New Points In The Draft Land Law And Some Comments

Key takeaways

  • Ensuring the synchronous, unifying, overall, strategic and long-term legal system;
  • Continue to promote decentralization, and at the same time establish tools to control power in land management;
  • Strengthening the supervisory role of the National Assembly, the People’s Council, the Vietnam Fatherland Front, socio-political organizations at all levels and the People.
  • Accelerate administrative reform to promote rational, efficient and sustainable land use.
  • Modernize and digitally transform land management based on land information and data systems.

10 new points in the draft Land Law

1. Regarding master plans and plans on land use

National master plans, as well as land use master plans, and master plans on sectors and fields that use land, must be consistent, unified, synchronous, closely linked, and promote each other for development.

Land use master plans are made at the national, provincial and district levels, meeting the requirements of the implementation of the Strategy for rapid and sustainable socio-economic development; ensuring national defense and security; environmental protection, adaptation to climate change.

In addition, the content of the land use master plan has defined the zoning and arrangement of land use space in three areas, including strictly managed areas, restricted areas and areas converted to land use purposes; prescribe the combination of land use norms with land use space and determine the location, boundary and area of ​​land to be recovered, change the land use purpose to each land parcel in the district-level land use planning.

2. Completing regulations on land allocation, land lease, and land use purpose change

Regulations on citizens’ rights to participate in auctions of land use rights; participate in bidding for projects using land; request the State to allocate or lease land without auctioning land use rights or bidding for projects using land in accordance with law.

Specifying cases of land allocation or land lease without auction of land use rights, bidding for projects using land according to Article 125 Draft Land Law (amended).

Specific regulations on cases of land lease with one-off payment for the entire lease period include:

– Using land to implement investment projects on agricultural production, forestry, aquaculture and salt production;

– Use of land in industrial zones, industrial clusters, export processing zones, high-tech zones.

To stipulate conditions for land allocation, land lease, and usage limits for religious organizations in accordance with the existing land fund of the locality; Religious organizations that use land for other purposes must pay land rent to the State in accordance with law.

3. More specific regulations on compensation, support, resettlement and land recovery

Accordingly, more specific regulations on the authority, purpose, scope of land recovery, specific conditions and criteria for land recovery for socio-economic development for national and public benefits.

Completing regulations on compensation, support, resettlement and land recovery for defense and security purposes; socio-economic development for national and public interests.

Specifying the effective exploitation of the adjacent land fund to promote land resources for socio-economic development and the mechanisms for contributing land use rights, adjusting the land, embellishing urban areas and residential areas. rural residents.

4. Completing the mechanism for determining land prices according to market principles

Proposing to improve the mechanism for determining land prices according to market principles, and the inspection and supervision mechanisms of the Central Government and the People’s Council in the development of land price lists.

Supplement and complete regulations to ensure publicity and transparency such as: Publicizing land prices, trading through trading floors for residential, urban and commercial housing projects.

5. Set a higher tax rate for people who have a many land, many houses, speculate on land, slow to use it, and leave uncultivated land.

Perfecting financial mechanisms and policies on land to ensure harmony between the interests of the State, land users and investors; have a reasonable and effective regulation mechanism for revenue from land use levy and land rent between the central and local governments; regulate the difference in land rent, ensuring publicity and transparency.

Prescribing higher tax rates for users of large areas of land, many houses, land speculation, slow land use, and abandoned land. Institutions and preferential policies through the exemption and reduction of land use fees and land rents suitable to the fields and areas eligible for investment incentives and policy beneficiaries.

6. Completing legal regulations related to the real estate market

Including the market for land use rights. Promote commercialization of land use rights. Building a real estate market information system associated with land information; adopt policies to encourage the development of the land use right market, especially the agricultural land rental market.

Completing the state’s regulations to ensure the healthy, safe and sustainable development of the real estate market. Compulsory registration of land use rights and registration of land changes, and at the same time have specific and synchronous sanctions to prevent transactions not registered at state agencies.

7. Expansion of agricultural land users

Completing mechanisms and policies on management and use of agricultural land in the direction of expanding subjects and quotas for receiving transfer of agricultural land use rights, and regulations for agricultural land users to convert production purposes crops, livestock, improve the efficiency of agricultural land use according to the planning.

Strengthen soil quality management, overcome land degradation and deterioration. Regulations on banks leasing agricultural land. There are regulations to effectively manage and use land of agricultural and forestry origin, and settle residential and production land for ethnic minorities.

8. Regulations on the management and use of land in combination with multi-purposes

Proposing regulations on management and use of land in combination with multi-purpose, residential land in combination with commerce and services; agricultural land combined with trade and services; land for national defense and security combined with economy; land for tourism projects with spiritual elements; land for construction of aerial works, underground works, land formed from sea reclamation activities.

9. Promote administrative reform and digital transformation in the field of land management and use

Proposing to accelerate administrative reform and digital transformation in the field of land management and use; ensure centralized and unified management, operation, connection and sharing of information from central to local levels. At the same time, continue to promote decentralization and decentralization along with supervision and control of power.

10. Strengthening inspection and examination of land-related complaints

Accordingly, it is proposed to strengthen the inspection, examination, supervision and handling of violations; settle disputes, complaints and denunciations related to land.

Some comments on the draft Land Law (from the Vietnam Lawyer Journal)

1. Regulations on application of law in Article 4 of the draft

The draft stipulates that in case there is a difference between the provisions of this law and another law, the provisions of the Land Law shall apply. However, in Clause 3, Article 156 of the Law on Promulgation of Legal Documents stipulates: “In case legal documents promulgated by the same agency contain different provisions on the same issue, the using the provisions of the following legal documents”.

Thus, the provisions in Article 4 of the draft are not consistent with the principle of application of the law when there are different provisions on the same issue specified in Clause 3, Article 156 of the Law on Promulgation of Legal Documents 2015. Therefore, the provisions of the draft need to be adjusted to be consistent with and ensure the principle of application of the law prescribed in the Law on Promulgation of Legal Documents.

2. Regarding regulations on land classification

At point e, Clause 2, Article 11 of the draft Land Law (amended) quite fully stipulates the types of land, specifically: “Land used for public purposes includes land for traffic works including land for traffic works (like as airports, airfields, inland waterway ports, seaports, railways, roads and other traffic works); irrigation works; land for natural disaster prevention and control works; land with historical – cultural relics, natural heritages, scenic spots; land for community activities, public amusement and entertainment areas; land for energy works; land for post and telecommunications works; market land; land for fishing ports, anchorage areas to avoid storms for fishing vessels, land for dumping sites, waste treatment and other public works land.

The above regulation is to ensure the classification of land, but it is not specific and needs to be included in the draft land type for clean water supply, rainwater drainage and wastewater works (including focal works, auxiliary works and network of water supply and drainage works). Because, in fact, this type of soil is present everywhere and is directly related to the process of land management and use. While there is no regulation to manage when a dispute occurs. Therefore, it is necessary to study and supplement the above soil type.

3. For regulations on general obligations of land users

In Clause 1, Article 193 of the draft, it is stated: “1. Use the land for the right purposes, at the right boundaries of the land plot, in accordance with the regulations on using the depth in the ground and the height in the air, protecting the public work in the ground and comply with other provisions of relevant laws”, but here there is the issue of “the depth in the ground and the height in the air” which should be clarified, especially the issue of depth in the ground, currently, construction works such as high-rise buildings or residential houses rarely pay attention to this issue and in fact this manual is still incomplete.

Therefore, it is necessary to clarify the issue of how to use the depth of the earth to be allowed to use it and clearly define it as “according to which document, where” because this is a matter related to rights on land use to build underground works in the land.

4. Regarding the issue of compensation for land when the State recovers land.

The content specified in the draft is quite reasonable and close to reality. Specifically, the draft stipulates the principle of compensation for land when the State recovers land, to ensure that the person whose land is recovered has a place to live, to ensure income and living conditions equal to or better than the old place of residence. This view is in line with the interests and aspirations of the majority of the people, especially those whose land has been acquired; at the same time, adhered to the spirit of Resolution No. 18-NQ/TW dated June 16, 2022 on “Continuing to renovate and perfect institutions and policies, improve the effectiveness and efficiency of land management and use , creating a driving force for our country to become a developed country with high income.” The policy of compensation, support and resettlement for people whose land has been recovered has been gradually improved in the direction of creating more and more favorable conditions. better for people whose land is acquired, stabilizing life and production.

Note

In fact, in the process of implementing the support and resettlement of people whose land has been recovered, it is not satisfactory, leading to people’s disagreement and frustration, giving rise to disputes, complaints and denunciations about land acquisition.

Draft Land Law (amended) it is necessary to institutionalize regulations to ensure the rights of people whose land is acquired, specifying the criteria of what is “better than the old place of residence”, taking into account the nature of the work of the person whose land is acquired, price stagnation, job creation after expropriation, etc. The development of compensation, support and resettlement plans should be done before a decision on land acquisition is made and should be done openly with real supervision comply with the regulations on prices, ensure the best interests of the people whose land is recovered, and at the same time, the compensation when the State recovers the land must also ensure objectivity, democracy, publicity, and timeliness. In accordance with the provisions of the law, the resettlement ensures the conditions of technical and social infrastructure, avoiding the occurrence of long-lasting disputes that easily become hot spots for hostile objects to take advantage of. democratic freedoms to incite and destroy the Party and State.

5. Regarding regulations on land recovery for socio-economic development for national and public interests

In Article 67 of Draft Land Law (amended) there are regulations on cases of land recovery for socio-economic development for national and public interests. Compared with the current law, it can be seen that the draft provisions have a broader and more specific scope. However, in order to unify awareness and avoid arising inadequacies in the implementation process, it is necessary to clarify the purpose and criteria of the case where it is necessary to conduct a recall. Because, after all, land acquisition is an issue involving many organizations and individuals and directly affects the rights and livelihoods of many people, especially in areas where the land is acquired is in agricultural production and cultivation. This is also one of the sensitive areas with many long-standing disputes and complaints.

Therefore, there should be regulations for specific cases to harmoniously resolve the relationship between the state, the investor and the land user; at the same time, helping localities to be more proactive in acquiring land for socio-economic development, based on the specific characteristics of each locality.

6. The issue of land users for individuals who are foreigners

According to the provisions of Article 6 draft then “foreign individuals” are not considered land users, are not allocated land, leased land, recognized land use rights, or receive land use right transfer by the State; sublease land in industrial parks, industrial clusters and hi-tech parks.

Note

  • Clause 2, Article 14 of the Law on Real Estate Business 2014 stipulates that “foreign individuals may rent all kinds of real estate for their own use; may buy, rent or lease-purchase houses according to the provisions of the law on housing.
  • Point b, Clause 2, Article 159 of the Law on Housing 2014 stipulates that foreign individuals may own houses in Vietnam through “buying, renting, buying, receiving, gifting, or inheriting commercial houses, including condominiums. and separate houses in housing construction investment projects, except for areas ensuring national defense and security according to the Government’s regulations”.

Thus, according to the provisions of the Law on Real Estate Business and the Law on Housing, foreigners are admitted to owning houses, but according to the draft, they are not allowed to recognize land use rights. Although this is not a conflict about houses and land, it is not consistent with the provisions in Clause 1, Article 19 of the Law on Real Estate Business that “the purchase and sale of houses and construction works must be associated with land use rights”. On the other hand, if a foreigner sells a house to a Vietnamese, will the buyer accept the right to use the land? In this regard, the law needs to be adjusted to ensure compliance with the provisions of other documents and to ensure the legitimate rights and interests of the buyer.

7. About the time to exercise the rights of land users (Article 191)

Clause 1, Article 191 of the draft stipulates that “land users may exercise the rights to transfer, lease, sublease, donate, mortgage and contribute land use rights as capital upon obtaining a Certificate …”. This provision needs to be reviewed compared to the provisions of the Law on Housing and the Law on Real Estate Business. Specifically, the Law on Housing and the Law on Real Estate Business stipulate that only in case the investor trades in real estate in the form of an available sale, a Certificate is required, while the transactions of buying and selling real estate in the form of future construction, transfer of contracts for sale and purchase of houses formed in the future, etc. are cases where a certificate is not required (Article 55 of the Law on Real Estate Business, Clause 2 of Article 118 of the Law on Housing). Therefore, it is necessary to readjust the provisions of the Land Law to be consistent with the provisions of the Law on Housing and the Law on Real Estate Business.

8. In case of land lease with one-time payment of land payment

According to the provisions of Point c, Clause 1, Article 198 of the draft, economic organizations using land with annual rental payment may only “sell or lease assets under their ownership attached to the land and the right to lease land within land lease contracts when fully satisfying the conditions specified in Article 212 of this Law”. The above regulation is inconsistent with the regulations on conditions of future properties to be put into business according to the provisions of the Law on Real Estate Business 2014. Specifically, according to the provisions of Articles 54, 55 The Law on Real Estate Business states that “the real estate project investor has the right to sell, rent, lease purchase houses and construction works to be formed in the future”; The conditions for real estate to be formed in the future to be put into business are “Having papers on land use rights, project documents, construction drawings approved by competent authorities, construction permits, etc. construction, in case a construction permit is required, and papers on the acceptance of the completion of the corresponding technical infrastructure construction according to the project schedule; In the case of an apartment building or a mixed-use building that is built in the future, there must be a record of acceptance and completion of the foundation of that building.”

Meanwhile, Articles 58, 198, 2012 draft regulations stipulate that investors are only allowed to sell or lease land-attached assets after meeting the following conditions: the property is legally created; have completed the construction in accordance with the detailed construction plannings and approved and approved investment projects, except for cases where it is required to comply with the effective court judgments or decisions or end opinions of competent state agencies on inspection and examination; has advanced compensation and ground clearance but has not yet fully deducted from the payable land rent.

9. Conditions for transfer of land use rights in the implementation of investment projects on construction of urban areas and residential areas; infrastructure construction investment projects for transfer or lease (Article 216)

Clause 2, Article 216 of the draft stipulates the conditions for the transfer of land use rights associated with the transfer of the entire infrastructure construction investment project for transfer or lease, which must satisfy the following conditions: “fully satisfy the conditions specified in Clause 1, Article 211 of this Law and the law on real estate business”, “the project must complete the construction of corresponding technical infrastructure works according to the schedule stated in the approved project”. However, Article 49 of the Law on Real Estate Business 2014 stipulates the conditions for the transfer of all or part of a real estate project for real estate projects to be formed in the future as long as the project has been approved by the competent authority. Approved by competent countries, has a detailed 1/500 plan, completes compensation for site clearance…

Thus, between Clause 2, Article 216 of the draft and Article 49 of the Law on Real Estate Business 2014, there is no match, which will cause difficulties in the implementation process. Therefore, it needs to be modified accordingly.

10. Regarding the basis and time for calculating land use levy and land rent (Article 126)

Clause 3, Article 126 of the draft stipulates that “the time for calculating and collecting land use levy and land rent is the time when the State decides to allocate or lease land, permit the change of land use purpose, recognize the winning results. auction of land use rights, winning results of bidding for projects involving land, decisions on recognition of land use rights, extension of land use, change of land use form, adjustment of decisions on land allocation or lease land”. However, in practice, this provision still has some inappropriate points, because in the case of winning bid results, investors may have to wait a long time for site clearance and be allocated clean land to execute the project.

Therefore, it is proposed to revise the above regulations in the direction that “the time for calculating and collecting land use levy and land rent is the time when the State decides to allocate or lease land, permit the change of land use purpose, public receive land use rights”

11. On the effective time of transactions related to land use rights (Article 211)

According to the provisions of Clause 3, Article 211 of the draft, the transfer of land use rights in contracts, exchange transactions, transfer, inheritance, donation, capital contribution with land use rights and the mortgage of land use rights land, assets attached to land, lease or sublease land use rights must be registered at the land registration agency and take effect from the time of registration in the cadastral book.

The above regulation also has many shortcomings and is not suitable with a number of relevant documents, creating risks for the transferee, because payment is usually done at the time of signing the contract, while at that time, the contract was not in effect. Clause 3, Article 17 of the Law on Real Estate Business 2014 stipulates that “The effective time of a real estate business contract shall be agreed upon by the parties and stated in the contract. If the contract is notarized or authenticated, the effective time of the contract is the time of notarization or authentication. If the parties have no agreement, no notarization or authentication, the effective time of the contract is the time when the parties sign the contract. Thus, between the draft and the 2014 Law on Real Estate Business, there are different regulations on the effective time of transactions on land use rights.

12. About agricultural land concentration (Article 160) and procedures for receiving transfer of agricultural land (Article 211)

According to the provisions of Clause 4, Article 160 of the draft, economic organizations, households and individuals conducting the concentration of agricultural land must make land use plans and submit them to competent state agencies for land allocation or lease. land, allowing the change of land use purpose to decide.

However, in reality, in case of concentration of agricultural land for project implementation, do economic organizations, households and individuals that gather land have to follow the procedures of the law on investment? private? What decision will the state agency competent to allocate, lease, or change the land use purpose for when considering a land use plan? What is the decision criteria? What is the order and procedure? What is the relationship between this procedure and the investment law? This is a procedural regulation that can cause difficulties in the implementation process, contrary to the trend of reforming administrative procedures, so it is necessary to clearly define the above issue.

According to the provisions of Clause 4, Article 211 of the draft, an economic organization that is entitled to transfer agricultural land must have an agricultural land use plan approved by the People’s Committee of the province. But the draft does not specify the order and procedures so that the organization can get the approval of the provincial People’s Committee.

13. Conciliation of land disputes (Article 226)

According to the provisions of Article 226, the draft land dispute mediation is one of the dispute settlement methods encouraged by the State. However, the draft only stipulates the settlement of disputes through grassroots conciliation at the commune-level People’s Committee where the disputed land is located. Currently, there is a mechanism to resolve disputes by commercial mediation. The commercial mediation mechanism will be used if provided for by law.

Therefore, it is necessary to supplement commercial mediation that can be used in mediation of land disputes to increase the choice and effectiveness of methods of resolving land disputes by mediation…

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