+ After being approved and confirmed by competent State agencies to contribute capital using land use rights value, the parties participating in the joint venture contract shall carry out investment procedures in accordance with the provisions of law.
+ When granted an investment license, the joint venture enterprise must register land use rights at the Department of Land Administration and submit to the City People's Committee for issuance of a Land Use Rights Certificate, and must also register land use rights at the People's Committee of the commune, ward or town where the land is located.
Termination of capital contribution by land use rights value:
* Capital contribution in the form of land use rights value terminates in the following cases:
- The term for capital contribution using land use rights value has expired.(1)
- At the request of one party or parties; in case of joint venture with foreign organizations or individuals, it must be approved by the competent State agency.(2)
- According to the handling decision of the competent State agency due to serious violation of the provisions of land law.(3)
- Due to being declared bankrupt.(4)
- The individual signing the capital contribution contract dies, the legal entity or other entities want to terminate the contract.(5)
* Handling of land use rights when terminating capital contribution contracts using land use rights value:
- In the cases specified in points (1) and (2), the capital contributor may continue to use the land for the remaining land use term. In case the land use term has expired, the State shall reclaim the land in accordance with the provisions of the law on land; if the land user still has a need, the State shall consider allowing it to be used in accordance with the provisions of the law.
there.
- In the case specified in point (3), the State shall reclaim the land.
- In case the joint venture goes bankrupt, the right to use
Land contributed as capital will be handled according to the Court's decision declaring the enterprise bankrupt.
The recipient of land use rights and assets attached to land is a domestic organization or individual and is allowed to continue using the land for the correct purpose and within the remaining land allocation or lease term.
Foreign organizations and individuals receiving land use rights and assets attached to land are leased land by the State and must use it for the correct purposes as prescribed by law.
In case there is no one to receive land use rights and assets attached to the land, the State will reclaim the land.
- In case the individual signing the capital contribution contract dies, the contributed land use rights will be inherited according to the provisions of the Law.
- In case of dissolution, the land use rights contributed as capital will be handled according to the agreement of the parties.
3.3.2 Current status of land use rights transfer in Hanoi city:
Implementing the 2003 Land Law, the land registration office system was established.
On August 13, 2004, the Hanoi People's Committee issued Decision No. 129/2004/QD-UB to establish the Hanoi Land and Housing Registration Office under the Hanoi Department of Natural Resources and Environment. With the specific characteristics of Hanoi, land and housing management is concentrated in one management unit, so the registration office model includes both land use rights and house ownership rights management, this is an important administrative reform step of the City.
to reduce inconvenience for land users when registering civil transactions on real estate in general and land use rights transfer in particular.
In districts, land registration offices under the People's Committees of districts and towns are also established, creating a unified management system from the city to localities according to prescribed authority.
After 4 years of implementation, by December 2007, the whole city had achieved the following results:
Content of the transfer of rights
Number of completed records | ||||
2004 | 2005 | 2006 | 2007 | |
Transfer | 25126 | 25000 | 25180 | 27113 |
Conversion | 5 | 114 | 216 | 196 |
Inherit, gift, give | 515 | 352 | 573 | 655 |
For rent, sublet | 15 | 22 | 17 | 26 |
Mortgage, guarantee | 770 | 5500 | 8065 | 12000 |
Total | 26431 | 30988 | 34051 | 39990 |
Maybe you are interested!
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Status of Dispute Resolution of Land Use Rights Transfer Contract at People's Court of Binh Tan District, Ho Chi Minh City -
Rights and Obligations of the Transferor in the Land Use Rights Transfer Relationship -
Implementation of the law on the right to transfer, contribute capital, and mortgage land use rights of land users in Vietnam today - 10 -
Content and Form of Implementation of the Right to Transfer, Contribute Capital, and Mortgage Land Use Rights -
Situation and Assessment of Current Status of Settlement of Land Use Rights Disputes in Court
Source: Hanoi Department of Natural Resources, Environment and Housing
Mainly focusing on the content of land use rights transfer, the number of transfer records accounts for 67-95% of the number of registered records.
3.3.3 Some difficulties in registering real estate changes:
The legal basis for real estate is still lacking and inconsistent. Before the 1993 Land Law, the issuance of Land Use Right Certificates was not regularly and widely implemented, only a few people with old documents (land contract certificates, house ownership certificates...) were eligible to complete the registration procedures. From
After the 1993 Land Law, the number of Certificates of house ownership and land use rights has increased significantly, contributing to promoting land and house registration activities. However, the promulgated laws have not been consistent in terms of certificates (Land Law, Housing Law, Construction Law), so many more types of Certificates have arisen (5 types), making management more complicated and people have less understanding of administrative reform.
Because there are too many changes in real estate policies, especially policies on financial obligations, it is difficult to convince people to fulfill their registration obligations. For example, in the past, when giving away houses and land, land use right transfer tax was not required, but now, if given to a daughter-in-law or son-in-law, land use right transfer tax must still be paid. Some tax rates have been fixed for many years without changing, for example, the land use right transfer tax and land and house registration fee of 4% and 1% remain the same even though the official land price has increased 5-7 times.
Lack of information and coordination between management and judicial agencies in land registration activities. All decisions of state management agencies on land must be transferred to the registration agency for correction and updating of changes in the land records for monitoring. For example, when clearing land, the registration agency must be notified of which houses and land plots have been recovered; when trying cases related to land in court, the registration agency must also be notified to suspend related administrative procedures. However, to date, this has only been done very little.
In Hanoi, urban development is too rapid, and cadastral maps cannot measure in time, causing many difficulties in registration work.
The staff specialized in this field has not been fully trained. There is no place in the country that organizes specialized training on land registration. The staff currently performing the task of land registration
All of them are self-taught to work, while this job requires understanding in many related fields, such as: Land Law, Civil Law, Law on Complaints and Denunciations, Law on Marriage and Family, Law on Notarization, cadastral map skills, knowledge of information technology,...
3.3.4 Restrictions on transfer of usage rights
land
3.3.4.1 On legal awareness and legal compliance.
For land users : Due to state land management
Many years of laxity, during the subsidy period the land management regime was still simple. Transitioning to the market economy period, land management policies were issued slowly compared to the actual needs of life. The State's establishment of legal relations on land use between the State and land users through the Land Use Right Certificate has not yet become a unified system (from July 1994) while due to actual needs, land users still carry out civil transactions on land use rights transfer through transfer, lease, mortgage of their house ownership rights and land use rights in the form of handover. The transferor and the recipient after completing this transaction do not need to carry out the transfer registration procedures or the confirmation procedures of the local government or competent professional agencies to continue to use the land without affecting the land use rights. Over time, it has gradually formed a habit of people and land-using organizations in terms of awareness and compliance with land laws. Many organizations, households and individuals do not realize that complying with the provisions of the law on civil transactions and land management for the transfer of land use rights is to implement discipline and order in land management and use and also to ensure the law.
The law protects the legitimate rights and interests of land users in the process of land use and when transferring land use rights. In reality, when disputes and lawsuits about land use rights arise between land users or when disputes and damages occur to subjects when participating in land use rights transfer, many people are only then aware of the role of the law in protecting their legitimate rights and interests in that relationship and see the effect of complying with and complying with the provisions of the law.
For managers and authorities at all levels: Also due to the State's land management being lax for many years, land management policies and regulations on civil transactions related to the transfer of land use rights of organizations, households and individuals have not been issued for many years. By October 1993, the Land Law was issued; in November 1995, the Civil Code was issued, but the access and organization of training on legal regulations for civil servants in the State management apparatus from the City to districts, wards, communes and towns were still simple, many civil servants did not fully understand the legal regulations in this field, so the implementation of management and handling of procedures for people and organizations was still confusing and untimely.
3.3.4.2 Limitations of the legal system:
Legal limitations on the right to guarantee by land use rights value:
The provisions of the land law, the Civil Code and related documents do not have specific provisions to clearly separate the issues of mortgage, pledge, and guarantee by assets (including land use rights) at banks to borrow capital. In fact, guarantee by assets in general and guarantee
Land use right value in particular is the mortgage, pledge of assets or land use rights of the guarantor.
Legal restrictions on mortgage rights using land use rights value.
- The issue of determining land prices to calculate the value of mortgaged land use rights according to current regulations is determined according to the land prices issued by the People's Committee of the Province or City directly under the Central Government, applied at the time of mortgage, however, in reality, the transfer price on the market is often higher than the price frame issued by the People's Committee, which significantly limits the ability of customers to borrow capital, because the value of the collateral is the borrower's land use rights is assessed lower than the market price. Here, the determination of land value through each relationship needs to be clearly distinguished, the land price frame prescribed by the State is fixed for a period of time and is applied to calculate land use rights transfer tax, collect money when allocating land, leasing land and calculating compensation when reclaiming land, meaning that this land price is to help the State manage land in terms of value and collect financial obligations of land users. Meanwhile, the nature of the land use rights mortgage relationship is a civil transaction, the application of land prices regulated by the People's Committee reduces equality, and the freedom of will of the parties involved in the relationship is not respected.
It is from the above unreasonableness that currently on the same plot of land there exist two types of land prices on the same plot of land and in the same relationship. In case the mortgagor fails to fulfill his obligation to repay the debt when due, the credit institution receiving the mortgage has the right to sell the land use right value through auction to recover capital. The land use right value in this case is the actual land transfer price. Obviously, the existence of two such price mechanisms for the same type of property is unreasonable.
- The provisions are unclear and inconsistent in legal documents when regulating mortgaged assets. In Article 716 of the Civil Code, in the case of mortgaging land use rights, whether the assets attached to the land are mortgaged assets or not is agreed upon by the parties; In Decree No. 165/CP/1999 on secured transactions, it is stipulated that "Real estate can be mortgaged separately without the value of land use rights for that land". Meanwhile, Clause 5, Article 6 of Decree 178/CP/1999 stipulates:
"When mortgaging property attached to land, the borrower mortgages both the value of the land use right and the property"; "when mortgaging land use right with property attached to the land, the value of the property securing the loan includes the value of the land use right and the value of the property attached to the land". There are many issues that arise when the agency handles the value of land use right in case the mortgagor fails to fulfill the obligation to pay the debt when due. Each case and each locality is different, so the handling method is not the same.
Legal restrictions on the right to contribute capital using land use rights value.
No matter how special, land is still a type of property and land use rights are a type of property rights. Therefore, civil transactions must be placed within the legal framework of the Civil Code. Therefore, agreements between parties on land use rights must be established in corresponding contracts. However, there are currently many shortcomings in the regulations in this activity:
- Up to now, the State has issued many legal documents regulating the relationship of land use rights transfer to ensure that the transfer relationships take place within the legal framework. However, an existing paradox is that most of the land use rights transfer relationships taking place in real life follow underground streams, beyond the control of the State.