Is there a certificate of land use rights for buyers of planning land in Vietnam?

Is there a certificate of land use rights for buyers of planning land in Vietnam?

Recently, my family bought a piece of land to build a house. When buying and selling, it is confirmed by the local government. When the documents were sent to the district-level land registration office, the reply was: The Provincial People's Committee decided to plan the residential area and did not issue a certificate to the family. It is known that the time of purchase and confirmation of the commune takes place before the date of the provincial People's Committee's decision on planning the residential area. So what is the value of the above purchase? Is it disabled? And will the family get a certificate?

Reply: 

Clause 7, Article 49 of the 2013 Land Law as amended by Clause 1, Article 6 of the amendments to some articles concerning planning of 37 laws provides:

7. In the cases where the land use planning has been published but a district land use plan is not available, the land user is entitled to keep using land and exercise the rights of a land user as prescribed by law.

In the cases where the district land use plan is available, the land user in the area where land has to be repurposed and expropriated according to the planning is entitled to keep exercising the rights of a land user but is not allowed to build new residential houses or works or grow perennials. Any land user that wishes to renovate or repair existing residential houses or works must obtain permission from a competent authority as prescribed by law.

Clause 1, Article 167 of the 2013 Land Law stipulates:

1. Land users may exercise the rights to exchange, transfer, lease, sublease, inherit, donate, mortgage land use rights and to contribute land use rights as capital in accordance with this Law.

From the above grounds plus your presentation, because the time of the purchase and sale has also been confirmed by the committee and at that time there has not been a planning decision, the purchase is legally valid. If the land plot you buy is in the planning area but does not have an annual district land use plan, the land user still has the right to regulate and the family can also be granted a certificate.

Is the land in dispute entitled to a certificate of land use rights in Vietnam?

In 2016, my mother passed away, leaving a house for my two sisters. I wanted to share it equally, but my sister wanted to spend more on the grounds that she took care of my mother when she was sick and worshiped. In 2017, my sister and her husband kicked me and my wife out of the house and gave 50 million to find another place to live for her to make a certificate of land use rights to mortgage the bank because the land we live in has no papers, but my husband and I disagree because fear of losing home and having no place to worship my mother. My husband and I want to go with her to do the certificate and then do the procedures to divide the property equally, she can mortgage her inheritance. Is the land in dispute entitled to a certificate of land use rights in Vietnam? Looking for advice.

Reply: 

According to the provisions of Clause 2, Article 101 of the 2013 Land Law:

2. Households and individuals using land and having none of documents prescribed in Article 100 of this Law that have used land stably before July 1, 2004, with no violations of the land law and such land is certified by the commune-level People’s Committee as dispute-free and conformable with the land use master plan, detailed urban construction master plan and master plan on construction of rural residential areas approved by competent state agencies, shall be granted a certificate of land use rights and ownership of houses and other land-attached assets.

Thus, in the case of your family, due to a land dispute, it is not possible to proceed with the procedure for applying for a land use right certificate.

In order to be granted a Certificate, your family needs:

1/ Carry out conciliation procedures at the commune-level People's Committee where the disputed land is located

Clause 2, Article 202 of the 2013 Land Law stipulates: In case the self-reconciliation fails, the parties may send a petition to the commune-level People’s Committee of the locality where the disputed land is located, for reconciliation.

2/ Or initiate a lawsuit in court

If the conciliation at a commune-level People’s Committee fails, a land dispute shall be settled as follows:

1. The land dispute in which the concerned party possesses a certificate or any of the papers prescribed in Article 100 of this Law and the dispute over land-attached assets shall be settled by the People’s Court;

2. For the land dispute in which the concerned party does not possess a certificate or any of the papers prescribed in Article 100 of this Law, the parties may choose between the following two options of settlement:

a/ Filing a written request for dispute settlement with a competent People’s Committee as prescribed in Clause 3 of this Article;

b/ Filing a lawsuit with a competent People’s Court in accordance with the law on civil procedures;

3. In case the concerned parties choose the option of settlement at a competent People’s Committee, the settlement is as follows:

a/ In case the dispute occurs among households, individuals and communities, the chairperson of the district-level People Committee is responsible for the settlement. If the concerned parties disagree with the settlement decision, they are entitled to lodge a complaint with the chairperson of the provincial-level People’s Committee or to file a lawsuit at a People’s Court in accordance with the law on administrative procedures;

b/ In case the dispute involves one party being an organization, a religious institution, an overseas Vietnamese or a foreign-invested enterprise, the chairperson of the provincial-level People’s Committee is responsible for the settlement. If the concerned parties disagree with the settlement decision, they are entitled to lodge a complaint with the Minister of Natural Resources and Environment or to file a lawsuit with a People’s Court in accordance with the law on administrative procedures;

4. The person having competence to settle the land dispute as prescribed in Clause 3 of this Article shall issue a settlement decision. The legally effective decision on dispute settlement must be strictly abided by the concerned parties. If the parties fail to comply, the decision shall be enforced.

Pursuant to the above provisions, after carrying out either of the above two procedures, a family may be granted a Certificate if it has one of the following three types of documents:

- Minutes of successful reconciliation between your family and your sister's family. 

- The effective dispute settlement decision of the chairperson of the People's Committee of the district or province. 

- Effective judgments and decisions of the people's courts.

Will land without a certificate of land use rights be compensated when it is expropriated in Vietnam? 

Please let me know: My family's land has been confiscated by the government for an economic development project. But my family's land has been used for a long time but has not been granted a certificate of land use rights. I don't have a certificate of land use rights but I have a Land Contract issued by the old regime, will I be compensated for the land when it is revoked? My land has been used for a long time, there are people around to testify and there is no dispute with anyone? Please advise.

Reply: 

According to the provisions of the Land Law 2013, land users who are eligible for compensation will be compensated when the State recovers the land. The compensation is made by allocating land with the same use purpose as the recovered land, if there is no land for compensation, it will be compensated in cash according to the specific land price of the type of land recovered by the People's Committee provincial level decision at the time of land recovery decision.

In which, according to the provisions of Article 75 of the 2013 Land Law, conditions for receiving compensation when the State expropriates land for national defense or security purpose; for socio-economic development in the national or public interest: 

- Not belonging to the leased land area with annual land rental payment; 

- Having a certificate of land use right, a certificate of ownership of houses and residential land use rights, a certificate of land use rights and ownership of houses and other land-attached assets, or having all conditions to obtain a certificate of land use rights and ownership of houses and other land-attached assets that have not yet been granted.

On the other hand, according to the provisions of Clause 1, Article 100 of the 2013 Land Law, households and individuals that are using land stably and have one of the following documents shall be granted a certificate of land use rights and ownership of houses and other land-attached assets without having to pay land use levy:

a/ The documents on land use rights before October 15, 1993, which were granted by a competent agency in the process of implementing the land policy of the Democratic Republic State of Vietnam, the Provisional Revolutionary Government of the Republic of South Vietnam or the Socialist Republic of Vietnam;

b/ Temporary certificates of land use rights granted by competent state agencies, or having their names recorded in the Land Register Book or Cadastral Book before October 15, 1993;

c/ Lawful papers on inheritance or donation of land use rights or land-attached assets, documents on hand-over of land-attached gratitude house or charity house;

d/ The document on the transfer of land use rights or purchase of residential land-attached houses before October 15, 1993, and such houses were certified as being used before October 15, 1993, by the commune-level People’s Committee;

e/ The document on liquidation of residential land-attached houses by the State or document on purchase of a state-owned house in accordance with law;

f/ The document on land use rights issued by a competent authority of the former regime to land users;

g/ Other documents issued before October 15, 1993, in accordance with the Government’s regulations.

Thus, based on the above-cited regulations in Vietnam, land users whose land is recovered shall be compensated by the State for land when the recovered land area is not part of the leased land with annual rental payment and have papers on land use rights granted to land users by a competent agency under the old regime.

In which, according to the provisions of Article 15 of Circular No. 02/2015/TT-BTNMT, papers concerning land use rights issued to land users by competent agencies of the former regime

Papers concerning land use rights issued by competent agencies of the former regime to land users as prescribed in Point e, Clause 1, Article 100 of the Law on Land include:

1. Real estate ownership

2. The deeds of real estate sale (including houses and inhabited land) with confirmations from the former regime;

3. The deeds of purchase, offering as gifts, change of houses, inheritance of land-linked houses with confirmations from competent agencies of the former regime.

4. Testament or written agreement on division of inheritance of houses confirmed by the former regime;

5. Housing construction permits or architecture legalizing permits issued by the former regime;

6. Judgement made by the Court of the former regime that came into force;

7. Other papers proving legal existence of houses, land recognized by People’s committees of provinces;

Thus, based on the above examples, in case the land user has land recovered, the State will compensate for the land when the recovered land area is not part of the leased land area with annual rental payment and that land already has a land lease certificate issued by a competent agency under the old regime to the land user in Vietnam; 

Therefore, in the case that your family has land recovered by the State for an economic development project, the land has not yet been issued with a certificate of land use rights but has a land contract certificate issued by the old regime and meets all the conditions required to be approved by the State Government. the country compensates for land when recovering land. So in this case, your family will be compensated for the land in accordance with the law when the land is recovered in Vietnam.

Best Regards!