Circular 07/2019/TT-BTP registration of mortgage of land use rights

CIRCULAR

Guiding a number of provisions on registration of mortgage of land use rights and land-attached assets^[1]

Pursuant to the November 24, 2015 Civil Code;

Pursuant to the November 29, 2013 Land Law;

Pursuant to the November 25, 2014 Housing Law;

Pursuant to the Government’s Decree No. 102/2017/ND-CP of September 1, 2017, on registration of security interests;

Pursuant to the Government’s Decree No. 96/2017/ND-CP of August 16, 2017, defining the functions, tasks, powers and organizational structure of the Ministry of Justice;

At the proposal of the Director of the National Registration Agency for Secured Transactions;

The Minister of Justice promulgates the Circular guiding a number of provisions on registration of mortgage of land use rights and land-attached assets.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Circular guides a number of provisions on registration, refusal of registration, and forms for registration of the mortgage of land use rights and land-attached assets.

Article 2. Subjects of application

1. Individuals and legal persons that request registration of the mortgage of land use rights and land-attached assets.

2. Households being land users that request registration of the mortgage of land use rights and land-attached assets in accordance with the Land Law and Civil Code.

3. Branches of land registration offices and land registration offices attached to provincial-level Departments of Natural Resources and Environment (below collectively referred to as land registration offices).

4. Other entities that request, or have the rights and obligations related to, registration of the mortgage of land use rights and land-attached assets in accordance with the Law on Enforcement of Civil Judgments, Bankruptcy Law or other relevant laws.

Article 3. Interpretation of terms

In this Circular, the terms below are construed as follows:

1. Land-attached assets include houses and construction works under house construction investment projects; detached houses prescribed in the Housing Law; other construction works defined in the laws on investment and real estate business and other relevant laws; and perennial plants and planted production forests;

2. Future land-attached assets include:

a/ Houses and construction works under construction that have not yet undergone takeover tests for being put into use, including houses, construction works under house construction investment projects, and detached houses defined in the Housing Law; and other construction works defined in the laws on investment and real estate business and other relevant laws;

b/ Planted production forests and perennial plants that have not yet been formed or have been formed but over which mortgagors establish the ownership after the time of entry into mortgage contracts;

3. Transition of registration of mortgage of property rights arising from a house purchase and sale contract means a land registration office’s certification of mortgage registration in case parties that have registered the mortgage of property rights arising from a house purchase and sale contract request transition to registration of the mortgage of future houses or houses for which the parties have not yet deregistered the mortgage of such property rights by the time of transition request;

4. Registration of mortgage of a future land-attached asset means a land registration office’s recording of information about the mortgage of a future land-attached asset in the cadastral book or registration book of mortgage of future land-attached assets;

5. Certificates of land use rights and ownership of houses and land-attached assets in mortgage registration dossiers referred to in the Government’s Decree No. 102/2017/ND-CP of September 1, 2017, on registration of security interests (below referred to as Decree No. 102/2017/ND-CP), and this Circular include certificates of land use rights and ownership of houses and land-attached assets granted in accordance with the 2013 Land Law and the certificates referred to in Clause 2, Article 97 of the 2013 Land Law (below collectively referred to as certificates);

6. Request forms for registration referred to in Decree No. 102/2017/ND-CP and this Circular include request form for mortgage registration; request form for registration of change or error correction; request form for registration of notice of disposal of mortgaged assets; request form for mortgage deregistration; and request form for transition of mortgage registration (below collectively referred to as request form);

7. Information about an individual mortgagor includes full name, address, serial number of people’s identity card or citizen identity card or passport or identification paper issued under the Law on Officers of the Vietnam People’s Army or Law on Professional Army Men and Defense Workers and Employees, or serial number of another paper proving the legal status of an individual in accordance with law; and other information required by the land law to be written in certificates;

8. Information about a mortgagor being a legal person includes name, office address, serial number of establishment registration certificate (if any), and information about the legal person required by the land law to be written in certificates;

9. Mortgage contract referred to in Decree No. 102/2017/ND-CP and this Circular may be a contract on mortgage of land use rights and land-attached assets or a contract with an agreed term on the mortgage of land use rights and land-attached assets;

10. Contract modifying a mortgage contract referred to in Decree No. 102/2017/ND-CP and this Circular may be a contract on modification of a contract on mortgage of land use rights and land-attached assets or another document with an agreed term on the modification of a contract on mortgage of land use rights and land-attached assets.

Article 4. Cases of registration of mortgage of land use rights and land-attached assets

1. Cases of registration of mortgage of land use rights and land-attached assets include:

a/ Registration of mortgage of land use rights;

b/ Registration of mortgage of land-attached assets;

c/ Registration of mortgage of land use rights simultaneously with land-attached assets;

d/ Registration of mortgage of future land-attached assets;

dd/ Registration of mortgage of land use rights simultaneously with future land-attached assets;

e/ Registration of mortgage of house construction investment projects, investment projects to build construction works other than houses, or other construction investment projects as specified by law;

g/ Registration of change in registered mortgage contents;

h/ Registration of notices of disposal of mortgaged assets in case the mortgage has been registered;

i/ Deregistration of mortgage.

2. The registration of mortgage referred to at Point e, Clause 1 of this Article is the same as the registration of mortgage of land use rights and future land-attached assets being houses or construction works.

3. The registration of mortgage prescribed in Clause 1 of this Article shall be applied to cases of mortgage to secure the performance of civil obligations of mortgagors or other persons or of both mortgagors and other persons.

Article 5. Principles of registration of mortgage of land use rights and land-attached assets

1. Land registration offices shall register the mortgage under Article 4 of this Circular for registration requesters in accordance with Clause 1, Article 8 of Decree No. 102/2017/ND-CP and may only register the mortgage of land use rights and land-attached assets in case mortgagors are persons having land use rights or owners of land-attached assets. Parties to a mortgage contract shall take accountability for their agreements on the value of collaterals, secured obligations, and security for the performance of civil obligations of mortgagors or other persons under Clause 3, Article 4 of this Circular and other relevant provisions of the civil law; agreements on other collaterals other than land use rights or land-attached assets; and other agreements they may reach in accordance with law.

2. The registration of mortgage of property rights arising from house purchase and sale contracts may not be made simultaneously with the registration of mortgage of such future houses, and vice versa.

3. In case a project owner has mortgaged and registered the mortgage of house construction investment projects or future houses, before selling a house under such a project, it/he/she shall carry out procedures for registering the change in the registered mortgage contents in order to partly withdraw the mortgaged asset, unless otherwise agreed upon by the project owner, purchaser and mortgagee.

In case a project owner mortgages and registers the mortgage of an investment project to build works other than houses, other construction investment projects or future construction works under these projects in accordance with law, before selling a construction work under such a project, it/he/she shall carry out procedures for registering change in the registered mortgage contents in order to partly withdraw the mortgaged asset.

4. Land registration offices shall register the mortgage of future land-attached assets on the principle of recording registration contents based on the information declared in request forms. Registration requesters shall take responsibility before law for the lawfulness and accuracy of the declared information as well as documents and papers in registration dossiers.

Article 6. Signatures and seals in request forms

1. A request form must bear the signature of a competent person, and seals (if any) of the mortgagor and mortgagee which must be consistent with information in the mortgage contract, or of a lawful representative in case the mortgagor or mortgagee has a representative, except the cases specified in Clauses 2 thru 6 of this Article.

2. In case a mortgage contract or contract modifying a mortgage contract has been notarized or certified, a request form is required to bear only the signature of a competent person, and seal (if any) of the mortgagor or mortgagee or its/his/her lawful representative.

3. In case of requesting registration of a change in the registered content on the mortgagee under Clause 1, Article 18 of Decree No. 102/2017/ND-CP, including a change caused by reorganization of a legal person, debt trading, or transfer of the right to request or transfer of other civil obligations under law, a request form is required to bear only the signature of a competent person, and seal (if any) of the new mortgagee or its/his/her lawful representative.

In case of request for registration of a change in the registered content on the mortgagee as a result of correction of errors in information about the mortgagee; partial withdrawal of mortgaged assets; registration of a notice of disposal of mortgaged assets; or deregistration, a request form is required to bear only the signature of a competent person, and seal (if any) of the mortgagee or its/his/her lawful representative.

4. In case of request for deregistration together with a record of liquidation of the mortgage contract or the mortgagee’s written consent to the deregistration or written certification of mortgage release, a request form is required to bear only the signature of a competent person, and seal (if any) of the mortgagor or its/his/her lawful representative.

5. In case an asset management officer or enterprise in charge of managing or liquidating assets of a bankrupt firm is the registration requester, a request form is required to bear only the signature of a competent person, and seal (if any) of such officer or enterprise.

6. In case of deregistration under Point i, Clause 1, Article 21 of Decree No. 102/2017/ND-CP while the deregistration requester is a civil judgment enforcement body or bailiff office that has distrained or disposed of mortgaged assets or the lawful representative of the individual or legal person that purchases assets for judgment enforcement, a request form is required to bear only the signature of a competent person, and seal (if any) of such body or office or of the lawful representative of the asset purchaser. 

7. In case a branch of a legal person is assigned by the latter to perform the latter’s function regarding registration of security interests under the latter’s charter or as authorized by the latter’s competent person in accordance with law in the cases specified in this Article, the signature of the competent person and seal (if any) of the branch shall be used instead of the signature of a competent person and seal (if any) of the legal person.

Article 7. Checking of information in case mortgage registration requesters are not required to pay registration charges

In case mortgage registration requesters are not required to pay registration charges, when making registration of a change in registered mortgage contents, registration of notices of disposal of mortgaged assets, or deregistration, land registration offices shall check papers proving that the requesters are not required to pay charges for registration of mortgage of land use rights and land-attached assets included in the mortgage registration dossiers in order not to collect registration charges.

Article 8. Online registration

Online submission of dossiers for registration of the mortgage of land use rights and land-attached assets shall be applied to localities that have operated land databases and after the Ministry of Justice and Ministry of Natural Resources and Environment provide guidelines on online registration of security interests with land use rights and land-attached assets.

Article 9. Responsibilities of agencies involved in registration of mortgage of land use rights and land-attached assets

1. Land registration offices shall send information on mortgaged assets to provincial-level Departments of Natural Resources and Environment for update and disclosure after making registration of a change in registered mortgage contents, correcting errors or making deregistration concerning the mortgage of house construction investment projects or investment projects to build construction works other than houses under Article 64 of Decree No. 102/2017/ND-CP.

2. Provincial-level Departments of Justice shall:

a/ Assume the prime responsibility for, and coordinate with provincial-level Departments of Natural Resources and Environment and other related agencies in, formulating and submitting to provincial-level People’s Committees for promulgation a regulation on coordination in the state management of registration of the mortgage of land use rights and land-attached assets in localities;

b/ Assume the prime responsibility for, and coordinate with provincial-level Departments of Natural Resources and Environment in, guiding and directing land registration offices, notarization practice organizations, and related agencies, organizations and individuals in localities to implement regulations on registration of the mortgage of land use rights and land-attached assets;

c/ Assume the prime responsibility for, and coordinate with provincial-level Departments of Natural Resources and Environment in, annually or extraordinarily inspecting land registration offices in localities in making registration of, and providing information about, mortgage of land use rights and land-attached assets in accordance with law.

3. Civil judgment enforcement bodies shall send notices of distraint of assets for judgment enforcement and release of distraint of assets for judgment enforcement to land registration offices of the localities where exist(s) the distrained land or land-attached assets right on the date of signing of the decision on distraint or decision on release of distraint of assets for judgment enforcement which are land use rights or land-attached assets.

Such a notice must state the serial number and date of signing of the decision on distraint or decision on release of distraint of assets; information about the judgment debtor, subject having the right to own assets or subject having the right to use assets; and information about the distrained assets.

4. Bailiff offices shall, within the ambit of their law-provided functions and competence, perform the responsibilities like civil judgment enforcement bodies as prescribed in Clause 3 of this Article.

Article 10. Statistical reports on registration of mortgage of land use rights and land-attached assets

1. Land registration offices shall make annual statistical reports on registration of the mortgage of land use rights and land-attached assets and send them to provincial-level Departments of Justice for summarization and reporting to provincial-level People’s Committees.

2. Provincial-level People’s Committees shall make annual statistical reports or specialized reports on registration of the mortgage of land use rights and land-attached assets in their localities at the request of competent agencies in accordance with law and send them to the Ministry of Justice.

3. Statistical reports shall be made under the Ministry of Justice’s regulations.

Chapter II

REFUSAL OF REGISTRATION, REGISTRATION OF MORTGAGE, REGISTRATION OF CHANGE, TRANSITION OF REGISTRATION, DEREGISTRATION, ARCHIVE OF REGISTRATION DOSSIERS, AND FORMS FOR REGISTRATION OF MORTGAGE OF LAND USE RIGHTS AND LAND-ATTACHED ASSETS

Article 11. Refusal of registration in case information in registration dossiers is not consistent with information stored at land registration offices or in case competent agencies or persons request termination or suspension of registration of mortgage of land use rights and land-attached assets

1. In case information in registration dossiers is not consistent with information stored under Point b, Clause 1, Article 15 of Decree No. 102/2017/ND-CP, land registration offices shall refuse registration in the following cases:

a/ Information about mortgagors or mortgaged assets being land use rights or land-attached assets declared in mortgage contracts is not consistent with information in certificates;

b/ Information about mortgagors or mortgaged assets being land use rights or land-attached assets declared in request forms is not consistent with information in certificates, unless registration requesters have remedied the inconsistency.

2. In case an enforcer of a civil judgment enforcement body or a bailiff officer of a bailiff office requests in writing the termination or suspension of registration of the mortgage of land use rights and land-attached assets, a land registration office shall comply with Point g, Clause 1, Article 15 of Decree No. 102/2017/ND-CP.

In case agencies or individuals competent to conduct proceedings and other competent agencies and individuals as defined by law request in writing the termination or suspension of registration of the mortgage of land use rights and land-attached assets, land registration offices may request these competent agencies and individuals to clearly define the competence for and cases of termination or suspension of the registration in accordance with the procedural laws and other relevant laws.

Article 12. Registration of mortgage in case land use rights or land-attached assets are common assets of husband and wife, a household, or a group of land users, or assets of a private enterprise; or in case mortgaged assets mentioned in mortgage contracts include land use rights, land-attached assets and other assets

1. Land registration offices shall register the mortgage of land use rights and land-attached assets in the following cases:

a/ Mortgage of land use rights and land-attached assets that are common assets of husband and wife but a certificate only states the full name of the husband or wife being the land user or owner of houses and land-attached assets under Clause 4, Article 98 of the 2013 Land Law while mortgagor information in the contract on mortgage of land use rights and land-attached assets is about both husband and wife;

b/ Mortgage of land use rights and land-attached assets that are common assets of a household but a certificate only states the “paternal household” and full name of the household head or “maternal household” and full name of the household head while the notary public office or certification office identifies that the contract on mortgage of land use rights and land-attached assets states, in addition to the full name of the household head or his/her lawful representative, full names of other household members sharing land use rights and land-attached assets.

In case land and land-attached assets come under common use rights or common ownership of household members being land users or of a group of land users as prescribed in Clause 2, Article 167 of the 2013 Land Law while one or more than one member of the household or of the group of land users request(s) registration of the mortgage of the part of land use rights or part of land-attached assets under his/her/their ownership, he/she/they shall, before making the registration, carry out procedures for division of land use rights or land-attached asset ownership rights and procedures for separation of a land parcel in accordance with the land law in order to be granted a certificate;

c/ Mortgage of land use rights and land-attached assets for which a certificate states the name of a private enterprise while mortgagor information in the contract on mortgage of land use rights and land-attached assets indicates the full name of the enterprise owner or full names of the enterprise owner and his/her spouse.

2. In case mortgaged assets mentioned in a mortgage contract include land use rights, land-attached assets and other assets but contract parties declare in the request form only mortgaged assets being land use rights and land-attached assets which is consistent with information in a certificate, a land registration office shall register the mortgage of land use rights and land-attached assets.

In case mortgaged assets mentioned in a mortgage contract and request form include land use rights and land-attached assets but the ownership over land-attached assets is not yet certified in a certificate, a land registration office shall register the mortgage of land use rights.

In case mortgaged assets mentioned in a mortgage contract include land use rights and land-attached assets but the request form only states mortgaged assets being land use rights, a land registration office shall register the mortgage of land use rights.

Article 13. Registration of mortgage in case of changes in information about mortgagors or mortgaged assets

1. Registration requesters shall request registration for changes in land and land-attached assets, or request certification of changes before requesting mortgage registration, in the following cases:

a/ Information about identification number or area of a land parcel is not consistent with information stated in a certificate as a result of land consolidation, land survey, or re-determination of the area or dimensions of the land parcel;

b/ Information about land-attached assets with ownership thereover certified in a certificate, including type of house, name of building, number of stories, construction area, and area under use, is not consistent with information stated in the certificate as a result of land survey, re-determination of area, construction, or repair.

2. In case of a change in information about mortgagor in a certificate, information about administrative units, or other information relating to mortgaged assets being land use rights or land-attached assets under decisions or documents issued by competent authorities in accordance with law, land registration offices may carry out procedures for registration of changes in land or land-attached assets or certification of changes simultaneously with procedures for registration of the mortgage of land use rights or land-attached assets.

In case the decisions or documents issued by competent authorities mentioned in this Clause apply exclusively to mortgagors, registration requesters shall provide such decisions or documents.

Article 14. Registration of mortgage of future land-attached assets

1. In case of registration of the mortgage of future land-attached assets in which the mortgagor is not the land user, the registration requester shall submit the papers specified in Clauses 1 thru 6, Article 39 of Decree No. 102/2017/ND-CP.

2. In case land registration offices have not yet applied e-cadastral books, they may use books for registration of the mortgage of future land-attached assets to register the mortgage of future land-attached assets, except the case of registration of mortgage of land use rights simultaneously with future land-attached assets.

Article 15. Registration of mortgage of land-attached assets other than houses which have been formed but the ownership over which is not yet certified in certificates

1. In case of mortgage of land-attached assets other than houses which have been formed but the ownership over which is not yet certified in certificates as specified in Article 41 of Decree No. 102/2017/ND-CP, land registration offices shall certify the ownership over land-attached assets in the granted certificates in accordance with the land law or submit dossiers to a competent agency for grant of a new certificate for the formed assets.

After changes are certified in a certificate or a new certificate is granted, the land registration office shall write contents and time of mortgage registration in a cadastral book, certificate and request form, and notify registration results. In this case, the time limit for processing a mortgage registration dossier is exclusive of the period for carrying out procedures for certification of ownership over land-attached assets in the certificate or for grant of a new certificate for the formed assets.

In case assets are ineligible for certification of ownership in accordance with law, the land registration office shall refuse mortgage registration and notify such in writing to the registration requester.

2. In case the mortgage of land use rights is registered before the ownership over land-attached assets is certified in a certificate, such registration remains valid and, when certifying asset ownership in the certificate, the land registration office may not request the parties to deregister the mortgage of land use rights.

Article 16. Registration of changes in registered mortgage contents

1. In case there are different mortgaged assets in a mortgage contract and the mortgage parties request registration of changes including withdrawal and addition of one or more than one mortgaged asset, which does not fall into the case of deregistration specified at Point c, Clause 1, Article 21 of Decree No. 102/2017/ND-CP (for example, withdrawal of 1 mortgaged land parcel, and addition of 2 land-attached assets), a registration requester shall submit only 1 (one) set of dossier for registration of changes as prescribed in Clause 1, Article 43 of Decree No. 102/2017/ND-CP.

2. In the case of registration of changes specified in Clause 3, Article 5 of this Circular, the mortgage parties shall declare in the request form details on the withdrawn asset, including name and address of the project and other information, in order to specifically determine the withdrawn asset (for example, in case of withdrawal of an asset being an apartment under a house construction investment project, the mortgage parties shall declare the serial number and area of the apartment, number of stories, name of the building, etc.). In case of withdrawal of more than one apartment or construction work under the same house construction investment project or investment project to build construction works, the mortgage parties shall make a list of such apartments or construction works and give detailed information like information on withdrawn assets as prescribed in this Clause.

3. In case the mortgage of land use rights has been registered and now a land user builds construction works other than houses on such land and wishes to register addition of mortgaged assets, the mortgage parties may request certification of ownership over land-attached assets before or simultaneously with the registration of changes in the registered mortgage contents.

4. In case of change of mortgagor or mortgagee as a result of reorganization of a legal person, debt trading or transfer of the right to request or transfer of other civil obligations in accordance with law, a registration requester shall, when registering changes in the registered mortgage contents, submit a competent agency’s decision or document on the reorganization of the legal person, or contract or another document proving the debt trading or transfer of the right to request or transfer of obligations in the form specified at Point b, Clause 1, Article 43 of Decree No. 102/2017/ND-CP in replacement of the contract modifying the mortgage contract.

5. In case different mortgage contracts have the same mortgagee, while there is a change in information about the mortgagee or change of the mortgagee as a result of reorganization of a legal person, debt trading or transfer of the right to request or transfer of other civil obligations in accordance with law, a registration requester shall, together with the papers specified in Clause 1, Article 43 of Decree No. 102/2017/ND-CP, submit 1 (one) list of registered mortgage contracts for registration of changes for all of these contracts.

6. In case a registration dossier comprises a certificate mentioned in Clause 2, Article 97 of the 2013 Land Law which is requested to be converted into a certificate under the 2013 Land Law, the mortgage contract parties are not required to register changes in the content on the certificate in the registered mortgage contract.

After a certificate is renewed in accordance with law, the land registration office shall write the mortgage registration content in the new certificate.

7. In case a request form indicates different mortgaged assets while the mortgage parties have disposed of one or more than one of such assets, they shall register changes for partial withdrawal of the disposed assets.

8. In case the mortgage of land use rights or land-attached assets has been registered while a land user or an owner of land-attached assets requests registration of land-related changes due to existence of the bases specified in Clause 1, Article 13 of this Circular, extension of the land use term before such term expires, or land use purpose change, or in other cases specified in the land law, the land registration office may not request the mortgage parties to deregister the mortgage before carrying out procedures for registration of land-related changes.

9. In case of a change in information about a mortgagor or information about a mortgaged land parcel as a result of land consolidation, land survey for re-determination of the area and dimensions of the land parcel, or change in the present status of land-attached assets as compared to information in a certificate, the mortgage parties shall carry out procedures for certification of change in the certificate or for renewal of the certificate in accordance with the land law without having to register for changes in the registered mortgage contents. In case of renewal of a certificate, the land registration office shall re-write the mortgage registration content in the new certificate.

Article 17. Writing of mortgage registration contents in case future land-attached assets have been formed with ownership already certified

1. In case of registration of changes in mortgage contents when future land-attached assets have been formed and the mortgagor requests certification of asset ownership in the certificate, the land registration office shall write in the cadastral book and certificate information that can help confirm that such assets may further be used as mortgage to secure the fulfillment of the mortgagee’s obligations.

2. In case the project owner carries out procedures for grant of a certificate for the asset purchaser or the asset purchaser carries out procedures for grant of a certificate while such asset is currently mortgaged as a future asset which the mortgagor or mortgagee has not yet deregistered after the certificate is granted, the land registration office shall write in the cadastral book and certificate information that can help confirm that such asset may further be used as mortgage to secure the fulfillment of the mortgagee’s obligations.

Article 18. Transition of registration of mortgage of property rights arising from house purchase and sale contracts

1. Parties to a mortgage contract may request transition of registration of the mortgage of property rights arising from a contract on purchase and sale of a house other than a detached house in the following cases:

a/ They have registered the mortgage of property rights arising from the house purchase and sale contract and request transition to registration of the mortgage of a future house;

b/ They have registered the mortgage of property rights arising from the house purchase and sale contract and request transition to registration of house mortgage because the future house has been formed (undergone a pre-acceptance test and put into use).

2. In case property rights arising from a contract on purchase and sale of a detached house have been mortgaged under the Housing Law, when the mortgagor is granted a certificate and the mortgage contract parties continue agreeing on mortgage of land use rights and such house to secure the fulfillment of their obligations, they may make requests in one of the following cases:

a/ Requesting deregistration of the mortgage of property rights arising from the house purchase and sale contract at the Registration Center for Transactions and Assets of the National Registration Agency for Secured Transactions under the Ministry of Justice (below referred to as the Registration Center for Transactions and Assets) and registration of the mortgage of land use rights and houses at the land registration office;

b/ Requesting transition of registration under Clause 2, Article 46 of Decree No. 102/2017/ND-CP and registration of the mortgage of land use rights.

3. In case of transition of registration of the mortgage of property rights arising from house purchase and sale contracts to registration of the mortgage of houses, competent agencies and organizations may not request the mortgage contract parties to deregister the mortgage of such property rights before carrying out procedures for notarization or certification of house mortgage contracts.

4. In case the mortgage of property rights arising from a contract on purchase and sale or transfer of a land-attached asset other than a house has been registered and the mortgage contract parties request transition to registration of mortgage of the land-attached asset because such asset has been formed and undergone pre-acceptance test and has the ownership certified, the transition will be the same as transition of registration of mortgage of property rights arising from purchase and sale contracts as prescribed in Articles 46 and 49 of Decree No. 102/2017/ND-CP and this Article.

Article 19. Deregistration of mortgage under Clause 1, Article 21 of Decree No. 102/2017/ND-CP

In case of deregistration under Points d, dd and e, Clause 1, Article 21 of Decree No. 102/2017/ND-CP, the registration requester shall, on a case-by-case basis, submit the papers specified at Point a, Clause 2, Article 47 of Decree No. 102/2017/ND-CP and one of the following papers (1 original or 1 certified copy or 1 uncertified copy together with the original for checking) in substitution for the paper specified at Point b, Clause 2, Article 47 of Decree No. 102/2017/ND-CP:

1. Mortgage release document; document on liquidation of the mortgage contract; contract on purchase and sale of assets put for auction approved by a competent agency or another document proving the complete disposal of mortgaged assets;

2. Document proving that the assets are destroyed or wholly lost, or competent state agency’s decision on dismantlement or confiscation of assets which remains valid;

3. Legally effective court judgment or ruling or arbitration award on cancellation of the mortgage or declaration of the mortgage contract as null and void.

Article 20. Filing of registration dossiers

1. A to-be-filed mortgage registration dossier must comprise:

a/ One original or 1 certified copy of each of the following papers: mortgage contract; paper proving eligibility for exemption from charges for registration of security interests (if any); house purchase and sale contract signed between the mortgagor and project owner; and document on transfer of the house purchase and sale contract (if any);

b/ One original or 1 certified copy or 1 copy of each of the following papers: notarized or certified agreement between the land user and asset owner on the fact that the land is used to form land-attached assets in case of registration of the mortgage of future land-attached assets in which the asset owner is not the land user; power of attorney in case the registration requester is an authorized person or document proving the capacity of representation in case the request form signer is a representative of the mortgagor or mortgagee;

c/ One copy of each of the following papers: request form of registration of mortgage, certified by the land registration office; certificate of mortgage registration; land allocation or lease decision in case the project owner mortgages the house construction investment project or future house; construction permit or investment project approval decision in case of mortgage of land use rights and future land-attached assets or mortgage of future land-attached assets (if any); design drawing showing the ground plan of the project or ground plan of the construction work under such project in case the project owner mortgages the house construction investment project; design drawing showing the ground plan of the project in case the project owner mortgages the work construction investment project; and design drawing showing the ground plan of the land-attached asset approved by a competent agency in case of mortgage of a future land-attached asset being a construction work other than a house.

2. A to-be-filed dossier for registration of changes in registered mortgage contents must comprise:

a/ One original or 1 certified copy of each of the following papers: contract modifying the mortgage contract or contract annex on the change; debt trading contract or another document proving the debt trading; and contract or another document on the transfer of the right to request or transfer of obligations in accordance with law;

b/ One original or 1 certified copy or 1 copy of each of the following papers: power of attorney in case the registration requester is an authorized person or document proving the capacity of representation in case the request form signer is a representative of the mortgagor or mortgagee; and another document proving the change in case of a change in mortgage contents under a competent agency’s decisions or document;

c/ One copy of each of the following papers: request form for change registration or error correction certified by the land registration office; certificate of change in case the change has been written in the certificate; and list of registered mortgage contracts (if any).

3. A to-be-filed dossier on error correction must comprise:

a/ One original or 1 certified copy or 1 one copy of the power of attorney in case the registration requester is an authorized person, or of the document proving the capacity of representation in case the request form signer is a representative of the mortgagor or mortgagee;

b/ One copy of each of the following papers: request form for change registration or error correction certified by the land registration office; certificate containing the errors; request form with certification of the errors; notice of correction of the errors in registration contents in case the registration officer detects by himself/herself the errors in the cadastral dossier made due to his/her fault or document correcting the errors in registration contents in case the registration requester detects the errors.

4. A to-be-filed dossier on registration of a notice of disposal of mortgaged assets must comprise:

a/ One original or 1 certified copy or 1 copy of each of the following papers: notice of disposal of mortgaged assets; power of attorney in case the registration requester is an authorized person, or document proving the capacity of representation in case the request form signer is a representative of the mortgagor or mortgagee;

b/ One copy of the request form for registration of the notice of disposal of mortgaged assets, certified by the land registration office.

5. A to-be-filed dossier on transition of registration of mortgage of property rights arising from a house purchase and sale contract must comprise:

a/ One original of a notice of deregistration of the mortgage of property rights arising from a house purchase and sale contract sent by the Registration Center for Transactions and Assets in case of transition of registration of the mortgage of property rights arising from the house purchase and sale contract;

b/ One original or 1 certified copy or 1 copy of the power of attorney in case the registration requester is an authorized person, or document proving the capacity of representation in case the request form signer is a representative of the mortgagor or mortgagee;

c/ One original or 1 copy of each of the following papers: request form for transition of registration of mortgage certified by the land registration office; document with information about the mortgage of property rights arising from the house purchase and sale contract issued by the Registration Center for Transactions and Assets; document certifying registration of security interests, and contract issued by the Registration Center for Transactions and Assets (if any).

6. A to-be-filed dossier on mortgage deregistration must comprise:

a/ One original or 1 copy of each of the following papers: record of liquidation of the mortgage contract or document approving mortgage deregistration or document certifying mortgage release issued by the mortgagee in case the request form bears only the signature of a competent person and seal (if any) of the mortgagor;

b/ One original or 1 certified copy or 1 copy of each of the following papers: power of attorney in case the deregistration requester is an authorized person or document proving the capacity of representation in case the request form signer is a representative of the mortgagor or mortgagee; document on mortgage release, document on contract liquidation, and contract on purchase and sale of the asset put for auction, approved by a competent agency, or another document proving the complete disposal of the mortgaged asset; document on evidences proving that the asset is destroyed or wholly lost; effective decision on dismantlement or confiscation of the asset issued by a competent state agency; legally effective court judgment or ruling or arbitration award on cancellation of the mortgage or declaration of the contract as null and void in case of deregistration under Points d, dd and e, Clause 1, Article 21 of Decree No. 102/2017/ND-CP;

c/ One copy of the request form for deregistration, certified by the land registration office, and of the certificate of mortgage deregistration.

Article 21. Forms for registration of mortgage of land use rights and land-attached assets

Documents in a dossier for registration of the mortgage of land use rights and land-attached assets shall be made according to the forms issued together with this Circular. These forms include:

1. Form No. 01/DKTC: request form for mortgage registration;

2. Form No. 02/DKTD-SCSS:  request form for change registration or error correction;

3. Form No. 03/DKVB: request form for registration of notice of disposal of mortgaged assets;

4. Form No. 04/XDK: request form for mortgage deregistration;

5. Form No. 05/CTDK: request form for transition of mortgage registration;

6. Form No. 06/BSCB: additional page on parties to the mortgage contract;

7. Form No. 07/BSTS: additional page on mortgaged assets;

8. Form No. 08/DMHDTC: list of registered mortgage contracts;

9. Form No. 09/SDKTL: register of mortgage of future land-attached assets;

10. Form No. 10/VBTB: notice of suspension or termination of mortgage registration; notice of distraint or distraint release of land use rights and land-attached assets.

Chapter III

IMPLEMENTATION PROVISIONS

Article 22. Effect

1. This Circular takes effect on January 10, 2020.

2. This Circular replaces Joint Circular No. 09/2016/TTLT-BTP-BTNMT of June 23, 2016, of the Minister of Justice and Minister of Natural Resources and Environment, guiding registration of mortgage of land use rights and land-attached assets (below referred to as Joint Circular No. 09/2016/TTLT-BTP-BTNMT).

Article 23. Transitional provisions

1. In case the mortgage of land use rights and land-attached assets is registered before the effective date of this Circular, registration requesters are not required to make re-registration in accordance with this Circular.

2. In case registration requesters submit dossiers for registration of the mortgage of land use rights and land-attached assets before the effective date of this Circular but such dossiers are not yet processed, registration offices shall register the mortgage in accordance with this Circular based on the submitted dossiers.

3. For localities without land registration offices, the competence to register the mortgage of land use rights and land-attached assets is prescribed as follows:

a/ Land use rights registration offices under provincial-level Departments of Natural Resources and Environment shall register the mortgage of land use rights and land-attached assets of domestic organizations, overseas Vietnamese implementing investment projects, foreign organizations, foreigners, or foreign-invested enterprises;

b/ Land use rights registration offices under district-level Divisions of Natural Resources and Environment of the localities where exist(s) land or land-attached assets, or district-level Divisions of Natural Resources and Environment of the localities where exist(s) land or land-attached assets in case land use rights registration offices are not yet established shall register the mortgage of land use rights and land-attached assets of domestic households and individuals, and overseas Vietnamese eligible to own houses associated with residential land use rights in Vietnam and transferred residential land use rights under housing development projects.

3. In case registration requesters have registered the mortgage of land use rights and land-attached assets under Joint Circular No. 09/2016/TTLT-BTP-BTNMT, and now request registration of changes in registered mortgage contents, registration of notices of the disposal of mortgaged assets, mortgage deregistration, or correction of errors caused by fault of land registration offices, they shall comply with Decree No. 102/2017/ND-CP and this Circular.

Article 24. Implementation responsibility

1. Provincial-level People’s Committees shall organize the implementation of, and direct provincial-level Departments of Justice and Departments of Natural Resources and Environment and related departments and sectors in localities in implementing, this Circular.

2. Any problems arising in the course of implementation of this Circular should be promptly reported to the Ministry of Justice for consideration and settlement.-

Minister of Justice
LE THANH LONG

* The forms issued together with this Circular are not translated.