Thông tư 26/2015/TT-NHNN về thủ tục thế chấp, giải chấp dự án xây dựng nhà ở

THE STATE BANK OF VIETNAM

Circular No. 26/2015/TT-NHNN date December 09, 2015 of the State Bank of Vietnam guiding the procedures and formalities for mortgaging and releasing mortgage of housing construction projects and off-the-plan residences

Pursuant to the Civil law No. 33/2005/QH11 dated 14 June 2005;

Pursuant to the Law on Housing No. 65/2014/QH13 dated 25 November 2014;

Pursuant to the Law on Vietnam State Bank No. 46/2010/QH12 dated 16 June 2010;

Pursuant to the Law on credit institutions No. 47/2010/QH12 dated 16 June 2010;

Pursuant to the Government’s Decree No. 99/2015/ND-CP dated 20 October 2015 on regulating the details and guidelines for enforcement of Law on Housing;

Pursuant to the Government’s Decree 156/2013/ND-CP dated 11 November 2013 on regulating the functions, missions, jurisdiction and organizational structure of Vietnam State Bank;

At the requests of the Heads of the Legal Bureau and the Monetary Policy Bureau;

Governor of Vietnam State Bank issues the Circular on guidelines for procedures and formalities on mortgaging and releasing mortgage of housing construction projects and off-the-plan residences.

Chapter I

GENERAL PROVISIONS

Article 1. Scope of adjustment

1.This Circular provides guidelines for the procedures and formalities on mortgaging and releasing mortgage of the following properties at credit institutions and foreign banks’ branches:

a) Housing construction projects and off-the-plan residences

b) Off-the-plan residences, which belong to organizations and individuals purchasing off-the-plan residences in housing construction projects;

c) Off-the-plan residences to be constructed on organizations and individuals legitimate lands.

2.The mortgaging of property rights arising from contracts for purchase, sale and rent of residences, contracts for transfer of projects, and other property rights related to off-the-plan residences and housing construction projects eligible for mortgage according to the laws must conform to the Law on Housing, Government s Decree No. 99/2015/ND-CP dated 20 October 2015 on regulating the details and guidelines for enforcement of certain articles of the Law on Housing and relevant laws.

3.The notarization of mortgage contracts and registration of mortgages abide by the laws on notarization, mortgage registration and relevant laws.

Article 2. Subject of application

This Circular governs the following entities:

1.Credit institutions and foreign banks’ branches established and operated according to the Law on credit institutions (referred to as credit institutions).

2.Investors in housing construction projects (referred to as investors).

3.Organizations and individuals purchasing off-the plan residences from investors’ housing construction projects.

4.Organizations and individuals building off-the-plan residences on their legitimate lands.

5.Other organizations and individuals involved in the mortgaging and releasing of mortgage of properties that are housing construction projects and off-the-plan residences.

Article 3. Principles for mortgaging housing construction projects and off-the-plan residences

1.Credit institutions accepting mortgages on housing construction projects and off-the-plan residences must abide by this Circular and other relevant laws.

2.Investors are allowed to mortgage projects and off-the-plan residences in the projects at credit institutions to borrow capital for the investments into the projects or construction of such residences.

3.Organizations and individuals building off-the-plan residences on their legitimate lands are allowed to mortgage such residences at credit institutions to borrow capital for the construction of such residences. Organizations and individuals purchasing off-the-plan residences from investors’ housing construction projects are allowed to mortgage such residences at credit institutions for purchasing such residences.

4.The mortgaging of housing construction projects and off-the-plan residences is only permissible upon such properties’ satisfaction of mortgage requirements as defined in Article 7 of this Circular.

5.When investors have mortgaged off-the-plan residences in housing construction projects, only the project-related parts excluding off-the-plan residences are valid for the mortgaging of such housing construction  projects.

6.When property rights related to housing construction projects or off-the-plan residences eligible for mortgage according to the laws have been mortgaged, such housing construction projects and off-the-plan residences cannot be mortgaged according to this Circular. 

Article 4. Rights and duties of the mortgagor

1.The mortgagor s rights:

a) Reject the mortgagee’s demands that do not correspond with the mortgage contract and the laws;

b) Retrieve the documents of the mortgage application upon the execution of its duties against the mortgagee according to the parties agreements or upon the mortgagor s replacement of the mortgage with other guarantee methods or guarantee properties by the mortgagee s consent;

c) Exercise other rights according to the agreements made with the mortgagee and the laws.

2.The mortgagor s duties:

a) Provide sufficient mortgage documents according to Article 9 of this Circular;

b) Execute precisely the agreed contents of the mortgage contract;

c) If the mortgaged house is damaged or ruined or the construction process fails or is suspended, the mortgagor must immediately inform the mortgagee and replace such mortgage with other properties of equivalent value or give additions or make replacements with other guarantee methods, unless otherwise stated by the parties;

d) Enable the mortgagee to execute its rights to supervise and inspect the forming of the mortgaged properties;

d) Execute other duties according to the agreements made with the mortgagee and the laws.

Article 5. Rights and duties of the mortgagee

1.The mortgagee s rights:

a) Request the mortgagor to provide sufficient mortgage documents according to Article 9 of this Circular;

b) Execute the rights to supervise and inspect the forming of the mortgaged properties;

c) Have the right to reassess the mortgaged properties periodically or randomly according to the stipulations in the mortgage contract to request the mortgagor to make additions or replacements with other properties or guarantees if deemed necessary;

d) Liquidate the mortgaged properties according to the laws if the mortgagor does not perform or execute incorrectly the duties agreed in the mortgage contracts and loan contracts;

d) Demand the mortgagor and investors selling off-the-plan residences to the mortgagor to provide information related to the mortgaged properties and to support the mortgagee s execution of the rights to supervise and inspect the forming of the mortgaged properties;

e) Exercise other rights according to the agreements made with the mortgagor and the laws.

2.The mortgagee s duties:

a) Execute precisely the agreed contents of the mortgage contract;

b) Inspect and verify the eligibility of housing construction projects and off-the-plan residences for mortgage according to Article 7 of this Circular.

c) Supervise and inspect the forming of the mortgaged properties;

d) Do not obstruct or impede the forming of the mortgaged properties during the supervision and inspection;

d) Return the documents of the mortgage application submitted by the mortgagor upon the mortgagor’s execution of the agreed duties or upon the mortgagor’s replacement of the mortgage with other guarantee methods or properties by the mortgagee’s consent;

e) Upon signing the mortgage contract, the mortgagee must inform the investors in writing of the mortgage of the residences by the buyer of off-the-plan residences;

g) Archive the mortgage documents from the loan documents according to the laws;

h) Execute other duties as agreed with the mortgagor and according to the laws.

Article 6. Rights and duties of the investor selling off-the-plan residencesto other organizations and individuals

1.The investor’s rights:

a) Refuse to provide information and documents related to the mortgage application contrary to this Circular;

b) Exercise other rights according to the laws.

2.The investor’s duties:

a) The investor submits documents to authorized Governmental bodies for the latter s notification of the residences eligibility for sale;

b) Provide sufficiently and honestly the documents related to the residences for the buyers application for mortgage at credit institutions according to this Circular. Provide the mortgagee with the mortgaged house s documents and papers coming to effect after the establishment of the mortgage contract according to the mortgagor s delegation;

c) Upon receiving the mortgagee’s notice of the on-going mortgage of off-the-plan residences, the investor cannot engage in any procedures of transferring off-the-plan residences to any organizations or individuals without the mortgagee s written consent;

d) Support the mortgagee to supervise and inspect the forming of the mortgaged residences;

d) Inform the mortgagor and mortgagee of the progress of installments of payment for the residences, the progress and completion of the construction of the residences;

e) Execute other duties according to the laws.

Chapter II

PROCEDURES AND FORMALITIES FOR MORTGAGING HOUSING CONSTRUCTION PROJECTS AND OFF-THE-PLAN RESIDENCES

Article 7. Requirements for mortgaging housing construction projects and off-the-plan residences at credit institutions

1.Investors are allowed to mortgage a part or all of a housing construction project upon their fulfillment of these requirements:

a) Have the project’s documents and technical designs approved;

b) Have the Certificates or decisions on land assignment and land lease from authorized governmental bodies;

c) The housing construction project corresponds with Article 8 of this Circular.

2.Investors can mortgage off-the-plan residences in housing construction projects upon fulfilling the following requirements:

a) The requirements as stated in section 1 of this Article;

b) The foundation of the residences mortgaged have been completed according to the laws on construction;

c) The residences are not the project s parts mortgaged by the investors according to section 1 of this Article;

d) No dispute, complaint or lawsuit on ownership exists;

d) No seizure for enforcement of authorized governmental bodies’ legal sentences or administrative decisions bearing legal force and effect;

e) No decision on revocation of land, notice of ground clearance or house demolition is executed by an authorized governmental body.

3.Organizations and individuals can mortgage off-the-plan residences as regulated in section 2, Article 147 of the Law on Housing upon fulfilling these requirements:

a) For organizations and individuals mortgaging off-the-plan residences built on their legitimate lands:

(i) Possess valid certificates of land use rights according to the laws on lands;

(ii) Possess building Permits if required according to relevant laws;

(iii) The requirements as stated in point d, d and e, section 2 of this Article;

b) For organizations and individuals mortgaging off-the-plan residences purchased from investors’ housing construction projects:

(i) Have house purchase contracts made with the investors;

(ii) Have the agreements for transfer of house purchase contracts if being the transferees of house purchase contracts according to the regulations;

(iii) Have written evidences of installing payments for the residences to the investor according to the schedule agreed in the house purchase contract;

(iv) No complaint, lawsuit or dispute over house purchase contracts or transfer of house purchase contracts exists;

(v) The requirements as stated in point d and e, section 2 of this Article

Article 8. Types of house construction investment contracts eligible for mortgage loans from credit institutions

Housing construction projects eligible for mortgage loans according to this Circular are one of the housing construction projects as defined in section 2, Article 17, Law on Housing, including:

1.An investment project freshly constructing or renovating an independent residence or a cluster of residences.

2.An investment project constructing residences with synchronized technical and social infrastructures in rural areas.

3.An investment project constructing urban areas or using mixed types of lands, parts of which are exploited for the construction of residences.

4.A construction investment project that has buildings for both residential and business purposes.

Article 9. Mortgage documents

Mortgage documents for applying loans from credit institutions shall include:

1.For the mortgaged properties that are housing construction projects:

a) The project’s documents and technical designs approved;

b) Certificates or decisions (original) on land assignment and land lease from authorized governmental bodies;

c) Mortgage contracts in conformity with the laws;

d) Other papers (if any)

2.For mortgaged properties that are project investors’ off-the-plan residences  in housing construction projects:

a) The documents as defined in section 1 of this Article;

b) The written evidences of the completion of the housing foundation according to the laws on construction.

3.For mortgaged properties that are off-the-plan residences purchased from investors’ housing construction projects:

a) House purchase contract (original) signed by the mortgagor and the investor in conformity with the laws of housing;

b) The agreement for transfer of house purchase contract (original) according to the laws of housing in case the mortgagor is a transferee of a house purchase contract;

c) Written evidences (original) of installing payments for the residences to the investor according to the schedule agreed in the house purchase contract;

d) The mortgage contract corresponding with the laws;

d) Other papers (if any)

4.For mortgaged properties that are off-the-plan residences built by organizations and individuals on their legitimate lands:

a) The valid certificate of land use right (original) according to the laws of housing;

b) The building permit if a Building permit is required;

c) The mortgage contract corresponding with the laws;

d) Other papers (if any)

Chapter III

PROCEDURES AND FORMALITIES FOR RELEASING THE MORTGAGE OF HOUSING CONSTRUCTION PROJECTS AND OFF-THE-PLAN RESIDENCES

Article 10. Release of mortgage of housing construct projects and off-the-plan residences

1.The mortgagee and the mortgagor can negotiate a partly release of mortgage by removing parts of the mortgaged properties or a full release of mortgage of housing construction projects and off-the-plan residences.

2.The agreement on release of mortgage must be executed in writing. The notarization, procedures and formalities for notarization of the agreement on release of mortgage are governed by relevant laws.

3.The release of mortgage of housing construction projects and off-the-plan residences as stated in section 1 of this Article is implemented in the following orders:

a) The mortgagor, in need of releasing the mortgage, submits to the mortgagee a written request of mortgage release and relevant documents according to the parties agreement of mortgage release.

b) The mortgagee issues a written consent to the release of mortgage and gives the mortgagor the written consent to mortgage release and documents related to the mortgaged properties according to the parties’ agreement on mortgage release.

Article 11. Registration of mortgage changes or removal of mortgage registration after the release of mortgage

The registration of mortgage changes or removal of mortgage registration subsequent to the release of mortgage as defined in Article 10 of this Circular is governed by the laws on registration of mortgage changes and removal of mortgage registration.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 12. Implementation organization

1.This Circular takes effect on December 10, 2015.

2.Upon the start of the effect of this Circular, procedures and formalities for mortgage and release of mortgages that are housing construction projects and off-the-plan residences at credit institutions are governed by this Circular.

3.If the mortgage of properties that are housing construction projects and off-the-plan residences occurs prior to the effect of this Circular, the parties execute the mortgage contract according to the laws at the time of their signing of the contract. Amendments to the mortgage contract must correspond with this Circular.

4.Office Managers, Head of Legal Bureau, Head of Monetary Policy Bureau, Heads of Vietnam State Bank s units, Directors of Vietnam State Bank s branches in provinces and municipalities, Chairs of Boards of Directors, Chairs of Member Councils and General Directors (Directors) of credit institutions are responsible for organizing the enforcement of this Circular./.

For the Governor

The Deputy Governor

Nguyen Dong Tien