1. What is the registration of secured transactions for existing land-attached assets (“Real Estate”)?

Registration of secured transactions means that a registry records and updates in the Register of Secured Transactions or the Database on Secured Transactions the information stating the securing party’s use of assets to secure the performance of obligations of its own or of others or to concurrently secure the performance of obligations of its own and toward the secured party.

2. Which cases must register secured transaction?

Cases subject to registration include:

1. Mortgage of land use rights;
2. Mortgage of houses or other land-attached assets if the ownership thereof has been stated in Certificates;
3. Mortgage of investment projects for house construction, investment projects for construction of non-housing works, investment projects in agriculture, forest development projects, or other investment projects that use land concurrently with land use rights allocated by the State with collection of land use levy or leased by the State with one-off rental payment for the entire lease term;
4. Registration of change or deregistration for cases specified at (i), (ii), and (iii) as mentioned above.

3. What are the components of the dossier for the registration of secured transactions for Real Estate?

(i) For the case of registering for land use rights or land-attached assets with certified ownership, the registration dossier includes:

• An application form;
• The security agreement or notarized or authenticated security agreement if required by the Land Law, the Housing Law, or a relevant law.
• The Certificate (the original), except in the case specified when submitting at the same time with the dossier for registration of changes in land or land-attached assets or with the dossier for certification of ownership of land-attached assets.

(ii) Registration dossier for land-attached assets other than houses that have been formed and for which registration of ownership is not required under law and on-demand registration of ownership has not been made. This includes:

• An application form;
• The security agreement or notarized or authenticated security agreement if required by the Land Law, the Housing Law, or a relevant law;
• The certificate of land-use rights (the original) or a notarized or certified agreement between the land user and the owner of the land-attached asset on the land user’s consent to the construction or creation of the land-attached asset, if the securing party is not concurrently the land user;
• The construction permit, if the collateral is construction work, except in cases exempt from construction permits in accordance with the Law on Construction.

4. How long does it take to process secured transaction registration for Real Estate?

The registry shall process a registration dossier within the working day on which it receives a valid dossier. If receiving the dossier after 15 hours, the registry may complete the registration on the next working day. If the registry has a plausible reason for prolonging the period of processing the registration dossier, the time limit for dossier processing is 03 working days from the date of receipt of a valid dossier.

A dossier for registration of land use rights or land-attached assets is submitted via the section for receipt of dossiers and notice of administrative procedure settlement results of the provincial-level public administration service Center, the People’s Committee of the commune, ward, or township. The time limit for dossier processing shall be counted from the time when the land registry receives a valid registration dossier.

5. How can secured transaction be registered?

The dossier of registration secured transaction shall be submitted by one of the following methods:

1. Via the online registration system;
2. By hand-delivery;
3. By post; or
4. By e-mail if the registration requester has been granted a code to use the database on secured transaction.

6. How many steps are involved in the procedure for secured transaction registration via the online system?

There are 6 steps as follows:

Step 1: The applicant for registration creates an account to log into the online registration system.

Step 2: The applicant declares information and authenticates the registration dossier.

Step 3: The applicant for registration shall pay the registration charge according to the procedures on the online registration interface or by the payment method provided by the law on charges and fees and other relevant laws.

Step 4: The registry shall process a registration dossier within the working day on which it receives a valid dossier before 15:00 hours.

Step 5: The registry shall notify registration results of the applicant for registration.

7. What time does a registration become valid?

A registration is considered valid when a registry records and updates registered contents to the Cadastral Register. The validity period of a registration shall be counted from the time when the registration becomes valid to the time of deregistration.

8. Which agency is competent to handle the registration of secured transaction in Real Estate?

Land registries under provincial-level Departments of Natural Resources and Environment and branches of land registries shall register and provide information about secured transaction in land use rights and land-attached assets.

9. Is it possible to authorize another person to register secured transaction?

Yes, it is. Applicants may request registration or request information provision by themselves or through their lawful representatives.

If requesting registration through representatives, a registration dossier or an information provision dossier must include a document on such representation (01 original or 1 certified copy or 01 copy accompanied by the original for collocation), except in the case in which the registration is made via the representative’s online registration account.

10. In which case is the Registration Authority allowed to refuse to register a secured transaction for Real Estate?

The registry may refuse to register a secured transaction for Real Estate in any of the following cases:

1. Falls beyond the registry’s competence;
2. The registration dossier is invalid;
3. The Real Estate is ineligible for use as security for obligation performance in accordance with the Land Law, the Housing Law and other relevant laws. In case the Real Estate is under dispute, the registry may only refuse the registration when receiving a document accepting or a document proving the acceptance for resolution of the dispute issued by the court or another competent agency;
4. Information in the registration dossier is inconsistent with information stored at the registry, except in cases required by relevant laws;
5. The information described in the application form for registration for the Real Estate is inconsistent with information in the Certificate, except where information described in the application form for registration is consistent with information stored at the registry due to the drawing of a new cadastral map in replacement of measurement documents and data used for grant of the Certificate but the land user or the owner of land-attached assets has not yet had the Certificate renewed according to the new cadastral map;
6. Information of the securing party or the secured party if registration is via the online registration system or information of the representative if the registration is inconsistent with information of the use account for online registration;
7. The application for change registration or deregistration for information on the secured transaction or notice of collateral realization is not stored at the registry;
8. The registry detects by itself that a document, signature, or seal in the registration dossier is forged or receives information enclosed with certification by a competent agency that such document, signature, or seal is forged;
9. Before the time of recording or updating registered contents to the Register or the Database, the registry receives from the civil judgment enforcement agency or enforcer a notice of distraint of the judgment enforcement asset being the collateral or an application for suspension or termination of the registration of the Real Estate for which the securing party is the judgment debtor in accordance with the law on enforcement of civil judgments; or receives an application of the agency or person competent to conduct proceedings or another competent agency or person for non-registration in accordance with the law;
10. The applicant for registration fails to pay the registration charge, unless otherwise provided by the law on charges and fees and other relevant laws.

If the registry has a refusal based on the grounds mentioned above, the refusal must be made in writing, clearly stating the grounds for the refusal of registration and providing guidance in accordance with the law.

11. Is it possible to change the secured transaction for Real Estate that has been registered?

Applicants for registration may submit a dossier for change registration for Real Estate in any of the following cases:

1. Change of the securing party or the secured party as a result of the partial withdrawal, addition, substitution, or succession due to reorganization of the legal person or inheritance in accordance with the Civil Code or establishment of rights in accordance with the law, except where the regulations on organization and operation of the Vietnam Asset Management Company or other relevant laws for other entities do not require registration of change of the secured party; or change of the first name or full name of the securing party or change of the first name or full name of the secured party;
2. Additional registration of a collateral item as agreed upon in the security agreement though the registered content does not mention such collateral item;
3. The addition of a new Real Estate or replaced Real Estate which becomes the collateral as agreed upon in the document on modification or supplementation of the security agreement or as provided by law though the registered content does not mention such collateral item;
4. Partial withdrawal of the Real Estate;
5. The Real Estate being a future asset that has been formed is eligible for grant of an ownership certificate in accordance with law;
6. Correction of errors in contents declared in the application form for registration that are made due to the fault of the applicant for registration;
7. Addition of a secured obligation if the initial security agreement has no content on security for future obligations;
8. Other cases at the request of the applicant for registration for change of information declared in the application form for registration.

12. What are the components of a dossier for change registration for Real Estate?

The dossier for change registration includes:

(i) An application form;

(ii) One of the following papers:

• The document modifying and supplementing the security agreement, in the case of registration of changes as agreed to;
• The document on assignment of the right to debt claim or assignment of obligations, in the case of registration of changes resulting from assignment of the right to debt claim or assignment of obligations;
• Other documents proving the grounds for registration of changes, for cases other than those specified at these grounds as mentioned above.

(iii) The certificate, in case the Real Estate is accompanied with a Certificate;

(iv) In case of registration of changes in accordance with the law, in addition to the papers specified in sections (i), (ii), (iii) mentioned above, the registration dossier must also include the certificate of land-use rights or certificate of ownership over the house, construction work, or land-attached asset, in case a Certificate has been granted for such asset.

13. Is it possible to shift the registration of the mortgage of property rights arising from house purchase and sale contracts or from contracts on the purchase and sale of land-attached assets?

The registration of the mortgage of property rights may be shifted from house purchase and sale contracts or from contracts on the purchase and sale of land-attached assets.

In the case of the mortgage of property rights arising from a house purchase and sale contract has been registered at the Transaction and Asset Registration Center and is requested for shift to the mortgage of a future house or shift to the mortgage of a house for which a Certificate has been granted with the same secured party.

In the case of the mortgage of property rights arising from a contract on the purchase and sale of an individual house has been registered in accordance with the Housing Law but later the mortgagor has been granted a Certificate and the mortgagor and the mortgagee have reached an agreement on a continued mortgage of the house and concurrently added the mortgage of land use rights.

14. How is the settlement of registration done if the information about the Real Estate in the security agreement covers Real Estate other than land-use rights or land-attached assets; land-use rights or land-attached assets under joint ownership of husband and wife, household members, or groups of land users, or under the ownership of sole proprietorships?

The land registry shall not refuse to make registration and shall make registration in the following cases:

1. Information about the Real Estate in the security agreement covers not only the land-use rights and land-attached assets but also other assets, but only information about land-use rights and land-attached assets is declared on the application form for registration.
2. Information about the Real Estate in the security agreement covers both land-use rights and land-attached assets, but only information on land-use rights or land-attached assets is declared on the application form for registration; in this case, the land registry shall make a registration for the assets declared on the application form for registration.
3. Information on the collateral in the security agreement and the application form for registration covers both the land-use rights and land attached assets; and the land-use rights are qualified for use as collateral but the land-attached assets are subject to registration of ownership in accordance with law but the ownership has not yet been certified; in this case, the land registry shall make registration for the land-use rights. The applicant for registration may submit the dossier and apply for registration of the land-attached assets.
4. In case the land user is leased land by the State with annual land rental payment, but its/his/her ownership of the land-attached assets has been certified or the land-attached assets are future assets or are not subject to registration of ownership under the law and on-demand registration of ownership has not been carried out, the land registry shall make registration of secured transaction for the land-attached assets.
5. In case the collateral items are land-use rights and land-attached assets under the joint ownership of the husband and wife while the Certificate only states the name of the wife or husband as the land user or the owner of the house or other land-attached assets but the information about the securing party in the security agreement covers both the husband and wife, the applicant for registration shall declare information about the securing party on the application form for registration which covers both the husband and wife.
6. In case the collateral items are the land-use rights and land-attached assets under the joint ownership of household members while the Certificate only states the household name and the full name of the household head but the information about the securing party in the notarized or certified security agreement shows not only the full name of the household head or his/her lawful representative but also the full names of other members of the household who share the land-use rights or ownership of land-attached assets, the applicant for registration shall declare information about the securing party on the application form for registration which covers both the head and other members of the household as stated in the security agreement.
7. In case the collateral items are land-use rights and land-attached assets while the Certificate only states the name of the sole proprietorship but the information about the securing party in the security agreement covers the full name of the owner of the sole proprietorship or the full name of the owner of the sole proprietorship and his/her spouse, the applicant for registration shall declare information about the securing party on the application form for registration according to the information stated in the security agreement.

15. What should applicants do when the Real Estate has a change of information?

The applicant for registration may submit the dossier for registration of secured transaction concurrently with the dossier for registration of changes in land and land-attached assets, or register changes in land and land-attached assets before registering the security interests in the cases of changes below:

1. Change in the number of the map sheet, the number of the land plot, or the address of the land plot that is not consistent with the information on the Certificate due to the rearrangement of administrative units, land regrouping, or measurement and re-determination of shape, size or area of the land plot;
2. Change in the current status regarding the type of house (or type of construction work), name of the building (or name of construction work) or number of floors, or information about other land-attached assets, resulting in inconsistency with the information on the Certificate;
3. Change of information about the first name or last name of the securing party, including also changes resulting from the issuance of a document by a competent authority.

16. In which cases can the applicant deregister the secured transaction for the Real Estate?

The applicant for registration shall submit a dossier for deregistration of a secured transaction in any of the following cases:

1. Such deregistration is agreed upon by the securing party and the secured party;
2. The whole secured obligation is terminated;
3. All or some of the contents of the security agreement are null and void, including those on the registered secured transaction;
4. The registered secured transaction is replaced with another security interest as agreed upon by the securing party and the secured party;
5. The Real Estate no longer exists as it is contributed as capital to a commercial legal person or non-commercial legal person being a social enterprise; is replaced, assigned, transferred, consolidated, merged, or mixed with another one; is processed in the form of assembly, manufacturing or another form; recalled, destroyed, totally lost, demolished or confiscated or falls into other cases as specified by the Civil Code or other relevant laws.
6. The Real Estate has been completely realized by the secured party in accordance with regulations on security for obligation performance or by the civil judgment enforcement agency in accordance with the law on execution of civil judgments;
7. The Real Estate attached to land leased with annual rental payment is currently used as collateral and such land is recovered by the State without any compensation for the land-attached asset;
8. In case the asset is added or replaced by a new asset or is exchanged due to the State’s compensation for land-attached assets, the registration shall be carried out under section (v);
9. The mortgagee of rights to use land and land-attached assets of the land using household being an economic organization other than a credit institution becomes a foreign-invested enterprise, or of the land-using individual being a Vietnamese citizen becomes a foreign citizen and does not assign the right to accept the security to another organization or individual that fully satisfy the conditions specified by the law of the Socialist Republic of Vietnam, unless otherwise provided by the Land Law, the Housing Law, and other relevant laws;
10. The secured party being a legal person is dissolved in accordance with law;
11. The legally effective court judgment or ruling has content requesting the registry to make deregistration;
12. Registration of mortgage of property rights arising from a house purchase and sale contract or from a contract on purchase and sale of another land-attached asset has been shifted to the registration of mortgage of house or mortgage of another land-attached asset.

17. What are the components of dossiers for deregistration of secured transaction?

The dossier includes:

(i) An application form;

(ii) The Certificate in case the collateral is accompanied with a Certificate.

(iii) In case the applicant for deregistration is not the secured party and the application form does not bear the signature and seal (if any) of the secured party, apart from the papers and documents specified in Clauses 1 and 2 of this Article, the following papers and documents are required:

• The document showing that the secured party’s consent to the deregistration or confirming that the security agreement has been terminated or liquidated, or confirming the mortgage lien release, in case the applicant for deregistration is the securing party;
• The legally effective contract or another document evidencing the lawful assignment of the collateral, in case the applicant for deregistration is the lawful assignee of the collateral;
• The legally effective contract on purchase and sale of auctioned assets or the confirmation of judgment enforcement results, in case the applicant for deregistration is a civil judgment enforcement agency or an enforcer or a person who purchases the collateral through realization of assets in accordance with the law on enforcement of civil judgments;
• A competent authority’s document stating the transformation into a foreign-invested enterprise or the naturalization in a foreign country of the secured party that is an economic organization other than a credit institution or a Vietnamese citizen, in the case of deregistration. The mortgagee of rights to use land and land-attached assets of the land using household being an economic organization other than a credit institution becomes a foreign-invested enterprise, or of the land-using individual being a Vietnamese citizen becomes a foreign citizen and does not assign the right to accept the security to another organization or individual that fully satisfies the conditions specified by the law of the Socialist Republic of Vietnam, unless otherwise provided by the Land Law, the Housing Law, and other relevant laws;
• A competent authority’s confirmation on the dissolution of the legal entity, in the case of deregistration.

18. Under what circumstances can the registrar cancel the registration of secured transaction for Real Estate?

The registry shall cancel the secured transaction registration for the mortgaged Real Estate in the following cases:

(i) The secured transaction has been registered but the registry receives a legally effective court judgment or ruling that the registration must be wholly or partially canceled;

(ii) The registered secured transaction is found by the registry to fall into the case of registration refusal;

(iii) Handling of duplicate registrations in accordance with the law.

19. How does the register settle the case of duplicate registrations?

In case there is a duplicate registration of the same securing party, the same secured party, the same collateral item, the same secured transaction or the same secured obligation, the Transaction and Asset Registration Center shall, by itself or at the request of the applicant, cancel the duplicate registration(s) against the earliest registration. In case the Transaction and Asset Registration Center cancels the duplicate registration by itself, it shall, right on the day of registration cancellation, send a written notice or an electronic notice of grounds for and consequences of the registration cancellation to the applicant.

20. Is it possible to request the registry to provide information about secured transactions?

Applicants may request the registry to provide information about secured transactions. Information on registered secured transaction is kept in the registration number of the database and the National Data System of Secured Transactions. The registry is responsible for providing information on the registered security interest upon request. When wishing to find out information about secured transactions, the requester shall send a request for information provision to the registry.

21. How does the registry settle requests for information about secured transactions?

(i) The registry may refuse to provide information under any of the following grounds:

• The application for information provision is made ultra vires;
• The application for information provision is declared not according to the instructions or is declared in contravention of the land law;
• The applicant fails to pay a charge for information provision unless otherwise provided by the law on charges and fees or other relevant laws.

(ii) If having no ground specified in Clause 1 of this Article, the registry shall notify information provision results to the applicant within the time limit of 15:00 in a day. The registry shall notify the result through one of the following methods:

• Directly at the registry;
• By post;
• In electronic form as required by law, or another method as agreed upon by the registry and the applicant for registration in accordance with law.

This article is for information sharing only, it is not official advice from our lawyers. Should you have any questions about the above contents, please revert to BLawyers Vietnam at consult@blawyersvn.com. We are more than happy to hear from you!

Date: 15 June 2023

Writers: Tinh Nguyen, Nhat Nguyen & Uyen Tran