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THE
MINISTRY OF JUSTICE
THE MINISTRY OF NATURAL RESOURCES AND ENVIRONMENT
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom - Happiness
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No:
03/2006/TTLT-BTP-BTNMT
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Hanoi,
June 13, 2006
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JOINT CIRCULAR
AMENDING AND
SUPPLEMENTING A NUMBER OF PROVISIONS OF JOINT CIRCULAR NO.
05/2005/TTLT/BTP-BTNMT OF JUNE 16, 2005, OF THE MINISTRY OF JUSTICE AND THE
MINISTRY OF NATURAL RESOURCES AND ENVIRONMENT, WHICH GUIDES THE REGISTRATION OF
THE MORTGAGE OF, AND GUARANTY WITH, LAND USE RIGHTS AND/OR ASSETS ATTACHED TO
LAND
Pursuant to the June 14, 2005 Civil Code;
Pursuant to the November 26, 2003 Land Law;
Pursuant to the Government's Decree No. 181/2004/ND-CP of October 29, 2004, on
enforcement of the Land Law;
Pursuant to the Government's Decree No. 17/2006/ND-CP of January 27, 2006,
amending and supplementing a number of articles of the Decrees guiding the
implementation of the Land Law and to Decree 187/2004/ND-CP on transformation
of state companies into joint-stock companies;
Pursuant to the Government's Decree No. 08/2000/ND-CP of March 10, 2000, on
registration of security transactions;
Pursuant to the Government's Decree No. 62/2003/ND-CP of June 6, 2003, defining
the functions, tasks, powers and organizational structure of the Ministry of
Justice;
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,
In order to ensure uniform implementation of legal documents on the
registration of security transactions with land use rights and/or assets
attached to land, the Ministry of Justice and the Ministry of Natural Resources
and Environment hereby amend and supplement a number of provisions of their
Joint Circular No. 05/2005/TTLT/BTP-BTNMT of June 16, 2005, guiding the
registration of the mortgage of, and guaranty with, land use rights and/or
assets attached to land (referred to as Joint Circular No. 05), as follows:
1. To amend Point 1.1, Clause 1, Section I as
follows:
"1.1. This Circular guides the registration
of the mortgage of land use rights and/or assets attached to land by economic
organizations, households, individuals, overseas Vietnamese, foreign
organizations or individuals that, under the provisions of law, may mortgage or
accept mortgages with land use rights and/or assets attached to land
(collectively referred to as mortgage registration).
The trust-based security for the performance of
loan contracts shall not be subject to registration."
2. To amend Clause 2, Section I as follows:
"2. Cases of mortgage registration at land
use right registries
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2.2. Mortgage of dwelling houses, other
architectures, planted productive forests or gardens of perennial trees;
mortgage of dwelling houses, other architectures, planted productive forests or
gardens of perennial trees of a third person (collectively referred to as
mortgage of assets attached to land);
2.3. Mortgage of future assets attached to land;
mortgage of future assets of a third person (collectively referred to as mortgage
of future assets);
2.4. Mortgage of land use rights and assets
attached to land;
2.5. Mortgage of land use rights and future
assets;
2.6. Change, correction of errors or
cancellation of registrations of mortgages stated at Points 2.1, 2.2, 2.3, 2.4 and
2.5 of this Clause;
2.7. Written notices on the disposal of
mortgaged assets in cases where mortgage registration has been made."
3. To amend and supplement Point 7.1, Clause 7,
Section I as follows:
"7.1. The time limit for mortgage
registration for cases mentioned in Clause 2, Section I of this Circular is
specified as follows:
a/ For valid registration dossiers comprising
the land-use right certificate granted under the provisions of the 1987 Land
Law, the 1993 Land Law or the 2003 Land Law; the dwelling-house ownership and
residential-land use right certificate granted under the provisions of the
Government's Decree No. 60/CP of July 5, 1994; the dwelling-house ownership and
residential-land use right certificate granted under the provisions of law on
dwelling houses (collectively referred to as the land-use right certificate);
the dwelling-house ownership certificate granted under the provisions of law on
dwelling houses; or the construction-work ownership certificate granted under
the provisions of the Government's Decree No. 95/2005/ND-CP of July 15, 2005
(collectively referred to as the certificate of ownership over assets attached
to land), mortgage registration shall be made on the date of receipt of the
dossier; if the registration dossier is submitted after 15.00 hrs., mortgage
registration shall be made on the subsequent working day at the latest.
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4. To amend Point 1.1b, Clause 1, Section III as
follows:
"b/ The contract on the mortgage of land
use rights or assets attached to land, notarized or authenticated under the
provisions of Point a, Clause 1, Article 130 of the Land Law, or certified by
the Management Board of the industrial park, economic zone or hi-tech park
under the provisions of Clause 10, Article 2 of the Government's Decree No. 17/2006/ND-CP
of January 27, 2006, amending and supplementing a number of articles of the
Decrees guiding the implementation of the Land Law and Decree No.
187/2004/ND-CP on transformation of state companies into joint-stock companies,
one (01) copy."
5. To amend the first paragraph, Point 1.1c,
Clause 1, Section III as follows:
"c/ The land use right certificate."
6. To supplement and amend Point 1.2, Clause 1,
Section III as follows:
6.1. To add the following paragraph to Point
1.2c, Clause 1, Section III:
"Where the mortgagor is the owner of assets
attached to land leased from organizations, households or individuals or
contributed as capital with land use rights without forming a new legal person,
the registration dossier shall comprise the land use right certificate or one
of the papers specified in Clauses 1, 2 and 5, Article 50 of the Land Law, or
the notarized or authenticated contract on lease of land use rights or contract
on capital contribution with land use rights."
6.2. To amend Point 1.2d, Clause 1, Section III
as follows:
"d/ The certificate of ownership over
assets attached to land (if any), except cases where the mortgage contract is
notarized or authenticated or certified by the Management Board of the
industrial park, economic zone or hi-tech park."
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"e/ A copy of the construction permit or
investment project approved by a competent state agency, for the mortgage of
future assets, except cases where such asset mortgage contract is notarized or
authenticated or certified by the Management Board of the industrial park,
economic zone or hi-tech park, or where construction permits or investment
projects are not required for such assets."
7. To add the following paragraph to Clause 5,
Section III:
"When mortgaging assets attached to land or
future assets, if the owner of such assets has leased such land of
organizations, households or individuals, or has received capital contributions
with land use rights without forming a new legal person, the column "Notes
or developments and legal grounds," Section III of the cadastral book, and
the column "Developments" of the land developments monitoring book,
shall be filled with the words "Mortgage with assets attached to land (or
future assets) of ' (name of the mortgagor) with ' (name of
mortgagee) under the mortgage contract or credit contract (if the mortgage is
stated in a credit contract) No. ../ ..dated ../../.."
8. To amend Clause 7, Section III as follows:
"7. Mortgage registration in cases where an
asset is used to secure the performance of many obligations
Where a mortgagor uses land use rights, rights
to use land and assets attached to land, or assets attached to land to secure
the performance of many obligations, if the mortgagee previously kept the land
use right certificate or the certificate of ownership over assets attached to
land, he/she/it must hand over such certificate to the mortgagor for the latter
to conduct mortgage registration under the guidance in Clause 1 of this
Section.
The mortgagor shall keep and preserve the
certificate and, after making mortgage registration, hand over the certificate
to the mortgagee that previously kept the certificate, unless otherwise agreed
by the parties."
9. To amend Point 2.2, Clause 2, Section IV as
follows:
"2.2. The land use right certificate, in
case of registration of changes in the contents of the land use right
certificate; the certificate of ownership over assets attached to land (if
any), in case of replacement or addition of assets attached to land, except
where the contract on the change in the mortgage contents is notarized or
authenticated or certified by the Management Board of the industrial park,
economic zone or hi-tech park."
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"4. Where the land use right registry
detects errors made by its registrar(s), it shall correct the cadastral dossier
and send a written notice thereon to the registration requester; in case of
errors in making entries in the land use right certificate, it shall notify in
writing the registration requester to submit the land use right certificate for
correction; after making correction, the land use right registry shall return
the land use right certificate to the registration requester.
Where errors are made at registrar's fault, the
registration requester shall not have to pay fees for the error
correction."
11. To add the following paragraph to Clause 5,
Section VIII:
"For contracts on the mortgage of and
guaranty with land use rights or assets attached to land which were signed
before July 28, 2005 (the effective date of Joint Circular No. 05) but have not
expired yet, the registration shall also be made according to the provisions of
this Circular.
Contracts on the guaranty with land use rights,
guaranty with assets attached to land, guaranty with future assets, guaranty
with land use rights together with assets attached to land, or guaranty with
land use rights and future assets, which were signed before the effective date
of this Circular, shall not have to be replaced with contracts on the mortgage
of land use rights of a third person; mortgage of assets attached to land of a
third person; mortgage of future assets of a third person; mortgage of land use
rights and assets attached to land of a third person; or mortgage of land use
rights and future assets of a third person in registration dossiers."
12. Organization of implementation
12.1. This Circular takes effect 15 days after
its publication in "CONG BAO."
12.2. To annul a number of the following points,
words and phrases mentioned in Circular No. 05:
a/ Point 2.3g, Clause 2, Section II.
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c/ The words and phrases "guaranty", "guarantor",
"new guarantor", "guarantee", "new guarantee "
and "guaranty contract".
d/ The guidance on writing the contents of
guaranty with land use rights, assets attached to land or future assets in land
use right certificates, cadastral books and books for monitoring land
developments, stated at Point 4.1, Clause 4 of Section III, Clause 5 of Section
III, Point 4.1, Clause 4, Section IV, and Point 3.1, Clause 3 of Section V.
12.3. Land use right registries which have
registered the mortgage of productive forests being planted forests must notify
thereon in writing provincial-level Services of Agriculture and Rural
Development or district-level functional sections in charge of agriculture and
rural development defined in Article 36 of the Government's Decree No.
23/2006/ND-CP of March 3, 2006, on enforcement of the Law on Forest Protection
and Development, and notify the dwelling-house management offices of the same
level of the registration of mortgage of dwelling houses. Such notification
shall comply with the guidance in Clause 4, Section II of Joint Circular No.
05.
12.4. In the course of implementation, if facing
any difficulties or problems, individuals and organizations should promptly
report them to the Ministry of Justice and the Ministry of Natural Resources
and Environment for study and settlement.
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