Thông tư liên tịch 03/2003/TTLT-BTP-BTNMT

JOINT CIRCULAR

GUIDING THE ORDER AND PROCEDURES FOR REGISTERING AND SUPPLYING INFORMATION ON, MORTGAGE OF, AND GUARANTEE WITH, LAND USE RIGHT AND ASSETS ATTACHED TO LAND

Pursuant to the Government's Decree No. 08/2000/ND-CP of March 10, 2000 on registration of security transactions;
Pursuant to the Government's Decree No. 17/1999/ND-CP of March 29, 1999 on the procedures for exchange, transfer, lease, sublease and inheritance of the land use right as well as for mortgage of, and capital contribution with, the land use right value;
Pursuant to the Government's Decree No. 79/2001/ND-CP of November 1, 2001 amending and supplementing a number of articles of the Government's Decree No. 17/1999/ND-CP of March 29, 1999 on the procedures for exchange, transfer, lease, sublease and inheritance of the land use right as well as for mortgage of, and capital contribution with, the land use right value;
In order to ensure the uniform implementation of the legal documents on registration of mortgage of, or guarantee with, land use right and assets attached to land, and to create favorable conditions for activities of registration and information supply in this domain, the Justice Ministry and the Natural Resources and Environment Ministry hereby jointly guide the order and procedures for registering and supplying information on mortgage of, or guarantee with, land use right and assets attached to land as follows:

I. GENERAL MATTERS

1. Scope of regulation

This Circular guides in detail the following matters:

1.1. Registration of and supply of information on mortgage of, or guarantee with, land use right and assets attached to land of domestic households and individuals; and foreign organizations and individuals that, according to the provisions of law, are entitled to mortgage or provide guarantee with land use right and assets attached to land (hereinafter referred collectively to as the registration of, and supply of information, on mortgage and/or guarantee);

1.2. Responsibilities, tasks and powers of the provincial/municipal Natural Resources and Environment Services and the People's Committees of communes, wards or district townships in the registration of, and supply of information on, mortgage and/or guarantee;

1.3. Order and procedures for registering and supplying information on mortgage and guarantee.

2. Cases of registration of mortgage and guarantee

2.1. The following cases of mortgage and guarantee must be registered:

a/ The mortgage of, or guarantee with, the land use right or with the land use right and assets attached to land;

b/ The mortgage of, or guarantee with, assets attached to land, which, as prescribed by law, are subject to the ownership registration;

c/ The mortgage of assets attached to land other than the case prescribed at Item b of this Point, but the parties agree to let the mortgagor or a third party keep such assets;

d/ The mortgage of assets attached to land as security for performance of many obligations;

e/ Written notices on the disposal of mortgaged or guarantee assets.

2.2. Cases of registration at requests:

When one party or parties to contracts on guarantee with assets attached to land, that do not fall within one of the cases prescribed at Point 2.1 of this Clause, request, such guarantee shall also be registered.

2.3. Assets attached to land prescribed in this Circular are immovable assets, including:

a/ Dwelling houses, other construction works attached to land;

b/ Assets attached to dwelling houses or other construction works specified in Item a of this Point in cases of mortgage or guarantee, including dwelling houses, other construction works and such assets;

c/ Perennial tree gardens, forests;

d/ Other assets attached to land.

3. Responsibilities of parties to mortgage or guarantee contracts in the registration

Parties to mortgage or guarantee contracts shall have to take self-responsibility for the truthfulness of contents declared in registration applications, registration dossiers and the legality of mortgage or guarantee contracts. If the parties inscribe in the registration applications untruthful contents or contents inconsistent with agreement in the mortgage or guarantee contracts, or commit acts of forging dossiers, they shall have to pay compensations to damage-suffering parties according to the provisions of law.

4. Responsibilities of mortgage and guarantee registries

The mortgage and guarantee registries defined in Clause 1, Section II of this Circular have the responsibility:

4.1. To register in an accurate manner valid applications strictly according to their contents already declared by the registration requesters according to the provisions of this Circular. If inaccurate registration causes damage, compensations therefor must be made according to the provisions of law;

4.2. To carry out the registration and supply information on mortgage and guarantee strictly according to the order, procedures and time limits prescribed in this Circular;

4.3. To refrain from requesting parties to mortgage or guarantee contracts to submit any papers other than those prescribed in this Circular.

5. Registration requesters

Mortgage or guarantee registration requesters mentioned in this Circular are the following persons:

5.1. Mortgagors and mortgagees;

5.2. Guarantors and guarantees;

5.3. New mortgagors, new guarantors or new mortgagees, new guarantees in case of change of one of the parties prescribed at Points 5.1 and 5.2 of this Clause;

5.4. Persons authorizationd by one of parties to mortgage or guarantee contracts or by all of them.

6. Declarers of registration applications

Mortgagees, guarantees or persons authorizationd by mortgagees or guarantees shall make declarations in registration applications.

7. Legality of the mortgage and guarantee

7.1. Mortgage or guarantee contracts already registered shall be legally valid to the third party as from the time of registration till the date of registration deletion.

In cases where the contract-signing parties transfer the land use right or purchase and/or sell assets attached to land, which are currently mortgaged or used in guarantee and have been registered, the mortgagees or guarantees shall still have the right to dispose such assets to discharge due obligations which the mortgagors or guarantors fail to perform or improperly perform. This prescription shall not apply to < span="">

Before signing contracts on transfer of land use right, purchase of dwelling houses or conducting other transactions related to land use right, assets attached to land, the parties should request the registries in the localities where exist the land or assets attached to land, to supply information on such assets according to the provisions in Section IX of this Circular.

7.2. Time of registration is the time when the registries receive valid registration dossiers

For case of additional registration of mortgaged or guarantee assets, the time of registration of such asset portions shall be the time when the registries receive valid additional registration dossiers.

In cases where the assets currently used in mortgage or guarantee are replaced with the land use right or the land use right and assets attached to land, the parties shall request the deletion of old registration and making of new registration (considered as first-time registration). In these cases, the time of registration shall be the time when the registries receive new valid registration dossiers.

A valid dossier must comprise all the papers required for each case prescribed in Clause 2, Section III; Point 2.1, Clause 2, Section IV; Clause 1, Section V; Clause 1, Section VI; Clause 1, Section VII and Clause 1, Section IX of this Circular.

Valid applications for registration or information supply are those with all declaration contents being filled in as guided in the application form.

7.3. Time of registering mortgage or guarantee shall serve as basis for determining the priority order of payment among mortgagees of or guarantees with the same asset.

8. Registration fee, charge for supply of information on mortgage and guarantee

8.1. Mortgage or guarantee registration requesters; requesters for registration of change in already registered mortgage or guarantee contents; requesters for correction of errors in mortgage or guarantee registration applications shall have to pay the registration fee.

8.2. Organizations and individuals requesting the supply of information on mortgage and/or guarantee shall have to pay information supply charge.

8.3. The fee and charge rates and contents related to the registration fee and mortgage and/or guarantee information supply charge shall comply with Joint Circular No. 33/2002/TTLT/BTC-BTP of April 12, 2002 of the Finance Ministry and the Justice Ministry guiding the regime of collection, remittance, management and use of the fee for registration of, and the charge for supply of information on, security transactions and financial-leasing assets.

9. Forms for registration of, and supply of information on, mortgage and/or guarantee

Requesters of registration < span="">

The Justice Ministry shall have to uniformly manage and guide the use of various prescribed forms for registration or supply of information on mortgage and/or guarantee.

II. AGENCIES REGISTERING MORTGAGE OF, AND GUARANTEE WITH, LAND USE RIGHT AND/OR ASSETS ATTACHED TO LAND

1. Agencies registering the mortgage of, and guarantee with, land use right and/or assets attached to land

1.1. The Natural Resources and Environment Services of the localities where exist land and assets attached to land are competent to register and supply information on mortgage and guarantee in cases where mortgagors or guarantors are organizations.

1.2. The People's Committees of communes, wards or district townships where exist land and assets attached to land are competent to register and supply information on mortgage and guarantee in cases where mortgagors or guarantors are households or individuals.

2. Tasks and powers of provincial/municipal Natural Resources and Environment Services and the People's Committees of communes, wards or district townships in the mortgage and guarantee registration

2.1. To carry out the mortgage or guarantee registration in the cases prescribed in Clause 2, Section I of this Circular;

2.2. To carry out the registration of changes in the already registered mortgage or guarantee contents;

2.3. To issue the originals of registration applications already certified by the competent registries to the registration applicants. To issue copies of registration applications already certified by the competent registries to the parties to mortgage or guarantee contracts at their requests;

2.4. To delete mortgage and guarantee registrations;

2.5. To make registration of written notices on the disposal of mortgaged or guarantee assets;

2.6. To decide on the cancellation of the mortgage or guarantee registration according to the provisions in Section VIII of this Circular;

2.7. To correct errors in mortgage or guarantee registration contents;

2.8. To collect the mortgage or guarantee registration fee;

2.9. To refuse to register mortgages or guarantees in the following cases:

a/ They do not fall under their mortgage and guarantee registering competence;

b/ The dossiers of mortgage or guarantee registration are incomplete; papers are invalid;

c/ Mortgage or guarantee registration applications fail to fully declare contents which must be declared according to the forms promulgated together with this Circular (not printed herein);

d/ Mortgage or guarantee registration requesters fail to pay the registration fee;

e/ The law-prescribed conditions for mortgage of, or guarantee with, the land use right are not fully met.

2.10. To archive and preserve the already registered dossiers, documents and information.

3. Tasks and powers of the provincial/municipal Natural Resources and Environment Services and the People's Committees of communes, wards or district townships in the supply of information on mortgage and guarantee.

3.1. To supply information on the already registered mortgages and guarantees at requests of organizations and individuals;

3.2. To collect information supply charge;

3.3. To refuse to supply information in the following cases:

a/ The applications for information supply fail to fully declare or improperly declare the contents which must be declared according to the form promulgated together with this Circular (not printed herein);

b/ Information supply requesters fail to pay the information supply charge.

III. ORDER AND PROCEDURES FOR REGISTERING MORTGAGES OF, OR GUARANTEES WITH, LAND USE RIGHT AND/OR ASSETS ATTACHED TO LAND

1. Before requesting the registration of mortgage of, or guarantee with, land use right and/or assets attached to land, the contracts on mortgage of or guarantee with land use right and/or assets attached to land must be notarized if it is so agreed by the parties or so prescribed by law.

2. Dossiers for mortgage or guarantee registration shall be submitted at the mortgage and guarantee registries according to the following regulations:

2.1. For registration of mortgage of, or guarantee with, land use right or registration of mortgage of, or guarantee with, land use right and assets attached to land, each registration dossier comprises:

a/ The application for registration of mortgage of, or guarantee with, land use right and assets attached to land (03 copies); letter of authorization for cases where the registration requester is an authorized person;

b/ The contract on mortgage of land use right or land use right and assets attached to land (02 copies), or contract on guarantee with land use right or land use right and assets attached to land (03 copies);

c/ The land use right certificate or certificate of dwelling house ownership and residential land use right for case of mortgage of, or guarantee with, the right to use residential land and dwelling houses in urban centers;

d/ The extract of the cadastral map (for areas where cadastral maps have been made) or the cadastral measurement extract (for areas where cadastral maps have not yet been made) for cases where the concerned land plot is not shown in the land use right certificate or certificate of dwelling house ownership and residential land use right;

e/ Land rent payment vouchers (for case of land leased by the State).

2.2. For registration of mortgage of, or guarantee with, assets attached to land, each registration dossier comprises:

a/ The application for mortgage or guarantee registration (03 copies); letter of authorization for cases where the registration requester is an authorized person;

b/ Certificate of ownership over assets attached to land for cases where the law prescribes that such assets are subject to the ownership registration.

3. Upon receiving mortgage or guarantee registration dossiers, registration officials shall have to check whether the applications fall under their agencies' competence or not, and examine the completeness and validity of the registration dossiers.

If the mortgage or guarantee registration is under their competence and the dossiers are valid, the registration officials shall request the dossier submitters to pay the registration fee; record the time of dossier receipt (minute, hour, day, month, year) in the registration applications; make entries in the registration dossier reception books and give the registration requesters slips of appointment for the return of registration results in case of direct return thereof.

When there exists one of the grounds for registration refusal defined at Point 2.9, Clause 2, Section II of this Circular, the registration officials shall refuse to make registration and guide the registration requesters to strictly observe the regulations.

4. Within seven (7) working days after receiving valid dossiers, the registries shall have to perform the following:

4.1. Verifying land use papers and conditions for mortgage of, or guarantee with, the land use right according to the provisions of law. If the mortgage or guarantee conditions are fully met, they shall certify the verification results in the mortgage or guarantee contracts. If the mortgage or guarantee conditions are not fully met, they shall have to notify such to the registration requesters;

4.2. Making entries in the security transaction registers for cases where the mortgage or guarantee registration conditions are fully met. In case of mortgage of or guarantee with, land use right or land use right and assets attached to land, they shall, together with making entries in the security transaction registers, have to make entries in the land administration books and the books for monitoring land changes according to guidance inscribed therein;

4.3. Certifying the mortgage or guarantee registration in the registration applications;

4.4. Keeping one (01) copy of the mortgage or guarantee registration application, sending one copy thereof to the National Registry of Security Transactions, and returning another directly or by mail to the registration requester together with the contract and other papers prescribed in Clause 2 of this Section.

IV. REGISTRATION OF CHANGES IN THE ALREADY REGISTERED MORTGAGE OR GUARANTEE CONTENTS

1. Cases where changes in the already registered mortgage or guarantee contents must be registered

1.1. Change of one of the signatories to a mortgage or guarantee contract, except for case of change of the mortgagor or the guarantor with land use right prescribed in Item b, Point 3.1, Clause 3 of this Section; change of names, addresses, identity card or passport serial numbers, business registration numbers, establishment or investment license serial numbers of one party or the parties to mortgage or guarantee contracts;

1.2. Partial withdrawal of mortgaged or guarantee assets being the land use right or assets attached to land;

1.3. Replacement or addition of mortgaged or guarantee assets being assets attached to land;

1.4. Change of the payment priority order upon the disposal of mortgaged or < span="">

1.5. Completion of construction works, or new planting of perennial tree gardens or forests under the ownership of mortgagors or guarantors (for case of mortgage of, or guarantee with, assets to be formed in the future).

2. Order and procedures for registering changes in the already registered mortgage or guarantee contents

2.1. Requesters of registration of changes in the already registered mortgage or guarantee contents shall submit registration dossiers at the agencies where such mortgage or guarantee has been registered. Each registration dossier comprises:

a/ The application for registration of changes in the already registered mortgage or guarantee contents (03 copies); and letter of authorization for cases where the registration requester is an authorized person;

b/ Asset ownership certificate if the law prescribes that such assets are subject to the ownership registration, for the cases prescribed at Points 1.3 and 1.5, Clause 1 of this Section.

2.2. The dossier reception shall comply with the provisions in Clause 3, Section III of this Circular.

2.3. Within seven (7) working days after receiving valid dossiers, the registries shall have to perform the following:

a/ Verifying asset ownership certificates, contents of applications for registration of changes in the already registered mortgage or guarantee contents, and comparing them with the registration dossiers kept at the registries. If the conditions for registration of changes in mortgage or guarantee contents are fully met, they shall make entries in the security transaction books and give certifications in the registration applications. If registration conditions are not fully met, they shall notify such to the registration requesters.

In cases where the registration of changes in the already registered mortgage or guarantee contents leads to changes in contents inscribed in the land administration books or the books for monitoring land changes, they shall, together with making entries in the security transaction registers, have to make entries in the land administration books and the books for monitoring land changes according to guidance inscribed therein;

b/ Keeping one (01) copy of the application for registration of changes in the already mortgage or guarantee contents, sending one copy thereof to the National Registry of Security Transactions, and returning another directly or by mail to the registration requester together with the papers prescribed in Item b, Point 2.1, Clause 2 of this Section.

3. Cases of changes in the already registered mortgage or guarantee contents subject to the new registration

3.1. Cases subject to the new registration:

a/ Replacement or addition of mortgaged or guarantee assets being the land use right;

b/ Change of land use right mortgagors or guarantors.

3.2. For the cases prescribed at Point 3.1. < span="">

V. ORDER AND PROCEDURES FOR DELETING REGISTRATIONS OF MORTGAGES OF, OR GUARANTEES WITH, LAND USE RIGHT AND/OR ASSETS ATTACHED TO LAND

1. Mortgage or guarantee registration deletion requesters must submit applications therefor (3 copies) at the agencies where the mortgage or guarantee registration has been made. In cases where the registration deletion requesters are authorized persons, letters of authorization are required.

2. The dossier reception shall comply with the provisions in Clause 3, Section III of this Circular.

3. Within three (03) working days after receiving valid dossiers, the registries shall have to delete the mortgage or guarantee registrations from the security transaction registers. In cases where security assets are land use right or land use right and assets attached to land, the registries shall, together with the deletion of the mortgage or guarantee registrations from the security transaction registers, have to delete the mortgage or guarantee registrations from land administration books and books for monitoring land changes. They shall also certify the deletion of the mortgage or guarantee registrations in the applications therefor.

4. The archival of dossiers and the notification of the result of the mortgage or guarantee registration deletion shall comply with the provisions at Point 4.4, Clause 4, Section III of this Circular.

In cases where the registration deletion requester is the mortgagor or guarantor, the registries shall send one copy of the application for mortgage or guarantee registration deletion to the mortgagee or guarantee. Registries having no conditions to copy the applications shall notify in writing the registration deletion to the mortgagees or guarantees.

VI. ORDER AND PROCEDURES FOR REGISTERING WRITTEN NOTICES ON DISPOSAL OF MORTGAGED OR GUARANTEE ASSETS BEING LAND USE RIGHT OR ASSETS ATTACHED TO LAND

1. In cases where the mortgaged or guarantee assets already registered at the registries must be disposed, within fifteen (15) days before disposing the mortgaged or guarantee assets, the mortgagees or guarantees shall have to submit the applications for registration of written notices on disposal of such assets (3 copies) at the mortgage- and guarantee-registering agencies. For cases where the registration requesters are authorized persons, letters of authorization are required.

2. The reception of applications for registration of written notices on disposal of mortgaged or guarantee assets shall comply with the provisions in Clause 3, Section III of this Circular.

3. Within three (03) working days after receiving valid dossiers, the registries shall have to perform the following:

3.1. Verifying the dossiers, making entries thereof in the security transaction registers, giving certifications in applications for registration of written notices on disposal of the mortgaged or guarantee assets;

3.2. Notifying in writing the disposal of the mortgaged or guarantee assets to the co-mortgagees or co-guarantees in cases where the land use right or assets attached to land are mortgaged or used in guarantee to secure the performance of many obligations.

3.3. The archival of dossiers and the notification of the registration result shall comply with the provisions at Point 4.4, Clause 4, Section III of this Circular.

4. Upon the completion of the disposal of all mortgaged or guarantee assets, the requesters of registration of written notices on disposal of mortgaged or guarantee assets shall have to send applications for mortgage or guarantee registration deletion to the agencies where the written notices on disposal of mortgaged or guarantee assets have been registered, so that the latter shall effect such registration deletion according to the provisions in Section V of this Circular.

In cases where only a part of mortgaged or guarantee assets is disposed, the applicants for registration of written notices on disposal of the mortgaged or guarantee assets shall, upon the completion of the disposal, have to send applications for registration of changes in already registered contents (withdrawal of part of mortgaged or guarantee assets) to the agencies where the written notices on disposal of mortgaged or guarantee assets have been registered, so that the latter shall carry out the registration of changes in such already registered contents according to the provisions in Section IV of this Circular.

VII. CORRECTION OF ERRORS IN REGISTERED MORTGAGE OR GUARANTEE CONTENTS

1. When one party or parties to mortgage or guarantee contracts detect errors in contents of various < span="">

2. Registration officials shall record in the written requests the time (minute, hour, day, month, < span="">

3. Within three (03) working days after the receipt of valid error correction written requests, the registries shall have to correct the errors and give certifications in the error correction written requests.

4. The archival of dossiers and the notification of the error correction result shall comply with the provisions at Point 4.4, Clause 4, Section III of this Circular.

VIII. CANCELLATION OF MORTGAGE OR GUARANTEE REGISTRATION RESULTS

In cases where the registries, after the mortgages or guarantees have been registered, detect the declared contents in the registration applications are untruthful or inconsistent with the parties' agreements but the parties do not request the error correction, they shall issue documents on cancellation of such mortgage or guarantee registrations and delete the registrations according to the provisions in Clause 3, Section V of this Circular.

The documents on cancellation of mortgage or guarantee registration must be sent to the mortgage or guarantee registration requesters and the National Registry of Security Transactions.

IX. SUPPLY OF INFORMATION ON MORTGAGE OF, OR GUARANTEE WITH, LAND USE RIGHT AND ASSETS ATTACHED TO LAND

1. All organizations and individuals that wish to inquire into information on mortgage of or guarantee with land use right and assets attached to land may submit information supply requests at the following State agencies:

1.1. The Natural Resources and Environment Services of localities where the land and assets attached to land exist, for case of inquiries into information on mortgage or guarantee with mortgagors or guarantors being organizations;

1.2. The People's Committees of communes, wards or district townships where the land and assets attached to land exist, for case of inquiries into information on mortgage or guarantee with mortgagors or guarantors being households or individuals;

1.3. The National Registry of Security Transactions or its branches, in case of inquires into information on mortgage or guarantee of organizations, households and individuals throughout the country when the national data system of security transactions officially operates.

2. Information supply requesters shall have to pay information supply charge upon submitting information supply requests.

3. Upon receiving information supply requests, registration officials shall have to examine them, refer to information in the security transaction registers and inspect the charge collection; then supply available information on mortgage or guarantee according to the names of mortgagors or guarantors already recorded in the security transaction registers.

Within three (03) working days after receiving valid information supply requests, the registries shall hand directly or send by mail information supply documents to the requesters.

X. IMPLEMENTATION ORGANIZATION

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

2. Contracts on mortgage of, or guarantee with, land use right and/or assets attached to land signed before the effective date of this Circular and still valid must also be registered according to the provisions of this Circular.

3. To promulgate together with this Circular the forms of registration or supply of information on mortgage or guarantee (not printed herein) to be applied at the provincial/municipal Natural Resources and Environment Services and the People's Committees of communes, wards or district townships in replacement of the previously prescribed forms.

4. Contents of guidance on registration of mortgage of, or guarantee with, land use right and/or assets attached to land in the following documents are hereby annulled:

4.1. Clauses 1 and 3, Section VI of the General Land Administration's Circular No. 1417/1999/TT-TCDC of September 18, 1999 guiding the implementation of the Government's Decree No. 17/1999/ND-CP of March 29, 1999 on the procedures for exchange, transfer, lease, sub-lease and inheritance of land use right, and mortgage of, and capital contribution with, land use right value;

4.2. Clause 3, Section II of the General Land Administration's Circular No. 1883/2001/TT-TCDC of November 12, 2001 guiding the forms of contract in realizing the land user's rights; forms of contract on mortgage of land use right value and contract on guarantee with land use right value, promulgated together with Circular No. 1883/2001/TT-TCDC of November 12, 2001.

5. Responsibilities of the People's Committees of the provinces and centrally-run cities for the State management over the registration of security transactions with the land use right and assets attached to land.

Apart from the tasks and powers prescribed in Article 7 of the Government's Decree No. 08/2000/ND-CP of March 10, 2000 on registration of security transactions, the People's Committees of the provinces and centrally-run cities performing the State management over the registration of security transactions with land use right and assets attached to land in their respective localities shall also have the following specific tasks and powers:

5.1. To arrange officials to carry out the registration of mortgage of, or guarantee with, land use right and/or assets attached to land at registries in their respective localities;

5.2. To ensure material and technical facilities for the registries to organize the registration and information supply according to their competence;

5.3. To coordinate with the Natural Resources and Environment Ministry and the Justice Ministry in professionally fostering the officials engaged in the work of registration of mortgage of, or guarantee with, land use right and/or assets attached to land.

6. Any problems arising in the course of implementation of this Circular should be promptly reported to the Justice Ministry and the Natural Resources and Environment Ministry for study and solution.