Some Comments on the Draft Law on Real Estate Registration

Land, Decree 181. In the near future, people do not know how to handle their real estate paperwork. The agencies that handle real estate documents in Ho Chi Minh City (HCMC) also do not know how to approach and handle real estate documents.

Complicating the validation

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Clause 2, Article 50 of the Land Law stipulates the issuance of a certificate (GC) in cases where the homeowner is also the land user (SDĐ) in which there are valid documents on the establishment of the house and land, on which the name of another person is recorded, it is only necessary to attach documents on the transfer of land use rights with the signatures of the relevant parties. When applying for a GCN, the People's Committee of the ward (commune, town) only needs to confirm that the land is not in dispute to be granted a GCN.

However, at Point g, Clause 1, Article 43 of Decree 90 stipulates: "There must be additional documents on the purchase, sale, donation, exchange, or inheritance of housing confirmed by the People's Committee at the commune level or higher, or the application for a Certificate of Land Use Rights must include confirmation from the People's Committee at the commune level on the existence of housing due to purchase, donation, exchange, or inheritance according to the provisions of law when there are no documents on construction or transfer of rights according to the prescribed procedures".

Representatives of some district People's Committees in Ho Chi Minh City said that this overlap will cause many difficulties for the receiving agencies as well as the people when they need to apply for a Certificate. People will suffer because they do not know which regulations to follow and which agency to go to to apply for a Certificate?

With current laws and decrees, from now on, there will be two systems of granting certificates and two types of certificates: Land Use Right Certificates (red books), on

That is, the property on land is recorded according to the provisions of the Land Law issued by the Department of Natural Resources and Environment (DONRE); the certificate of house ownership and land use rights is issued by the system of the construction industry.

The Vice Chairman of a suburban district in Ho Chi Minh City said that such overlapping and inconsistent regulations have created a "matrix" that can easily lead to negativity and is a place for officials to "harass" the people. Furthermore, Clause 1, Article 43, Decree 90 stipulates: "The provincial People's Committee shall specify the types of documents on housing establishment prescribed in Clause 1 of this Article to suit the actual conditions in the locality".

According to an official of the Department of Natural Resources and Environment of Ho Chi Minh City, in Ho Chi Minh City, the regulations on valid documents when granting certificates have been stipulated in Article 2 of Decision 04 issued on April 9, 2003, but this Decision has expired, so a new Decision must be developed to comply with Decree 90. This will lead to people and the agencies issuing certificates having to wait, while according to the registration of districts, by the end of 2006, 400,000 certificates must be granted to people. The deadline is near, the above-mentioned bottlenecks will certainly make the plan to grant certificates "bankrupt".

Is it reasonable for the certificate issuing agency to also take on the measurement work?

Here, when referring to the draft Decree guiding the implementation of the Housing Law, we have raised an unreasonable issue. That is, the agency issuing the Certificate of Land Use Rights is allowed to examine the drawings and also undertake the task of measuring and drawing land maps for the people.

However, when Decree 90 was issued, this provision was not abolished but was still specifically stipulated (in Clause 2, Article 46) that: Organizations and individuals

Individuals can measure themselves or hire a legal entity to do so or an agency that issues a land use right certificate. Regardless of who is hired to measure, the drawings must be verified and confirmed by the provincial housing management agency (if it is an organization) or the district housing management agency (if it is an individual in an urban area). This is essentially an acknowledgement: the land use right certificate issuing agency is both the organization hired to create the drawings and the agency that verifies and confirms the drawings.

Over the years, when implementing the work of granting certificates of house ownership and land use rights under Decree 60, Ho Chi Minh City has made efforts to eliminate this unreasonable situation, so that the certificate-issuing agency can focus on the work of granting certificates and other state management tasks. Now, Decree 90 has returned to the old situation, creating conditions for the certificate-issuing agency to "both play football and blow the whistle", causing many people to worry about negativity arising and oppressing the people.

Article 48 of Decree 90 stipulates that a new housing certificate must be issued for each change of ownership (purchase, hire-purchase, gift, exchange, inheritance) instead of updating changes on the old certificate as before. According to an officer of the Center for Natural Resources - Environment Information and Land Registration under the Department of Natural Resources and Environment of Ho Chi Minh City, this will lead to a prolonged situation of people's real estate transactions.

Specifically, if in the past, when making transactions, people only needed 5 days to complete the registration procedure when transferring both the house and land, but now to transfer, people must carry out the registration procedure for the land (5 days according to regulations), then go to the housing ownership authority to prepare a file to issue a new certificate (for the new owner) with the time limit prescribed by Decree 90 being 30 days. The total time for completing the procedure (for registering changes in the land and applying for a new certificate)

GCN for housing part) for a transaction must take at least 35 days, if everything goes smoothly and favorably.

2.2.3 Summary

Along with the gradual loosening of press freedom, Vietnamese people are gradually learning how to put pressure on the State through public opinion when the State’s decisions threaten or negatively affect their lives. The somewhat fierce reaction of public opinion at one time caused the idea of “green paper” of the Ministry of Justice to go bankrupt in early 2005. Next, the unreasonableness in the Ministry of Construction’s introduction of the “new pink book” with the idea of continuing to maintain and increase the authority of the housing management agency is also facing challenges because the people do not agree.

The story of "tug of war" to win the position of the governing body of the new real estate registration system is still an unfinished topic. Will this system of agencies belong to the Ministry of Justice, the Ministry of Natural Resources and Environment, or the Ministry of Construction; or will it be divided equally among each Ministry? Then there is the complicated story surrounding the "land use right certificate" which records or does not record assets on land such as houses...? Or is the right to own a house granted a separate certificate?... Observing this debate shows that it seems that people are only interested in state management and the authority of public agencies. Clearly defining the functions and tasks of each state management agency is the number one goal of today's administrative reform. Hidden behind that noble goal is the fate of hundreds of millions of people - the owners of this country. Therefore, in our humble opinion, the common denominator in the answers to the questions raised above is how to make it convenient for the people, avoiding any unnecessary troubles. That is the people's right, because they pay taxes to support the state apparatus, in return the state has the obligation to provide the people with public services.

urgent. In our opinion, the root of all these troubles, perhaps, (i) must start with rethinking, redefining whether the "red book" should be issued to the land plot or to the person with the right to use that land plot, and (ii) only then is a unified real estate registration system needed as a public service provider.

2.3 SOME COMMENTS ON THE DRAFT LAW ON REAL ESTATE REGISTRATION

At the time this thesis was completed (April 2008), the Draft Law on Real Estate Registration was being rushed to completion. This Draft is not yet a law, but this work has value as a scientific work. Furthermore, the Draft is in the stage of collecting opinions to complete before submitting to the National Assembly. Therefore, within the framework of this research, we would like to contribute a few comments on the draft law on unified real estate registration from the perspective of a researcher.

It can be seen that no draft law in our country has caused as much controversy and met with such public reaction as the draft law on real estate registration. The people's disagreement with the idea of "green paper" has caused this draft law, although it has been implemented to the 10th draft, to not be completed and promulgated in the law-making program of the 11th National Assembly. The plan to draft and promulgate the law on real estate registration was transferred to the law-making program of the 12th National Assembly (according to the working program of the 12th National Assembly). The following section will focus on commenting on some issues of the first draft that was announced in May 2008, from which the author will make a few small suggestions.

2.3.1 Develop some evaluation and comment criteria

(i) The modernity and relevance of the bill;

(ii) Registration is conducted at low cost;

(iii) High stability and reliability of registration content and certificates;

(iv) The real estate registration agency is designed and built in accordance with the administrative reform policy.

2.3.2 Objectives of the bill

According to the Drafting Committee's Report on the orientation for drafting the real estate registration law prepared by the Editorial Board of the Real Estate Registration Law Project in April 2008, this draft law has the following four objectives:

 Firstly: Create maximum convenience for people when requesting registration and finding information about real estate through reforming administrative procedures, building a registration process that ensures publicity, transparency, and convenience, while eliminating current shortcomings such as "many doors, many certificates" and resolving in the direction of "one door, one paper".

 Second: Build a “legal profile” that fully demonstrates the history of establishment, change and termination of real estate rights of owners, users and other individuals and organizations with interests related to that real estate; build a centralized information database on land use rights and assets attached to land to publicize information on real estate.

 Third: Create conditions to improve the effectiveness of state management of the real estate market; at the same time, through the Law on State Real Estate Registration, innovate management and registration agencies according to the requirements of administrative reform.

 Fourth: Overcoming the situation where the law on real estate registration is still scattered, inconsistent, asynchronous, and contradictory.

Contradictions and multiple laws governing real estate registration

[10, pp.1-2].

With the four objectives identified above, it shows that if this bill is carefully and scientifically drafted, the real estate registration law will bring certain meanings. As we have presented in Chapter I of this thesis, the common denominator of today's legal reforms is first and foremost to meet the wishes of the people. That is, the interests of the people must be taken into account instead of focusing too much on the interests of the State. Therefore, the bill must aim to create convenience for people to be able to declare and register their real estate at low cost and quickly in terms of time; on the other hand, in the era of information explosion, it is necessary to aim to build a system to update and provide reliable information, easy to access when people have a need. An electronic information provision system with the help of the Internet is something that needs to be done immediately, even though this requires the State to invest a large amount of money, but this is a very worthwhile investment.

Establishing a focal point for keeping legal records and real estate information kept in the register (ledger) of the new registration agency is an important and long-term goal, the issuance of Land Use Rights Certificates and House Ownership Certificates is only a secondary task and is only issued to those who request it [26, p.18]. The Drafting Committee has identified the establishment of “legal records” of real estate as an important goal. From there, the draft law states that “the real estate register is the original document recording the registration of rights and transactions for real estate. The certificate of registered rights and transactions for real estate must be consistent with the content in the Real Estate Register; if there is a difference, the information in the Real Estate Register is the information with legal effect”, Article 11.1 of the First Draft (hereinafter referred to as the “Draft”). Such a provision seems to be absent in current Vietnamese real estate registration law.

Therefore, this recognition of the Draft has changed the current thinking about real estate registration. The output of the registration process must focus on establishing a register, the issuance of certificates is only a secondary task, carried out when requested by the people.

The Drafting Committee also mentioned the goal of state management of real estate. Therefore, the Draft has always aimed to realize this goal. Because of overemphasizing this goal, many provisions in the draft have made inappropriate requirements. Making registration a mandatory procedure, without following the approach of considering this as a right of the people, the rights of the owners will be better if their real estate is registered. For that reason, many provisions of the draft law have been constructed in a forced manner, for example, Article 49.1 of the Draft, which stipulates that the notary who has certified the real estate contract can be the person requesting registration. The above provision is completely unreasonable, and very difficult to implement because the notary has no motivation to request registration in such cases. This is similar to the current situation where employers deduct the income tax that the employee must pay when paying their salary. Paying taxes is the obligation of the people to the State, the employer has no obligation to do it for the tax authority. In my humble opinion, the goal of state management will naturally be achieved if the implementation of the first and second goals mentioned above is effective.

The fourth objective is to codify the provisions on real estate registration that are scattered in different laws. This is probably not the sole objective of this bill. Combining the scattered provisions into one law may create convenience for the people. But this is probably not important, what is more important is how to make those provisions suitable to the requirements and wishes of the people, that is, to make it more convenient and less costly for the public. The task of collecting the provisions in one place for easy reference may be the job of the publishers.