14/04/2023 09:18

Is it eligible to donate land while owning land use levy in Vietnam?

Is it eligible to donate land while owning land use levy in Vietnam?

Is it eligible to donate land to my daughter while I am still owning land use levy in Vietnam? “Minh Anh_Lam Dong”

Hello, Lawnet would like to answer the following:

1. Conditions for donation of land use rights in Vietnam

According to Clause 1, Article 188 of the Land Law 2013, the conditions for donating land use rights are as follows:

Article 188. Conditions for the exercise of the rights to exchange, transfer, lease, sublease, inherit, donate or mortgage land use rights; to contribute land use rights as capital

1. Land users may exercise the rights to exchange, transfer, lease, sublease, inherit, donate or mortgage land use rights and contribute land use rights as capital when meeting the following conditions:

a/ Having the certificate, except the case prescribed in Clause 3, Article 186 and the case of receiving inheritance prescribed in Clause 1, Article 168 of this Law;

b/ The land is dispute-free;

c/ The land use rights are not distrained to secure judgment enforcement;

d/ Within the land use term.

Thus, when a land user wants to make a donation of land use rights, the following conditions must be met:

- Having a certificate of land use right

- The land is dispute-free;

- The land use rights are not distrained to secure judgment enforcement;

- Within the land use term.

In addition, the donation of land use rights must not fall into the cases specified in Article 191 of the Land Law 2013, specifically: 

Article 191. Cases in which acquisition or donation of land use rights is not allowed

1. Organizations, households, individuals, communities, religious institutions, overseas Vietnamese and foreign-invested enterprises may not receive transfer or donation of land use rights in case the transfer or donation of land use rights is prohibited by law.

2. Economic organizations may not acquừe the rights to use paddy land, protection forest land or special-use forest land from households or individuals, except the case of change in land use purpose in accordance with the land use master plan and plans approved by competent state agencies.

3. Households and individuals not directly engaged in agricultural production may not receive the transfer or donation of paddy land use rights.

4. Households and individuals may not receive the transfer or donation of residential land use rights and agricultural land use rights with regard to the land located in the areas of protection forests, strictly protected zones and ecological rehabilitation zones in special-use forests if they do not live in such protection forests or special-use forests.

Thus, in order for the donation transaction to be recognized as legal, the land user needs to meet all the conditions to donate the land and not fall into the cases in which acquisition or donation of land use rights is not allowed above.

2. Is it eligible to donate land while owning land use levy in Vietnam?

According to Clause 21, Article 3 of the Land Law 2013, land use levy means an amount of money that a land user shall pay to the State when being allocated land with land use levy by the State, permitted to change the land use purpose, or having land use rights recognized by the State.

According to Clause 1, Article 168 of the Land Law 2013:

Article 168. Time to exercise the rights of land users

1. Land users may exercise the rights to transfer, lease, sublease, donate and mortgage land use rights and to contribute land use rights as capital upon receipt of a certificate. In case of exchanging agricultural land use rights, land users may exercise their rights upon receipt of a decision on land allocation or land lease. In case of inheritance of land use rights, land users may exercise their rights upon receipt of a certificate or when they are eligible to be granted a certificate.

A land user who is allowed to delay the performance of, or owe, his/her financial obligations, may exercise his/her rights only after fulfilling all financial obligations.

Thus, upon obtaining the Certificate, the land user is entitled to exercise the rights to transfer, lease, sublease, donate, mortgage or contribute land use rights as capital. However, in case the land user is delayed in performing financial obligations or is debited with financial obligations, the financial obligations must be fulfilled before exercising the aforesaid rights.

Thus, in case you wants to donate land to your daughter, but still owes land use levy, you need to complete the payment of the land use levy owed to the State. Only then can the donation be made.

Best regards!

Le Thi Phuong Ngan
319


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