Joint Circular No. 04/2006/TTLT-BTP-BTNMT guiding the notarization and certification of contracts and documents implementing land users' rights.

JOINT CIRCULAR

Guidelines for notarization and certification of contracts,

 documents implementing land users' rights

___________________

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 amending and supplementing certain articles of decrees guiding the implementation of the Land Law and Decree No. 187/2004/NĐ-CP on the conversion of state-owned companies into joint-stock companies;

Pursuant to Decree No. 75/2000/NĐ-CP dated December 8, 2000 of the Government on notarization and certification;

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;

The Ministry of Justice and the Ministry of Natural Resources and Environment jointly issue guidelines for notarization by Notary Offices and certification by People's Committees at communes, wards, and towns regarding contracts and documents implementing land users' rights as follows,

I - GENERAL ISSUES

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1.1. This Circular guides the notarization by Notary Offices and certification by People's Committees at communes, wards, and towns regarding the following contracts and documents:

a) Contracts for land use right conversion, transfer, gift, lease, sublease; mortgage contracts for land use rights; mortgage contracts for third parties' land use rights as defined by the Land Law as collateral by land use rights (hereinafter referred to as mortgage contracts for land use rights); capital contribution contracts with land use rights; wills for inheritance of land use rights; division of inheritance documents for land use rights; acceptance of inheritance documents for land use rights where the heir is the sole heir (hereinafter referred to as contracts and documents concerning land use rights);

b) Contracts for sale, lease, gift, mortgage of immovable property attached to land; capital contribution contracts with immovable property attached to land; wills for inheritance of immovable property attached to land; division of inheritance documents for immovable property attached to land; acceptance of inheritance documents for immovable property attached to land where the heir is the sole heir (hereinafter referred to as contracts and documents concerning immovable property attached to land);

c) Mortgage contracts for future immovable property that is attached to land;

d) Contracts and documents concerning land use rights and immovable property attached to land;

đ) Mortgage contracts for land use rights and future immovable property that is attached to land.

The contracts and documents mentioned in Points 1.1a, 1.1b, 1.1c, 1.1d, and 1.1đ above shall hereinafter be referred to as contracts and documents concerning real estate.

1.2. The confirmation of contracts and documents concerning real estate within industrial zones, economic zones, and high-tech zones shall be carried out according to the guidance provided in Point 2.3 Clause 2, Point 5.2 Clause 5, Clause 6 Section I, and Clause 4 Section II of this Circular.

2. Notarization and certification of contracts and documents concerning real estate

2.1. For contracts and documents concerning real estate where the party holding the real estate is a domestic organization, overseas Vietnamese, foreign organizations, or foreign individuals, such contracts and documents shall be notarized at Notary Offices.

2.2. For contracts and documents concerning real estate where the party holding the real estate is a household or individual, such households or individuals may choose to have their contracts and documents notarized at Notary Offices or certified by People's Committees at communes, wards, and towns where the real estate is located.

2.3. For contracts and documents concerning real estate within industrial zones, economic zones, and high-tech zones, such contracts and documents shall be confirmed by the Management Board of the Industrial Zone, Economic Zone, or High-Tech Zone (hereinafter referred to as the Management Board).

3. Contracts and documents concerning real estate

3.1. Parties entering into contracts or establishing documents concerning real estate may draft these themselves or request Notary Offices, People's Committees at communes, wards, and towns, or Management Boards to draft the contracts and documents.

3.2. The contents of contracts and documents concerning real estate must ensure compliance with laws and not contravene social morals.

3.3. Drafting of contracts and documents concerning real estate may refer to the model contracts and documents issued together with this Circular.

4. Responsibilities of parties entering into contracts or establishing documents concerning real estate

Parties entering into contracts or establishing documents concerning real estate shall be responsible for:

4.1. The legality of the documents they present;

4.2. Ensuring the principles of contract formation or document establishment in accordance with civil law regulations.

5. Responsibilities of Notaries, Chairpersons, or Deputy Chairpersons of People's Committees at communes, wards, and towns

5.1. When performing notarization or certification, Notaries, Chairpersons, or Deputy Chairpersons of People's Committees at communes, wards, and towns shall be responsible for:

a) The time and place of notarization or certification;

b) The capacity for civil acts of the parties entering into contracts or establishing documents concerning real estate at the time of notarization or certification;

c) The content of agreements between the parties entering into contracts or the content of documents concerning real estate that do not violate prohibitions under the law and do not contravene social morals;

d) The signatures of the parties entering into contracts or establishing documents concerning real estate.

5.2. When performing confirmation, the Head of the Management Board shall bear responsibility similar to that of Notaries, Chairpersons, or Deputy Chairpersons of People's Committees at communes, wards, and towns as stipulated in Point 5.1 of this clause.

6. Responsibilities of Land Registration Offices

Land Registration Offices under Departments of Natural Resources and Environment, Land Registration Offices under District Departments of Natural Resources and Environment, or District Departments of Natural Resources and Environment where there is no Land Registration Office (hereinafter referred to as Land Registration Offices) shall be responsible for providing land information services upon request from Notaries, Chairpersons, or Deputy Chairpersons of People's Committees at communes, wards, and towns, and Heads of Management Boards.

II - PROCEDURES AND PROCEDURAL REQUIREMENTS FOR NOTARIZATION AND CERTIFICATION OF CONTRACTS AND DOCUMENTS CONCERNING REAL ESTATE

1. Documents required for notarization and certification of contracts and documents concerning real estate

1.1. Valid documents for notarization and certification include:

a) Request form for notarization of contracts and documents (Form No. 01/PYC) or Request form for certification of contracts and documents (Form No. 31/PYC);

b) A copy of the Identity Card or Passport; a copy of the document proving the authority of the representative (if it is a representative);

c) A copy of the Land Use Right Certificate issued in accordance with the Land Law of 1987, the Land Law of 1993, and the Land Law of 2003; a copy of the Certificate of Ownership of Housing and Right to Use Residential Land issued in accordance with Decree No. 60/CP dated July 5, 1994 of the Government; a copy of the Certificate of Ownership of Housing and Right to Use Residential Land issued in accordance with the laws on housing (hereinafter referred to as the Land Use Right Certificate);

In cases within the time limit prescribed in Article 184 of Decree No. 181/2004/NĐ-CP dated October 29, 2004 of the Government on the implementation of the Land Law, if the person currently using the land does not have a Land Use Right Certificate, they must provide a copy of one of the types of land use right documents specified in Clauses 1, 2, and 5 of Article 50 of the Land Law; in cases where the land user's name is recorded in the land registration book or the cadastral book, they must provide a written confirmation (a copy) from the People's Committee of the commune, ward, or town where the land is located.

d) Contracts, documents concerning immovable property.

1.2. In addition to the documents mentioned in point 1.1 of this clause, depending on specific circumstances, the notarization and certification application file may also include one or more of the following documents:

a) A copy of the Household Registration Book for cases involving the transfer of agricultural land use rights or the transfer, gift of residential land use rights or agricultural land use rights within strictly protected zones or ecological recovery zones of special-use forests, or within forest protection areas;

b) An application for subdividing or consolidating land parcels in cases where the land user exercises their rights over part of a land parcel;

c) A copy of the Death Certificate of the decedent and documents proving the relationship between the decedent and the heir, if the heir is an intestate heir;

A copy of the Will, Death Certificate of the decedent, if the heir is a testamentary heir but the Will does not clearly specify the share of the estate each heir is entitled to;

A copy of the Death Certificate of the decedent and documents proving the relationship between the decedent and the heir, if the heir is the sole inheritor;

d) A copy of the Certificate of Ownership of Housing issued in accordance with the laws on housing, or the 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 the Certificate of Ownership of Assets Attached to Land) in cases where there are assets attached to land that the owner sells, leases, inherits, gifts, mortgages, or contributes as capital;

đ) A document confirming that the land use fee or the amount paid for the transfer of land use rights has no state budget origin, in cases where the entity holding the land use rights is an economic organization granted land use rights with payment of land use fees; an economic organization that was leased land before July 1, 2004 and has already paid rent for the entire lease period or has prepaid rent for several years with at least five years remaining in the lease term; an economic organization that has transferred land use rights;

e) A copy of the construction permit or investment project approved by the competent state agency, in cases where future assets are mortgaged and according to the law, such assets require a construction permit or an investment project to be established.

1.3. The Notary Office, Commune, Ward, or Town People's Committee shall not request the applicant for notarization or certification to submit additional documents beyond those listed in points 1.1 and 1.2 of this clause.

2. Procedure for notarizing contracts and documents concerning immovable property

2.1. The applicant for notarization submits one (01) set of the notarization application file and presents the original of the documents submitted in copies for verification; the Notary Office receives and checks the notarization application file.

In cases where the immovable property holder does not have a Land Use Right Certificate but has one of the types of land use right documents specified in Clauses 1, 2, and 5 of Article 50 of the Land Law, or has a Land Use Right Certificate but the current land use status differs from the information recorded in the Land Use Right Certificate, the Notary Office must send the Request for Provision of Land Information Form (Form No. 03/PYCCC) to the Land Registration Office to request information about the land parcel. If the Land Use Right Certificate shows signs of alteration or forgery, and if deemed necessary, the Notary Office sends the Request for Provision of Land Information Form (Form No. 03/PYCCC) to the Land Registration Office to request information about the land parcel. The time taken by the Land Registration Office to provide land information is not included in the notarization deadline specified in point 2.4 of this clause.

2.2. If the notarization application file is valid, the Notary Office records it in the Register of Notarized Contracts and Transactions (issued together with Circular No. 03/2001/TP-CC dated March 14, 2001 of the Ministry of Justice guiding the implementation of Decree No. 75/2000/NĐ-CP dated December 8, 2000 of the Government on notarization and certification) and proceeds with notarization. If notarization cannot be completed on the day the file is received, the Notary Office records it in the Register of Notarized Contracts and Transactions, issues a Notice (Form No. 02/PH) to the applicant for notarization.

If the application file is invalid or during the processing of the notarization request, it is discovered that the immovable property holder does not meet the conditions to exercise their rights as stipulated by law, the Notary Office returns the file and informs the applicant for notarization in writing of the reasons.

2.3. In cases of notarizing documents dividing inherited assets or accepting inherited assets, the thirty-day public announcement period for dividing inherited assets or accepting inherited assets does not count towards the notarization deadline specified in point 2.4 of this clause.

2.4. The specific deadlines for notarizing contracts and documents concerning immovable property are as follows:

a) On the day of receiving the file for contracts and real estate documents in cases involving households and individuals; if the application for notarization is submitted after three (03) o'clock in the afternoon, the notarization shall be carried out at the latest on the next working day; in cases where the contract or document has complex circumstances, it shall not exceed three (03) working days from the date of receiving all valid files.

b) Not more than five (05) working days from the date of receiving all valid files for contracts and real estate documents in cases involving domestic organizations, overseas Vietnamese, foreign organizations, and foreign individuals; in cases of mortgage contracts, it shall not exceed three (03) working days from the date of receiving all valid files.

3. Procedure for certifying contracts and real estate documents

3.1. The person requesting certification submits one (01) set of the application file for certification and presents the original of the document that was previously submitted as a copy for verification; the judicial officer - civil registrar of the commune, ward, town receives and checks the application file for certification.

In cases where the owner of the immovable property does not have a Certificate of Land Use Right but has one of the types of land use right documents specified in Clauses 1, 2, and 5 of Article 50 of the Land Law or has a Certificate of Land Use Right with changes in the current land use status compared to the information recorded in the Certificate of Land Use Right, the administrative officer of the commune, ward, town must confirm the information about the plot of land. In cases where the Certificate of Land Use Right shows signs of alteration or forgery, if necessary, the People's Committee of the commune, ward, town sends the Request Form (Form No. 33/PYCCC) to the Register Office of Land Use Rights to request information about the plot of land. The time taken by the Register Office of Land Use Rights to provide information about the plot of land is not included in the certification period specified in Point 3.4 of this Clause.

3.2. If the application file for certification is valid, the judicial officer - civil registrar of the commune, ward, town records it in the Certification Book of Contracts and Transactions (Form No. 61/SCT) and submits it to the Chairman or Vice-Chairman of the People's Committee of the commune, ward, town for signing the certification of the contract and real estate document. In cases where certification cannot be completed on the day of receiving the file, the judicial officer - civil registrar of the commune, ward, town records it in the Certification Book of Contracts and Transactions, writes the Appointment Notice (Form No. 32/PH), and hands it over to the person requesting certification.

If the file is invalid or during the process of handling the certification request, it is discovered that the owner of the immovable property does not meet the conditions to exercise the rights of the owner according to the law, the judicial officer - civil registrar of the commune, ward, town returns the file and informs the person requesting certification in writing of the reasons.

3.3. In cases of certifying documents for the division of inheritance assets or acceptance of inheritance assets, the thirty-day public notice period for the division of inheritance assets or acceptance of inheritance assets is not included in the certification period specified in Point 3.4 of this Clause.

3.4. The certification of contracts and real estate documents is carried out on the day of receiving the file; if the application for certification is submitted after three (03) o'clock in the afternoon, the certification shall be carried out at the latest on the next working day; in cases where the contract or document has complex circumstances, the certification period shall not exceed three (03) working days from the date of receiving all valid files.

3.5. The collection, payment, and management of fees for certification by the People's Committee of the commune, ward, town shall be implemented in accordance with the provisions of the law on fees and charges.

4. Procedures and steps for confirming contracts and real estate documents in industrial zones, economic zones, and high-tech zones

The procedures and steps for confirming contracts and real estate documents at the Management Board shall be carried out in accordance with the guidance provided in Clauses 1 and 2 of this Section.

III- IMPLEMENTATION

1. This Circular takes effect fifteen (15) days after its publication in the Official Gazette.

Attached to this Circular are the following forms, contracts, and real estate documents:

1.1. Forms used by the Notary Office:

1.2. Forms used by the People's Committee of the commune, ward, town:

1.3. Forms used by the Management Board:

For real estate contracts and documents, the Management Board shall use forms from number 05 to number 30 as specified in point 1.1 of this clause.

2. For island districts without communes or towns, the People's Committee of the district shall perform notarization of contracts and documents concerning real estate of households and individuals.

For island districts without Notary Public Offices, the People's Committee of the district shall perform notarization of contracts and documents concerning real estate of domestic organizations, overseas Vietnamese, foreign organizations, and foreign individuals.

3. Contracts and documents concerning real estate that have been notarized or certified before the effective date of this Circular need not be re-notarized or re-certified according to the guidance of this Circular.

4. The People's Committees of provinces and centrally-administered cities shall be responsible for organizing and directing the Departments of Justice, Natural Resources and Environment, relevant departments and agencies, and the People's Committees of counties, districts, towns, and provincial cities to implement this Circular.

5. The Departments of Justice and Natural Resources and Environment shall be responsible for providing business guidance to Notary Public Offices, Land Registration Offices, and the People's Committees of communes, wards, and towns to implement this Circular.

6. During the implementation of this Circular, if there are difficulties or obstacles, they should be promptly reported to the Ministry of Justice and the Ministry of Natural Resources and Environment for research and resolution./.