Will the seller or the buyer receive compensation when the land is under the planning in Vietnam?

Judgment 252/2018/DS-PT dated October 17, 2018 on the dispute over the right to receive compensation and support when the state recovers land is concrete proof of that. When transferring, there is a part of land under the planning, not in the certificate of land use right (LURC), so when the state made compensation for this land, there was a dispute between the seller and the buyer: WHO IS THE BENEFITS OF COMPETITIVE AMOUNT?

The principle of compensation for land when the State recovers land complies with Article 74 of the 2013 Land Law of Vietnam

+ Land users who meet the conditions prescribed in Article 75 of this Law upon land expropriation by the State shall be compensated.

+The compensation must be made in the form of allocating new land with the same land use purpose with the expropriated land. 

Compensation, when the State recovers land, must ensure democracy, objectivity, fairness, publicity, timeliness and compliance with law.

In this judgment the land is compensated in cash according to the specific land price.

SUMMARY OF THE CONTENTS OF THE JUDGEMENT:

Mr. Hoang is divided 114m2 (land + house level 4). In 1994, Mr. Hoang and his wife transferred to Mr. Cuong 69m2 of the divided land, the remaining land area has not been transferred because it is located in the traffic zone.

On October 12, 1997, the two parties made a contract to transfer an area of ​​69m2 of land, the transfer contract was certified by the People's Committee of Trung Son Tram commune. After buying land, Mr. Cuong built a house, and then made an application for a LURC. In 2006, Mr. Cuong transferred the land to Mr. Dinh.

In 2011, Son Tay Town People's Committee recovered 40m2 of land within the traffic limits of Mr. Hoang and his wife, but planned to compensate Mr. Nguyen Phuc Dinh. According to the plan, Mr. Dinh is entitled to compensation of 21.4m2 of land in the land use right certificate is 201,973,200 VND, and 18.6m2 of land outside the land use right certificate is not compensated.

Mr. Hoang and Mrs. Phuong sued to request the Court to determine that they are the beneficiaries of compensation and support of VND 201,973,200 when the State recovers the above 21.4 m2 land area.

The first-instance judgment declared Mr. Hoang and Mrs. Phuong to be entitled to the compensation, but the appellate judgment declared Mr. Dinh to be the beneficiary.

This is just a judgment, not a case law, so we cannot apply it to similar situations. However, we can see the judgment of the court to understand why the appellate court said so, from which there is an additional perspective for reference for possible cases in the court of law. living.

The first, Mr. Cuong built a house on the entire land plot (including the land located in the traffic corridor) to use and pay a land use tax for the land area of ​​93m2. In 2005, Mr. Cuong made an application for a LURC, the People's Committee of Son Tay town issued the LURC in Mr. Cuong's name, in which it was written: Land plot No. 386 map sheet No. 8 Trung Son Tram commune, Son Tay town, The land area for which the certificate is granted is 71m2 of long-term residential land and the land area that is not granted a certificate is 21.4m2 of land (located adjacent to the national highway 21A and in the traffic corridor). In 2010, Mr. Cuong made a contract to donate all the above-mentioned houses and land to Mr. Dinh, the People's Committee of Son Tay town granted the LURC, ownership of houses and other properties associated with Mr. Dinh's name. Mr. Dinh's family has been using the house since then. there is no claim related to the transfer of the above-mentioned land plot and there is no dispute about the land which is not included in the LURC. This is an important basis to determine that Mr. Dinh is the beneficiary of the above compensation.

Secondly, the preparation of land acquisition documents for site clearance has taken place since 2011, the owner of land and assets attached to the land, Mr. Nguyen Phuc Dinh, has made declarations and records to receive benefits. compensation and support when the State recovers land. According to the provisions of Clause 1, Article 74 of the Land Law 2013 and Article 6 of Decree 47/2014/ND-CP on compensation, support and resettlement when the State recovers land, Mr. Nguyen Phuc Dinh is the beneficiary of compensation and support for the area of ​​21.4m2 of land recovered.

This is a lesson for both the seller and the buyer, when selling land, both parties need to clearly agree on the area of ​​land to be transferred. For the case of land under planning but not in the certificate of land use rights, it is necessary to clearly agree in the purchase and sale contract to clearly identify who is the owner to avoid disputes when the state proceeds with the project. compensation action.

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