What is a mortgage on land use rights? Can land under planning be registered for mortgage? To understand this issue, let’s learn through the following article with LawFirm.Vn.
1. What is a mortgage on land use rights?
According to the provisions of Clause 1, Article 317 of the 2015 Civil Code: Mortgage of property is the use of property owned by one party to ensure the performance of obligations and not handing over the property to the other party.
Thus, it can be understood that mortgaging land use rights is when one party uses the property that is land use rights under his or her ownership to ensure the performance of obligations and does not hand over the property to the other party.
2. Conditions for mortgage of land use rights
To mortgage land use rights, land users must meet the conditions prescribed in Article 188 of the 2013 Land Law, specifically:
Article 188. Conditions for exercising the rights to convert, transfer, lease, sublease, inherit, donate, and mortgage land use rights; Capital contribution by land use rights
1. Land users are entitled to exercise the rights to convert, transfer, lease, sublease, inherit, donate, and mortgage land use rights; Contribute capital using land use rights when the following conditions are met:
a) Have a Certificate, except for the case specified in Clause 3, Article 186 and the case of inheritance specified in Clause 1, Article 168 of this Law;
b) The land is not in dispute;
c) Land use rights are not distrained to ensure judgment enforcement;
d) During the land use term.
2. In addition to the conditions specified in Clause 1 of this Article, when land users exercise the rights to convert, transfer, lease, sublease, inherit, or donate land use rights; The right to mortgage land use rights and contribute capital with land use rights must also meet the conditions prescribed in Articles 189, 190, 191, 192, 193 and 194 of this Law.
3. The conversion, transfer, lease, sublease, inheritance, donation, mortgage of land use rights, capital contribution with land use rights must be registered at the land registration agency and take effect. from the time of registration in the cadastral book.
3. Can land under planning be mortgaged?
Pursuant to the provisions of Article 49 of the Land Law 2013 (amended by Clause 1, Article 6 of the Law amending and supplementing a number of Articles of 37 Laws related to planning 2018) on the implementation of planning and land use plans. land use:
Article 49. Implementing land use planning and plans
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7. In case the land use planning has been announced but there is no district-level annual land use plan, the land user can continue to use it and exercise the rights of land users according to regulations. under the law
In case there is an annual land use plan at the district level, land users in the area who must change the land use purpose and recover land according to the plan can continue to exercise the rights of land users but do not to build new houses and buildings, and plant perennial trees; If the land user needs to renovate or repair existing houses or structures, they must obtain permission from a competent state agency according to the provisions of law.
8. The land area recorded in the annual land use plan of the district that has been announced must be recovered to implement the project or must change the land use purpose but after 03 years there has been no land recovery decision or has not been decided. is allowed to change the land use purpose, the state agency competent to approve the land use plan must adjust, cancel and announce the adjustment, cancellation of recovery or change of purpose for the land area. land area recorded in the land use plan.
In cases where the competent state agency that approves the land use plan does not adjust or cancel it, or adjusts or cancels it but does not announce the adjustment or cancellation, the land user is not limited in his or her rights. according to the provisions of Clause 7 of this Article.
According to the above regulations, if the land is under land use planning but there is no land recovery plan, the land user still has all the rights of a land user including: the right to convert, transfer, lease, Donate, mortgage… if the conditions specified in Article 188 of the 2013 Land Law are met.
Therefore, land under planning can still have land use rights mortgaged.
