Joint Circular No. 03/2006/TTLT-BTP-BTNMT amending and supplementing certain provisions of Joint Circular No. 05/2005/TTLT-BTP-BTNMT dated June 16, 2005 of the Ministry of Justice and the Ministry of Natural Resources and Environment guiding the registration of mortgage and guarantee by land use rights and attached assets.

JOINT CIRCULAR

Amending and supplementing certain provisions of Circular Joint Circular No. 05/2005/TTLT/BTP-BTNMT

dated June 16, 2005 of the Ministry of Justice and the Ministry of Natural Resources and Environment guiding

the registration of mortgage and guarantee by land use rights and assets attached to land

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Based on the Civil Code dated June 14, 2005;

Based on the Land Law dated November 26, 2003;

WHEREAS, Decree No. 181/2004/NĐ-CP dated October 29, 2004 of the Government on the implementation of the Land Law;

Pursuant to Decree No. 17/2006/NĐ-CP dated January 27, 2006 of the Government on amending and supplementing some articles of decrees guiding the implementation of the Land Law and Decree No. 187/2004/NĐ-CP on converting state-owned enterprises into joint-stock companies;

Pursuant to Decree No. 08/2000/NĐ-CP dated March 10, 2000 of the Government on registering secured transactions;

Pursuant to Decree No. 62/2003/NĐ-CP dated June 6, 2003 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Justice;

Pursuant to Decree No. 91/2002/NĐ-CP dated November 11, 2002 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Natural Resources and Environment;

In order to ensure uniformity in the implementation of legal normative documents regarding the registration of secured transactions by land use rights and assets attached to land, the Ministry of Justice and the Ministry of Natural Resources and Environment amend and supplement certain provisions of Joint Circular No. 05/2005/TTLT/BTP-BTNMT dated June 16, 2005 of the Ministry of Justice and the Ministry of Natural Resources and Environment guiding the registration of mortgage and guarantee by land use rights and assets attached to land (referred to as Joint Circular No. 05) as follows:

1. Amend Point 1.1 Clause 1 Section I as follows:

“1.1. This Circular guides the registration of mortgage of land use rights and assets attached to land of economic organizations, households, individuals, overseas Vietnamese, foreign organizations, and foreign individuals who, according to the law, have the right to mortgage or accept mortgage of land use rights and assets attached to land (collectively referred to as registration of mortgage).

Guarantee by credit for the performance of loan contracts does not need to be registered.”

2. Amend Clause 2 Section I as follows:

“2. Registration of mortgage at the Land Registration Office

2.1. Mortgage of land use rights, mortgage of third party's land use rights which under the Land Law is called guarantee by land use rights (collectively referred to as mortgage of land use rights);

2.2. Mortgage of residential buildings, other architectural works, planted forests, perennial orchards; mortgage of third party's residential buildings, other architectural works, planted forests, perennial orchards (collectively referred to as mortgage of assets attached to land);

2.3. Mortgage of future assets that are attached to land; mortgage of third party's future assets (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. Changing, correcting errors, canceling the registration of mortgages mentioned in Points 2.1, 2.2, 2.3, 2.4, and 2.5 of this clause;

2.7. Documents notifying the disposal of mortgaged property in cases where mortgage has been registered.”

3. Amend and supplement Point 7.1 Clause 7 Section I as follows:

“7.1. The time limit for registering mortgage for the cases specified in Clause 2 Section I of this Circular shall be implemented as follows:

a) In cases where the registration dossier is complete with a Certificate of Land Use Right issued in accordance with the Land Law 1987, the Land Law 1993, the Land Law 2003, a Certificate of Ownership of Housing and Right to Use Residential Land issued in accordance with Decision No. 60/CP dated July 5, 1994 of the Government, a Certificate of Ownership of Housing and Right to Use Residential Land issued in accordance with laws on housing, or a Certificate of Ownership of Construction Works issued in accordance with Decree No. 95/2005/NĐ-CP dated July 15, 2005 of the Government (collectively referred to as Certificate of Land Use Right or Certificate of Ownership of Assets Attached to Land), the registration of mortgage shall be completed on the day the dossier is received; if the dossier is submitted after three (03) o'clock in the afternoon, the registration of mortgage shall be completed no later than the next working day.

b) In cases where the registration dossier includes one of the types of documents specified in Clauses 1, 2, and 5 of Article 50 of the Land Law, the registration of mortgage shall be completed within five (05) working days from the date the Land Registration Office receives a complete registration dossier.”

4. Amend Point 1.1b Clause 1 Section III as follows:

“b) A mortgage contract of land use rights and assets attached to land that has been notarized or certified in accordance with Point a Clause 1 Article 130 of the Land Law or has been confirmed by the Management Board of industrial zones, economic zones, high-tech zones in accordance with Clause 10 Article 2 of Decree No. 17/2006/NĐ-CP dated January 27, 2006 of the Government on amending and supplementing some articles of decrees guiding the implementation of the Land Law and Decree No. 187/2004/NĐ-CP on converting state-owned enterprises into joint-stock companies, one (01) copy.”

5. Amend Paragraph 1 Point 1.1c Clause 1 Section III as follows:

“c) Certificate of Land Use Right.”

6. Supplement and amend Point 1.2 Clause 1 Section III as follows:

6.1. Supplement Paragraph 2 Point 1.2c Clause 1 Section III as follows:

“In cases where the mortgagor is the owner of leased assets attached to land from organizations, households, or individuals, or has received capital contribution by land use rights without forming a new legal entity, the registration dossier must include a Certificate of Land Use Right or one of the types of documents specified in Clauses 1, 2, and 5 of Article 50 of the Land Law, or a lease contract of land use rights or a capital contribution contract by land use rights that has been notarized or certified.”

6.2. Amend Point 1.2d Clause 1 Section III as follows:

“d) Certificate of Ownership of Assets Attached to Land (if available), except in cases where the mortgage contract has been notarized or certified or has been confirmed by the Management Board of industrial zones, economic zones, high-tech zones.”

6.3. Amend Point 1.2d Clause 1 Section III as follows:

"d) A copy of the construction permit or investment project that has been approved by the competent state agency for the mortgage of property under development, except in cases where the mortgage contract has been notarized, certified, or confirmed by the Industrial Park Management Board, Economic Zone Management Board, High-Tech Zone Management Board, or the property does not require a construction permit or an investment project."

7. Supplement paragraph 2 of Clause 5, Section III as follows:

"In the case of mortgaging property attached to land or property under development when the owner of such property leases the land from organizations, households, individuals, or receives capital contribution in the form of land use rights without forming a new legal entity, then in the column "Notes or changes and legal basis" of Section III of the Land Registry Book and in the column "Changes" of the Land Change Monitoring Book, it shall be recorded as follows: "Mortgage with ... (name of mortgagor) to ... (name of mortgagee) pursuant to the mortgage contract or credit contract (if the mortgage is recorded in the credit contract) number ... / ... dated ... / ... / ..."

8. Amend Clause 7 of Section III as follows:

"7. Registration of mortgage in the case of using one asset to secure multiple obligations.

In the case where the mortgagor uses land use rights or land use rights and property attached to land or property attached to land to secure multiple obligations, if the previous mortgagee is holding the Certificate of Land Use Rights or the Certificate of Ownership of Property Attached to Land, they must return these certificates to the mortgagor to proceed with the mortgage registration according to the guidance provided in Clause 1 of this Section.

The mortgagor is responsible for preserving the certificate and after completing the mortgage registration, the mortgagor must hand over the certificate to the previous mortgagee who held the certificate, unless otherwise agreed by both parties."

9. Amend Point 2.2 of Clause 2 of Section IV as follows:

"2.2. Certificate of Land Use Rights in the case of registering changes to the contents already recorded on the Certificate of Land Use Rights; Certificate of Ownership of Property Attached to Land (if applicable) in the case of replacing or supplementing property attached to land, except in cases where the contract for changing the mortgage content has been notarized, certified, or confirmed by the Industrial Park Management Board, Economic Zone Management Board, or High-Tech Zone Management Board."

10. Supplement Clause 4 of Section VI as follows:

"4. In the case where the Land Registration Office discovers errors due to the registrar's mistake, it must correct the land records and notify the person requesting registration in writing; if there are errors in recording on the Certificate of Land Use Rights, it must notify the person requesting registration in writing about the need to submit the Certificate of Land Use Rights for correction; after correction, the Land Registration Office is responsible for returning the Certificate of Land Use Rights to the person requesting registration.

In the case of errors due to the registrar's mistake, the person requesting registration is not required to pay the fee for correcting the error."

11. Supplement paragraph 2 of Clause 5 of Section VIII as follows:

"Mortgage contracts and guarantee contracts signed before July 28, 2005 (the date Circular Joint No. 05 took effect) which still have remaining terms of performance shall also be registered in accordance with the provisions of this Circular.

Guarantee contracts by land use rights, guarantee contracts by property attached to land, guarantee contracts by property under development, guarantee contracts by land use rights and property attached to land, guarantee contracts by land use rights and property under development signed before the effective date of this Circular, in the registration dossier, do not need to be replaced by third-party land use rights mortgage contracts, third-party property attached to land mortgage contracts, third-party property under development mortgage contracts, third-party land use rights and property attached to land mortgage contracts, third-party land use rights and property under development mortgage contracts."

12. Implementation

12.1. This Circular takes effect fifteen days after its publication in the Official Gazette.

12.2. Repeal certain points and phrases specified in Circular Joint No. 05:

a) Repeal Point 2.3g of Clause 2 of Section II.

b) Repeal Point b of Clause 1 of Section VIII regarding the issuance of Form No. 02/BL.

c) Repeal the phrases "guarantee", "guarantor", "new guarantor", "beneficiary of guarantee", "new beneficiary of guarantee", and "guarantee contract".

d) Repeal the guidance on recording guarantee by land use rights, property attached to land, and property under development on the Certificate of Land Use Rights, Land Registry Book, and Land Change Monitoring Book at Points 4.1 of Clause 4 of Section III, Clause 5 of Section III, Point 4.1 of Clause 4 of Section IV, and Point 3.1 of Clause 3 of Section V.

12.3. The Land Registration Office that has carried out the registration of production forest mortgages, which are planted forests, must notify in writing the Department of Agriculture and Rural Development (at provincial level) or the functional department assigned to agriculture and rural development (at district level) as stipulated in Article 36 of Decree No. 23/2006/NĐ-CP dated March 3, 2006 of the Government on the implementation of the Law on Protection and Development of Forests, and notify the registration of house mortgages to the housing management authority at the same level. The notification shall be made in accordance with the guidance provided in Clause 4 of Section II of Circular Joint No. 05.

12.4. During the implementation process, if difficulties or obstacles arise, individuals and organizations should promptly report them to the Ministry of Justice and the Ministry of Natural Resources and Environment for research and resolution./.