Decree No. 01/2017/ND-CP of Vietnam’s Government, with several provisions regarding the issuance of land use right certificates, has overcome difficulties and reformed administrative procedures in the issuance of land use right certificates. Many types of land whose transactions are conducted through handwritten documents and land allocated without proper authorization are now considered for the issuance of land use right certificates. Moreover, a notable aspect of Decree No. 01/2017/ND-CP is the legalization and issuance of land use right certificates for individuals who bought and sold houses or land using handwritten documents from July 01, 2004, to before January 01, 2008.
Article table of contents
First: Issuance of land use right certificates for individuals who bought and sold through handwritten documents before January 01, 2008.
According to Clause 54 Article 2 of Decree No. 01/2017/ND-CP of Vietnam’s Government (amending and supplementing Clause 1 Clause 1 Article 82 of Decree No. 43/2014/ND-CP), in cases where individuals (households, individuals) receive land transfers through handwritten documents from July 01, 2004, to before January 01, 2008, the current land users are not required to undergo the procedure for transfer of land use right.
The current land users shall carry out the procedures for registration of land and grant of certificates of land use rights for the first time as specified in Article 70 of Decree No. 43/2014/ND-CP of Vietnam’s Government, specifically as follows:
- Regarding to the application, the applicant shall prepare the following documents: Application form for registration of land and land-attached assets and grant of certificates of land use rights and ownership of houses and land-attached assets; one of the papers specified in Article 100 of the Land Law and Article 18 of Decree No. 43/2014/ND-CP (if any); one of the papers specified in Articles 31, 32, 33 and 34 of Decree No. 43/2014/ND-CP in case of registration of land-attached assets; documents related to fulfilling financial obligations, papers regarding the exemption or reduction of financial obligations related to land and land-attached assets (if any).
- Place to submit dossier: A land user shall submit dossier at the commune-level People’s Committee or the land registration office.
- Processing order: The commune-level People’s Committee shall certify the current land use status; In case the papers specified in Article 100 of the Land Law and Article 18 of Decree No. 43/2014/ND-CP are not available, certifying the origin and the time of land use, state of land use-related dispute and conformity with planning; Publicly post up the results of dossier examination.
The land registration office shall extract cadastral maps or conduct cadastral measurement of land parcels; send cadastral information to the tax agency for determination and notification of financial obligations, except cases not subject to financial obligations or entitled to owe financial obligations as prescribed by law; prepare dossiers for the natural resources and environment agency to submit for signing certificates of land use rights and ownership of houses and other land-attached assets.
The land registration office shall hand over certificates of land use rights and ownership of houses and other land-attached assets to the persons concerned or send these certificates to the commune-level People’s Committee for handover to the persons concerned (if dossiers are submitted at the commune level).
- Competence for issuance of certificates: The commune-level People’s Committee (according to Clause 2 Article 105 of the Land Law).
Second: Issuance of certificates in case of an area of land in excess of that specified in the land use right document.
In cases where the land area increases due to the violation of land laws by land users before July 01, 2014, it will still be considered for processing and the issuance of land use right certificates, ownership of residential houses, and other assets attached to the land for the increased land area.
Specifically, if an actual area of land, when re-measured, is larger than that specified in the certificate of land use right or relevant documents and the actual land boundaries differ from those acknowledged upon the issuance of the certificate of land use right or relevant documents, the certification of land use right with or without ownership of house and properties attached to land over the area of land in excess shall be considered.
If the additional area of land is acquired through transfer, inheritance or donation of a land use right for which a certificate has been issued, implement the procedure for transfer, inheritance or donation of the additional land area and the procedure for replacement of the certificate, if issued, for the original land parcel (without the additional area) without any request for the land user’s procedure for land merger.
If the documents on the right of use of the additional land area are not available as stated in Article 100 of the Land Law and Article 18 of this Decree, the process occurs as follows:
If the land user does not violate any laws on land, the certification of land use right with or without ownership of house and properties attached to land for the additional land area shall proceed pursuant to Article 20 of this Decree.
In the event that the additional land area was gained by the land user’s violation of the laws on land before 01 July, 2014, the certification of land use right with or without ownership of house and properties attached to land for the additional land area shall proceed pursuant to Article 22 of this Decree. In case of use of encroached or occupied land of public-facility protection corridors after the State announces and puts up boundary landmarks of such corridors, or of encroached or occupied land of roads, roadsides and pavements after the State announces construction red lines, or of encroached or occupied land used for the construction of offices of state agencies, non-business works or other public facilities, the State shall recover land for returning to these works without granting certificates of land use rights and ownership of houses and other land- attached assets for encroached or occupied land areas. In case due to adjustment of land use master plans and construction master plans approved by competent state agencies, encroached or occupied land areas no longer belong to public-facility protection corridors, lie within the redlined areas for construction of roads or for construction of offices of state agencies, non-business works or other public facilities, current land users may be considered for grant of certificates of land use rights and ownership of houses and other land-attached assets and shall perform the financial obligations prescribed by law. Cases of encroachment or occupation of unused land or of land use purpose change without permission of competent state agencies in case such permission is required in accordance with the land law shall be handled as follows:
a) In case of use of land planned for use for the purposes specified in Articles 61 and 62 of the Land Law, the State shall recover the land before projects or works are implemented or constructed.
Persons currently using encroached or occupied land may continue temporarily using such land until the State recovers it but shall preserve the current land use status and make land declaration and registration under regulations;
b) In case of use of land not falling into the case specified at Point a of this Clause, provincial-level People’s Committees shall direct the review and modification of land use master plans. Current land users may be considered for grant of certificates of land use rights and ownership of houses and other land-attached assets.
Households and individuals currently using self-reclaimed agricultural land areas which are conformable with land use master plans approved by competent state agencies and dispute-free may have their land use rights recognized by the State according to land quotas set by provincial-level People’s Committees. They shall change to lease land areas that exceed land quotas set by provincial-level People’s Committees.
In the event that the additional land area was allocated to the land user by an incompetent authority before 01 July, 2014, the certification of land use right with or without ownership of house and properties attached to land for the additional land area shall proceed pursuant to Article 23 of this Decree. Specifically, according to Clause 6 Article 23, when a person applies for the certificate of land use right with or without ownership of house and properties attached to land over an undisputed land parcel allocated by an incompetent authority before 01 July, 2004 in line with the plan, whether a house exists on such land parcel upon issuance of the certificate, such person shall qualify for certification and incur financial obligation(s) as per regulations.
Third: When a person applies for the certificate of land use right with or without ownership of house and properties attached to land over an undisputed land parcel allocated by an incompetent authority before 01 July, 2004 in line with the plan, whether a house exists on such land parcel upon issuance of the certificate, such person shall qualify for certification and incur financial obligation(s) as per regulations.
Fourth: The main investor of a condominium mixed with office and commercial space, if qualifying and applying, shall be bestowed the certificate of land use right with or without ownership of house and properties attached to land over one or multiple apartments, offices and commercial space under its ownership.
Fifth: In the event that a project comprises various buildings as defined in the decision on approval of investment project, the decision on project investment, the license of investment, the certificate of investment, the certificate of investment registration issued by the competent authority, the decision on approval of the detailed construction plan and/or the building permit, the main investor, if qualifying and applying, shall be bestowed by the competent government authority the certificate of land use right with or without ownership of house and other properties attached to land over each building or each area in a building.
The provisions of Decree No. 01/2017/ND-CP of Vietnam’s Government guiding the implementation of the Land Law will contribute to the implementation of the Land Law and create positive changes in land management and utilization.
Lawyer Pham Thi Bich Hao
(Director of Đức An Law Firm, Thanh Xuân, Hanoi)
- Key word:
- Decree No. 01/2017/ND-CP
