Thông tư liên tịch 03/2006/TTLT-BTP-BTNMT của Bộ Tư pháp và Bộ Tài nguyên và Môi trường về việc sửa đổi, bổ sung một số quy định của Thông tư liên tịch số 05/2005/TTLT-BTP-BTNMT ngày 16/6/2005 của Bộ Tư pháp và Bộ Tài nguyên và Môi trường hướng dẫn việc đăng ký thế chấp, bảo lãnh bằng quyền sử dụng đất, tài sản gắn liền với đất

JOINT CIRCULAR

AMENDING AND SUPPLEMENTING A NUMBER OF PROVISIONS OF JOINT CIRCULAR NO. 05/2005/TTLT/BTP-BTNMT OF JUNE 16, 2005, OF THE MINISTRY OF JUSTICE AND THE MINISTRY OF NATURAL RESOURCES AND ENVIRONMENT, WHICH GUIDES THE REGISTRATION OF THE MORTGAGE OF, AND GUARANTY WITH, LAND USE RIGHTS AND/OR ASSETS ATTACHED TO LAND

Pursuant to the June 14, 2005 Civil Code;

Pursuant to the November 26, 2003 Land Law;

Pursuant to the Government's Decree No. 181/2004/ND-CP of October 29, 2004, on enforcement of the Land Law;

Pursuant to the Government's Decree No. 17/2006/ND-CP of January 27, 2006, amending and supplementing a number of articles of the Decrees guiding the implementation of the Land Law and to Decree 187/2004/ND-CP on transformation of state companies into joint-stock companies;

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. 62/2003/ND-CP of June 6, 2003, defining the functions, tasks, powers and organizational structure of the Ministry of Justice;

Pursuant to the Government's Decree No. 91/2002/ND-CP of November 11, 2002, defining the functions, tasks, powers and organizational structure of the Ministry of Natural Resources and Environment,

In order to ensure uniform implementation of legal documents on the registration of security transactions with land use rights and/or assets attached to land, the Ministry of Justice and the Ministry of Natural Resources and Environment hereby amend and supplement a number of provisions of their Joint Circular No. 05/2005/TTLT/BTP-BTNMT of June 16, 2005, guiding the registration of the mortgage of, and guaranty with, land use rights and/or assets attached to land (referred to as Joint Circular No. 05), as follows:

1. To amend Point 1.1, Clause 1, Section I as follows:

"1.1. This Circular guides the registration of the mortgage of land use rights and/or assets attached to land by economic organizations, households, individuals, overseas Vietnamese, foreign organizations or individuals that, under the provisions of law, may mortgage or accept mortgages with land use rights and/or assets attached to land (collectively referred to as mortgage registration).

The trust-based security for the performance of loan contracts shall not be subject to registration."

2. To amend Clause 2, Section I as follows:

"2. Cases of mortgage registration at land use right registries

2.1. Mortgage of land use rights, mortgage of land use rights of a third person which, under the Land Law, is called guaranty with land use rights (collectively referred to as mortgage of land use rights);

2.2. Mortgage of dwelling houses, other architectures, planted productive forests or gardens of perennial trees; mortgage of dwelling houses, other architectures, planted productive forests or gardens of perennial trees of a third person (collectively referred to as mortgage of assets attached to land);

2.3. Mortgage of future assets attached to land; mortgage of future assets of a third person (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. Change, correction of errors or cancellation of registrations of mortgages stated at Points 2.1, 2.2, 2.3, 2.4 and 2.5 of this Clause;

2.7. Written notices on the disposal of mortgaged assets in cases where mortgage registration has been made."

3. To amend and supplement Point 7.1, Clause 7, Section I as follows:

"7.1. The time limit for mortgage registration for cases mentioned in Clause 2, Section I of this Circular is specified as follows:

a/ For valid registration dossiers comprising the land-use right certificate granted under the provisions of the 1987 Land Law, the 1993 Land Law or the 2003 Land Law; the dwelling-house ownership and residential-land use right certificate granted under the provisions of the Government's Decree No. 60/CP of July 5, 1994; the dwelling-house ownership and residential-land use right certificate granted under the provisions of law on dwelling houses (collectively referred to as the land-use right certificate); the dwelling-house ownership certificate granted under the provisions of law on dwelling houses; or the construction-work ownership certificate granted under the provisions of the Government's Decree No. 95/2005/ND-CP of July 15, 2005 (collectively referred to as the certificate of ownership over assets attached to land), mortgage registration shall be made on the date of receipt of the dossier; if the registration dossier is submitted after 15.00 hrs., mortgage registration shall be made on the subsequent working day at the latest.

b/ For registration dossiers comprising one of the papers specified in Clauses 1, 2 and 5, Article 50 of the Land Law, mortgage registration shall be made within 5 working days after the land-use right registry receives the valid registration dossier."

4. To amend Point 1.1b, Clause 1, Section III as follows:

"b/ The contract on the mortgage of land use rights or assets attached to land, notarized or authenticated under the provisions of Point a, Clause 1, Article 130 of the Land Law, or certified by the Management Board of the industrial park, economic zone or hi-tech park under the provisions of Clause 10, Article 2 of the Government's Decree No. 17/2006/ND-CP of January 27, 2006, amending and supplementing a number of articles of the Decrees guiding the implementation of the Land Law and Decree No. 187/2004/ND-CP on transformation of state companies into joint-stock companies, one (01) copy."

5. To amend the first paragraph, Point 1.1c, Clause 1, Section III as follows:

"c/ The land use right certificate."

6. To supplement and amend Point 1.2, Clause 1, Section III as follows:

6.1. To add the following paragraph to Point 1.2c, Clause 1, Section III:

"Where the mortgagor is the owner of assets attached to land leased from organizations, households or individuals or contributed as capital with land use rights without forming a new legal person, the registration dossier shall comprise the land use right certificate or one of the papers specified in Clauses 1, 2 and 5, Article 50 of the Land Law, or the notarized or authenticated contract on lease of land use rights or contract on capital contribution with land use rights."

6.2. To amend Point 1.2d, Clause 1, Section III as follows:

"d/ The certificate of ownership over assets attached to land (if any), except cases where the mortgage contract is notarized or authenticated or certified by the Management Board of the industrial park, economic zone or hi-tech park."

6.3. To amend Point 1.2e, Clause 1, Section III as follows:

"e/ A copy of the construction permit or investment project approved by a competent state agency, for the mortgage of future assets, except cases where such asset mortgage contract is notarized or authenticated or certified by the Management Board of the industrial park, economic zone or hi-tech park, or where construction permits or investment projects are not required for such assets."

7. To add the following paragraph to Clause 5, Section III:

"When mortgaging assets attached to land or future assets, if the owner of such assets has leased such land of organizations, households or individuals, or has received capital contributions with land use rights without forming a new legal person, the column "Notes or developments and legal grounds," Section III of the cadastral book, and the column "Developments" of the land developments monitoring book, shall be filled with the words "Mortgage with assets attached to land (or future assets) of ' (name of the mortgagor) with ' (name of mortgagee) under the mortgage contract or credit contract (if the mortgage is stated in a credit contract) No. ../ ..dated ../../.."

8. To amend Clause 7, Section III as follows:

"7. Mortgage registration in cases where an asset is used to secure the performance of many obligations

Where a mortgagor uses land use rights, rights to use land and assets attached to land, or assets attached to land to secure the performance of many obligations, if the mortgagee previously kept the land use right certificate or the certificate of ownership over assets attached to land, he/she/it must hand over such certificate to the mortgagor for the latter to conduct mortgage registration under the guidance in Clause 1 of this Section.

The mortgagor shall keep and preserve the certificate and, after making mortgage registration, hand over the certificate to the mortgagee that previously kept the certificate, unless otherwise agreed by the parties."

9. To amend Point 2.2, Clause 2, Section IV as follows:

"2.2. The land use right certificate, in case of registration of changes in the contents of the land use right certificate; the certificate of ownership over assets attached to land (if any), in case of replacement or addition of assets attached to land, except where the contract on the change in the mortgage contents is notarized or authenticated or certified by the Management Board of the industrial park, economic zone or hi-tech park."

10. To add the following Clause 4 to Section VI:

"4. Where the land use right registry detects errors made by its registrar(s), it shall correct the cadastral dossier and send a written notice thereon to the registration requester; in case of errors in making entries in the land use right certificate, it shall notify in writing the registration requester to submit the land use right certificate for correction; after making correction, the land use right registry shall return the land use right certificate to the registration requester.

Where errors are made at registrar's fault, the registration requester shall not have to pay fees for the error correction."

11. To add the following paragraph to Clause 5, Section VIII:

"For contracts on the mortgage of and guaranty with land use rights or assets attached to land which were signed before July 28, 2005 (the effective date of Joint Circular No. 05) but have not expired yet, the registration shall also be made according to the provisions of this Circular.

Contracts on the guaranty with land use rights, guaranty with assets attached to land, guaranty with future assets, guaranty with land use rights together with assets attached to land, or guaranty with land use rights and future assets, which were signed before the effective date of this Circular, shall not have to be replaced with contracts on the mortgage of land use rights of a third person; mortgage of assets attached to land of a third person; mortgage of future assets of a third person; mortgage of land use rights and assets attached to land of a third person; or mortgage of land use rights and future assets of a third person in registration dossiers."

12. Organization of implementation

12.1. This Circular takes effect 15 days after its publication in "CONG BAO."

12.2. To annul a number of the following points, words and phrases mentioned in Circular No. 05:

a/ Point 2.3g, Clause 2, Section II.

b/ Point b, Clause 1, Section VIII, which promulgates Form No. 02/DKBL.

c/ The words and phrases "guaranty", "guarantor", "new guarantor", "guarantee", "new guarantee " and "guaranty contract".

d/ The guidance on writing the contents of guaranty with land use rights, assets attached to land or future assets in land use right certificates, cadastral books and books for monitoring land developments, stated at Point 4.1, Clause 4 of Section III, Clause 5 of Section III, Point 4.1, Clause 4, Section IV, and Point 3.1, Clause 3 of Section V.

12.3. Land use right registries which have registered the mortgage of productive forests being planted forests must notify thereon in writing provincial-level Services of Agriculture and Rural Development or district-level functional sections in charge of agriculture and rural development defined in Article 36 of the Government's Decree No. 23/2006/ND-CP of March 3, 2006, on enforcement of the Law on Forest Protection and Development, and notify the dwelling-house management offices of the same level of the registration of mortgage of dwelling houses. Such notification shall comply with the guidance in Clause 4, Section II of Joint Circular No. 05.

12.4. In the course of implementation, if facing any difficulties or problems, individuals and organizations should promptly report them to the Ministry of Justice and the Ministry of Natural Resources and Environment for study and settlement.