Are organizations and individuals permitted to mortgage land use rights?
Currently, the law on land, houses, notarization and registration of security measures has no separate provisions for organizations and individuals when accepting mortgages of land use rights and properties attached to land.
Hai An Joint Stock Company specializes in the implementation of small construction projects and has contracted work contracts with individuals.
To be advantage payment, the individual wishes to mortgage the individual's land use rights to the company. However, when the Company contacts a notary office, the office can notarize the mortgage agreement between an individual and a credit institution, and the Company is not a credit institution. The land registration bureau only accepts applications with one party being a credit institution.
Through the system of receiving and responding to proposals of enterprises, the Hai An Joint Stock Company would like to ask, in this case, what procedures should the Company do to notarize the above contract. If the two parties sign the contract without notary, when a dispute occurs, will the contract be legally valid?
Regarding this issue, The Ministry of Justice replies as follows:
According to Point g, Clause 1, Article 179 of the Land Law 2013, households and individuals using land have the right “To mortgage land use rights at credit institutions which are licensed to operate in Vietnam, or at other economic organizations or individuals in accordance with law”.
Point d, Clause 2, Article 179 of the Land Law 2013: Households or individuals that are leased land by the State with annual rental payment have the following rights and obligations: “o mortgage their assets attached to the leased land at credit institutions which are licensed to operate in Vietnam, or at other economic organizations or individuals in accordance with law”.
At Clause 2 Article 144 of the Law on Housing 2014: “The homeowner is an individual entitled to mortgage his/her house at a credit institution, or an economic organization operating in Vietnam or individuals as prescribed.” (except for individuals who build future houses on their lawful land parcels; Individuals who purchase houses formed in the future from investors' housing construction projects may mortgage these houses at credit institutions currently operating in Vietnam according to Article 147 of the Housing Law. 2014).
Therefore, at present, the law on land, houses, notarization and registration of security measures has no separate provisions for organizations and individuals when accepting mortgage on land use rights and assets attached to land. . The mortgage of land use rights and assets attached to land is the right of land users and owners of land-attached assets recognized by the land law in case the land is eligible for mortgage in Article 188 of the Land Law 2013 or the law on housing is recorded in cases where the houses are eligible for transactions under Article 188 of the Law on Housing 2014.
By: Online Newspaper of the Government / Translator: HaiYen-Bizic
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