Not eligible for mortgage
Youme Law Firm LLC said: Pursuant to Clause 1, Article 145 of the 2024 Land Law, land users are allowed to mortgage land use rights when the following conditions are met.
Have a Certificate except in cases of inheritance of land use rights, conversion of agricultural land when consolidating land, exchanging plots, donating land use rights to the State, residential communities and cases specified in Clause 7, Article 124 and Point a, Clause 4, Article 127 of this Law;
Land has no dispute or the dispute has been resolved by a competent state agency, court judgment, decision, arbitration decision or award that has come into legal effect;
Land use rights are not subject to seizure or other measures to ensure enforcement of judgments in accordance with the provisions of the law on civil judgment enforcement;
During the land use period;
Land use rights are not subject to temporary emergency measures as prescribed by law.
Thus, if one of the above conditions is missing, the land use rights mortgage will not be eligible.
Heritage management is land use rights
Point b, Article 617 of the 2015 Civil Code stipulates the obligations of the estate administrator designated in the will or appointed by agreement of the heirs as follows:
"Preserve the estate; do not sell, exchange, donate, pledge, mortgage or otherwise dispose of the property without the written consent of the heirs".
According to the above provisions, the administrator of the land use right inheritance may not mortgage that land use right without the written consent of the heirs.
Land use rights formed in the future
Pursuant to Article 8 of Decree 21/2021/ND-CP, assets used to secure the performance of obligations include: "Existing assets or assets formed in the future, except in cases where the Civil Code or other relevant laws prohibit the purchase, sale, transfer or other transfer of ownership rights at the time of establishing the security contract or security measures;
Property sold in a property sale contract with retention of title;
Property subject to the obligation in a bilateral contract that is breached for the retention measure;
Property is owned by the people in cases where relevant laws so provide".
At the same time, Clause 4, Article 10 of Decree 21/2021/ND-CP stipulates: "Securing the performance of obligations with assets formed in the future does not apply to land use rights".
Thus, land use rights formed in the future are not secured assets and cannot be mortgaged to ensure the performance of obligations.
Community land
Clause 2, Article 39 of the 2024 Land Law stipulates: "The community using land has the same rights and obligations as individuals with corresponding forms of land use, except for the right to inheritance.
In case the community is allocated land by the State without collecting land use fees, or has its land use rights recognized in the form of land allocation without collecting land use fees, it does not have the right to convert, transfer, donate, lease land use rights, mortgage, or contribute capital using land use rights.
Thus, even if the land of the residential community has a Certificate or is eligible for a Certificate, it cannot be mortgaged.
