Decree No. 79/2001/ND-CP Amending and Supplementing Certain Provisions of Decree No. 17/1999/ND-CP dated March 29, 1999 on Procedures for Conversion, Transfer, Lease, Sublease, Inheritance of Land Use Rights, and Mortgage and Contribution with the Value of Land Use Rights

DECREE

Amending and supplementing some articles of Decree No. 17/1999/NĐ-CP

dated March 29, 1999 on procedures for land use right conversion, transfer, lease, sublease, inheritance, mortgage, and capital contribution with the value of land use rights

On the basis of the Land Law dated July 14, 1993; the Law amending and supplementing some articles of the Land Law dated December 2, 1998 and the Law amending and supplementing some articles of the Land Law dated June 29, 2001;

THE GOVERNMENT

Pursuant to the Government Organization Law dated September 30, 1992;

Amending and supplementing some articles of Decree No. 17/1999/NĐ-CP dated March 29, 1999 on procedures for land use right conversion, transfer, lease, sublease, inheritance, mortgage, and capital contribution with the value of land use rights (hereinafter referred to as Decree No. 17/1999/NĐ-CP dated March 29, 1999) as follows:

||| Based on the Civil Code dated October 28, 1995;

At the proposal of the Director General of the Land Administration General Department,

DECREE:

Article 1. 1. This Decree stipulates the procedures for land use right conversion, transfer, lease, sublease, inheritance, mortgage or guarantee, and capital contribution with the value of land use rights of economic organizations, households, and individuals.

1. Economic organizations conducting foreign exchange trading agency activities; economic organizations conducting foreign currency receipt and payment service provision activities; economic organizations conducting border country currency exchange agency activities.

"Article 1. Scope of Regulation

2. The provisions of this Decree shall not apply to cases of leasing public welfare land of communes, wards, and towns.

Article 2. Delegation of rights of land users

4. State Bank Branch in Border Province is the State Bank Branch in provinces sharing borders with China, Laos, and Cambodia.

1. The person delegated by the head of a household to exercise the rights of land users must be a member of the household or another person who is not a member of the household but has full civil capacity according to the law.

2. The person delegated by an individual to exercise the rights of land users is the representative of that individual.

3. The person delegated by the representative of an organization to exercise the rights of land users is the representative of that organization.

4. The delegation of rights to representatives as specified in Clause 1, Clause 2, and Clause 3 of this Article must be in writing.

For households and individuals, the power of attorney must be certified by the People's Committee of the commune, ward, or town where they reside according to Articles 48, 49, 50, 51, 52, and 53 of the Civil Code.

Article 3. Documents for exercising the rights of land users

3. Article 3 is amended and supplemented as follows:

1. When exercising their rights, land users must have a certificate of land use rights or a certificate of ownership of houses and land use rights in urban areas (hereinafter collectively referred to as certificate of land use rights) issued by competent state agencies. The certificate of land use rights was issued by the former General Department of Land Management or the General Department of Cadastre.

2. Those currently using land with one of the following documents need to complete the procedure for issuing a certificate of land use rights to exercise the rights as prescribed in this Decree:

a) Decision on land allocation or lease by competent state agencies according to laws on land;

b) Documents issued by competent state agencies during the implementation of land policies in different periods of the Democratic Republic of Vietnam, the Provisional Revolutionary Government of the Republic of South Vietnam, and the Socialist Republic of Vietnam, which the persons allocated or leased land have continuously used since then without dispute;

c) Temporary certificate of land use rights issued by competent state agencies or listed in the cadastre without dispute;

d) Documents issued by authorities under the previous regime for land users that the users have continuously used from then until now without dispute;

đ) Documents on inheritance, gift, or transfer of houses attached to land confirmed by the People's Committee of the commune, ward, or town and the land is without dispute;

e) Judgment or decision of the People's Court that has taken legal effect or decision on resolving land disputes by competent state agencies that have taken legal effect; Within 10 working days from the date of receipt of the dossier as mentioned in Sub-clause b, Clause 1, Article 3 above, the Ministry of Foreign Affairs will review and submit to the competent authority for decision (Issues exceeding the Ministry of Foreign Affairs' jurisdiction will be referred to the Prime Minister for consideration and decision).g) Documents on transferring charitable houses;

h) Documents on land transfer and house sale accompanied by land use right transfer confirmed by the People's Committee of the commune, ward, or town as the land is without dispute and confirmed by the People's Committee of the district, town, or city directly under a province on the result of the verification by the People's Committee of the commune, ward, or town.

3. Households and individuals when transferring or inheriting property attached to their land use rights must have a certificate of land use rights or one of the types of documents specified in Point 2 of this Clause.

4. Economic organizations that have legally transferred land use rights from others or received land from the State with payment for land use that does not originate from the State budget can implement the rights as prescribed in this Decree without having to establish a land lease file with the State. Within 10 working days from the date of receipt of the dossier as mentioned in Sub-clause b, Clause 1, Article 3 above, the Ministry of Foreign Affairs will review and submit to the competent authority for decision (Issues exceeding the Ministry of Foreign Affairs' jurisdiction will be referred to the Prime Minister for consideration and decision).5. Competent state agencies issuing certificates of land use rights must issue certificates of land use rights for those who have land use rights documents specified in Point 2 of this Clause within thirty days from the date of receiving complete valid files.

Article 6. Documents for land use right conversion

The documents for land use right conversion include:

1. Contract for land use right conversion;

4. Article 6 is amended and supplemented as follows:

2. Certificate of land use rights.

5. Article 7 is amended and supplemented as follows

Article 7. Procedures for implementing land use right conversion

1. Documents for land use right conversion are submitted to the People's Committee of the commune, ward, or town where the converted land is located.

2. Within seven days from the date of receiving complete valid documents, the People's Committee of the commune, ward, or town will verify the documents, confirm the land use right conversion contract for eligible cases, and record them in the land change tracking book; if not eligible, return the documents and inform the parties of the reasons for not converting the land use rights.:

For cases of land use right conversion in wards and towns, after confirming the land use right conversion contract for eligible cases,

the People's Committee of the ward or town will send the land use right conversion documents to the district-level land management agency.

Within seven days from the date of receiving complete and valid documents, Within 10 working days from the date of receipt of the dossier as mentioned in Sub-clause b, Clause 1, Article 3 above, the Ministry of Foreign Affairs will review and submit to the competent authority for decision (Issues exceeding the Ministry of Foreign Affairs' jurisdiction will be referred to the Prime Minister for consideration and decision).the People's Committee of communes, wards, and towns shall examine the documents, confirm on the land use right transfer contract for cases eligible for transfer, and record in the land change tracking book; if not eligible for transfer, return the documents and notify the parties of the reasons for not transferring the land use rights.

For cases of transferring land use rights in wards and towns, after confirming on the land use right transfer contract for eligible cases, Within 10 working days from the date of receipt of the dossier as mentioned in Sub-clause b, Clause 1, Article 3 above, the Ministry of Foreign Affairs will review and submit to the competent authority for decision (Issues exceeding the Ministry of Foreign Affairs' jurisdiction will be referred to the Prime Minister for consideration and decision).the People's Committee of wards and towns shall submit the land use right transfer documents to the district land administration agency.

3. Within five days from the date of receiving complete and valid documents, the district land administration shall examine the documents, confirm on the land use right transfer contract for cases eligible for transfer, and record in the land change tracking book; if not eligible for transfer, return the documents and notify the parties of the reasons for non-transfer of land use rights.

Within three days from the date of receiving complete and valid documents submitted by the district land administration, Within 10 working days from the date of receipt of the dossier as mentioned in Sub-clause b, Clause 1, Article 3 above, the Ministry of Foreign Affairs will review and submit to the competent authority for decision (Issues exceeding the Ministry of Foreign Affairs' jurisdiction will be referred to the Prime Minister for consideration and decision).the People's Committee of the district, town, township, or provincial city shall complete the confirmation on the land use right transfer contract for cases eligible for transfer of land use rights.

4. After being confirmed by the competent authority to transfer land use rights, the parties transferring land use rights shall pay the land use right transfer tax and stamp duty as prescribed by law.

5. The People's Committee of the district, town, township, or provincial city shall issue the certificate of land use rights to cases that have completed the land use right transfer process.

6. Article 10 is amended and supplemented as follows:

Article 10. Documents for transferring land use rights

Documents for transferring land use rights include:

1. Land use right transfer contract;

2. Certificate of land use rights;

In cases where the land user transfers assets belonging to them attached to the land use rights, they must provide the certificate of land use rights or one of the documents specified in Point 2, Clause 3, Article 1 of this Decree;

3. Sketch map of the land plot (extract from the land plot map or measured on-site);

4. Receipts for land rent payments (in cases of land lease).

7. Article 13 is amended and supplemented as follows:

Article 13. Documents for transferring land use rights

Documents for transferring land use rights include:

1. Land use right transfer contract;

2. Certificate of land use rights;

3. Extract from the land plot map for the transferred land;

4. Receipts for land use payment or land rent payment (in cases of land allocation or land lease).

8. Article 14 is amended and supplemented as follows::

Article 14. Procedures for transferring land use rights

1. Documents for transferring land use rights shall be submitted to the district land administration where the land is located.

2. Within ten days from the date of receiving complete and valid documents, the district land administration shall examine the documents, confirm on the land use right transfer contract for cases eligible for transfer according to the law; if not meeting the conditions for transfer, return the documents and notify the parties of the reasons for non-transfer of land use rights.

3. Within five days from the date of receiving complete and valid documents submitted by the district land administration, Within 10 working days from the date of receipt of the dossier as mentioned in Sub-clause b, Clause 1, Article 3 above, the Ministry of Foreign Affairs will review and submit to the competent authority for decision (Issues exceeding the Ministry of Foreign Affairs' jurisdiction will be referred to the Prime Minister for consideration and decision).the People's Committee of the district, town, township, or provincial city shall confirm on the land use right transfer contract.

4. After being confirmed by the People's Committee of the district, town, township, or provincial city to transfer, the district land administration shall notify the parties to pay the land use right transfer tax and stamp duty as prescribed by law.

5. After the parties have paid the land use right transfer tax and stamp duty, the People's Committee of the district, town, township, or provincial city shall issue the certificate of land use rights to the transferee who is a household or individual, or request the People's Committee of the province or centrally-administered municipality to issue the certificate of land use rights to the transferee who is an economic organization.

6. The transferee of land use rights must register the land use rights with the People's Committee of the commune, ward, or town where the land is located.

9. Article 17 is amended and supplemented as follows:

Article 17. Documents for leasing land, subleasing land

Documents for leasing land, subleasing land include:

1. Land lease contract, sublease contract;

2. Certificate of land use rights;

3. Sketch map of the land plot (extract from the land plot map or measured on-site);

4. Receipts for land rent payments (in cases of land lease).

10. Article 20 is amended and supplemented as follows:

Article 20. Documents for leasing land, subleasing land

Documents for leasing land, subleasing land include:

1. Land lease contract, sublease contract;

2. Certificate of land use rights;

3. Extract from the land plot map;

4. Receipts for land use payment or land rent payment (in cases of land allocation or land lease).

11. Article 24 is amended and supplemented as follows:

Article 24. Conditions for mortgaging the value of land use rights

1. Households and individuals using agricultural or forestry land allocated by the State or legally acquired land use rights may mortgage the value of land use rights and assets belonging to them attached to the land at credit institutions permitted to operate in Vietnam to borrow funds for production and business activities.

2. Households and individuals using land leased by the State who have paid the land lease fee for the entire lease period or prepaid the land lease fee for several years, provided that the remaining lease period for which the lease fee has been paid is at least five years. The value of land use rights that can be mortgaged in the case of land lease includes compensation for losses when leased by the State (if any), the land lease fee already paid to the State after deducting the lease fee for the period already used, and the value of assets attached to the land (if any).

In cases where households and individuals mortgage the value of leased land for short-term loans and the remaining lease period for which the lease fee has been paid is less than five years, it shall be implemented in accordance with the guidelines of the State Bank of Vietnam.

3. Households and individuals who lease land annually from the State may mortgage assets belonging to them attached to the leased land at credit institutions permitted to operate in Vietnam to borrow funds for production development and business activities.

4. Households and individuals using residential land may mortgage the value of land use rights and assets belonging to them attached to the land at economic organizations, credit institutions permitted to operate in Vietnam, and domestic Vietnamese individuals.

12. Article 25 is amended and supplemented as follows:

Article 25. Documents for mortgaging the value of land use rights. Documents for mortgaging the value of land use rights include:

1. Land use right mortgage contract;

2. Certificate of land use rights;

3. Sketch map of the land plot (extract from the land plot map or measured on-site);

4. Receipts for land rent payments (in cases of land lease).

13. Supplement Article 26a as follows:

Article 26a. Guarantee by the value of land use rights

1. Households and individuals using land who can mortgage the value of land use rights as stipulated in Point 11, Clause 1 of this Decree, also have the right to guarantee by the value of land use rights at credit institutions permitted to operate in Vietnam.

2. Documents for guarantee by the value of land use rights include the guarantee contract by the value of land use rights and the documents specified in Points 2, 3, and 4, Clause 12, Article 1 of this Decree.

3. After signing the guarantee contract, the guarantor or the guaranteed party must register with Within 10 working days from the date of receipt of the dossier as mentioned in Sub-clause b, Clause 1, Article 3 above, the Ministry of Foreign Affairs will review and submit to the competent authority for decision (Issues exceeding the Ministry of Foreign Affairs' jurisdiction will be referred to the Prime Minister for consideration and decision).the People's Committee of the commune, ward, or town where the land is located. Upon completion of registration, the credit institution will lend money according to the agreement in the loan contract.

14. Article 27 is amended and supplemented as follows:

"Article 27. Conditions for mortgaging the value of land use rights

An economic organization may mortgage the value of land use rights with a credit institution permitted to operate in Vietnam if it meets one of the following conditions:

1. The land is granted by the State with payment;

2. The land is acquired through a lawful transfer of land use rights;

3. The land is leased by the State and the lease fee has been paid for the entire lease period or prepaid for several years, with the remaining lease term being at least five years. The value of the land use rights that can be mortgaged in the case of leasing includes compensation for losses when the land is leased by the State (if applicable), the lease fee already paid to the State after deducting the lease fee for the period already used, and the value of assets attached to the land;

In cases where households and individuals mortgage the value of leased land for short-term loans and the remaining lease period for which the lease fee has been paid is less than five years, it shall be implemented in accordance with the guidelines of the State Bank of Vietnam.

4. In cases where an economic organization is granted land by the State without payment of land use fees for agricultural production, forestry, aquaculture, salt-making, or is leased land by the State and pays annual lease fees, it may only mortgage assets belonging to itself attached to the land."

15. Article 28 is amended and supplemented as follows:

"Article 28. Documents for mortgaging the value of land use rights

The documents for mortgaging the value of land use rights include:

1. Land use right mortgage contract;

2. Certificate of land use rights;

3. Extract from the land plot map;

4. Receipts for land rent payments (in cases of land lease).

16. Supplement Article 29a as follows:

"Article 29a. Guarantee by the value of land use rights

1. Economic organizations that are eligible to mortgage the value of land use rights as stipulated in Clause 14, Article 1 of this Decree are also entitled to guarantee by the value of land use rights at credit institutions permitted to operate in Vietnam.

2. The documents for guarantee by the value of land use rights include the guarantee contract for the value of land use rights and the documents specified in Points 2, 3, and 4 of Clause 15, Article 1 of this Decree.

3. The guarantor shall submit the guarantee documents to the Land Administration Department or the Land Administration - Real Estate Department (hereinafter referred to collectively as the Land Administration Department) where the land is located.

4. Within seven days from the date of receiving complete valid documents, the Land Administration Department shall review the documents and confirm the guarantee in the guarantee contract; if the guarantee is not approved, the documents will be returned and the organization will be informed of the reasons for non-approval.

5. After the parties sign the guarantee contract, the guarantor or the party receiving the guarantee must register with the Land Administration Department where the land is located. Upon completion of registration, the credit institution receiving the guarantee will lend money according to the terms agreed upon in the loan contract."

17. Article 30 is amended and supplemented as follows:

"Article 30. Release of mortgage, release of guarantee

1. When the mortgagor or the guaranteed party fulfills their debt repayment obligations to the mortgagee or the guarantor, the mortgagee or the guarantor shall release the mortgage or guarantee according to the content of the mortgage contract or the guarantee contract.

2. The mortgagor or guarantor shall submit the mortgage contract or guarantee contract to cancel the mortgage registration or guarantee registration as follows:

a) If the mortgagor or guarantor is a household or individual, they shall submit to the People's Committee of the commune, ward, or town where the mortgage was registered; Within 10 working days from the date of receipt of the dossier as mentioned in Sub-clause b, Clause 1, Article 3 above, the Ministry of Foreign Affairs will review and submit to the competent authority for decision (Issues exceeding the Ministry of Foreign Affairs' jurisdiction will be referred to the Prime Minister for consideration and decision).b) If the mortgagor or guarantor is an economic organization, they shall submit to the Land Administration Department."

18. Article 31 is amended and supplemented as follows:

"Article 31. Disposal of land use rights that have been mortgaged or guaranteed to recover debts

1. When the mortgagor or the party guaranteed by the value of land use rights does not perform or performs incorrectly the debt repayment obligations under the mortgage contract or guarantee contract, the land use rights that have been mortgaged or guaranteed shall be disposed of according to the agreement in the contract; if such disposal cannot be carried out according to the agreement recorded in the contract, the mortgagee or guarantor has the right to transfer the land use rights that have been mortgaged or guaranteed to another person to recover the debt (except in cases of land that has been mortgaged or guaranteed by households or individual farmers) or request the competent state agency to auction or initiate legal proceedings before the Court as prescribed by law.

2. After completing the disposal of land use rights that have been mortgaged or guaranteed to recover debts, the mortgagor or guarantor shall go to the state agency specified in Point 2, Clause 17, Article 1 of this Decree to cancel the mortgage registration or guarantee registration.

3. The person who receives the land use rights according to this provision shall be issued a certificate of land use rights."

3. The person receiving the land use rights in accordance with this Article shall be issued a certificate of land use rights."

Article 2. Implementation Organization

1. AImplement procedures for transferring land use rights and assets attached to the land for certain other cases:

a) The procedure for subleasing land, mortgaging land use rights and assets attached to such rights of overseas Vietnamese and foreign organizations and individuals leasing land in Vietnam under the Law on Foreign Investment in Vietnam shall be implemented in accordance with the provisions of Decree No. 17/1999/NĐ-CP dated March 29, 1999, and this Decree.

For joint ventures where the Vietnamese party contributes capital in the form of land use value as stipulated in Article 92 of Decree No. 24/2000/NĐ-CP dated July 31, 2000, of the Government on implementing the Law on Foreign Investment in Vietnam, when mortgaging the land use value and assets attached to the land, the following provisions shall apply:

The mortgage dossier includes the documents specified in points 1, 2, and 3 of Clause 15, Article 1 of this Decree and the capital contribution contract in the form of land use value;

The mortgage process shall be carried out in accordance with the provisions of Article 29 of Decree No. 17/1999/NĐ-CP dated March 29, 1999, and Clauses 17 and 18 of Article 1 of this Decree.

b) Procedures for transferring, inheriting, mortgaging, guaranteeing, and contributing capital in the form of assets owned by economic organizations, households, and individuals attached to the land shall also be implemented in accordance with the provisions of Decree No. 17/1999/NĐ-CP dated March 29, 1999, and this Decree.

2. Abolish the provisions regarding model contracts for converting land use rights, model contracts for transferring land use rights, model contracts for leasing and subleasing land, model contracts for mortgaging land use rights, model declaration forms for contributing capital in the form of land use value, and model declaration forms for terminating contributions in the form of land use value issued together with Decree No. 17/1999/NĐ-CP dated March 29, 1999.

The General Department of Land Administration shall issue model contracts for implementing the rights of land users.

Article 3. Effectiveness

This Decree takes effect fifteen days from the date of signature. All previous regulations contrary to this Decree are hereby abolished.

Ministers, Heads of ministerial-level agencies, Heads of agencies under the Government, Chairpersons of People's Committees of provinces and centrally-run cities within their respective functions and powers are responsible for organizing the implementation of this Decree./.