Procedures for Registering Mortgage of Land Use Rights

of the law...). However, the fact that the land use rights mortgage contract is declared invalid by the Court does not affect the validity of the property loan contract.

In summary, the land use rights mortgage contract can be terminated by agreement of the parties or by law, can be terminated at the same time as the property loan contract when the debt repayment obligation is fulfilled or can be terminated before the property loan contract.

1.2.4. Procedures for registering mortgage of land use rights

According to the provisions of Chapter II of Joint Circular 09/2016/TTLT-BTP-BTNMT, the Ministry of Natural Resources and Environment guides the registration of mortgages of land use rights and assets attached to land.

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Mortgage application form

According to the provisions of Article 19 of Joint Circular 09/2016/TTLT-BTP-BTNMT, the mortgage registration dossier for land assets includes:

 Application for mortgage registration according to Form No. 01/DKTC;

 Notarized and certified mortgage contract;

 Certificate;

 Proof documents in the following cases:

+ Authorization document in case the person requesting mortgage registration is an authorized person;

+ One of the following documents proving that the subject is not required to pay the mortgage registration fee for land use rights and assets attached to land (if there is a request for exemption from the mortgage registration fee).

Mortgage registration procedures

According to the provisions of Section 2, Chapter II of Joint Circular 09/2016/TTLT-BTP-BTNMT, the procedure for mortgage registration for land assets is as follows:

 Step 1: Land users submit a set of registration documents to the Land Registration Office or the People's Committee of the commune where the land is located or the local one-stop department.

 Step 2: The receiving agency checks the validity of the registration dossier; refuses to accept and guides the completion of the dossier (if the dossier is invalid); issues the applicant a dossier receipt and appointment to return the result (if the dossier is valid);

 Step 3: The land registration office records the mortgage registration content and registration time in the correct order of receiving the documents in the Land Registry and Certificate.

 Step 4: The land registration office records the mortgage registration content and registration time in the "Certification of the registration authority" section on the Registration application.

Mortgage registration deadline

According to the provisions of Article 8 of Joint Circular 09/2016/TTLT-BTP-BTNMT, the Land Registration Office is responsible for registering and returning the results of mortgage registration for land on the same day of receiving valid registration documents; if receiving documents after 3:00 p.m., the registration will be completed and the results will be returned on the next working day.

In case the time for processing the registration application must be extended, it shall not exceed 03 working days from the date of receipt of valid registration application.

In case the land user submits a mortgage registration application to the People's Committee at the commune level, within no more than 03 working days from the date of receiving the application, the People's Committee at the commune level must transfer the application to the Land Registration Office.

1.2.5. Deregistration of mortgage of land use rights

Application for mortgage cancellation

According to the provisions of Article 26 of Joint Circular 09/2016/TTLT-BTP-BTNMT, the dossier for canceling mortgage registration for land assets includes:

 Application for cancellation of mortgage registration as prescribed

 Written consent to cancel mortgage registration of the mortgagee in case the Application only has the signature of the mortgagor;

 Certificate for mortgage registration cases where the registration file includes a Certificate;

 Authorization document in case the person requesting mortgage registration is an authorized person;

Procedures for registering mortgage cancellation

 Step 1: Complete the application according to the provisions of Article 26 of Joint Circular 09/2016/TTLT-BTP-BTNMT, submit the application at the One-stop Department of the Land Registration Office or the District-level Department of Natural Resources and Environment;

 Step 2: The officer receiving the application will check and receive the application, and at the same time give an appointment slip for returning the results;

 Step 3: Time limit for processing documents: no more than 03 working days;

 Step 4: Come to receive the result, which is the land use right certificate that has cleared your mortgage.

1.2.6. Handling land use rights to recover debt

Handling land use rights to recover debt is the most important stage of the land use rights mortgage process. This is also considered the final stage that the bank applies to the land use rights to recover debt when the borrower does not perform or does not properly perform his debt repayment obligations.

Article 299 of the 2015 Civil Code stipulates the cases in which the secured party has the right to dispose of the secured property. These cases include: (1) The secured party fails to perform or improperly performs the obligation when the due date for performance of the secured obligation comes. (2) The obligated party must perform

The obligation is secured before the due date due to breach of obligation according to the agreement or according to the provisions of law. (3) Other cases agreed by the parties or prescribed by law.

Clause 2, Article 81 of Decree No. 43/2014/ND-CP stipulates the handling of mortgaged land use rights to recover debts as follows: “Mortgaged land use rights shall be handled according to the agreement in the mortgage contract or guarantee contract. In case the agreement cannot be handled, the mortgagee has the right to transfer the mortgaged land use rights to another person to recover the debt or request the competent state agency to auction the land use rights without the consent of the mortgagor or guarantor or to file a lawsuit at the People's Court according to the provisions of law.

Pursuant to Clause 1, Article 303 of the Civil Code, the parties may agree on one of the following methods of handling mortgaged or pledged assets:

(1) Auction of the property; (2) The secured party sells the property itself; (3) The secured party accepts the property itself to replace the performance of the guarantor's obligations; (4) Other methods.

1.3. Practical basis of land use rights mortgage activities in Vietnam

Land use rights are property rights that can be quantified into value according to market prices. In the conditions of market economic development and active international integration, civil and commercial transaction relations have developed extremely richly and diversely, contributing to economic growth and social development. The State has regulations on mortgage of land use rights, which contributes to promoting production and business development, ensuring that civil and commercial transactions using land use rights as collateral take place in a healthy and safe manner, ensuring the rights and interests of the parties in the transaction relationship.

Mortgage of land use rights in Vietnam is mainly regulated in the 2015 Civil Code, 2013 Land Law and Decrees, Circulars, and Inter-ministerial Circulars.

Implementation instructions. Up to now, there have been amendments and supplements to remove obstacles in the practical implementation of land use rights mortgage registration activities.

Mortgaging land use rights according to Article 167 of the 2013 Land Law on “Rights to convert, transfer, lease, sublease, inherit, donate, mortgage, and contribute capital to land use rights” stipulates that households and individuals using land are allowed to mortgage land use rights to borrow capital from credit institutions licensed to operate in Vietnam. However, for land leased with annual payment, land users are only allowed to mortgage their own assets attached to the leased land according to the provisions of Point d, Clause 2, Article 179 of the 2013 Land Law on “Rights and obligations of households and individuals using land”.

The time to be able to mortgage land use rights to borrow capital from banks, according to the provisions of Article 168 of the 2013 Land Law, is when the land user has been granted a land use right certificate. In the case of converting agricultural land use rights, the land user is allowed to exercise the mortgage right after the State has a decision on land allocation or land lease; in the case of inheriting land use rights, the land user is allowed to exercise the mortgage right when meeting all the conditions for being granted a Certificate of land use rights, house ownership rights and other assets attached to the land.

Pursuant to Article 168 of the 2013 Land Law, if the land user is late in performing financial obligations or is recorded as owing financial obligations to the State, he/she must complete the financial obligations before performing the mortgage. In addition, to mortgage land use rights to borrow capital from banks, Article 188 of the 2013 Land Law stipulates that the land user must meet other conditions including: the land is not in dispute, the land use rights are not seized to ensure enforcement of judgments and must still have a land use term (mortgage within the land use term).

In case there is a house on the land, when mortgaging both the land use right and the house ownership right, it is also necessary to comply with the conditions for mortgaging the house as prescribed in Point a, Clause 1, Article 91 of the Housing Law on "Conditions of houses participating in transactions", specifically the house must have a certificate of ownership according to the provisions of law. Article 188 of the 2013 Land Law stipulates that the mortgage of land use rights must be registered with the land registration agency and is effective from the time of registration in the land registry.

According to the spirit of Article 715 of the 2005 Civil Code on "Land use rights mortgage contract", land use rights mortgage is when the mortgagor, who is the land user, uses his land use rights as collateral for the bank, ensuring the performance of the debt repayment obligation of the borrower (who may be the mortgagor or a third party) with the mortgagee, which is the bank.

The 2015 Civil Code (effective from January 1, 2017) no longer has a specific concept of "Mortgage Contract", instead, it only provides general regulations on property mortgage. Article 318 of the 2015 Civil Code stipulates on property mortgage as follows: "1. Property mortgage is when one party (hereinafter referred to as the mortgagor) uses property owned by him/her to secure the performance of an obligation and does not hand over the property to the other party (hereinafter referred to as the mortgagee); 2. The mortgaged property is held by the mortgagor. The parties may agree to let a third party hold the mortgaged property". Clause 3 of this article stipulates on land use rights mortgage as follows: "In case of land use rights mortgage where the property attached to the land is owned by the mortgagor, the property attached to the land is also part of the mortgaged property, unless otherwise agreed."

Up to now, thanks to the constant changes, additions and adjustments of legal documents, some difficulties and shortcomings that existed before have been overcome, contributing to the completion of legal regulations in the field of registration of secured transactions, and at the same time, removing obstacles arising in practice.

Registering mortgages on land use rights and assets attached to land, creating convenience for organizations and individuals in carrying out registration procedures, thereby contributing to accelerating the disbursement process of credit institutions as well as people's access to loans.

However, in the implementation of the law on mortgage of land use rights, there are still certain limitations, many regulations are not consistent, overlapping, and contradictory, which has caused many shortcomings in practical application, causing difficulties that need to be amended and supplemented in the near future.

CHAPTER 2:

OBJECTS, CONTENT, METHODS OF RESEARCH

2.1. Research subjects

Land use rights mortgage activities at the Bank for Agriculture and Rural Development of Vietnam, Dien Bien province branch.

2.2. Scope of research

 Spatial scope: Research on the current status of land use rights mortgage activities at the Bank for Agriculture and Rural Development of Vietnam, Dien Bien province branch.

 Time scope: current status of land use rights mortgage activities at the Bank for Agriculture and Rural Development of Vietnam, Dien Bien province branch from 2013 - 2017.

2.3. Research content

 Overview of natural conditions, socio-economy of Dien Bien province

 Land use situation in Dien Bien province.

 Evaluation of the results of land use rights mortgage at the Bank for Agriculture and Rural Development of Vietnam, Dien Bien province branch.

 Results of the survey on land use rights mortgage activities at the Bank for Agriculture and Rural Development of Vietnam, Dien Bien province branch.

 Proposing solutions to improve the efficiency of land use rights mortgage operations.

2.4. Research methods

2.4.1. Investigation and data collection methods

- Primary data collection:

Survey and investigate the mortgage activities of land use rights at the Vietnam Bank for Agriculture and Rural Development, Dien Bien province branch. Based on the situation of land use rights mortgage registration in each district in the province.

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