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DECREE
WITH ADDITIONAL PROVISIONS ON
ISSUANCE OF LAND USE RIGHT CERTIFICATES;
ON LAND RECOVERY; ON EXERCISE OF LAND USE RIGHTS;
ON ORDER AND PROCEDURES FOR COMPENSATION,
ASSISTANCE AND RESETTLEMENT
WHEN THE STATE RECOVERS LAND;
AND ON RESOLUTION OF COMPLAINTS ABOUT LAND
The Government
Pursuant to the Law on Organization of the Government dated 25
December 2001;
Pursuant to the Law on Land dated 26 November 2003;
Having considered the proposal of the Minister of Natural Resources
and Environment and of the Minister
of Finance;
Decrees:
CHAPTER I
General Provisions
Article 1 Governing scope
1. This Decree provides additional regulations on a number of cases
of issuance of land use rights certificates, and of certificates of
ownership of residential housing together with residential land use
rights (hereinafter all referred to as certificates); on a number of
cases of exercise of rights by land users; on recovery of land and
payment of compensation and assistance for land; on the order and
procedures for land recovery, for payment of compensation and
assistance and resettlement when the State recovers land to use it
for purposes of national defense and security, for the public
interest or for economic development; and on resolution of
complaints about land.
2. Current regulations shall apply to the following issues when this
Law does not contain any provision regarding them: issuance of
certificates; land recovery; exercise of rights by land users;
compensation, assistance and resettlement when the State recovers
land; and resolution of complaints about land.
Article 2 Applicable entities:
1. Bodies exercising the function of State administration of land;
and bodies, organizations and individuals involved in administration
of land.
2. Land users and organizations and individuals involved in land
use.
CHAPTER II
Specific Provisions on a Number of Cases of Exercise of Land Use
Rights
and Issuance of Certificates
Article 3 Land which has been used stably as stipulated in
article 50.4 of the Law on Land
1. Land which has been used stably as stipulated in article 50.4 of
the Law on Land means land which satisfies one of the following
criteria:
(a) The land has been used continuously for a specified main
purpose, as from the date of commencing use for such purpose until
the time a certificate was issued or until the time there was a
decision recovering the land made by the competent State body in a
case where a certificate has not been issued;
(b) The land has been continuously used as stipulated in sub-clause
(a) above but there was a change of the land user which did not give
rise to any dispute about the land use right.
2. A determination of the time of commencement of stable land use
shall be based on the date of use and purpose of use stipulated in
one of the following documents:
(a) Receipt for payment of agricultural land use tax [or] housing
and land tax;
(b) Minutes or decision imposing an administrative penalty for use
of land or for construction of a building on land;
(c) Effective decision or verdict of a people's court or effective
decision of an enforcement agency which was in fact enforced against
assets attached to the land;
(d) Decision resolving a land dispute by a competent State body
which was effective for execution; minutes of conciliation of a land
dispute signed by the parties and a representative of the people's
committee of the commune, ward or township (hereinafter referred to
as the commune people's committee) where the land is situated;
(dd) Decision by a competent State body resolving a complaint or
denunciation which related to the land use;
(e) Document on registration of permanent residence or long-term
temporary residence in a house on residential land; people's
identity card or birth certificate on which is recorded the address
of a house relating to the parcel of land;
(g) Document on allocation, distribution or issuance of a house or
land by a body or organization to which the States assigned
management and use of land;
(h) Document on purchase and sale of a house [or] other asset
attached to the land or a document on the purchase and sale of land
[and/or] assignment of the land use right signed by the parties
involved (without requiring certification by any body or
organization);
(i) Land map, inventory book, survey and measurement records of the
land throughout various periods;
(k) Declaration on registration of a house and land certified by the
commune level people's committee as at the time of such declaration.
3. If the commencement date of land use expressed in the various
documents stipulated in clause 2 of this article is inconsistent,
then the commencement date from which the land was used stably shall
be determined in accordance with the document recording the earliest
commencement date of land use.
4. If there are no documents as stipulated in clause 2 of this
article or if there is no document expressing the date on which the
document was created and the land use purpose, then there must be
certification from the commune level people's committee of the
commencement date of land use and the land use purpose by collecting
opinions from the residents who lived together with the applicant
applying for certification of the commencement date of land use in
the residential area (hamlet, village or street population group)
where the land exists.
Article 4 Point of time for determining financial obligations
on lodging an application file for issuance of a certificate, for
conversion of land use purpose, or for allocation or lease of land
1. The financial liability to the State of any economic
organization, household or individual who was
allocated land with payment of land use fees or who was leased land
by a competent State body,
shall be determined according to the land policy and price
applicable as at the date of issuance of the land allocation or land
lease decision; and if the date of handover of land was different
from the time stated in such decision, then financial liability
shall be determined according to the land policy and price
applicable as at the time of actual handover.
2. The financial liability to the State of a land user shall be
determined as at the date of lodging an application file in a case
where the land user lodged a complete and valid application file for
a certificate or for conversion of land use purpose to the competent
State body prior to 1 January 2005 (the date on which new land
prices were applicable pursuant to Decree 188 of the Government
dated 16 November 2004 on price determination methods and price
frameworks for all types of land, hereinafter referred to as Decree
188) but the applicant was required to re-submit or amend such
application file because the State body delayed the conduct of
procedures or provided inappropriate guidance on preparation of the
application file, or because declaration forms were amended, or
because authority to grant certificates of land use rights or
authority to permit conversion of land use purpose was amended.
3. The financial liability of the land user shall be determined in
accordance with the land price stipulated by the provincial people's
committee as at the date of lodging the application file, where such
application file for a certificate or for conversion of land use
purpose was submitted to the competent State body on or after 1
January 2005. If the functional body delayed the conduct of
procedures or provided incorrect guidance on preparation of the
application file, then the person who lodged the file may lodge a
complaint about administrative conduct and the public servant
responsible shall be disciplined in accordance with article 175 of
Decree 181 of the Government dated 29 October 2004 on implementation
of the Law on Land (hereinafter referred to as Decree 181), and the
financial liability to the State of the person who lodged the
application file shall be determined as at the date of lodging the
complete and valid file.
4. The land use right registration office or the commune level
people's committee which received an
application file shall provide written certification of the time of
lodging a complete and valid application file pursuant to clause 2
of this article based on the register for receipt of application
files or the receipt provided to the applicant, and such office or
people's committee shall send its written certification to the tax
office as the basis for calculating the financial liability of the
land user.
Article 5 Recording land use fees as a debt
1. In the case of a family household or individual who cannot afford
to pay land use fees to the State as stipulated in article 5.4 of
Decree 17-2006-ND-CP of the Government dated 27 January 2006
amending a number of Decrees implementing the Law on Land and
amending Decree 187 of the Government dated 16 November 2004 on
conversion of State owned companies (hereinafter referred to as
Decree 17), and in the case of a family household or individual who
is allocated land by the State for resettlement and wishes to have
the land use fees recorded as a debt, then the land use fees shall
in fact be recorded as a debt at the same time as lodging the
application file for a certificate or for conversion of land use
purpose or for allocation of land for resettlement. When the land
user pays the debt, it must be paid at the land price applicable at
the time of payment, and the note on the certificate recording the
land use fees as a debt shall be deleted.
2. When paying a debt pursuant to article 17.1 of Decree 198 of the
Government dated 3 December
2004 on collection of land use fees (hereinafter referred to as
Decree 198), the land user shall pay such debt at the land price
applicable as at the time of grant of his or her certificate; but
when paying land use fees debts pursuant to article 5.4 of Decree 17
and in a case where the land use fees were recorded as a debt prior
to the date on which this Decree takes effect, then the land user
shall pay the land use fee debt on the basis of the debt
acknowledged and recorded on his or her certificate.
3. The Ministry of Natural Resources and Environment and the
Ministry of Finance shall provide guidelines on the order and
procedures for recording land use fees as debts and for paying such
debts.
Article 6 Additional procedures for an application file for
conversion of land use purpose when the assets attached to the land
are public property
In the case of assets attached to land being public property under
the management of a central State body [or] State owned enterprise,
then the people's committee of the province or city under central
authority (hereinafter referred to as the provincial people's
committee) shall only be permitted to make a decision on conversion
of the land use purpose after it has written agreement from the
Ministry of Finance on conversion of the use function of such
property to another use function.
Article 7 Exemption/reduction of land use fees applicable to persons
who contributed to the revolution
Land use fees shall be exempted or reduced for persons who
contributed to the revolution in accordance
with the law on preferential treatment for such persons.
Article 8 Issuance of certificates of land use right for
agricultural production land
1. If a final plan for merger of land by exchanging parcels of
agricultural production land has been
completely performed, then the people's committee of the district,
town or provincial city (hereinafter referred to as the district
people's committee) shall recover the certificates previously issued
for all the parcels of land and issue a new certificate for each
parcel of land in compliance with article 48.3 of the Law on Land.
2. If in places where the final plan for merger of land by
exchanging parcels of agricultural production land has not been
completely performed and a family household or individual currently
using the land so requests, then the district people's committee
shall issue one certificate for all the parcels of land within the
use rights of each such family household or individual, and
thereafter a certificate shall be issued as stipulated in clause 1
of this article after the final plan for merger of land by
exchanging parcels has been completely performed.
3. The Ministry of Natural Resources and Environment shall provide
guidelines on issuance of the
certificates stipulated in clause 2 of this article.
Article 9 Issuance of certificates where agricultural land is used
for the purpose of constructing a farm in a rural area
1. When a land user is granted a certificate for farm land in a
rural area, the land user shall not be
required to pay land use fees for conversion of land use purpose
from agricultural production or from forestry, aquacultural or salt
production to another agricultural land type in the following
circumstances:
(a) Construction of a glass house or other type of building
servicing cultivation purposes including forms of cultivation other
than directly on land;
(b) Construction of a stable or shed for cattle, poultry and other
types of animals as permitted by law;
(c) Construction of a plant or animal seed nursery;
(d) Construction of a barn or store for agricultural products, plant
protection agents, fertilizer, or agricultural production machinery
and tools used on the farm.
2. Upon conversion of land use purpose from land for planting annual
crops other than land which is
specialized land for wet rice cultivation, or from land for planting
perennial crops, land for aquaculture or land for forestry
production being plantation forests to another type of agricultural
land pursuant to sub-clauses (a), (b), (c) and (d) of clause 1 of
this article, or upon conversion from specialized land for wet rice
cultivation to construction of a rice seed variety nursery, the
farmland user must register the land use conversion pursuant to
article 36.2 of the Law on Land.
Article 10 Issuance of a certificate where land is used by a
community of citizens or by a religious establishment
1. The order and procedures for issuance of certificates to
communities of citizens shall be implemented the same as the order
and procedures applicable to family households and individuals
stipulated in articles 135 and 136 of Decree 181.
2. The order and procedures for issuance of certificates to
religious establishments shall be implemented the same as the order
and procedures applicable to organizations stipulated in article 137
of Decree 181.
3. Land used by a religious establishment for the purposes of
agricultural production, forestry production, non-agricultural
business production, land which is used for charitable activities
and land comprising the land stipulated in article 99.1 of the Law
on Land (including land which the religious establishment received
by way of assignment or donation prior to 1 July 2004) and which the
commune people's committee certifies is not subject to dispute shall
be issued with a certificate, and shall be permitted to be used in
accordance with the use regime applicable to such purpose the same
as applies to a family household or individual, and shall be
permitted to be subject to conversion of land use purpose pursuant
to a decision of the provincial people's committee; in the case of
land used for agricultural production purposes, forestry production,
non-agricultural business production, and/or for charitable purposes
by the religious establishment and which is not land which the State
allocated without collection of land use fees, then such land may be
assigned or donated, and the land use right may be leased or
mortgaged or guaranteed in accordance with the law on land.
Article 11 Issuance of a certificate where the land use right has
been assigned but the stipulated transfer procedures have not yet
been conducted
1. In a case where the current land user acquired the land use right
from an assignment, inheritance or donation of the land use right or
of the house associated with the residential land use right
(hereinafter referred to as the assignee) prior to 1 July 2004, and
has not been issued with a certificate but has a document on the
assignment of the land use right signed by the assignor (without
certification of the assignment from any competent body), then such
land user shall not be required to conduct procedures for assignment
of the land use right, and shall have the right to submit an
application file for a certificate pursuant to article 135.1 or
136.1 of Decree 181.
2. The following provisions shall apply in a case of assignment of
the land use right or of a house associated with residential land
where the parties completed a contract or document on the assignment
but the assignor failed to submit the certificate or one of the
documents referred to in clauses 1 and 5 of article 50 of the Law on
Land (hereinafter referred to as land use rights documents) in order
to conduct assignment procedures:
(a) In order to be granted a certificate, the assignee of the land
use right shall file an application file including a request for
issuance of a certificate and the contract or document on the
assignment, and the place of lodging the application file shall be
as stipulated in article 122 of Decree 181.
(b) The land use right registration office shall rely on the
contract or document on assignment of the land use right to provide
a written notice to the assignor and to post list] the notice at the
headquarters of the commune people's committee in the place where
the land exists regarding carrying out procedures to issue a
certificate to the assignee and to cancel all documents on the land
use right which were not handed over to the assignee in a case of an
assignment of the whole of the land; or [a notice] regarding
carrying out procedures to issue a certificate to the assignee and
to amend or issue a new certificate in the case of an assignment of
a part of the land; if the address of the assignor is unknown, then
the notice shall be published in three consecutive additions of a
local newspaper and the applicant for the issuance of the
certificate shall bear those costs.
(c) If within a time-limit of thirty (30) days as from the date of
the notice or as from the initial date of publication of the notice
regarding carrying out procedures for issuance of a certificate to
the assignee, there is no application to resolve a dispute, then the
procedures for issuance of the certificate shall be implemented in
accordance with article 135 or 136 of Decree 181 or in accordance
with the law on residential housing; the competent people's
committee shall issue a certificate, and also issue a decision
rescinding the previously issued certificate to the assignor if the
assignor does not hand in the old certificate; if the assignor hands
in the old certificate, then the people's committee shall amend or
issue a new certificate in accordance with guidelines of the
Ministry of Natural Resources and Environment.
If there is an application to resolve the dispute, then the land use
right registration office shall guide the applicant to lodge such
application with the State body authorized to resolve land disputes
stipulated in articles 135 and 136 on the Law on Land.
Article 12 Issuance of a certificate where the land user died before
the certificate was handed over
If the named applicant for a certificate dies before the certificate
is handed over, then the land use right registration office shall be
responsible to report to the district people's committee to cancel
the certificate
which was signed and to notify the heir to amend the application
file in accordance with article 151.1(a) of
Decree 181 in order for the heir to be issued with a certificate.
Article 13 Issuance of a certificate where the land use right heir
is a foreigner or a Vietnamese residing overseas ineligible to
purchase residential housing attached to the residential land use
right
1. In a case where all the heirs of a land use right or of a land
use right plus assets attached to the land (in this article both
referred to as the land use right) are foreigners or Vietnamese
residing overseas ineligible to purchase residential housing
attached to the residential land use right in Vietnam pursuant to
article 121.1 of the Law on Land and article 126.2 of the Law on
Residential Housing (in this article all referred to as ineligible
entities) then their heirs shall not be issued with a certificate
but shall have the right to assign or donate the land use right
which they inherited in accordance with the following provisions:
(a) In the case of assignment, the order and procedures for
assignment of the land use right shall be implemented in accordance
with article 148 of Decree 181, and the heir shall sign a land use
right assignment contract in the capacity of assignor.
(b) In a case of donation, the donee must be an eligible entity as
stipulated in article 113.6 of the Law on Land and article 126.2 of
the Law on Residential Housing; and the order and procedures for
donating the land use right shall be implemented in accordance with
article 152 of Decree 181, and the heir (the person who inherited
the land use right) shall sign a contract or undertaking to donate
in the capacity as donor. If the heir does not assign or donate the
land use right which he or she inherited, then such heir or his or
her proxy pursuant to a power of attorney shall lodge a file on the
inheritance with the land use right registration office in order for
the latter to update the cadastral register and to monitor it.
2. If one or more of the heirs is within the category of eligible
entities (i.e. eligible to purchase residential housing attached to
the residential land use right in Vietnam) but one or more of the
other heirs are ineligible, and if the estate has not yet been
divided amongst the heirs, then such heirs or their proxies shall
file a written application regarding the inheritance with the land
use right registration office in order for the latter to update the
cadastral register and to monitor it.
Certificates shall be issued to eligible heirs after division of the
estate is completed, and the divided portions of any ineligible
heirs shall be dealt with in accordance with clause 1 of this
article.
3. Heirs in the cases stipulated in clauses 1 and 2 of this article
shall be permitted to provide written
authority to others to superintend or to temporarily use the land
and to discharge the obligations
owing under the Law on Land and other relevant laws.
Article 14 Issuance of a certificate where land was used by a family
household or individual prior to 15 October 1993 and there are none
of the documents stipulated in article 50.1 of the Law on Land
1. In the case of a family household or individual currently using
land on which there is residential
housing or a building, but there are none of the documents
stipulated in article 50.1 of the Law on
Land and the land has been used stably since prior to 15 October
1993 and the land does not fall
within one of the cases of land use stipulated in clause 4 of this
article, and if the commune people's committee certifies that the
land is not the subject of a dispute, then the following provisions
shall apply:
(a) A certificate shall be issued if at the time of conducting
procedures for grant of the certificate the land is located in an
area which already has approved land use zoning or detailed urban
construction master planning or rural residential construction
master planning (hereinafter all referred to as zoning) and the use
of the land is consistent with such zoning and there is not yet a
decision on recovery of the land although the land is in the
category which the law stipulates must be recovered.
In the case of land which has a house on it, the land user shall not
be required to pay land use fees for the area of residential land
currently in use, which however must not exceed the quota of
residential land to be allocated to each family household and
individual to build their own housing as stipulated in articles 83.2
and 84.5 of the Law on Land as at the date of issuance of the
certificate. Land use fees must be paid in respect of any area of
land outside the quota at the rate stipulated in article 8.3(a) of
Decree 198.
In the case of land which has buildings other than residential
housing on it, a determination must be made of the area of
agricultural land and the area of non-agricultural land, and the
land user shall not be required to pay land use fees for the
non-agricultural land.
The provisions of clause 2 of this article shall apply to the area
of land determined to be agricultural land.
(b) If there is no approved zoning as at the time of conducting the
procedures for grant of the
certificate, then the land user shall be granted a certificate
pursuant to sub-clause (a) above.
(c) If the land had been used since prior to the time when the
zoning was approved but as at the time of grant of a certificate the
land use is inconsistent with such approved zoning and a competent
State body has not yet issued a document on its intention to recover
the land in accordance with article 49 of this Decree, then the land
user shall be granted a certificate in accordance with sub-clause
(a) above.
(d) If the land had been used since prior to the date on which the
zoning was approved but as at the time of grant of the certificate
the land use is inconsistent with the approved zoning and a
competent State body has in fact issued a document on its intention
to recover the land in accordance with article 49 of this Decree,
then the land user shall not be issued with a certificate but shall
be permitted to continue to use the land in its current status until
there is a decision on recovery of the land.
(e) In a case where zoning is amended by a competent State body and
the whole or part of the parcel of land is consistent with the
amended zoning, or in a case where the zoning is rescinded pursuant
to a decision of a competent State body, then the land user shall be
granted a certificate in accordance with sub-clause (a) above.
2. Issuance of a certificate shall be regulated as follows in a case
where a family household or individual is currently using
agricultural land but does not have any of the documents stipulated
in article 50.1 of the Law on Land and the land has been used stably
since prior to 15 October 1993
and does not fall within any of the cases stipulated in clause 4 of
this article, and the commune
people's committee certifies that the land is not subject to
dispute:
(a) A certificate shall be granted to a family household or
individual directly engaged in agricultural production without their
having to pay land use fees for the land use area currently in use,
which must not exceed the quota on allocation of agricultural land
stipulated in article 70 of the Law and Land and in article 69.1 of
Decree 181. Any residual area of agricultural land shall be
converted to the form of land leased from the State.
(b) A family household or individual not directly engaged in
agricultural production shall be granted a certificate in the form
of land leased from the State for the area of land currently being
used. In the case of agricultural land on the same parcel of land
with a house but which is not recognized as residential land, the
family household or individual currently using such land shall be
granted a certificate the same as the case stipulated in sub-clause
(a) above.
3. In the case of a parcel of land with a garden or pond which was
being used prior to 18 December
1980 and for which a certificate was granted pursuant to article
45.2 of Decree 181, and thereafter this parcel of land was split
from a parcel of land without any of the land use right documents
stipulated in clauses 1, 2 or 5 of article 50 of the Law on Land,
then the residual area of land after the split shall also be granted
a certificate pursuant to article 44.2 of Decree 181.
4. A family household or individual shall not be entitled to the
grant of a certificate for an area of land
which they were using since prior to 15 October 1993 if at the time
of commencement of land use
they committed one of the following breaches (except for the case
stipulated in clause 5 of this
article):
(a) Breach of the detailed construction master planning as approved
and publicly notified by the competent body.
(b) Breach of the detailed construction surface master planning as
approved and publicly notified by the competent body applicable to
any area of land assigned to an organization or a community of
citizens to manage.
(c) Trespass on or illegal occupation of the safety corridor of
public construction works as announced and demarcated.
(d) Trespass on or illegal occupation of a road, roadside or
pavement for which construction
marking lines have been drawn.
(dd) Trespass on or illegal occupation of land used for public
purposes, of specialized use land, of land belonging to
organizations, of unused land, or any other breach which was
deliberately committed despite written notification to stop the
breach.
5. Any family household or individual currently using land in the
cases stipulated in clause 4 of this
article but where the use is consistent with the zoning as at the
time of grant of the certificate, shall be granted a certificate and
must pay land use fees at the rates stipulated in sub-clauses (a),
(b) and (c) of article 15.1 of this Decree.
Article 15 Issuance of a certificate where land was used by a family
household or individual from 15
October 1993 onwards
1. A certificate shall be granted pursuant to the following
provisions to any family household or individual currently using
land without one of the documents stipulated in article 50.1 of the
Law on Land but the land was used from 15 October 1993 up until
prior to 1 July 2004, and the land use is not within the cases
stipulated in article 14.4 of this Decree, and the land is certified
by the commune people's committee as not being subject to a dispute
and as being consistent with the approved zoning (but such
certification shall not be required if there is no approved zoning
as at the time of conducting the procedures for issuance of the
certificate):
(a) For land with housing, the family household or individual must
pay land use fees at the rate stipulated in article 8.3(a) of Decree
198 for the land area in use which must not exceed the quota on land
to be allocated for residential housing as stipulated in articles
83.2 and 84.5 of the Law on Land as at the time of grant of the
certificate; and the land user must pay land use fees at the rate
stipulated in article 8.3(b) of Decree 198 for any area of land
exceeding such quota.
(b) If the family household or individual is currently using land
with construction works other than housing on it, then a
determination must be made of the area of agricultural and the area
of non-agricultural land based on actual use status. The land user
shall pay land use fees for the non-agricultural area at the rate
stipulated in article 8.3(a) of Decree 198; and the land price to be
used when calculating the land use fees payable shall be the price
of land of the same type used for non-agricultural purposes.
(c) The provisions of article 14.2 of this Decree shall apply to the
land area determined to be
agricultural land.
2. In the case of any family household or individual who used land
in the period from 15 October 1993 up until prior to 1 July 2004,
and there are none of the documents stipulated in article 50.1 of
the Law on Land for the entire parcel or any part of the parcel of
land, and if such land is certified by the commune people's
committee as not subject to a dispute but the land use is
inconsistent with the approved zoning in the case of any locality
for which there is such zoning, or if at the time of commencement of
the land use there was a breach as stipulated in article 14.4 of
this Decree, then such family household or individual shall not be
entitled to the grant of a certificate for the entire or any part of
the parcel of land but may temporarily continue to use the land in
its actual status up until the time the competent State body issues
a decision to recover it.
3. The State shall not recognize a land use right nor grant a
certificate and shall recover the entire area of land in the case of
trespass or illegal occupation, or in the case of allocation or
lease of land contrary to authority from 15 October 1993 onwards.
Article 16 Issuance of a certificate where land was allocated
contrary to authority prior to 1 July 2004 but the land user has
paid land use fees in order to use the land
In the case of land which was allocated contrary to authority and
for which the current land user has documents proving the payment of
land use fees to a body or organization in order to use the land
prior to 1 July 2004, and which the commune people's committee now
certifies as not being subject to dispute and consistent with
zoning, the current land user shall be granted a certificate as
follows:
1. If the land has been used stably since prior to 15 October 1993,
the current land user shall be
granted a certificate for the allocated land area without having to
pay land use fees.
2. If the land has been used stably from 15 October 1993 up until
prior to 1 July 2004:
(a) For the allocated land area being agricultural or
non-agricultural land but not residential land, the current land
user shall be granted a certificate without having to pay land use
fees.
(b) For the land area allocated for use as residential land within
the residential land quota stipulated in articles 83.2 or 84.5 of
the Law on Land, the current land user shall be granted a
certificate without having to pay land use fees; for any residual
land area with a house on it, the current land user shall be granted
a certificate and must pay land use fees at the rate stipulated in
article 8.3(a) of Decree 198; with respect to any residual land area
which has a house on it and which is determined as being
agricultural land in accordance with its current actual use status,
and if the land user requests permission to use such area for non-
agricultural purposes, then the land user shall be granted a
certificate and must pay land use fees at the rate stipulated in
article 5.2 of Decree 17.
Article 17 Provision on minimum area of a parcel of land permitted
to be separated, and on issuance of a certificate for a land area
less than the minimum area
1. A provincial people's committee shall regulate the minimum area
of a parcel of land permitted to be separated for each type of land,
consistent with the specific conditions within its locality.
2. The current land user shall be granted a certificate for a parcel
of land currently in use with a area
less than the minimum area stipulated by the provincial people's
committee where the land otherwise satisfies the conditions for
issuance of a certificate; and the regulations of the provincial
people's committee shall apply to the construction of residential
housing or other buildings on such parcel of land.
3. A certificate shall not be issued in a case where a parcel of
land is separated into a number of
parcels of land one of which has a land area less than the minimum
area regulated by the provincial people's committee.
4. A notary office shall not be permitted to notarize, and a commune
people's committee shall not be
permitted to certify the transfer of land use rights in the case of
separation of a parcel of land into one or more parcels of land one
of which has a land area less than the minimum area stipulated by
the provincial people's committee.
Article 18 Issuance of a certificate where there is a disparity
between the actual land area as measured and the measurements
recorded on a land use document
1. If the actual land area as measured in accordance with the
technical standards for land surveys is
smaller than the area of land recorded on a land use document, then
a certificate shall be issued
according to the actual land area measurements, and the land user
shall not be entitled to a refund of any land use fees already paid
with respect to the area less than the area recorded on the land use
right document.
2. If the actual land area as measured in accordance with such
technical standards is greater than the measurements recorded on the
land use document, then the issue shall be resolved as follows:
(a) If the present boundary of the parcel of land has not changed
since the time the land use right document was obtained and there is
no dispute with adjacent land users and the actual land area
measurements were made as at the time of grant of the certificate,
then a certificate shall be granted in accordance with the actual
land area as measured and the land user shall not be required to pay
land use fees in respect of any area in excess of the area recorded
on the land use right document.
(b) If the present boundary of the parcel of land has changed since
the time of obtaining the land use right document and the disparity
between the actual land area as measured and the measurements
recorded on the land use document are certified by the commune
people's committee of the locality where the land exists to be due
to reclamation of waste land or due to receipt of an assignment from
the previous land user, and if the land has been used stably and is
not subject to dispute, then a certificate shall be granted for the
whole of the actual land area as measured and financial obligations
with respect to the excess area of land must be discharged in
accordance with the Law on Land.
(c) If the present boundary of the parcel of land has changed from
the time when the land use right document was obtained and the
excess of the actual land area as measured over the land area
recorded on the land use document is certified by the commune
people's committee to be the result of trespass or illegal
occupation, then the issue shall be dealt with in accordance with
articles 14.5 and 14.4, or article 15.2 of this Decree.
Article 19 Issuance of a certificate where a parcel of land is
divided or consolidated
1. An application file for division or consolidation of a parcel of
land shall comprise:
(a) Request for permission to divide or consolidate the parcel of
land made by the land user, if division or consolidation is
requested by the land user and results from the receipt of an
assignment of land use rights pursuant to sub-clauses (j) and (k) of
article 99.1 of Decree 181.
(b) A certificate or one of the land use right documents stipulated
in clauses 1, 2 and 5 of article 50 of the Law on Land; there must
also be one of the types of documents stipulated in article 140.1 of
Decree 181 if the division or consolidation of the parcel of land is
as a result of receipt of an assignment as stipulated in sub-clauses
(k) and (l) of article 99.1 of Decree 181.
2. A division or consolidation of a parcel of land at the request of
the land user shall be implemented as follows:
(a) An applicant being an organization, a religious institution, a
Vietnamese residing overseas or a foreign organization or individual
shall lodge one set of the application file with the Department of
Natural Resources and Environment; and if the applicant is a family
household or individual, such set shall be lodged with the Office of
Natural Resources and Environment.
(b) On the date of receipt of a complete and valid application file
or at the latest on the next
business day, the Department of Natural Resources and Environment or
the Office of Natural Resources and Environment (both hereinafter
referred to as the NRE body) shall be responsible to forward the
application file to its subsidiary land use rights registration
office to prepare the cadastral file.
(c) If consolidation of the parcel of land does not require land
measurements, then on the same day as a complete and valid
application file is received or on the next working day at the
latest, the land use rights registration office shall make extracts
of the land map and of the cadastral file and send them to the NRE
body of the same level.
If division or consolidation of the land parcel requires land
measurements, then the land use rights registration office shall
conduct such land measurements of the newly divided or newly
consolidated parcel of land within seven (7) working days from the
date of receipt of a complete and valid application file, and then
make extracts of the land map and of the cadastral file and send
them to the NRE body of the same level.
(d) Within three working days from the date of receipt of the
extract of the land map and of the cadastral file, the Office of
Natural Resources and Environment shall submit a report to the
district people's committee for its consideration and for signing a
certificate of land use right for the new land parcel; or the
Department of Natural Resources and Environment shall sign a
certificate of land use rights for the new land parcel if such
Department has authority, otherwise it shall make a submission to
the provincial people's committee to sign a certificate for the new
land parcel.
(dd) Within a time-limit of three business days from the date of
receipt of a submission, the
authorized people's committee shall consider and sign a certificate
and send it to the relevant NRE body.
(e) Immediately on receipt of the signed certificate or on the next
business day at the latest, the Office of Natural Resources and
Environment shall be responsible to hand the original certificate
for the new parcel of land to the land user; and to forward to its
subsidiary land use rights registration office a copy of the new
signed certificate and the original of the revoked certificate or
one of the documents on land use right referred to in clauses 1, 2
and 5 of article 50 of the Law on Land; and shall file a notice on
change of land use with the land use right registration office under
the Department of Natural Resources and Environment in order for the
latter to amend the original cadastral file.
3. The NRE body shall also be responsible to conduct division
pursuant to sub-clauses (b), (c), (d), (dd) and (e) of clause 2
above in a case where division of a parcel of land is necessary due
to the State recovering a part of the land, and in this case the NRE
body shall rely on and comply with the decision on recovery of the
land.
Article 20 Land use and issuance of a certificate in the case of a
construction project for an urban zone, for a rural residential
area, or for a production and business area with a number of
different land use purposes
1. Land use shall be implemented as follows in the case of land for
a construction project for an urban zone (including an urban
residential area), for a rural residential area, or for a production
and business area with a number of different land use purposes but
which is not an industrial zone, economic zone or high-tech zone:
(a) The investor shall not have to pay land use fees or rent with
respect to an area of land used for public purposes;
(b) The investor shall be permitted to select either the form of
paying land use fees pursuant to Decree 198 or the form of paying
rent pursuant to Decree 142-2005-ND-CP of the Government dated 14
November 2005 on collection of land and water surfaces rent with
respect to each area of land consistent with the use purpose
certified in the investment project.
2. In the case of an area of land for implementation of a
construction project for an urban zone, for a
rural residential area, or for a production and business area which
includes a number of land areas with different land use purposes,
then a certificate shall be issued for each parcel of land in
compliance with the approved detailed construction master planning
and the law on land.
Article 21 Revocation of certificates which were illegally issued
1. If there is a written conclusion made by an investigative body or
inspectorate that a certificate was
unlawfully issued, then the State body authorized to issue
certificates shall consider the conclusion and if it is correct,
issue a decision revoking the previously issued certificate.
2. If a State body authorized to issue certificates itself detects
that a certificate was unlawfully issued, then it shall be
responsible to provide written notice to the same level inspectorate
to investigate. The district inspectorate shall be responsible to
investigate certificates issued by the district people's committee,
and the provincial inspectorate shall be responsible to investigate
certificates issued by the provincial people's committee and by the
Department of Natural Resources and Environment. If the
investigation concludes that a certificate was unlawfully issued,
then the State body which issued such certificate shall issue a
decision revoking it.
3. If any organization or citizen detects that a certificate was
unlawfully issued, then it shall be send a recommendation to the
State body which issued such certificate and the latter shall
consider such recommendation and resolve it in accordance with
clause 2 of this article.
4. Issued certificates may only be revoked pursuant to an effective
decision or verdict of a people's
court in cases outside those stipulated in article 42.2 of Decree
181 and clauses 1, 2 and 3 of this
article.
CHAPTER III
Specific Provisions on Dealing with Cases of Change of Land Use
Rights
Article 22 Right to lease assets attached to land leased by the
State with payment of annual rent
Economic organizations and individuals leasing land from the State
with payment of annual rent shall be
permitted to lease out assets owned by them and attached to the
land; lessees must use the assets on the land in accordance with the
purpose specified in the land lease decision of the competent State
body.
Article 23 Land use right of an economic organization established as
a joint venture between a domestic investor and a foreign investor
but converted to an economic organization with 100% foreign owned
capital
1. If an economic organization established as a joint venture
between a domestic investor and a foreign investor converts to an
economic organization with 100% foreign owned capital, then the land
contributed as joint venture capital must convert to the form of
land leased from the State and [the economic organization] shall
select either the form of paying a lump sum rent or the form of
paying annual rent.
2. The duration of the land lease stipulated in clause 1 of this
article shall be determined as follows:
(a) The duration shall be seventy (70) years as from the date of
conversion if the joint venture contribution was land which had been
used stably and long-term.
(b) If the joint venture contribution was land which was being used
for a [stipulated] term, then the duration of the land lease shall
be the residual term of such use for a term.
3. The Ministry of Finance shall provide guidelines on dealing with
financial obligations regarding land when a joint venture economic
organization converts to the form of an economic organization with
100% foreign owned capital.
Article 24 Land use right of a joint venture economic organization
between a domestic investor and a foreign investor or of an economic
organization with 100% foreign owned capital when it receives an
assignment of an investment project
1. A joint venture economic organization between a domestic investor
and a foreign investor, or an
economic organization with 100% foreign owned capital (in this
article both referred to as a foreign invested economic
organization) shall be permitted to receive an assignment of the
following investment projects using land from a domestic economic
organization:
(a) An investment project for [construction of] infrastructure in an
industrial zone, export
processing zone, industrial complex or other concentrated economic
zone with the same land use regime as stipulated in clauses 1 and 2
of article 35 of this Decree.
(b) An investment project in an economic zone or high-tech zone.
(c) An investment project for [construction of] infrastructure in an
urban zone or rural residential area.
(d) An investment project for business and production.
(dd) An investment project for construction and commercial operation
of residential housing for which construction of the common use
infrastructure has been completed.
2. The receipt of an assignment of an investment project using land
as stipulated in clause 1 of this
article shall be implemented in accordance with the law on
residential housing and the following
provisions:
(a) If the assignor is a domestic economic organization to which the
State allocated land with
collection of land use fees or which received an assignment of a
land use right, and the land use fees paid or the sum paid for
receiving such assignment was not funded by the State budget, then
the value of the land use right shall be included in the total value
of the project assignment contract; and the foreign invested
economic organization shall conduct procedures to lease land from
the State but shall not be required to pay land use fees.
(b) If the assignor is a domestic economic organization to which the
State allocated land with
collection of land use fees or which received an assignment of a
land use right, and the land use fees paid or the sum paid for
receiving such assignment was funded by the State budget, or if the
land was leased by the State or allocated by the State without
collection of land use fees for the purpose of capital contribution
in the form of the land use right, then the value of the land use
right shall not be included in the total value of the project
assignment contract; and the foreign invested economic organization
shall conduct procedures to lease land from the State either in the
form of paying a lump sum rent or in the form of paying annual rent.
(c) If the land of a project assigned as stipulated in sub-clause
(a) above originated from land
which was being used for a [stipulated] term, then the duration of
the land lease of the foreign invested economic organization shall
be the residual term of such land use prior to receipt of the
assignment; and if the land originated from land which was being
used stably and longterm, then the duration of the land lease shall
be seventy (70) years as from the date of signing the project
assignment contract which may be extended on request a number of
times, each extension not to exceed seventy (70) years; and the
foreign invested economic organization shall not be required to pay
rent for any extended duration.
3. In the case of a foreign invested economic organization which
receives an assignment of a project for construction and commercial
operation of residential housing from a domestic economic
organization to which the State allocated land for stable and
long-term use and which paid land use fees not funded by the State
budget, when the economic organization sells the housing it shall
not be required to pay the difference between the land use fees and
the rent as stipulated in article 81.2 of Decree 181; and the
purchaser of the residential housing associated with the residential
land use right shall be entitled to stable and long-term land use.
4. The Ministry of Natural Resources and Environment and the
Ministry of Finance shall provide
guidelines on implementing the provisions in this article.
Article 25 Dealing with a land use right which was contributed as
capital to a joint venture economic
organization by a State owned enterprise now undergoing equitization
1. In the case of a State owned enterprise to which the State
allocated or leased land for which land use fees or rent was not
paid; or to which the State allocated or leased land or which
received an assignment of the land use right and the payment for
such allocation, lease or assignment was funded by the State budget:
then the value of the land use right contributed as capital shall
not be included in the equitization [value] of the enterprise; and
the value of a land use right contributed as capital prior to
equitization shall be deemed to be the State owned capital portion
contributed to the joint venture economic organization.
2. The value of the land use right contributed as capital shall be
included in the equitization [value] of the enterprise in the case
of a State owned enterprise to which the State allocated or leased
land or which received an assignment of a land use right and the
payment for such allocation, lease or assignment was not funded by
the State budget.
Article 26 Dealing with the land use right of a non-agricultural
co-operative where the land was contributed to the co-operative by
its members and was converted to the form of land lease from the
State
If a non-agricultural co-operative is currently using land which was
contributed to the co-operative by its members and was converted to
the form of land lease pursuant to Directive 245-TTg of the Prime
Minister
of the Government dated 22 April 1996 and Decree 85-CP of the
Government dated 17 December 1996 on implementation of the Ordinance
on rights and obligations of domestic organizations with land
allocated or leased from the State, then such co-operative shall not
[no longer] be required to lease land from the State. The
co-operative shall have the rights and obligations of a land user
stipulated in article 110.2 of the Law on Land, and the Department
of Natural Resources and Environment shall be responsible to rescind
the land lease contract previously signed and to either amend the
issued certificate or to issue a new certificate to the
co-operative.
Article 27 Right to select the form of land use in a case of
implementation of an investment project for construction of
residential housing for lease
1. An investor being a domestic economic organization or a
Vietnamese residing overseas shall be entitled to select the form of
State allocation of land with collection of land use fees or State
lease of land with payment of annual rent in order to implement an
investment project for construction of residential housing for
lease.
2. An investor being a Vietnamese residing overseas, an individual
or a foreign invested economic organization shall be entitled to
select the form of State lease of land with payment of a lump sum
rent for the whole term or the form of State lease of land with
payment of annual rent in order to implement an investment project
for construction of residential housing for lease.
Article 28 Right to select the form of payment of land use fees or
land rent on conversion of land use purpose when an investor
receives an assignment of a land use right in order to implement an
investment project
1. When an investor receives an assignment of a land use right in
accordance with the law on land in order to implement an investment
project consistent with land use zoning and plans but must convert
the land use purpose after receipt of the assignment, the investor
shall be entitled to select one of the following two forms:
(a) Land use in the form deemed to be State allocation of land with
collection of land use fees. In this case the investor must pay land
use fees in order to convert the land use purpose and shall have the
rights and obligations stipulated in clauses 1 and 2 of article 110
of the Law on Land.
(b) Land use in the form of State lease of land. In this case the
investor must pay land rent to the State and shall have the rights
and obligations stipulated in article 111.1 of the Law on Land; and
shall have the rights and obligations stipulated in article 110 of
the Law on Land for the period for which the investor paid rent in
advance pursuant to clause 2(b) of this article where the investor
paid rent for an advance period of five years or more.
2. The sum actually paid by the investor for receipt of the
assignment of the land use right shall be dealt with as follows:
(a) It shall be deducted from land use fees on conversion of land
use purpose which the investor is required to pay to the State in
order to use the land as stipulated in clause 1(a) of this article.
(b) It shall be deemed to be land rent which the investor has paid
in advance to the State in order to lease land as stipulated in
clause 1(b) of this article.
3. The sum paid by the investor for receipt of the assignment of the
land use right stipulated in clause 2 of this article shall be
determined on the basis of actual market price for assignment of
land use rights in normal conditions but shall not exceed the sum
which must be paid as compensation and assistance for land on land
recovery by the State.
4. The sum actually paid by the investor for receipt of the
assignment of the land use right as referred to in clause 2 of this
article shall be accounted for as investment project expenses of the
investor.
5. Valuation of land for which the investor paid a sum for receipt
of assignment of the land use right and valuation of land for the
purpose of land allocation, lease, compensation and assistance shall
be implemented by hiring the consultancy services of a land valuer
established and operating pursuant to law. A valuation shall be
appraised by the Department of Finance prior to submission to the
provincial people's committee for approval.
6. The Ministry of Natural Resources and Environment and the
Ministry of Finance shall provide
guidelines on implementing the provisions in this article.
Article 29 Duration of land use applicable to non-agricultural land
used stably and long-term prior to 1 July 2004 in accordance with
the law on land
With respect to non-agricultural land used prior to 1 July 2004 by
an economic organization as a result of allocation to create capital
for the construction of infrastructure pursuant to a project; and
with respect to non-agricultural business and production land of a
household or individual which was not allocated or leased by the
State: such economic organization, household or individual shall be
permitted to continue to
use such land stably and long-term for non-agricultural purposes,
and shall not be required to pay land use fees when permitted to
convert use purpose to residential land, and shall be entitled to
receive
compensation at the residential land price upon land recovery by the
State.
Article 30 Duration of land use applicable to land allocated as
compensation upon land recovery by the State to a household or
individual for use as non-agricultural production or business
services land
With respect to land allocated to a household or individual for use
as the surface area for non-agricultural
production or business services and as compensation upon land
recovery by the State pursuant to clauses 4 and 5 of article 4 of
Decree 17, such household or individual shall be permitted to use
such land stably and long-term for non-agricultural production and
business purposes, and shall not be required to pay land use fees
when permitted to convert use purpose to residential land, and shall
be entitled to receive compensation at the residential land price
upon land recovery by the State.
Article 31 Detailed provisions on exercise of right to mortgage and
provide a guarantee using a land use
right and assets attached to land
1. A guarantee using a land use right and assets attached to land
pursuant to the Law on Land means a mortgage using a land use right
to a third party borrower in accordance with the Civil Code
(hereinafter referred to as a land use right mortgage).
2. Registration of a mortgage using a land use right and assets
attached to land applicable to a
household or individual granted a certificate shall be conducted as
follows:
(a) Where the application file is lodged with the district land use
right registration office, such office shall conduct registration
procedures on the same day as it receives a complete and valid
application file, or on the next working day at the latest if the
file is received after 3 p.m.
(b) Where the application file is lodged with the commune people's
committee, then the commune level cadastral officer (who has
authority from the district land use right registration office)
shall check the file and if it is valid shall conduct registration
procedures and sign and seal [the application] on behalf of the
commune people's committee on the same day as he or she receives a
complete and valid application file or on the next working day at
the latest.
3. Registration of a mortgage using a land use right and assets
attached to land applicable to a household or individual not yet
granted a certificate but having one of the documents stipulated in
clauses 1, 2 or 5 of article 50 of the Law on Land shall be
conducted by the district land use right registration office. Such
office shall conduct registration procedures within five working
days at the latest from the date it receives a complete and valid
application file.
4. The Ministry of Natural Resources and Environment shall provide
guidelines on the procedures for registration of mortgages
stipulated in clause 2(b) of this article.
Article 32 Land for an investment project implemented by a
Vietnamese residing overseas or foreign organization or individual
for construction of residential housing for sale or lease
1. Vietnamese residing overseas and foreign organizations and
foreign individuals (in this article all referred to as foreign
investors) shall be permitted to lease land from the State in the
form of payment of a lump sum rent or to participate in a State held
land auction applicable to land for an
investment project for construction of residential housing for sale
or lease. The amount of the lump sum rent payment for land use in
this case shall equal the amount of land use fees payable if
residential land had been allocated with collection of land use fees
or shall equal the successful
auction bid.
2. The duration of the land lease in the case stipulated in clause 1
of this article shall be seventy (70) years which may be extended on
request a number of times, each extension not to exceed seventy (70)
years; and the foreign investor shall not be required to pay rent
for any extended duration. When the foreign investor sells housing
forming part of the project for construction and commercial
operation of residential housing, then the purchaser of housing
associated with a residential land use right shall be entitled to
stable and long-term land use and shall not be required to pay the
monetary difference between leased land and stable and long-term
land use.
3. The Ministry of Natural Resources and Environment shall provide
guidelines on land lease procedures, on land use right auction
procedures, and on procedures for grant of certificates pursuant to
this article.
CHAPTER IV
Specific Provisions on a Number of Cases of Recovery of Land and
Payment of Compensation and
Assistance when the State Recovers Land
Article 33 Recovery of land in areas bordering between provincial
administrative units
Upon recovery of land in areas bordering between provinces and
cities under central authority, the provincial people's committees
shall stipulate the land price based not only on the economic,
social and infrastructure conditions in such area but also on the
general economic, social and infrastructure conditions and the
ability of each locality to attract investment to such area.
Article 34 Recovery of land to implement projects for important
economic development, for residential areas, or for economic
development in urban areas and rural residential areas
1. The State shall recover land to implement the following important
economic development projects:
(a) Important national projects for which the National Assembly
decides the investment policy.
(b) Important projects for which the Prime Minister approves the
investment policy.
2. The State shall recover land to implement the following projects
for residential areas (including residential area infrastructure
projects and housing projects), commercial centres and high class
hotels:
(a) Projects in existing urban areas included in approved land use
zoning or detailed urban
construction master planning where investment in each such project
has been approved by the chairman of the provincial people's
committee.
(b) Projects in expanded areas of existing urban areas or in new
urban areas included in approved land use zoning or detailed urban
construction master planning.
(c) Projects in existing, expanded or new rural residential areas
included in approved land use zoning or detailed rural residential
construction master planning.
3. The Ministry of Natural Resources and Environment shall provide
guidelines on implementing the
provisions in clauses 1 and 2 of this article.
Article 35 Recovery of land to construct concentrated business zones
with the same land use regime
1. Various concentrated business zones with the same land use regime
as stipulated in articles 40.1 and 90.1 of the Law on Land comprise:
(a) General commercial and services zones where various trading
activities are carried out by many business entities.
(b) Tourism zones with infrastructure and types of business in
common and where there are many business entities participating
(excluding eco-tourism areas).
(c) Outdoor entertainment zones used by people of all ages with many
types of entertainment for large numbers of people provided by many
business entities.
(d) Cattle and poultry breeding zones where technological methods
are applied, where there is complete infrastructure and where there
are many investors participating.
2. The business zones stipulated in clause 1 must satisfy the
following conditions:
(a) They are included in approved land use zoning or detailed land
use planning.
(b) The investment policy has been approved by the Prime Minister,
there is an investment decision by the chairman of the provincial
people's committee, or they are included in the approved overall
master plan for socio-economic development of the province or city
under central authority.
(c) Residential land and housing has not been arranged within the
zone, and the zone does not lie within a residential land and
housing area.
.
3. Investment projects in the business zones stipulated in clause 1
of this article fall within the category for which land shall be
recovered for allocation or lease to investors in accordance with
the law on land.
4. The land use provisions applicable to industrial zones in article
84 of Decree 181 and article 2.7 of Decree 17 shall also apply to
land use for a project for the construction of a business zone
referred to in clause 1 of this article.
Article 36 Recovery of land used by the management board of a
high-tech or economic zone to reallocate or lease out
The management board of a high-tech or economic zone shall be
responsible to recover land which it has
re-allocated or leased out pursuant to article 91.2 or 92.2 of the
Law on Land in the following circumstances:
1. The person to whom the management board re-allocated or leased
land is not permitted to extend after expiry of the duration or term
of the allocation or lease.
2. The land user being an organization is dissolved, declared
bankrupt, transfers to another location, reduces its [land] need or
no longer needs the land and the land use fees paid were funded by
the State budget.
3. The land user voluntarily returns the land pursuant to article
38.8 of the Law on Land.
4. The land user commits a breach of the law on land stipulated in
clauses 3, 4, 5, 6, 9, 11 or 12 of
article 38 of the Law on Land.
Article 37 Recovery of land or extension of land use duration in a
case stipulated in article 38.12 of the Law on Land
1. The competent people’s committee must issue a decision recovering
land within no later than six months from the date of expiry of the
period stipulated in article 38.12 of the Law on Land, unless the
land use is extended as stipulated in clause 2 of this article.
2. State bodies authorized to allocate or lease land including
management boards of a high-tech or economic zones shall only be
permitted to extend land use duration with approval from the State
body managing the investment, applicable to land allocated or leased
by the State in order to implement an investment project but the
land was not used or is behind schedule as stipulated in article
38.12 of the Law on Land, when the investor’s difficulties were due
to a natural disaster, accident, war, economic or financial crisis
or some other event of force majeure which directly affected the
project implementation schedule.
Article 38 Recovery of agricultural land belonging to the public
land fund of a commune, ward or Township
District people's committees shall issue decisions recovering
agricultural land belonging to the public land fund of a commune,
ward or township in order to use it for non-agricultural purposes in
accordance with approved land use zoning and detailed land use
planning.
Article 39 Recovery of land where the current land user does not
have the right to assign or lease out the land use right, or
mortgage or provide a guarantee using the land use right
The State shall recover land and allocate or lease it to an investor
if the investment project is in the category where the investor must
reach agreement with the current land user on assignment or lease of
the land use right or on a mortgage or guarantee using the land use
right, but the current land user does not have the right to so
assign, lease, mortgage or guarantee the land use right pursuant to
the Law on Land.
Article 40 Recovery of land which is in the category which the State
must recover when the investor of its own initiative proposes, and
is permitted, to reach agreement with the land user but then fails
to reach agreement
1. In the case of land for an economic development project which is
in the category which the State must recover, but the provincial
people’s committee has provided written approval to the investor’s
proposal that the investor itself reach agreement with the land
users of land within the scope of the project regarding receipt of
an assignment or lease of the land use right or on capital
contribution using the land use right, if after 180 days have
expired from the date of such written approval some land users still
do not agree with the investor, then the competent people’s
committee shall issue a decision recovering the land on which
agreement has not yet been reached; and compensation, assistance and
resettlement shall be implemented in accordance with law.
2. Any disputes and complaints in the circumstances referred to in
clause 1 shall be resolved as follows:
(a) Disputes about contractual agreements on land use rights between
land users and investors shall be resolved by the people’s court in
accordance with civil law.
(b) Complaints by land users about administrative decisions or
administrative conduct during recovery of land shall be resolved in
accordance with article 138 of the Law on Land, articles 63 and 64
of this Decree, and the provisions on resolution of complaints in
Decree 136-2006- ND-CP of the Government dated 14 November 2006 on
implementation of the Law on Complaints and Denunciations (as
amended).
Article 41 Responsibility of all level people’s committees in cases
where investors reach agreement with land users of land not in the
category which the State must recover
1. People’s committees shall have the following responsibilities,
within the scope of their assigned
functions and powers:
(a) To direct the provision of written material on policies, laws
and application files regarding reaching agreement.
(b) To preside over negotiations for agreement between investors
with land users if one or both parties so request.
(c) To direct conduct of procedures for assignment, lease or capital
contribution using land use rights.
2. All level people’s committees and other State bodies may not
issue land recovery decisions or take unlawful measures to interfere
in negotiations for agreement between investors with land users with
respect to land not in the category which the State must recover.
Article 42 Right to self invest in land currently being used and in
the category which the State must recover for an investment project
for production and business purposes or for construction and
commercial operation of residential housing
1. Where land users (or the land users and adjacent land users)
apply to invest in their land which is in the category which the
State must recover for an investment project for production and
business purposes or for construction and commercial operation of
residential housing, they shall have the right to self invest in the
land or to select organizations and individuals to contribute
capital to formulation of an investment project if they satisfy the
following conditions:
(a) They have an area of land currently being used in compliance
with the approved land use zoning and detailed construction master
planning, and it is suitable for the scale of the approved
construction works.
(b) They have an investment project in accordance with the law on
investment.
(c) They have the capability to implement the investment project and
to satisfy the requirements and schedule of the project as approved.
2. The Ministry of Natural Resources and Environment shall preside
over co-ordination with the Ministry of Planning and Investment to
provide guidelines on investment in land currently being used and in
the category which the State must recover for an investment project
for production and business purposes or for construction and
commercial operation of residential housing.
Article 43 Assistance for agricultural land intermingled with
residential areas and for gardens and ponds adjacent to residential
land in residential areas upon recovery by the State
Agricultural land intermingled with residential areas and gardens
and ponds adjacent to residential land in
residential areas shall be eligible for land assistance pursuant to
article 10.2 of Decree 197-2004-ND-CP of the Government dated 3
December 2004 on compensation, assistance and resettlement when the
State recovers land (hereinafter referred to as Decree 197) as
follows:
1. The area of land eligible for land assistance shall be all of the
agricultural land, garden and pond on the same parcel of land
containing housing but not recognized as residential land and
located in the following areas:
(a) Within the administrative boundaries of a ward.
(b) Within the residential area of a township or within the rural
residential area already delimited by approved zoning; if the
residential area of a township or rural residential area does not
yet have approved zoning, then the boundary of the outermost parcel
of land containing housing in such residential area shall be used to
determine eligibility for land assistance.
2. In the case of a garden and pond actually being used on the same
parcel of land containing a separate house, or a house built
alongside a canal or highway not in the areas stipulated in clause 1
of this article, the area of land eligible for monetary assistance
on each parcel of land shall not exceed five times the quota on
allocated land stipulated in articles 83.2 and 84.5 of the Law on
Land as at the date of the decision recovering the land.
3. In the case of areas of agricultural parcels of land adjacent to
the boundaries of the areas stipulated in clause 1 of this article,
the area of land eligible for monetary assistance on each parcel of
land shall not exceed five times the quota on allocated land
stipulated in articles 83.2 and 84.5 of the Law on Land as at the
date of the decision recovering the land.
4. A provincial people's committee shall specifically regulate the
areas of land eligible for monetary assistance in the cases
stipulated in clauses 2 and 3 of this article.
Article 44 Land compensation and assistance upon recovery by the
State of land used prior to 15
October 1993 where there are no documents on the land use right
1 Land compensation and assistance shall be paid as follows in the
case of recovery by the State of land used prior to 15 October 1993
where there is no certificate and none of the documents stipulated
in article 50.1 of the Law on Land and the commune people's
committee certifies the land is not subject to dispute:
(a) Where the land currently being used has housing on it and is not
within one of the cases of land use stipulated in article 14.4 of
this Decree, then the land user shall be paid compensation for the
area of land actually being used but such area for which
compensation shall be paid must not exceed the quota on allocated
residential land stipulated in articles 83.2 and 84.5 of the Law on
Land as at the date of the decision recovering the land. Land
compensation and assistance shall be paid in respect of the area of
land in excess of such quota, and the area of any garden and pond on
the same parcel of land containing the housing but not recognized as
residential land, in accordance with the provisions on agricultural
land intermingled with residential areas.
(b) Where the land is currently being used for a non-agricultural
purpose (other than residential land) and is not within one of the
cases of land use stipulated in article 14.4 of this Decree, then
the land user shall be paid compensation for the area of land
actually being used. If there is an area on the same parcel of land
currently being used for an agricultural purpose then land
compensation and assistance shall be paid for such area in
accordance with the provisions on agricultural land.
(c) Where the land is currently being used for an agricultural
purpose but the land user is a family household or individual
directly engaged in agricultural production, then the land user
shall be paid compensation for the area of land actually being used
but not to exceed the quota on allocation of agricultural land
stipulated in article 70 of the Law and Land and in article 69.1 of
Decree 181.
(d) Where the land currently being used is within one of the cases
of land use stipulated in article 14.4 of this Decree, or the
agricultural land area exceeds the quota on allocation of
agricultural land stipulated in article 70 of the Law and Land and
in article 69.1 of Decree 181, then the land user shall not receive
land compensation; if the land currently being used has housing on
it and the land holder whose land is recovered has no other
accommodation, then assistance shall be paid or a resettlement house
provided in accordance with regulations of the provincial people's
committee.
2. In the case of a parcel of residential land with a garden or pond
which was being used prior to 18 December 1980 and for which a
certificate was granted pursuant to article 45.2 of Decree 181, and
thereafter this parcel of land was split from a parcel of land
without any of the land use right documents stipulated in clauses 1,
2 or 5 of article 50 of the Law on Land, then the residual area of
land after the split shall, where the commune people's committee
certifies such land is not subject to dispute, receive land
compensation and assistance for residential land within the limit
stipulated in article 45.2 of Decree 181.
Article 45 Land compensation and assistance upon recovery by the
State of land used since 15 October 1993 where there are no
documents on the land use right
1 Land compensation and assistance shall be paid as follows in the
case of recovery by the State of land used since 15 October 1993 up
to 1 January 2004 where there is no certificate and none of the
documents stipulated in article 50.1 of the Law on Land and the
commune people's committee certifies the land is not subject to
dispute:
(a) Where the land currently being used has housing on it and is not
within one of the cases of land use stipulated in article 14.4 of
this Decree, then the land user shall be paid compensation for the
area of land actually being used but such area for which
compensation shall be paid must not exceed the quota on allocated
residential land stipulated in articles 83.2 and 84.5 of the Law on
Land as at the date of the decision recovering the land, and land
use fees payable at the rate stipulated in article 8.3(a) of Decree
198 shall be deducted from the compensation monies. Land
compensation and assistance shall be paid in respect of the area of
land in excess of the residential land quota, and the area of any
garden and pond on the same parcel of land containing the housing
but not recognized as residential land, in accordance with the
provisions on agricultural land.
(b) Where the land is currently being used for a non-agricultural
purpose (other than residential land) and is not within one of the
cases of land use stipulated in article 14.4 of this Decree, then
the land user shall be paid compensation for the area of land
actually being used but land use fees payable at the rate stipulated
in article 8.3(a) of Decree 198 shall be deducted from the
compensation monies. The land price for calculating land use fees
shall be the price of land of the same type used for
non-agricultural purposes. If there is an area on the same parcel of
land currently being used for an agricultural purpose, then land
compensation and assistance shall be paid for such area in
accordance with the provisions on agricultural land.
(c) Where the land currently being used is within the group or types
of agricultural land and the current land user is a family household
or individual directly engaged in agricultural production, then the
land user shall be paid compensation for the area of land actually
being used but such area for which compensation shall be paid must
not exceed the quota on allocation of agricultural land stipulated
in article 70 of the Law and Land and in article 69.1 of Decree 181.
(d) Where the land currently being used is within one of the cases
of land use stipulated in article 14.4 of this Decree, or the
agricultural land area exceeds the quota on allocation of
agricultural land stipulated in article 70 of the Law and Land and
in article 69.1 of Decree 181, then the land user shall not receive
land compensation; if the land currently being used has housing on
it and the land holder whose land is recovered has no other
accommodation, then the issue shall be resolved in accordance with
article 14.2 of Decree 197.
2. In a case of trespass or illegal occupation or allocation or
lease of land contrary to authority on or since 1 January 2004, the
person guilty of such trespass or illegal occupation or the person
to whom the land was allocated or leased contrary to authority shall
not receive compensation for the land when it is recovered.
Article 46 Land compensation and assistance upon recovery by the
State of land allocated contrary to authority prior to 1 January
2004, but fees have been paid in order to use the land and a
certificate has not yet been granted
Land compensation and assistance shall be paid as follows in the
case of land allocated contrary to authority prior to 1 January
2004, but fees have been paid in order to use the land and a
certificate has not yet been granted:
1. Current land users who have used the land since prior to 15
October 1993 shall be entitled to land compensation for the area and
type allocated.
2. Land users who have used the land since prior to 15 October 1993
up until prior to 1 July 2004 shall be entitled to land compensation
and assistance as follows:
(a) They shall be entitled to land compensation and assistance for
the allocated land area which is agricultural land [or]
non-agricultural land not being residential land; and for the land
area which is residential land within the quota stipulated in
articles 83.2 or 84.5 of the Law on Land.
(b) They shall be entitled to land compensation for the allocated
land area which is residential land outside the quota stipulated in
articles 83.2 or 84.5 of the Law on Land, but land use fees payable
at the rate stipulated in article 8.3(a) of Decree 198 shall be
deducted from the compensation monies.
Article 47 Land compensation and assistance upon recovery by the
State of land in a case where the actual land area as measured is
different from the area recorded on the land use document
Land compensation shall be paid as follows in the case of land
recovered by the State where the actual land area as measured is
different from the area recorded on the land use document:
1. Where the actual land area as measured is less than that recorded
on the land use document, compensation shall be made in accordance
with the actually measured area.
2. Where the actual land area as measured is greater than that
recorded on the land use document
because the earlier survey was inaccurate or because the land user
did not declare the full area upon registration but the boundaries
of the whole of the parcel of land are clearly marked, there is no
dispute with adjacent land users and land use has not resulted from
trespass or illegal occupation, then compensation shall be made in
accordance with the actually measured area.
3. Where the actual land area as measured is greater than that
recorded on the land use document and there is certification by the
commune people's committee where the land is situated that the
surplus area results from reclamation of waste land or assignment
from the previous land user, and the land has been used stably and
long-term and is not subject to dispute, then compensation shall be
made in accordance with the actually measured area.
4. Compensation shall not be made for the surplus area where the
actual land area as measured is greater than that recorded on the
land use document and such increase resulted from trespass or
illegal occupation.
Article 48 Compensation in the form of residential land when the
State recovers agricultural land
Any family household or individual directly engaged in agricultural
production who has more than thirty (30) per cent of his or her
agricultural land recovered by the State without compensation in the
form of equivalent agricultural land and who does not wish to
receive compensation in the form of land as the surface area for
non-agricultural production or business services pursuant to article
4.4 of Decree 17, shall receive compensation in the form of
allocation of residential land with collection of land use fees in a
resettlement area or in a residential area in accordance with
zoning.
The provincial people's committee shall stipulate the amount of
allocated land based on the capability of the land fund and the
amount of land recovered from each family household or individual.
The land price of allocated residential land shall be equal to the
price of recovered agricultural land of the same type plus the cost
of investment in residential area infrastructure, but shall not
exceed the price of residential land with similar conditions as at
the date of land recovery as stipulated and announced by the
provincial people's committee.
CHAPTER V
Order and Procedures for Recovery of Land, and for Payment of
Compensation and Assistance and
for Resettlement when the State Recovers Land
Article 49 Determination and publication of the land recovery policy
1. A determination of the land recovery policy (where land is
recovered pursuant to zoning) or issuance of written approval for an
investment location (where land is recovered pursuant to a project)
shall be based on the following grounds:
(a) Land use zoning and land use plans, or urban construction master
planning or rural residential construction master planning as
approved by the competent State body in accordance with law.
(b) The need for land use as expressed in the investment application
file in accordance with the law on investment and the law on
construction.
In the case of an investment project using State budget capital, the
need for land use shall be determined on the basis of the decision
of the competent body approving the project; in the case of an
investment project using non-State budget capital, the need for land
use shall be determined on the basis of the written evaluation of
the need for land use made by the Department of Natural Resources
and Environment in accordance with article 30.1 of Decree 181; and
in the case of a project for construction of a religious
establishment, the need for land use shall be determined on the
basis of the decision of the provincial people's committee.
(c) The circumstances in which land will be recovered as stipulated
in article 36.1(a), (b), (c), (d), (e), (g) and (h), and article
36.2(a), (c) and (d) of Decree 181, and article 2.3 of Decree 17,
and articles 34 and 35 of this Decree.
2. The provincial people's committee or the district people's
committee shall issue a written document on the land recovery policy
or written approval for an investment location as stipulated in
clause 1 above.
3. The district people's committee in a place where land is
recovered shall be responsible to widely
publicize the land recovery policy and the regulations on payment of
compensation and assistance and resettlement when the State recovers
land to use it for purposes of national defence and security, for
the public interest or for economic development; and the commune
people's committee in a place where land is recovered shall be
responsible to publicly post [list] the land recovery policy at its
head office and in residential areas, and to widely announce the
policy on the commune radio network (if the commune has such a
network).
Article 50 Preparation of cadastral files for areas of land to be
recovered
1. Based on the written document from the provincial people's
committee stipulated in article 49.2, the Office of Natural
Resources and Environment shall instruct the land use right
registration office to prepare the cadastral file for an area of
land to be recovered (or the NRE Office shall itself directly
prepare the cadastral file if the locality does not have a land use
right registration office) as follows:
(a) Amend the land map to comply with the current status and make an
extract of the land map (if the locality already has regular land
maps) or carry out cadastral measurements (if the locality does not
yet have regular land maps).
(b) Finalize the cadastral file and make an extract of it (the land
register) to send to the
organization in charge of compensation and site clearance.
(c) Draw up a list of parcels of land to be recovered, specifying
the code numbers of the land maps and of the parcels of land, the
names of the land users, the area of parcels of land with the same
use purpose in common, and the use purposes.
2. When cadastral measurements of land need to be taken, the
district people's committee shall provide written notification to
the land user who shall be responsible to co-operate in order to
facilitate verification of the current status of the parcel of land.
3. The expenses of amending the land map and making an extract of
it, and of finalizing the cadastral file and making an extract of it
shall be paid by the investor in the case of recovery of land
pursuant to a project, and by the land fund development organization
in the case of recovery of land pursuant to zoning.
Article 51 Preparation, evaluation and approval of overall plans for
compensation, assistance and
resettlement
1. The organization in charge of compensation and site clearance
(with participation of a representative of the investor) shall
prepare an overall plan for compensation, assistance and
resettlement (hereinafter referred to as the overall plan) based on
the existing data supplied by the Office of Natural Resources and
Environment, and submit one copy set to the Department of Finance or
Office of Finance (hereinafter both referred to as the financial
body) for its evaluation. The overall plan shall contain the
following items:
(a) Grounds on which the plan is prepared.
(b) General data on land of different types and grades in the case
of agricultural land, and the code numbers of the land maps and of
the parcels of land; estimated value of assets on land.
(c) General data on the number of households, of household members
and of employees in the area of land to be recovered; specifying the
number of employees who will have to change jobs and the number of
households which will have to be resettled.
(d) Proposed amounts of compensation and assistance to be paid;
proposed resettlement site and area or proposed resettlement
housing, and the proposed method of resettlement.
(dd) Proposed measures for assisting with creation of jobs and with
training for changing trades.
(e) A list of all works to be relocated, the size of such works, and
the proposed new site: to include State works, works of
organizations, works of religious establishments, and works of the
residential community.
(g) The number of graves to be relocated and the proposed new site.
(h) Total estimated budget for implementing the plan.
(i) Funding source for implementing the plan.
(k) Schedule for implementing the plan.
2. Within a maximum of fifteen (15) working days from the date of
receipt of an overall plan, the financial body shall preside over
co-ordination with the Office of Natural Resources and Environment
and other relevant bodies to evaluate the plan and submit it to the
same level people's committee for approval.
3. Within a maximum of seven (7) working days from the date of
receipt of a submission from the financial body, the people's
committee which issued the land recovery policy or approval for the
investment location shall be responsible to issue a decision
approving the overall plan.
Article 52 Notification of land to be recovered
1. After the overall plan has been approved, the organization in
charge of compensation and site clearance shall be responsible to
notify land users of the reason for land recovery, of the proposed
amount of compensation and assistance to be paid, of the proposed
resettlement site, of the proposed measures for changing trades and
creating jobs, and of the time for relocation and handover of the
recovered land as set out in the overall plan.
2. Land users shall have rights stipulated in laws to make
observations, proposals or requests to the organization in charge of
compensation and site clearance on the matters notified as
stipulated in
clause 1 of this article.
Article 53 Decision recovering land
1. A decision recovering land shall be issued as follows:
(a) The Natural Resources and Environment body shall be responsible
to make a submission to the same level people's committee to issue a
decision recovering land, within twenty (20) days from the date of
the notification stipulated in article 52.1.
(b) Within a time-limit of no more than five business days from the
date of receipt of a submission from the same level Natural
Resources and Environment body, the people's committee shall be
responsible to consider and make a decision recovering land.
(c) If an area of land to be recovered includes both parcels of land
within the recovery authority of the provincial people's committee
and parcels of land within the recovery authority of the district
people's committee, then the provincial people's committee shall
issue a general decision recovering all the parcels of land within
such area and shall also issue specific decisions recovering each
parcel of land within its recovery authority.
(d) The district people's committee shall issue specific decisions
recovering each parcel of land within its recovery authority within
a maximum of fifteen (15) working days from the date of receipt of
the general decision from the provincial people's committee referred
to in sub-clause
(c) above.
2. A decision recovering land shall comprise [two types]:
(a) General decision of the provincial people's committee recovering
all parcels of land within one area, stating the total area of the
land to be recovered, the names and addresses of the land users, and
a list of all the parcels of land to be recovered.
(b) Specific decision recovering one parcel of land within the
recovery authority of either a provincial people's committee or a
district people's committee, setting out the name and address of the
land user; the code number of the land map, of the extract of the
land map and of the parcel of land; the type of land and the area of
the land (calculated in accordance with the cadastral file or
official land area data re-verified during the course of preparation
of the compensation and site clearance plan).
3. A decision recovering land must be sent to the land user whose
land is to be recovered, and must be posted at the headquarters of
the commune people's committee in the place where the land exists
for the entire period of time from the date of the decision until
completion of the process of land recovery.
Article 54 Resolution of complaints about land
1. Complaints about land shall be resolved in accordance with
article 138 of the Law on Land, articles 63 and 64 of this Decree,
and the provisions on resolution of complaints in Decree 136.
2. Pending a decision resolving a complaint, the decision recovering
the land must continue to be complied with. Execution of the
decision recovering the land shall cease after there is a decision
of a competent State body resolving a complaint which concludes that
recovery of the land was unlawful; and the body which issued the
decision recovering the land must issue a further decision
rescinding the former decision and pay compensation for loss caused
by it. If the State body authorized to resolve a complaint concludes
that recovery of the land was legally correct, the person whose land
was recovered must comply with the decision recovering the land.
Article 55 Declaration, inventory and verification of origin of land
After the organization in charge of compensation and site clearance
has received a decision recovering land, it shall organize a
declaration and inventory of the land and the assets attached to it,
and shall verify the origin of the land in accordance with the
following order and procedures:
1. The person whose land is to be recovered shall make a declaration
on the standard form provided by the organization in charge of
compensation and site clearance; and the declaration shall contain
the following items:
(a) Area and type of land (use purpose), origin, the time of
commencement of land use, and the type of document on land use.
(b) Quantity of housing (and its type and grade) and other buildings
constructed on the land, and the period for which they have been
used; quantity and type of perennial trees; quantity and type of
annual trees, the area they cover, and the output and yield of the
annual crop; area under aquacultural or salt production and the
output and yield.
(c) Number of household members (based on registration of permanent
residency or long-term temporary residency), and number of employees
affected by the land recovery (for an agricultural area, the number
of persons directly engaged in agricultural production, or in
forestry, aquacultural or salt production on the land to be
recovered; and for a non-agricultural area, the number of persons
who have a labour contract signed with a hirer who has business
registration); and the wishes of the land user regarding
resettlement and change of trade (if any).
(d) The number of graves to be relocated.
2. The organization in charge of compensation and site clearance
shall check the contents of the declaration and organize an
inventory of the land and assets attached to it, and verify the
origin of
the land, in accordance with the following order and procedures:
(a) Check on site the area of the land if there is any contradiction
or complaint about data on the land area; and check and count any
damaged assets and compare them with the contents in the
declaration. This check must be attended by the land user and a
representative of the commune people's committee where the land is
situated; and the results of the check must be signed by the person
directly conducting it, by the land user (or his or her proxy), by
the owner of any damaged assets (or his or her proxy), by the
commune cadastral officer, by the representative of the Office of
Natural Resources and Environment, and by the representative of the
head of the organization in charge of compensation and site
clearance.
(b) Work with the land use right registration office and the commune
people's committee where the land is situated to verify the origin
of the land; and to verify the cases entitled to payment of
compensation and assistance, and resettlement.
Article 56 Preparation, evaluation and approval of a [specific] plan
for compensation, assistance and resettlement
The organization in charge of compensation and site clearance (with
participation of a representative of the investor and a
representative of the household whose land is to be recovered) shall
prepare and submit a specific plan for compensation, assistance and
resettlement (hereinafter referred to as the compensation plan) in
accordance with Decree 197 and Decree 17, and in accordance with the
following order and procedures:
1. Preparation of the [specific] compensation plan:
(a) The organization in charge of compensation and site clearance
shall be responsible to prepare this plan within a maximum of sixty
(60) days from the date of completion of the measurement, check and
count.
(b) The compensation plan shall contain the following items:
- Name and address of the land user whose land is to be recovered.
- Area, type and grade of land (in the case of agricultural land);
position and origin of the recovered land; volume, quantity and
percentage residual value of assets damaged.
- Grounds for calculating the amount of monetary compensation and
assistance such as
the land price, price of housing and building works, the number of
household members.
- The amount of monetary compensation and assistance.
- Arrangements for resettlement.
- Relocation of State works, works of organizations, works of
religious establishments, and works of the residential community.
- Relocation of graves.
2. Obtaining opinions on the compensation plan:
(a) The compensation plan must be posted [listed] at the
headquarters of the commune people's committee in the place where
the land exists and in residential areas to enable the person whose
land is recovered and other affected persons to contribute their
opinions.
(b) Such posting must be recorded in writing and the minutes signed
by a representative of the commune people's committee, by a
representative of the commune level Vietnam Fatherland Front, and by
a representative of the person whose land is recovered.
(c) The period for posting the plan and for receiving opinions shall
be at least twenty (20) days from the first day of posting.
3. Finalization of the compensation plan:
(a) On expiry of the period for posting the plan and for receiving
opinions, the organization in charge of compensation and site
clearance shall be responsible to collate the opinions in
writing by specifying the number of opinions for, against, and
different from the plan; and to finalize the plan and send it
together with a summary of the opinions to the financial body for
its evaluation.
(b) If there are many opinions against the plan, then the
organization in charge of compensation and site clearance shall
provide a clear explanation or consider and amend the plan prior to
sending it to the financial body.
4. Evaluation, and submission for approval of the compensation plan:
(a) The financial body shall be responsible to evaluate the plan and
submit it to the same level people’s committee for approval, within
fifteen (15) days at the latest from the date it receives the plan.
(b) If it is necessary to further finalize the plan, then the
organization in charge of compensation and site clearance shall be
responsible to do so and then re-send the plan to the financial
body. The financial body shall be responsible to submit the plan to
the same level people’s committee for approval, within seven (7)
days at the latest from the date the financial body receives such
amended plan.
5. Approval of the compensation plan:
(a) The same level people’s committee shall be responsible to
consider and approve the plan within fifteen (15) days at the latest
from the date of receipt of the submission from the financial body.
(b) If a plan is approved by a district people’s committee and
includes a land price for calculating the amount of monetary
compensation and assistance which is different from the land price
stipulated and announced by the provincial people’s committee, then
the district people’s committee must report the matter to the
provincial people’s committee and may only approve the plan after
the provincial people’s committee approves such land price [in the
plan].
Article 57 Public notification of a [specific] plan for
compensation, assistance and resettlement
The organization in charge of compensation and site clearance shall,
within three days from the date of receipt of an approved plan,
co-ordinate with the commune people's committee to publicly notify
and post [list] the decision approving the plan at the headquarters
of the commune people's committee and in residential areas in the
place where the recovered land exists; and to send the decision to
the person whose land is recovered specifying the amount of
compensation and assistance to be paid; and specifying any new
housing allocated or the resettlement housing, the time and place
for payment of the compensation and assistance monies, and the time
for handing over the recovered land to the organization in charge of
compensation and site clearance.
Article 58 Making payment of compensation and assistance monies, and
conducting resettlement
1. The organization in charge of compensation and site clearance
shall, within five days after the date of sending notice of the
approved plan to the person whose land is to be recovered, make
payment of the compensation and assistance monies. If the person
entitled to receive payment of such monies authorizes another to
accept payment, then he or she must provide a written power of
attorney as stipulated by law.
2. In a case of resettlement, the organization in charge of
compensation and site clearance shall handover a house or
residential land together with a certificate of residential land use
right [and/or] a certificate of ownership of residential housing to
the person to be resettled, prior to conducting site clearance. If
there is a written agreement between the organization in charge of
compensation and site clearance and the person to be resettled,
signed by both parties, for handover and receipt of a house or
residential land after site clearance, then such agreement shall be
implemented.
3. If the person whose land is to be recovered refuses to receive
payment of compensation and assistance monies [and/or] refuses to
receive housing or land for resettlement, then the organization in
charge of compensation and site clearance shall remit the monies
into an escrow bank account and retain the housing or land for
resettlement in its original condition as the basis for resolving
any complaint in the future.
4. Any issues concerning the price of the recovered land which arise
after the date of the decision approving the plan for compensation,
assistance and resettlement shall be dealt with as follows:
(a) If compensation, assistance and resettlement was completed prior
to the effective date of
Decree 197-2004-ND-CP, then the provisions of Decree 197-2004-ND-CP
and of Decree 17- 2006-ND-CP shall not apply.
(b) In a case of late payment or late receipt of compensation and
assistance monies, article 9.2 of Decree 197-2004-ND-CP and article
4.2 of Decree 17-2006-ND-CP shall apply.
(c) If the decision approving the plan was made prior to the
effective date of Decree 197-2004- ND-CP but the compensation,
assistance and resettlement monies have not been paid and the land
price increases to higher than the approved price, then the land
price shall be amended pursuant to article 9.2 of Decree
197-2004-ND-CP and article 4.2 of Decree 17-2006-ND-CP.
Article 59 Time for handover of recovered land
The person whose land is recovered must conduct handover to the
organization in charge of compensation and site clearance within a
time-limit of twenty (20) days as from the date on which such
organization completes payment of the compensation and assistance
monies pursuant to the approved method in the approved plan.
Article 60 Enforced recovery of land
1. Enforced recovery of land pursuant to article 39.3 of the Law on
Land may only take place when the following conditions have been
satisfied:
(a) The provisions on the order and procedures for land recovery and
for payment of compensation, assistance and resettlement as
stipulated in articles 49 to 59 inclusive of this Decree have been
correctly implemented.
(b) Thirty (30) days have expired from the date as stipulated in
article 59 on which the person whose land is recovered should have
handed over the land to the organization in charge of compensation
and site clearance, and such person has failed to so handover the
land.
(c) A representative of the organization in charge of compensation
and site clearance, a representative of the [commune] people's
committee and a representative of the commune level Vietnam
Fatherland Front have actively persuaded the person whose land is
recovered to comply with [the decision] but such person has still
failed to handover the land.
(d) There is an effective decision on enforcement issued by the
provincial people's committee in accordance with law.
(dd) The person whose land is recovered has received the decision on
enforcement. If such person refuses to comply with the decision on
enforcement, then the organization in charge of compensation and
site clearance shall co-ordinate with the commune people's committee
to publicly post [list] the decision on enforcement at the
headquarters of the commune people's committee where the recovered
land exists.
2. If the person whose land is recovered fails to comply with the
decision on enforcement within fifteen (15) days from the date of
direct receipt of the decision on enforcement or from the date of
public posting [listing] such decision as stipulated in clause 1(dd)
above, then the commune people's committee shall direct the
enforcement agency to compulsorily recover the land in accordance
with law.
Article 61 Resolution of complaints about a decision on
compensation, assistance and resettlement, or about a decision on
enforcement
Complaints about a decision on compensation, assistance and
resettlement, or about a decision on enforcement shall be resolved
in accordance with article 138 of the Law on Land, articles 63 and
64 of this Decree, and the provisions on resolution of complaints in
Decree 136-2006-ND-CP.
Article 62 Separation of items regarding compensation, assistance
and resettlement into a separate subproject and responsibilities to
organize compensation, assistance and resettlement in the case of
investment projects of ministries and branches
1. Depending on the size of any one area of land to be recovered for
implementation of an investment project, the body authorized to
approve such investment project may issue a decision separating the
items regarding compensation, assistance and resettlement into a
separate sub-project for independent implementation.
2. A provincial people's committee shall be responsible to direct
the organization of land recovery and of compensation, assistance
and resettlement in the case of an investment project for which the
State recovers land, and such project belongs to a ministry,
ministerial equivalent body, Government body, economic group,
corporation or centrally run professional unit (hereinafter all
referred to as ministries and branches).
Ministries and branches with investment projects shall be
responsible to co-ordinate with the provincial people's committee
and the organization in charge of compensation and site clearance;
and to ensure adequate funding for payment of compensation,
assistance and resettlement in accordance with law.
CHAPTER VI
Additional Provisions on Resolution of Complaints about Land
Article 63 Order for resolution of a complaint about an
administrative decision or administrative act of the chairman of a
district people's committee
1. Any person with related rights and interests who disagrees with
an administrative decision or administrative act during land
administration of the chairman of a district people's committee as
stipulated in article 162 of Decree 181-2004-ND-CP shall have the
right to lodge a complaint with the district people's committee
within a time-limit of ninety (90) days as from the date of such
decision or act.
2. The chairman of a district people's committee shall be
responsible to resolve a complaint within the time-limit stipulated
in the Law on Complaints and Denunciations. The decision of a
chairman of a district people's committee resolving a complaint
shall be publicly announced and sent to the complainant and any
other persons with related rights and interests.
3. Any complainant who disagrees with the decision of a chairman of
a district people's committee resolving a complaint shall have the
right to lodge a further complaint with the provincial people's
committee or to institute proceedings in the people’s court within a
time-limit of forty-five (45) days as from the date of receipt of
such decision.
The chairman of a provincial people's committee shall be responsible
to resolve a complaint within the time-limit stipulated in the Law
on Complaints and Denunciations. The decision of the chairman of a
provincial people's committee resolving a complaint shall be
referred to as the second decision and shall be publicly announced
and sent to the complainant and any other persons with related
rights and interests.
4. Any body which receives a complaint must record it in a register
for monitoring resolution of complaints.
Article 64 Order for resolution of a complaint about an
administrative decision or administrative act of the chairman of a
provincial people's committee
1. Any person with related rights and interests who disagrees with
an administrative decision or administrative act during land
administration of the chairman of a provincial people's committee as
stipulated in article 162 of Decree 181-2004-ND-CP shall have the
right to lodge a complaint with the provincial people's committee
within a time-limit of thirty (30) days as from the date of such
decision or act.
2. The chairman of the provincial people's committee shall be
responsible to resolve a complaint within the time-limit stipulated
in the Law on Complaints and Denunciations. The decision of a
chairman of a provincial people's committee resolving a complaint
shall be publicly announced and sent to the complainant and any
other persons with related rights and interests.
3. Any complainant who disagrees with the decision of a chairman of
a provincial people's committee resolving a complaint shall have the
right to institute proceedings in the people’s court within a
timelimit of forty-five (45) days as from the date of receipt of
such decision.
4. Any body which receives a complaint must record it in a register
for monitoring resolution of complaints.
Article 65 Resolution of a complaint about an administrative
decision or administrative act in the land sector outside the cases
stipulated in articles 63 and 64 of this Decree
The provisions in the Law on Complaints and Denunciations shall
apply to resolution of a complaint about
administrative decisions or administrative acts of the following:
staff and officials of the people's committee of a commune, ward or
township; of an Office of Natural Resources and Environment; of the
Office of a people's committee of a district, town or provincial
city; of a Department of Natural Resources and Environment; of the
Office of a people's committee of a province or city under central
authority; and to administrative decisions of a Department of
Natural Resources and Environment and to administrative acts during
land administration of the chairman of a district people's committee
or of the chairman of a provincial people's committee outside the
cases stipulated in articles 63 and 64 of this Decree.
CHAPTER VII
Implementing Provisions
Article 66 Time for uniformly conducting all land use right
transactions with certificates
1. As from 1 January 2008, a land user must have a land use right
certificate before being permitted to exercise the right to convert,
assign, lease out, sub-lease out or donate the land use right, or to
exercise the right to mortgage and provide a guarantee using the
land use right, except for the case stipulated in clause 2 of this
article.
2. If prior to 1 November 2007 a land user lodges an application
file for the grant of a certificate correctly in accordance with law
but has not yet received such certificate and has one of the
documents referred to in clauses 1, 2 and 5 of article 50 of the Law
on Land, then such land user
shall still be permitted to exercise the right to convert, assign,
lease out, sub-lease out or donate the land use right, or to
exercise the right to mortgage and provide a guarantee using the
land use right.
Article 67 Effectiveness
1. This Decree shall be of full force and effect fifteen (15) days
from the date of its publication in the
Official Gazette.
2. The following are hereby repealed:
(a) The following provisions in Decree 181-2004-ND-CP of the
Government dated 29 October 2004 are hereby repealed: articles
36.1(dd); 36.2(b); 42.3; 48.2; clauses 1 to 4 inclusive of article
80; articles 81, 130, 145, 163, 164, 165 and 184.
(b) The following provisions in Decree 197-2004-ND-CP of the
Government dated 3 December 2004 are hereby repealed: clauses 6 and
8 of article 8; articles 41, 42, 47, 49, and paragraph 2 of article
50.2.
(c) The references to article 145 [of Decree 181] in the following
provisions in Decree 181 2004- ND-CP of the Government dated 29
October 2004 shall be replaced by the corresponding reference in
article 19 of this Decree: article 116.3; and sub-clauses (b) and
(c) of article 117.1.
(d) The following provisions in of Decree 17-2006-ND-CP of the
Government dated 27 January 2006 are hereby repealed: clauses 13 and
14 of article 2; and paragraphs 1, 2, and 3 of article 5.4. (Article
15.4 of Decree 198-2004-ND-CP of the Government dated 3 December
2004 has already been added to by the provisions in article 5.4 of
Decree 17-2006-ND-CP).
Article 68 Responsibility for implementation
1. Ministers, heads of ministerial equivalent bodies and Government
bodies and chairmen of people's committees of provinces and cities
under central authority shall be responsible for the implementation
of this Decree.
2. If there are any difficulties during implementation of this
Decree, the Ministry of Natural Resources and Environment and the
Ministry of Finance shall provide guidelines within their authority
or submit the issue to the Prime Minister for amendment and
additions.
On behalf of the Government
Prime Minister
NGUYEN TAN DUNG
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