Chương VI Nghị định 181/2004/NĐ-CP: Quyền sử dụng đất trong thị trường bất động sản

Chapter VI

LAND USE RIGHTS IN REAL ESTATE MARKET

Article 59.- Land is allowed for participation in the real estate market

1. Land with assets affixed thereto and the land use rights, permitted for participation in the real estate market, shall include:

a) Land for agricultural production, land with production forests other than natural forests, which are assigned by the State without the collection of land use levies to households, individuals;

b) Agricultural land being used stably by households, individuals for purposes of agricultural production, forestry, aquaculture or salt-making, with the land use rights being already recognized by the State;

c) Agricultural land being assigned by the State with the collection of land use levies to economic organizations, overseas Vietnamese;

d) Agricultural land leased by the State to overseas Vietnamese, foreign organizations or foreign individuals with the land rents paid in lump sum for the whole leasing term;

e) Residential land assigned by the State to households, individuals for construction of dwelling houses; residential land assigned by the State to economic organizations, overseas Vietnamese for investment in dwelling house construction and business; residential land leased by the State to overseas Vietnamese, foreign organizations or foreign individuals for investment in dwelling house construction and business with land rents paid in lump sum for the whole leasing term;

f) Residential land being used by households, individuals for the purposes of building dwelling houses, with their land use rights being already recognized by the State;

g) Non-agricultural production and/or business land, land used for public business purposes, assigned by the State with the collection of land use levies to economic organizations, households, individuals, overseas Vietnamese;

h) Non-agricultural production and/or business land, land used for public business purposes, leased by the State to overseas Vietnamese, foreign organizations or foreigners, with the land rents paid in lump sum for the whole leasing term;

i) Non-agricultural production and/or business land, land used for public business purposes, being used by households, individuals or economic organizations, with the land use rights being already recognized by the State.

2. Land leased from the State with land rents paid annually and with the assets affixed thereto being permitted for participation in the real estate market shall include:

a) Perennial-tree land with tree gardens thereon, production-forest land with forests thereon, salt-making land and aquaculture land where infrastructures have been invested;

b) Non-agricultural production and/or business land, land used for public business purposes, where infrastructures have been invested or where exist constructions affixed to land.

3. The recipients of assets affixed to land in the cases prescribed in Clause 2 of this Article shall be permitted by the State to continue leasing the land for the remaining duration of the signed land lease contracts.

4. Upon the expiry of the land use duration, the persons assigned or leased land and with their land use rights recognized by the State; persons being transferred the land use rights from other persons as provided for in Clause 1 of this Article; the recipients of assets affixed to land leased by the State from other persons, prescribed in Clause 2 of this Article, if wishing to extend the land use duration, shall all be considered for extension under the provisions of Clause 2, Article 34 of this Decree.

Article 60.- Contents of operations of land use right market in the real estate market

Contents of operations of land use right market in the real estate market shall include:

1. The State assigns agricultural land to households, individuals without the collection of land use levies.

2. The State assigns land with the collection of land use levies, leases land through auctions or at prices set by the State.

3. Households, individuals exchange, transfer, lease, sublease, inherit or donate the land use rights; mortgage, provide guarantee or contribute capital with the land use rights.

4. Economic organizations, overseas Vietnamese transfer, lease or sublease the land use rights; mortgage, provide guarantee or contribute capital with the land use rights.

5. Foreign organizations, foreign individuals lease, sublease the land use rights; mortgage, provide guarantee or contribute capital with the land use rights.

6. Economic organizations, overseas Vietnamese, foreign organizations, foreigners invest in the construction of dwelling houses for business, production and/or business establishments, infrastructures.

7. Households, individuals, economic organizations, overseas Vietnamese, foreign organizations, foreigners sell, lease, donate assets affixed to land; mortgage, provide guarantee or contribute capital with assets affixed to land; individuals, overseas Vietnamese, foreigners bequeath assets affixed to land.

8. Overseas Vietnamese defined in Clause 1, Article 121 of the Land Law buy dwelling houses associated with the residential land use rights; are donated or bequeathed the land use rights and assets affixed to land.

9. Non-business organizations, economic organizations are licensed to provide services in support of real estate market regarding land use right registration, secured transaction registration, measurement for cadastral map making; provide information on land, recommendation of investment locations; valuation and appraisal of land, real estate prices; receive mortgage or guarantee with the land, real estate use rights; organize land, real estate use right transaction floor; auction land, real estate use rights, biddings for projects with the use of land; real estate securities.

Article 61.- Cases of auction and non-auction of land use rights

1. The auction of land use rights shall apply when the State assigns land with the collection of land use levies, leases land or when land use right-related judgments or debt recoveries are executed, except for the cases prescribed in Clause 2 of this Article.

2. The non-auction of land use rights shall apply when the State assigns land with the collection of land use levies, leases land or when land use right-related judgments or debt recoveries are executed in the following cases:

a) Where the land is used under the provisions of Clause 1, Article 60 of the Land Law;

b) Where economic organizations shift from land lease to land assignment with the collection of land use levies;

c) Where the land users are permitted by competent State agencies to change the land use purposes;

d) Where the land is put on auction but no one participate therein or the auction fails.

Article 62.- Auction of land use rights, biddings for projects involving land use with regard to land funds used for creation of investment capital for construction of infrastructure

1. The use of land funds for creation of investment capital for construction of infrastructures shall be effected in either of the two following forms:

a) Auction of the land use rights to create capital sources in money for direct use for investment in infrastructure construction;

b) Bidding for construction of works and auction of land use rights for creation of capital for construction of such works in the same bidding packages.

2. Where the form of land use right auction is applied for creation of capital sources in money for direct use for investment in infrastructure construction, the following principles shall be complied with:

a) The auction of land use rights and the biddings for construction of works shall be carried out independently;

b) The provincial/municipal People's Committees shall have to clearly identify the land use purposes and structure for the land put on auction.

3. Where the form of bidding for construction of works and auction of land use rights for creation of capital for construction of such works in the same bidding packages is applied, the following principles shall be complied with:

a) The point scale for marking the bids for construction of works and the point scale for marking the land use right auction shall be drawn up separately;

b) The provincial/municipal People's Committees must clearly identify the land use purposes and structure for land put to auction;

c) When using the bid-winning land, the bid winners must draw up land use schemes to be considered and approved by provincial/municipal People's Committees.

4. The order and procedures for auction of land use rights, biddings for works involving land use shall comply with the regulations promulgated by the Prime Minister.

5. Annually, the provincial/municipal People's Committees shall formulate and submit to the People's Councils of the same level for adoption the lists of investment projects for infrastructure construction eligible for use of land funds to create capital and the land areas used for creation of capital for execution of such projects.

Article 63.- Land use rights of State enterprises when being equitized

1. The State enterprises' land use rights acquired from land assignment or land lease by the State, from land use right reception, which constitute the State's property at the enterprises, must be calculated into the value of the enterprises' assets upon their equitization.

2. The land use right value determined for inclusion in the value of enterprises' assets upon their equitization must be close to the actual prices of land use right transfer on the market but shall not be lower than the land prices set by the provincial/municipal People's Committees at the time of equitization.

3. Upon the equitization of State enterprises, the provincial/municipal People's Committees shall have to review the land funds being used by the enterprises, handle and grant land use right certificates according to the provisions of Articles 49 and 52 of this Decree.

Article 64.- Registration of secured transactions on land use rights

1. The registration of secured transactions on land use rights shall cover the following cases:

a) Registration of mortgage of or guarantee with the land use rights;

b) Registration of changes in contents already registered for mortgage of or guarantee with land use rights;

c) Registration of correction of errors in the contents of registration for mortgage of, guarantee with land use rights;

d) Registration of cancellation of or deletion of results of registration of mortgage of or guarantee with land use rights;

e) Registration of results of handling the assets mortgaged or guaranteed with the land use rights.

2. The registration requesters shall be one of the following subjects:

a) The land use right mortgagor or mortgagee;

b) The land use right guarantor or guarantee;

c) The new mortgagor or the new mortgagee in case of changing either of the parties prescribed at Point a of this Clause;

d) The new guarantor or the new guarantee in case of changing either of the parties prescribed at Point b of this Clause;

e) The persons authorized by one of the parties to the mortgage or guarantee contracts under civil law provisions.

3. Agencies performing the registration of secured transactions of land use rights shall be land use right registration offices.

4. Principles for registration of secured transactions on land use rights are prescribed as follows:

a) The secured transactions of land use rights shall be registered according to the contents of the applications and the mortgage or guarantee contracts.

The parties to the mortgage or guarantee contracts must bear responsibility for the registered contents.

b) The registration offices must make accurate registrations according to the contents of the applications and the mortgage or guarantee contracts;

c) The registration of secured transactions of land use rights shall be acknowledged in the cadastral dossiers and the land use right certificates without granting other certificates of secured transaction registration;

d) Information on registration of secured transactions of land use rights shall be supplied to all organizations and individuals that have demands therefor;

e) The registration of secured transactions of land use rights shall be legally valid under civil law provisions.

5. The land use right value in secured transactions shall be determined according to the following regulations:

a) The land use right value in cases where households, individuals are assigned agricultural land by the State without the collection of land use levies shall be determined according to land prices set by the provincial/municipal People's Committees without subtracting the land use right value for the duration when the land was used;

b) The land use right value for other cases than those prescribed at Point a of this Clause shall be agreed upon by the parties engaged in the secured transaction.

6. The registration requesters, the requesters for information on secured transactions of land use rights must pay charges and fees according to law provisions.

Article 65.- Handling of the rights to use the land being leased, mortgaged, provided as guarantee, contributed as capital when the State recovers land

1. For land being leased, mortgaged, provided as guarantee or contributed as capital, which is recovered by the State under the provisions of Clause 1, Article 38 of the Land Law, the land lease contracts, the contracts on mortgage of, provision of guarantee or contribution of capital with, the land use rights shall terminate. The land lessees, the mortgagees, the guarantees or the contributed capital receivers shall be compensated according to civil law provisions by the persons whose land was recovered.

2. For land being leased or contributed with land use rights as capital without formulating new legal persons but falling into the cases of land recovery as prescribed in Clauses 3, 4, 9, 11 and 12 of Article 38 of the Land Law, the land lease contracts, the contracts on capital contribution with the land use rights shall terminate and the land recovery shall be carried out under the following regulations:

a) Where the land lessors or capital contributors with the land use rights commit acts of violating land legislation, the State shall recover the land. The land lessors or the capital contributors with the land use rights must pay damages to the land lessees, the receivers of capital contributed with the land use rights according to civil law provisions;

b) Where the land lessees or the receivers of capital contributed with the land use rights commit acts of violating land legislation, the State shall not recover the land but recover the land use right value. The land lessees, the receivers of capital contributed with the land use rights must pay to the State money amounts equivalent to the land use right values calculated at the land prices set by the provincial/municipal People's Committees at the time of money payment and must pay damages to the land lessors or capital contributors with the land use rights according to civil law provisions.

3. For land being mortgaged, provided as guarantee with the land use rights and falling into the cases of land recovery under the provisions of Clauses 3, 4, 9, 11 and 12 of Article 38 of the Land Law, the State shall recover the land; the contracts on mortgage or guarantee with the land use rights shall terminate and the repayment of loans shall be handled according to the following regulations:

a) In case of mortgage, the mortgagors must repay the loans to the mortgagees according to civil law provisions;

b) In case of guarantee, the guaranteed must repay the loans to the guarantees according to the signed credit contracts; if the guaranteed is incapable of repaying the loans, the guarantors must repay loans to the guarantees according to civil law provisions.

4. For land being leased, mortgaged, provided as guarantee or capital contribution with the land use rights by land users being individuals without formulating new legal persons and such individuals die without any heirs, the State shall recover the land; the land lease contracts, the mortgage contracts, the guarantee contracts, the contracts on capital contribution with the land use rights shall terminate and the land use rights shall be handled as follows:

a) In case of land lease, the land lessees shall be leased land by the State for the remaining duration of the signed land lease contracts;

b) In case of capital contribution with the land use rights, the contributed capital receivers may continue using the land for the remaining duration of the signed capital contribution contracts;

c) In case of mortgage with the land use right, the People's Committees which have granted the land use right certificates shall organize land use right auction in oder to pay loans to the mortgagees according to the signed mortgage contracts; if the mortgaged land use right value determined through auctions is smaller than loans, the mortgagees can only receive the money amounts equivalent to the mortgaged land use right value;

d) In case of guarantee with the land use rights, the guaranteed must repay loans to the guarantees under the signed credit contracts; if the guaranteed is incapable of repaying the loans, the People's Committees which granted the land use right certificates shall organize land use right auctions for repayment of loans to the guarantees under the signed guarantee contracts; if the guaranteed land use right value determined through auctions is smaller than the loans, the guarantees can receive only money amounts equivalent to the guaranteed land use right value.

Article 66.- Floors for transaction of land use rights, assets affixed to land

1. The transaction floor on land use rights, assets affixed to land are the places where the following activities are carried out:

a) Recommending persons who have the demands to transfer or to be transferred, the land use rights, assets affixed to land;

b) Recommending persons who have the demands to rent, to lease, sublease the land use rights, assets affixed to land; to mortgage, provide guarantee or contribute capital with the land use rights, assets affixed to land;

c) Recommending places for investment, provision of information on land use plannings, plans, land prices, legal status of land use rights and assets affixed to land, other information on land and assets affixed to land;

d) Organizing sessions of transaction on land use rights, assets affixed to land;

e) Organizing auctions of land use rights, assets affixed to land at requests.

2. Enterprises of all economic sectors with business registration in the domains of real estate business; provision of services of consultancy on land management and use, services on real estate auctions may organize floors for transactions on land use rights, assets affixed to land.

Article 67.- Management of land information provision services

1. Land information shall include information on land plots, land use rights, assets affixed to land and the exercise of land users' rights shall be publicly provided for requesters.

2. The land use right registration offices are the sole bodies permitted to provide legally valid information on land plots and land users.

3. The Ministry of Natural Resources and Environment shall guide the management of land information provision services.