Thus, the Department of Justice has issued a document with specific guidance on the application of real estate status certificates when notarizing transactions related to land use rights, including procedures for notarizing real estate mortgage contracts. The Department of Justice believes that the provision of real estate status certificates must be provided by land users and property owners in the role of notarization requesters as prescribed in Clause 1, Article 188 of the 2013 Land Law and Clause 1, Article 118 of the 2014 Land Law in all contracts and transactions related to land use rights and housing ownership rights that land users and property owners proactively provide. Even in the case where the land user or property owner cannot provide documents proving that the real estate is not in dispute, the Notary has the right to request the land user or property owner to provide a certificate of the real estate status to clarify the Notary's doubts about the above real estate as one of the forms for the land user or property owner to prove the subject of the contract with the Notary in accordance with the provisions of the law on notarization. At the same time, according to the provisions of the 2014 LCC, the Notary only verifies the real estate status through written documents, the form of verification can be by sending a document or a direct verification record. In this case, the confirmation letter of the People's Committee at the commune level cannot be considered a form of verification by the Notary about the real estate status. The Notary will have to verify the real estate status through verification or other procedures in accordance with the law on notarization when notarizing the above contract. Through the two "professional guidance" documents mentioned above, it can be seen that the right to prove that the real estate is ready to be mortgaged of the land user and the property owner is limited to a certain form, which is the "real estate status confirmation" paper, and this right can be converted into an obligation at any time depending on the subjective will of the Notary.
In addition, up to now, there has been no other document abolishing, replacing or negating the content value of Notice No. 03/TB-STP of the Department of Justice dated November 14, 2014 on the conclusion of the Director of the Department of Justice at the meeting to discuss notary practices on October 24, 2014 (see Appendix 01 for details) and Document No. 422/STP-
Ministry of Justice's Notice on rectifying the activities of TCHNCC dated May 11, 2011 (details see Appendix 02). When the 2018 and 2019 administrative procedures were issued together with Decision No. 1309/QD-UBND dated May 22, 2018, Decision No. 2687/QD-UBND dated September 17, 2019 and the implementation of Official Dispatch No. 100/STP-VP of the Department of Justice of Binh Duong province dated July 4, 2018 on the public posting of administrative procedures stipulating that " Organization of receiving and handling administrative procedures for individuals and organizations must ensure compliance with the content of administrative procedures that have been posted, made public and relevant legal provisions on receiving administrative procedures " and procedures for mortgage transactions for assets such as land use rights, housing specified in 60 administrative procedures in the field of notarization that have been posted on the Electronic Information Portal of Binh Duong Provincial People's Committee, in the dossier components, "Application for confirmation of real estate status" was replaced with " Documents proving that the real estate is not in dispute "provided by the land user or property owner to the Notary. Therefore, although the administrative procedures have been revised to comply with the provisions of the law on land and the law on housing, the TCHNCC still applies the form of proving that the real estate is not in dispute in writing, confirmed by the People's Committee of the commune where the real estate is located.
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Thus, the obligation to prove that the property is real estate without dispute in a real estate mortgage transaction is specifically determined by Binh Duong province as the land user, the property owner or the person requesting notarization and must follow a certain written form as specifically instructed with Notice No. 03/TB-STP of the Department of Justice dated November 14, 2014 on the conclusion of the Director of the Department of Justice at the meeting to discuss notarization activities on October 24, 2014 (see Appendix for details).
01) and document No. 422/STP-BTTP of the Department of Justice on rectifying the activities of TCHNCC dated May 11, 2011 (see Appendix 02 for details). The guidance content of the above guidance and professional direction document is only based on the spirit of the law on land and the law on housing without closely following specific legal provisions. The provisions of the law on land and the law on housing create conditions for land users and property owners to choose the form of proving that real estate is not in dispute.
The most suitable mortgage or can request the Notary to verify the status of the real estate according to the law on notarization, however, the guidance and direction on the profession specifically delimits the area, identifying the subject as the land user, the property owner or the person requesting the notarization must have the obligation to prove, provide documents proving the status of the real estate without dispute, excluding the responsibility of the Notary when notarizing the real estate mortgage contract.
2.2. Notary fee collection
Notarization fee collection is part of the procedure for notarizing contracts and transactions, which in this thesis is specifically mentioned as real estate mortgage contracts. The collection of notarization fee for mortgage contracts is currently carried out according to the provisions of Circular 257/2016/TT-BTC. However, in reality, there are some problems arising around the determination of notarization fee collection according to Circular 257/2016/TT-BTC such as: Not ensuring sufficient revenue to pay taxes, the person requesting notarization must pay notarization fee higher than the actual loan amount and the credit institution has difficulty in recovering interest and related costs for the loan. Therefore, some localities or some TCHNCC have agreed to follow a common "rule" to "eliminate" the situation of "notarization fee evasion" in many forms, as well as affecting the rights of the person requesting notarization, but the common "rule" is not consistent with the legal regulations on notarization fee collection and gives rise to some limitations when applied.
BTC
2.2.1. Collect notary fees according to the provisions of Circular 257/2016/TT-
According to point a.a6, clause 2, Article 4 and clause 3, Article 4, Circular 257/2016/TT-
The Ministry of Finance on the regulation of collection rates, collection, payment, management and use of notary fees; certification fees; fees for assessing standards and conditions for practicing notary; fees for assessing conditions for operating Notary Offices; fees for granting Notary cards stipulates:
“Notarization of property mortgage and pledge contracts: Calculated based on the property value; in case the property mortgage and pledge contract states the loan value, it will be calculated based on the loan value” (point a.a6, clause 2, Article 4);
“…TT5. Type of work: Notarization of amendments and supplements to contracts and transactions (In case of amendments and supplements that increase the value of assets or the value of contracts and transactions, the fee corresponding to the increase in points a, b, c, Clause 2, Article 4 of this Circular shall apply) the fee is 40 thousand VND/case” (Clause 3, Article 4).
Thus, in the case of notarization of a real estate mortgage contract where the content of the mortgage contract states and shows the loan value and loan amount, the notarization fee is calculated based on the loan value. In the case where the content of the real estate mortgage contract does not state and show the loan value and loan amount, the fee is calculated based on the appraised value of the real estate.
Example 1: The land use rights mortgage contract certified by Notary Public Office No. 2 of Binh Duong province No. 368, book No. 01TP/CC-SCC/HĐGD dated March 2, 2020 (see Appendix 03 for details), in the contract content, the loan amount is shown in Clause 2, Article 1, which stipulates the secured obligation " the secured obligation is the obligation to pay payable amounts (hereinafter referred to as "CKPT") with the principal debt amount/initial guarantee amount being: VND 600,000,000 (six hundred million VND)... ", so Notary Public Office No. 2 of Binh Duong province applies the notarization fee on the loan amount according to Circular 257/2016/TT-BTC as VND 600,000 (six hundred thousand VND).
Example 2: The land use rights mortgage contract certified by Notary Public Office No. 2 of Binh Duong province No. 365, book No. 01TP/CC-SCC/HĐGD dated March 2, 2020 (see Appendix 04 for details), the contract does not record the loan amount or loan value, so Notary Public Office No. 2 of Binh Duong province applies the notarization fee on the land use rights valuation value in Clause 1.1, Article 1 of the above contract "Asset value: 5,011,046,400 (in words: Five billion, one hundred and eleven million, one hundred and forty-six thousand, four hundred dong). Determining the value
This value is only used as a reference when ACB grants credit, not applicable when handling TSTC" is 3,205,000 VND (three million two hundred and five thousand VND), the fee is collected according to the provisions of Circular 257/2016/TT-BTC and rounded to the nearest thousand.
Thus, the above regulation is applied in the case of notarization of contracts amending and supplementing real estate mortgage contracts. There are 3 possible developments when applying the above notarization fee collection regulations to contracts amending and supplementing real estate mortgage contracts.
In the first case , the previous contract of the amended or supplemented contract is charged according to the loan value, and at the same time, in the content of the amended or supplemented contract, the new loan value is stated to be higher than the previous loan value or the loan value is not stated, the loan amount and the real estate value is assessed higher than the previous loan value, then the fee for the above amended or supplemented contract is calculated on the increased value of the new loan value or between the real estate valuation value minus the old loan value.
Example 1: Contract to amend and supplement the land use rights mortgage contract certified by Notary Public Office No. 2, Binh Duong province, number 345, book number 01TP/CC-SCC/HĐGD dated February 27, 2020 (details see Appendix 05). In Article 1 of the contract amending and supplementing Clause 2, Article 1 of the notarized land use rights mortgage contract No. 2476, book No. 01TP/CC-SCC/HĐGD dated October 17, 2019 (for details, see Appendix 06), it is stipulated that "The secured obligation of Party B (the mortgagor) under this contract for the principal debt, the guarantee balance (excluding interest, fines, fees and other related costs) at all times is VND 1,100,000,000 (in words: One billion one hundred million VND)" , the secured obligation of the notarized mortgage contract No. 2476, book No. 01TP/CC-SCC/HĐGD dated October 17, 2019 is VND 850,000,000. Therefore, Notary Office No. 2 of Binh Duong province applies a fee of 250,000,000 VND on the increased loan value of 250,000,000 VND.
Example 2: Contract to amend and supplement the mortgage contract of land use rights certified by Notary Public of Notary Office No. 2, Binh Duong province, number 321, book number
01TP/CC-SCC/HĐGD dated February 24, 2020 (see Appendix 07 for details). In Article 1 of the amended and supplemented contract, the content in Clause 3.4, Article 3 of the notarized land use rights mortgage contract No. 381, book No. 01TP/CC-SCC/HĐGD dated January 29, 2016 (see Appendix 08 for details) was deleted: "The value of the secured obligation for the principal and/or the guarantee balance and/or the credit amount (excluding interest, fees and other payable amounts) at a time does not exceed VND 300,000,000 (in words: Three hundred million VND even). Thus, from the original mortgage contract stating the loan amount, when signing the amended and supplemented contract, the parties agreed to delete the clause showing the loan amount. Therefore, Notary Office No. 2 of Binh Duong province collects notary fees based on the increase between the re-evaluated property value in Article 2 of the amended and supplemented contract minus the loan value of the original mortgage contract.
In the second case , when the previous contract of the amended or supplemented contract collects fees based on the real estate valuation value, but the amended or supplemented contract does not state the loan value or the amended or supplemented contract states the loan value is higher than the previous real estate valuation value, the notary fee is calculated on the difference between the real estate valuation value or the loan value stated in the amended or supplemented contract minus the previous real estate valuation value.
For example: The contract amending and supplementing the mortgage contract of land use rights certified by Notary Office No. 2 of Binh Duong province No. 643, book No. 01TP/CC-SCC/HĐGD dated April 14, 2020 (see Appendix 09 for details). In Article 2 of the contract amending and supplementing Clause 1.2, Article 1 on the value of the mortgaged property of the contract amending and supplementing the mortgage contract of land use rights notarized No. 1252, book No. 01TP/CC-SCC/HĐGD dated June 7, 2019 (see Appendix 10 for details) as follows: “Value of fixed assets: VND 6,210,053,500 (In words: Six billion two hundred and ten million fifty-three thousand five hundred dong)…” . However, Article 1 and Article 2 of the notarized contract No. 1252 stated: “…The total value of the secured obligations for the principal debts and/or the guarantee balance and/or the credit amount
(excluding interest, fees, and other payable amounts) at any one time does not exceed 100% of the value of the mortgaged property" and "Value of collateral: VND 4,228,000,000 (In words: Four billion two hundred and twenty-eight million dong)..." Therefore, in this case, Notary Office No. 2 of Binh Duong province applies the notarization fee calculated on the increase in the real estate valuation value in the amended and supplemented contract dated April 14, 2020 minus the real estate valuation value in the notarized mortgage contract No. 1252 mentioned above.
Third case , for all cases where the real estate valuation value or loan value recorded in the amended or supplemented contract is lower than the real estate valuation value or loan value of the previous adjacent contract, there is no increase in the real estate valuation value or loan value, so the notary fee is 40 thousand VND.
For example: The mortgage contract of land use rights and land use rights certified by Notary Public Office No. 2 of Binh Duong province No. 684, book No. 01TP/CC- SCC/HĐGD dated March 14, 2018 (see Appendix 11 for details) charges fees based on the value of the property at that time, because the contract does not state the loan value or loan amount. Therefore, when signing the amended and supplemented contract, the contract content adds the maximum loan value, but this loan value is lower than the value of the property used to calculate the notarization fee in the mortgage contract notarized No. 684 mentioned above. Therefore, TCHNCC can only collect 40 thousand VND in this case according to the amended and supplemented contract certified by Notary Public of Notary Office No. 2, Binh Duong province, No. 369, book No. 01TP/CC-SCC/HĐGD dated March 2, 2020 (details see Appendix 12).
Thus, the application of the provisions at Point a.a6, Clause 2, Article 4 and Clause 3, Article 4 of Circular 257/2016/TT-BTC will affect the legal rights and interests of different entities in the real estate mortgage contract such as: credit institutions, property mortgagees and TCHNCC. Specifically for each entity as follows:
2.2.1.1. Credit institutions
When applying the provisions at Point a.a6, Clause 2, Article 4 and Clause 3, Article 4 of Circular 257/2016/TT-BTC on notarization fees for mortgage contracts prepared by credit institutions, the following two situations are encountered:
Firstly , if the mortgage contract or the amended or supplemented contract states the loan amount or loan value, the Notary Public Organization will apply the notary fee based on the loan value or loan amount. In this case, the real estate mortgagee only pays the fee corresponding to the loan amount, so the credit institution will not encounter any "resistance" from the mortgagee. However, in another aspect, the expression and recording of the loan amount or loan value in the mortgage contract or the amended or supplemented contract is not consistent with the mortgage contract form of the credit institution, the mortgage contract form is prescribed for common use in all cases of transactions expressing the owner's will to operate, for example: Vietnam Joint Stock Commercial Bank for Investment and Development, Asia Commercial Joint Stock Bank, Dong A Commercial Joint Stock Bank, etc.
Second , if the mortgage contract or the amended or supplemented contract does not state the loan amount or loan value, the notary fee is calculated based on the real estate valuation. In this case, the credit institution faces disagreement from the mortgagee because they have to pay a notary fee much higher than the fee calculated based on the loan amount or loan value, for example: The real estate valuation is 10 billion VND but the loan value is only 1 billion VND. However, not showing the loan value in the mortgage contract shows compliance with the credit institution's operating regulations, using the correct form issued for common use when conducting transactions, ensuring approval in the credit institution's internal control activities.
In reality, credit institutions often choose a form of contract that does not show the loan value or loan amount, because it both ensures compliance with operating regulations and transfers “responsibility” to the mortgagee. At the same time, credit institutions benefit from