies (referred to as
Decree No. 17/2U06/ND-CP); the land use duration is determined as for the case
defined in Clause 2, Article 32, of Decree No. 84/2007/ND-CP.
2. Investors being
overseas Vietnamese, foreign organizations or individuals that have been leased
land by the State with one-off land rent payment for the whole lease duration
for the execution of projects on building dwelling houses for lease before the
effective date of Decree No. 84/2007/ND-CP but now wish to sell dwelling houses
built on leased land areas shall pay the difference between the land use levy
determined according to land prices specified in Clause 1, Article 5, of Decree
No. 17/20067ND-CP and land rent already paid for the whole lease duration; the
land use duration is determined as for the case defined in Clause 2, Article
32, of Decree No. 84/2007/ND-CP.
3. Investors being
foreign organizations or individuals that have been leased land by the State
with annual land rent payment for the execution of projects on building
dwelling houses for lease but now wish to sell dwelling houses built on leased
land areas shall shift to the form of land lease with one-off land rent payment
as specified in Article 32 of Decree No. 84/2007/ND-CP.
VIII.
MORTGAGE REGISTRATION DEFI NED AT POINT B, CLAUSE 2, ARTICLE 31
1. The district-level
People's Committee shall make a list of communes and townships (referred to as
communes) far away from the district capital for which the director of the
district-level land use right registration office (or the head of the natural
resources and environment section for localities where no land use right
registration office exists) authorizes commune-level cadastral officers to
carry out mortgage registration, mortgage registration for capital borrowing by
a third party (guarantee), registration of modification of mortgage contents,
registration of supplementation of mortgage contents and cancellation of
mortgage registration (collectively referred to as mortgage registration) of
households and individuals in case certificates have been granted.
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Households and individuals in
communes where cadastral officers are authorized to carry out mortgage
registration may carry out registration mortgage in the communes or at the
district-level land use right registration office.
2. Mortgage registration
order and procedures for commune-level cadastral officers authorized to carry
out mortgage registration:
2.1. After the contract on the
mortgage with land use rights or assets attached to land, mortgage with land
use rights or assets attached to land for capital borrowing by a third party,
modification of mortgage contents or supplementation of mortgage contents
between a land-using household or individual and the mortgage has been signed
and notarized or authenticated as specified in Joint Circular No. 04/
2006/TTLT-BTP-BTNMT of June 13,2006, of the Ministry of Justice and the
Ministry of Natural Resources and Environment, guiding the notarization and
authentication of contracts and documents on the exercise of land users’
rights, or after the capital borrower has fulfilled his/her/its/ dept-payment
obligation, with written certification of the mortgagee on the mortgage
contract or a written certification of the fulfillment of the debt-payment
obligations, the mortgage registration applicant shall submit a mortgage
registration dossier to the People's Committee of the commune where the land exists
according to Joint Circular No. 05/ 2005/TTLT-BTP-BTNMTof June 16,2005,of the
Ministry of Justice and the Ministry of Natural Resources and Environment
guiding the registration of mortgage and guaranty with land use rights, and
Joint Circular No. 03/2005/TTLT-BTP-BTNMTof June 13, 2006, amending and
supplementing a number of provisions of Joint Circular No. 05/2005/
TTLT-BTP-BTNMT.
Applications for registration of
mortgage with land use rights or assets attached to land, modification of
mortgage contents already registered, cancellation of registration of mortgage
with land use rights or assets attached to land, and correction of errors shall
be made according to forms No. 03, 04, 05 and 06 issued together with this
Circular, respectively.
2.2 Upon receiving a mortgage
registration dossier, commune-level cadastral officers shall:
a/ Check the completeness and
validity of the dossier and only receive complete and valid dossiers falling
under his/her authorized competence;
b/ Write in the mortgage
registration application the time of receipt of the dossier (hour, minute,
date, month, year), sign and write his/her full name in the section for
mortgage registration certification in the application and affix the seal of
the commune-level People's Committee;
c/ Make an entry in the mortgage
registration dossier register according to a set form (not printed herein);
d/ Collect mortgage registration
fees according to Joint Circular No. 03/2007/TTLT/BTC-BTP of January 10, 2007,
of the Ministry of Finance and the Ministry of Justice guiding the collection,
payment, management and use of registration fees and charges for supply of
information on security transactions; and issue fee receipts;
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2.3. In the following cases,
commune-level cadastral officers may refuse to receive dossiers and, at the
same time, clearly explain the reason for refusal to the dossier submitters:
a/ The applicant is ineligible
for mortgage registration at the commune-level People's Committee;
b/ The dossier of mortgage
registration or registration for mortgage registration cancellation is
incomplete or invalid;
c/ A forged paper is detected in
the mortgage registration dossier,
d/ Inconsistency between
information in the mortgage registration dossier and the cadastral dossier is
detected;
e/ The applicant for mortgage
registration fails to pay a registration fee as required.
2.4. For a valid dossier already
received, right on the date of receipt of the dossier or no later than the
subsequent working day, commune-level cadastral officers shall:
a/ Make modification on the
additional page of the certificate according to contents specified at Point b.
Clause 9, Article 3 of the Regulation promulgated together with Decision No
08/2006/QD-BTNMT, at the column "Modification contents and their legal
basis" as follows:
-In case of mortgage with land
use rights (or assets attached to land): Write "Mortgage with land use
rights (or assets attached to land) with the bank (or Mr., Ms., or another
economic organization)…. (write the name of the mortgagee) under contract No.
.../dated...;"
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-In case of registration for
modification or supplementation of registered mortgage contents: Write
"The mortgage contents registered on the date.... regarding... (write the
type of mortgaged assets) are modified or supplemented into … (write the
modified or supplemented contents);"
-In case of cancellation of
mortgage registration or mortgage for capital borrowing by a third party
(guarantee) with land use rights
or assets attached to land: Write "Having cancelled mortgage registration
(or mortgage for capital borrowing by others) according to the certification of
the mortgagee made on..." and cross out in red ink the line with the words
on mortgage or mortgage for capital borrowing by others with land use rights
(or assets attached to land):
b/ Record the contents of
mortgage registration in the cadastral register currently managed at the
commune;
c/ Make an entry in the list of
mortgage legislation cases according to a set form (not printed herein);
d/ Sign, write his/her full name
and affix the seal of the commune-level People's Committee at the column
"Certification of competent agency."
đ/ Return to the mortgage
registration applicant: the application for mortgage registration (with the
certification of the commune-level cadastral officer), a receipt of
registration fee and the certificate with the certification of mortgage
registration contents.
3. On the 1st and
the 15th every month, commune-level cadastral officers shall
transfer to the district-level land use right registration office the following
papers:
3.1 The list of mortgage
registration cases, defined at Item c, Point 2.4, Clause 2 of this Section;
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3.3. Registration fee receipts
and colleted registration fees.
4. District-level land use
right registration offices shall:
4.1 Adjust cadastral dossiers
according to mortgage contracts transferred by commune-level cadastral officers
and notify such to the provincial-level land use right registration office for
adjustment of cadastral dossiers according to regulations;
4.2 Receive and manage collected
mortgage registration fees according to regulations.
5. District-level natural
resources and environment sections or land use right registration offices shall
provide commune-level cadastral officers with professional guidance on mortgage
registration according to this Circular.
IX. LAND RENT
AND AUCTION OF LAND USE RIGHTS DEFINED IN ARTICLE 32
1. Overseas Vietnamese,
foreign organizations and foreign individuals (collectively referred to as
foreign investors) that have been leased land and paid land rent in a lump sum
for the whole lease duration for the execution of projects on building dwelling
houses for commercial purposes under the provision of Point a, Clause 2,
Article 35, of the Land Law before the effective date of Decree No.
84/2007/ND-CP and now shift to the form of land lease specified in Article 32
of Decree No. 84/2007/ ND-CP shall pay the difference between the residential
land use levy determined according to the land prices specified in Clause 1,
Article 5 of Decree No. 17/2006/XD-CP and the land rent they have paid in lump
sum for the whole lease duration.
2. For foreign investors
that have been leased by land and paid the land rent in lump sum for the whole
lease duration for the execution of projects on building dwelling houses for commercial
purposes under the provisions of Point a, Clause 2, Article 35 of the Land Law
before the effective date of Decree No. 84/2007/ND-CP but do not shift to land
lease as specified in Article 32 of Decree No. 84/2007/ ND-CP, when selling
dwelling houses in association with residential land use rights, they shall pay
to the State the difference between the residential land use levy determined
according to the land prices specified in Clause 1, Article 5, of Decree No.
17/ 2006/ND-CP and the land rent they have paid once for the whole lease
duration.
For villas and separate houses
constructed adjacent to each other, the difference shall be paid at the time of
house sale; for condominiums, the difference shall be paid no later than the time
of completion of projects on building condominiums.
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3.1. Foreign investors shall
submit one dossier set to the land use right registration office of the
province where the land exists; such a dossier set comprises an application for
the execution of the project in the form of land lease specified in Article 32
of Decree No. 84/2007/ND-CP and the land use right certificate;
The provincial-level land use
right office shall check dossiers, receive complete and valid dossiers and
guide investors to complete invalid and incomplete dossiers.
3.2. Within two working days
after receiving complete and valid dossiers, the provincial-level land use
right registration office shall make and send cadastral map extracts and
cadastral dossier extracts to provincial-level Finance Service for the latter
to carry out procedures for submission to the provincial-level People's
Committee for determination of residential land prices according to Clause 1,
Article 5, of Decree No. 17/20067ND-CP; and send all dossiers to the
provincial-level Natural Resources and Environment Service;
3.3. Within two working days
after receiving tax offices' notice on the investors' fulfillment of financial
obligations, the provincial-level Natural Resources and Environment Service
shall record land use changes on the additional page of the granted certificate
and direct the land use right registration office to record land use changes on
the cadastral dossier and return the modified certificate to the investor. The
land use changes are recorded on the additional page of the certificate as follows:
a/ At the column "Date of
adjustment": Write the time of adjustment for land use right changes;
b/ At the column
"Adjustment contents and legal grounds": Write "Investor (write
the name of the economic organization of the project investor) has shifted from
land lease with payment of land rent for the whole lease term to payment of
land rent equal to the amount of land use levy specified in Document No.
...dated...;"
4. The order and
procedures for land use right auction specified in Clause 1, Article 32 of
Decree No. 84/2007/ND-CP comply with those applicable to domestic investors
under the Prime Minister's Decision No. 216/2005/QD-TTg of August 31, 2005,
promulgating the Regulation on land use right auction for land allocation with
the collection of land use levy or land lease.
5. The order and
procedures for land lease specified in Clause 2, Article 32, of Decree No. 84/
2007/ND-CP comply with those applicable to domestic investors that are
allocated land by the State with the collection of land use levy specified in
Article 125 or Article 126 of Decree No. 181/2004/ ND-CP.
6. The grant of certificates
to foreign investors that acquire land use rights at auction or are leased by
land the State as specified in Article 32 of Decree No. 84/2007/ND-CP complies
with the order and procedures specified in Article 139 of Decree No.
181/7004/ND-CP, in which:
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6.2. At the column "Use
origin": Write "Land leased by the State with one-off payment of land
rent equal to the amount of land use levy"
X. LAND
RECOVERY SPECIFIED IN ARTICLE 34
1. Important economic
development projects specified in Clause 1, Article 34 of Decree No.
84/2007/ND-CP include:
1.1 Important national economic
projects in which investment is decided by the National Assembly in its
resolutions:
1.2 Important economic projects
in which investment, is decided by the Prime Minister under Article 37 of
Decree No. 108/2006/ND-CP of September 22, 20O6, detailing and guiding the
implementation of a number of articles of the investment Law
2. Projects on construction
of residential areas, trade center or high-class hotels defined in Clause 2,
Article 34 of Decree No. 84/2007/ND-CP include:
2.1. Economic development
projects in existing urban centers, including projects on building dwelling
houses for sale or lease under housing and real estate business laws, projects
on building social houses, projects on building dwelling houses for
resettlement, projects on building public houses, projects on building trade
centers, trade fairs and exhibition centers; and projects on building hotels of
3-star or higher grades.
Economic development projects
stated at this Point must be included in the land use planning or detailed
urban construction planning already approved by competent state agencies and
have their investment undertakings approved by the president of the
provincial-level People's Committee on a case-by-case basis.
2.2. Economic development
projects in expanded areas of existing urban centers or new urban centers,
including all economic projects (regardless of their scope and forms) included
in the land use planning, general urban construction planning or detailed urban
construction planning already approved by competent state agencies.
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2.3. Economic development
projects in existing rural residential areas, expanded rural residential areas
or newly built rural residential areas, including all projects included in the
land use planning or planning on the construction of rural residential points
already approved by competent state agencies.
The allocation or lease of land
for the execution of economic development projects in expanded areas of
existing rural residential quarters or newly built rural residential quarters
stated at this Point shall only be carried out after the State has recovered
part or the whole of land areas planned for the expansion of the existing rural
residential areas or the construction of new rural residential areas.
3. The order and
procedures for land recovery, support and settlement comply with Decree No.
197/2004/ND-CP of December 3, 2004, on compensation support and resettlement
upon land recovery by the State. Decrees No. 17/2006VND-CP and No. 84/2007/ND-CP.
XI. MAKING
OF LAND USE RIGHT TRANSACTIONS DEFINED IN ARTICLE 66
1. Provincial/municipal
People's Committees shall:
1.1. Direct and urge concerned
services, branches and district-level Peopled Committees to guide land-using
organizations, households and individuals that have not yet been granted
certificates to submit dossiers of application for certificates;
1.2. Further speed up the grant
of certificates, simplify procedures so as to immediately grant certificates to
land users that have one of land use right papers defined in Clauses 1, 2 and
5, Article 50 of the Land Law; and immediately apply provisions of Decree No.
84/2007/ND-CP to the grant of certificates to land users that do not have land
use right papers defined in Clauses 1, 2 and 5, Article 50 of the Land Law.
2. If land users that
submit dossiers of application for certificates before November l,
2007,according to the provisions of law and but have not yet been granted certificates
and land users that have one of land use right papers defined in Clauses 1,2
and 5 of the Land Law wish to exercise the rights to convert, transfer, lease,
sub-lease or donate land use rights, mortgage with, or contribute capital in
the form of, land use rights, land use right registration offices shall base on
the dossiers of application for certificates already submitted to carry out
procedures of registration for land use right transactions.
For cases eligible for me grant
of certificates, land use right registration offices shall carry out procedures
for the grant of certificates together with the procedures for registration of
land use right transactions.
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XII.
ORGANIZATION OF IMPLEMENTATION
1. This Circular takes
effect 15 days after its publication in "CONG BAO."
2. Provincial/municipal
People's Committees shall direct the implementation of this Circular.
Difficulties arising in the course of implementation should be reported to the
Ministry of Natural Resources and Environment for settlement.
MINISTER
OF NATURAL RESOURCES AND ENVIRONMENT
Mai Ai Truc