Circular 1417 on18-Sept-99 on transferland use right
GENERAL DEPARTMENT OF LAND ADMINISTRATION
No. 1417-1999-TT-TCDC, Hanoi, 18 September 1999
(as amended 21 August 2000)
CIRCULAR ON PROCEDURES FOR CONVERSION, ASSIGNMENT, LEASE, SUB-LEASE AND INHERITANCE OF LAND USE RIGHTS AND
MORTGAGE OR CAPITAL CONTRIBUTION OF LAND USE RIGHTS1
Providing guidelines for implementation of Decree 17-1999-ND-CP dated 29 March 1999 of the Government
Pursuant to the Law on Land dated 14 July 1993 and the Law on Amendment of and Addition to a Number of Articles of the Law on Land dated 2 December 1998;
Pursuant to Decree 17-1999-ND-CP of the Government dated 29 March 1999 on procedures for conversion, assignment, lease, sub-lease and inheritance of land use rights and mortgage or capital contribution of land use rights;
Pursuant to Decree 34-CP of the Government dated 23 April 1994 on the functions, duties, powers and organizational structure of the General Department of Land Administration;
Having agreed with the Ministry of Justice, the Ministry of Construction, the Ministry of Finance, the State Bank and the Office of the Government, the General Department of Land Administration provides the following guidelines for implementation of Decree 17-1999-ND-CP of the Government dated 29 March 1999:
1 Extracts only have been included.
I. GENERAL PROVISIONS
1. Organizations provided for in article 1.1 of Decree 17-1999-ND-CP:
Organizations provided for in article 1.1 of Decree 17-1999-ND-CP of the Government dated 29 March 1999 on procedures for conversion, assignment, lease, sublease and inheritance of land use rights and mortgage or capital contribution in the form of the value of land use rights (hereinafter referred to as Decree 17-1999-ND-CP) are domestic economic organizations, consisting of State owned enterprises, enterprises of political organizations, enterprises of socio-political organizations, co-operatives, limited liability companies, shareholding companies, partnerships and private enterprises. In addition to the rights and obligations of domestic economic organizations using land in accordance with the laws on land, private enterprises shall have the right to bequeath land use rights in accordance with laws on inheritance.
2. Documents required for exercise of rights of land users:
(a) Upon exercise of rights of land users, organizations, households and individuals must have certificates of land use rights issued by authorized State bodies, land use right certificates issued by the previous General Department of Land and Field Management or the General Department of Land Administration.
(b) Where a land user possesses one of the documents stipulated in article 3.2 of Decree 17-1999-ND-CP, documents evidencing allocation of residential land by an agricultural co-operative to a member household prior to 28 June 1971 (the date on which the Resolution of the Council of the Government on Strengthening Land and Field Management was issued) or documents on liquidation or sale of leased houses in accordance with State regulations, it shall carry out the procedures in order to be issued with a certificate of land use rights in accordance with clause 5 of Part I of this Circular prior to exercising its rights.
(c) Where a land user does not possess the documents stated in clauses 2(a) and 2(b) of Part I of this Circular, it shall make an application to the authorized State body for consideration and issuance of a certificate of land use rights in accordance with Section I of Part II of Circular 346-1998-TT-TCDC of the General Department of Land Administration dated 16 March 1998 prior to exercising any rights.
(d) Where, upon the exercise of rights by a land user, there are changes to the area or type of land or to the land user, the authorized State body shall certify the changes to the land in the certificate of land use rights or issue a certificate of land use rights to the recipient of the land use rights. In cases where a certificate of land use rights is issued to the recipient of land use rights, the authorized State body shall revoke the previously issued certificate of land use rights.
(dd) The documents stipulated in article 3.2(h) of Decree 17-1999-ND-CP are documents made prior to 13 April 1999 (the date on which Decree 17-1999-ND-CP became effective).
3. Certification of State bodies upon the exercise of rights by land users:
When organizations, households and individuals using land exercise the rights stipulated in Decree 17-1999-ND-CP, authorized State bodies shall not be required to issue written decisions for organizations, households and individuals to exercise such rights but shall only carry out the procedures and certify contracts as stipulated in Decree 17-1999-ND-CP.
6. Issuance of certificates of land use rights upon exercise of rights by land users:2
When an authorized State body carries out the procedures for a land user to exercise the rights stipulated in Decree 17-1999-ND-CP, at the same time a submission shall be made to the authorized State body to issue a certificate of land use rights or to certify changes to land in a certificate of land use rights.
The authority to issue certificates of land use rights shall be implemented as follows:
(a) People’s committees at the provincial level shall issue certificates of land use rights to land users being:
· Organizations using land;
· Households and individuals using all kinds of urban land within cities and towns; and residential land and specialized land in townships.
2 As amended by Circular 1248-2000-TT-TCDC of the General Department of Land Administration dated 21 August 2000, effective as of 5 September 2000.
(b) People's committees at the district level shall issue certificates of land use rights to land users being:
· Households and individuals using land for the purpose of agricultural production, forestry, aquaculture and salt-making in townships;
· Households and individuals using residential land and specialized land in rural areas.
III. ASSIGNMENT OF LAND USE RIGHTS
2. In respect of economic organizations being assignees of land use rights:
(a) Economic organizations wishing to use land for the purpose of business or production shall be permitted to be assigned land use rights in the locality where they register their businesses and in other localities. Economic organizations being assigned land use rights must have approved investment projects in accordance with the laws on investment. Where the laws on investment do not require preparation of an investment project, an explanatory statement on land use shall be prepared.
(b) Where an economic organization is assigned land use rights by a household or an individual, the file for assignment of land use rights shall be prepared by the household or individual and shall consist of the documents stipulated in article 10 of Decree 17-1999-ND-CP and the investment project or explanatory statement on land use stipulated in clause 2(a) of Part III of this Circular.
(c) The file for assignment of land use rights of a household or an individual to an economic organization shall be submitted by the household or individual to the Department of Land Administration where the land is located. The procedures for assignment of land use rights shall be in accordance with article 14 of Decree 17-1999-ND-CP.
VI. MORTGAGE OF VALUE OF LAND USE RIGHTS
2. Mortgage of the value of land use rights in the case where a certificate of land use rights includes a number of land lots:
At present, certificates of land use rights are mainly issued to each land user, rather than in respect of each land lot, and therefore the land user may only mortgage in favour of one lender. Where a land user wishes to use a certificate of land use rights which includes a number of land lots for the purpose of mortgage in favour of a number of lenders, the procedures for issuance of a separate certificate of land use rights for each lot must be carried out.
The issuance of a separate certificate of land use rights for each land lot shall be conducted in accordance with the following provisions:
(a) The land user shall submit an application for separate certificates of land use rights for different lots accompanied by the original copy of the certificate of land use rights to the people’s committee of the commune where the land is located;
(b) Within three days of receipt of a complete file (application and certificate of land use rights), the people’s committee of the commune shall forward the file to the Division of Land Administration (where the power to issue certificates of land use rights belongs to people’s committees of districts, towns or provincial cities) or to the Department of Land Administration (where the power to issue certificates of land use rights belongs to people’s committees of provinces and cities under central authority);
(c) Within five days of receipt of a complete file, the Division of Land Administration or Department of Land Administration shall inspect the file, prepare the certificate and submit same to the people’s committee at the same level for signing and issuance of the certificate of land use rights;
(d) After the authorized people’s committee signs the certificate of land use rights, the Division of Land Administration or Department of Land Administration shall send the certificate of land use rights to the people’s committee of the commune for the purpose of entry into the cadastral book and delivery to the land user.
Divisions of Land Administration and Departments of Land Administration shall be responsible for recovering certificates of land use rights which have been replaced with new certificates of land use rights.
3. Removal of registration of mortgage:
After the mortgagor has completed its obligations for debt payment and the mortgagee has discharged the mortgage contract, the registration of the mortgage shall be removed as follows:
(b) The mortgagor being an organization shall send the mortgage contract to the Department of Land Administration where the mortgage was registered. The Department of Land Administration shall remove the registration of the mortgage and affix the stamp of the Department of Land Administration on the mortgage contract and the Book on Monitoring of Land Changes.
4. Mortgage of assets attached to land:
In addition to the right to mortgage the value of land use rights in accordance with the laws on land, organizations, households and individuals may also mortgage assets under their ownership which are attached to such land in accordance with law.
VII. CAPITAL CONTRIBUTION IN THE FORM OF VALUE OF LAND USE RIGHTS
Termination of capital contribution in the form of the value of land use rights as stipulated in clauses 3, 4 and 5 of article 39 of Decree 17-1999-ND-CP:
Termination of capital contribution to a joint venture of the value of land use rights as stipulated in clauses 3, 4 and 5 of article 39 of Decree 17-1999-ND-CP shall only apply to joint venture enterprises and shall not apply to the party contributing capital in the form of the value of land use rights.
VIII. A NUMBER OF OTHER ISSUES
1. Determination of the value of land use rights upon exercise of rights of land users:
(a) In the case of conversion, assignment, lease or sublease of land use rights, the value of the land use rights shall be agreed by the parties.
(b) The determination of the value of land use rights upon mortgage shall be carried out in accordance with law.
4. Production of extracts of maps, extracts of field measurement or drawing of diagrams of land lots:
Upon preparation of a file for the exercise of rights of a land user, if the certificate of land use rights does not include an extract of the map or the included extract no longer reflects the actual status due to changes, an extract of the map shall be produced, extracts of field measurement shall be conducted, or a diagram of the land lot shall be drawn in accordance with the following provisions:
(a) In respect of extracts of maps of land lots or extracts of field measurement:
· Certification and seal by the Department of Land Administration where the land is located shall be required where the land user is an organization.
5. Notarization of documents stipulated in Decree 17-1999-ND-CP:
Where a land user prepares a file in order to exercise its rights in accordance with Decree 17-1999-ND-CP and the Decree requires notarization of the relevant documents, the notary public shall be responsible for carrying out notarization in accordance with law.
6. Dealing with files for transfer of land use rights prior to the effective date of Decree 17-1999-ND-CP:
Where a land user submitted a file to an authorized State body for the exercise of its rights prior to 13 April 1999 (the date on which Decree 17-1999-ND-CP became effective), the body which received the file shall continue without application of the provisions of Decree 17-1999-ND-CP.
IX. ORGANIZATION OF IMPLEMENTATION
1. The affixing of the seal of the people’s committee of the commune or the seal of the Department of Land Administration to remove the registration of mortgage stated in clause 3 of Part VI of this Circular shall replace the seal to remove the registration of mortgage stipulated in Circular 346-1998-TT-TCDC of the General Department of Land Administration dated 16 March 1998.
2. People’s committees of provinces and cities under central authority shall, within their duties and powers, be responsible for the organization of the implementation of this Circular.
Departments of Land Administration, Divisions of Land Administration, and land administration officials of communes, wards and townships shall be responsible for assisting the people’s committees at the same level in the implementation of this Circular.
Any problem arising during the implementation hereof should be promptly reported to the General Department of Land Administration for resolution.
3. This Circular shall be of full force and effect after fifteen (15) days from the date of its signing.
General Director of the General Department of Land Administration
BUI XUAN SON
