Mini-Thesis Siam University (International Master of Business Administration), Bangkok, Thailand 2015 CHAPTER IV

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1 CHAPTER IV 4. Land Issues: 4.1 Land Ownership: In Vietnam, land cannot be owned either by individuals or by entities, whether they are Vietnamese or foreign. The Constitution provides that land is owned by the entire people of Vietnam and that the State administers the land for the people. In its exercise of the people's ownership rights, the State allocates or leases a piece of land to individuals, households or entities to use in accordance with the Land Law and its implementing regulations. Land and land related issues are complicated in Vietnam. The first Land Law was enacted in 1993 and was repealed by the new Land Law 2004, which was passed by the National Assembly on November 26, 2003 and took effect on July 1, Issues regarding land and land related matters are also governed by a number of implementing Decrees and Circulars. Any individual, household or entity to which a piece of land is allocated or leased must use the land for the purposes stipulated in the land allocation decision or in the land lease. After being allocated or leased a parcel of land, or after a Page 1

2 land user receives a piece of land transferred from others, the land user is entitled to receive a land use rights ("LURs") certificate, which is granted by a competent State agency in order that land users may protect their legitimate rights and interests. Even though individuals, households and entities do not have ownership of land, when they are granted an LURs certificate, they have basic control over the land and are entitled to exercise many rights such as the right to use, transfer, mortgage, lease, and other rights as are associated with land ownership. Land users include any individual or entity that has been allocated or leased land or that has had their LURs recognized by the State, or that have received their LURs through transfer. They are overseas Vietnamese, individuals and domestic households, domestic entities, communities, religious establishments, foreign entities with diplomatic functions which satisfy certain requirements, and individuals and foreign entities investing in Vietnam. Each type of land user receives its LURs in a different way. For example, individuals, domestic households and foreign entities can receive their LURs by being allocated or leased land by the State or from others who are permitted to lease or sublease LURs by having their existing LURs recognized by the State or by receiving LURs by reason of a transfer from another LURs holder. On the other hand, foreign diplomatic entities and foreign investors or enterprises that contain foreign invested capital can only receive their LURs by being leased land by the State or, in some cases, being leased or sub-leased land from others who are permitted by law to lease or sublease land to them. Also, rights and obligations of a land user who is allocated land by the State are different from those of persons who are leased land by the State or who lease land from others. Generally speaking, each type of land user has different rights and interests in relation to the use of a specific parcel of land. By comparison to Vietnamese citizens who reside in Vietnam, overseas Vietnamese and foreigners have limited entitlements to the right to use land. Only overseas Vietnamese and foreigners who satisfy certain requirements stipulated by law can be granted an LURs certificate. Under Vietnamese law, the term "house" is used to describe a place to live and the term "construction work" usually refers to a factory or a warehouse. The term "house" in this paper will mean primarily a residence, but within the appropriate context, it could mean a building which is not a residence such as a commercial complex or an office building. Different types of buildings may be treated differently for purposes of tax calculation or determination of value. The rules that apply to land and the rules that apply to houses construction works are somewhat different even though a house construction work is affixed to a piece of land and even though one cannot legally own the house construction work if s/he does not have the LURs for the land underneath. There are also some limitations imposed on overseas Vietnamese and foreigners regarding ownership of a house construction work, as a house construction work is affixed to land and together with a certain piece of land, form an asset that cannot be divided, Under Vietnam s Constitution, all land is collectively the property of the entire people. Instead, the right to use land is obtained in one of several ways: Page 2

3 by allocation from the state, for a definite or indefinite period; by lease from the state, by sub-lease from the developer of an industrial zone or urban zone; by transfer from an existing land user; or by way of capital contribution from an existing land user. The availability of each of these options, and the nature of the land use rights conferred under them 4.2 Foreign Investor Enterprises (FIE) receive Land to carry out its Investment Project in Vietnam.: Generally, a foreign investor FIE with an investment project in Vietnam may select either to lease land and to pay rent annually or it may lease land and pay rent in a lump sum for the entire term of the lease.8 Foreign investors FIES may choose to lease land from the State or lease land from a private person (Vietnamese entity) to implement their investment projects. While there is almost no restriction to lease land from the State, foreign investors FIE may only lease or sublease LURs from a private person in the following cases: A foreign investor FIE that requires land to construct a factory or a commercial building for its own use (the land is located outside an industrial zone, a hi-tech zone or an economic zone) may: lease land or sublease land from a domestic economic entity or overseas Vietnamese; sublease land on which infrastructure exists from other individuals and or foreign entities, provided that such individuals and entities are entitled to lease or sublease land as mentioned hereunder. A foreign investor FIE that puts its factory in an industrial zone may lease or sublease land from the industrial zone developer. A foreign investor FIE that has a license to develop a hi-tech zone or an economic zone can lease the land from the hitech zone management board or the economic zone management board; a foreign investor FIE that puts its factory in a hitech zone or an economic zone may choose to lease land from the hi-tech zone management board or the economic zone management board, or lease or sublease land from the hi-tech zone developer or the economic zone developer. Of note, the terms "industrial zone", hi-tech zone" and "economic zone" are each, quite special terms. For the purpose of this memo, we do not include any detailed discussion of the differences. Please note that, only individuals and economic entities that satisfy certain requirements, as follows, are entitled to lease or sublease LURs to others (including foreign investors FIEs): Economic entities that have been assigned land by the State in return for payment of land use levies and on which levies have been paid from sources other than the State budget, can lease and sublease LURs and architectural works or infrastructure which has already been constructed on the land. Economic entities that have leased land from the State and are permitted to invest in construction and to deal in infrastructure in industrial zones, hi-tech parks or economic zones may sublease land on which infrastructure has Page 3

4 already been built. Economic entities that were leased land by the State before July 1, 2004 and that have paid the land rent for the entire lease term or that have paid land rent for many years, and if there is a prepaid period of at least five years remaining, may sublease land and architectural works or infrastructure that has already been built on the land. Overseas Vietnamese who have been assigned land by the State or who receive LURs in industrial zones, hi-tech parks or economic zones by transfer can lease LURs and architectural works or infrastructure that has already been constructed on the land. Overseas Vietnamese, who invest in Vietnam and have been leased land by the State, provided that land rents have been paid in a lump sum for the entire lease term, are permitted to sublease the land together with assets they have affixed to the land during the land lease term. Other foreign investors/fies that have been leased land by the State and pay the land rents in a lump sum for the whole lease term are permitted to sublease the land together with the assets that they have affixed to the land during the lease term. The very common way that foreign investors use to obtain LURs to implement an investment project in Vietnam is to set up a joint venture with a local partner that already has received land use rights for a particular piece of land. The local partner may designate its LURs as its contribution to the equity of the joint venture. Of note, only the following local partners are entitled to contribute LURs and assets affixed to the land as capital to a joint venture company: A local partner that has been allocated land by the State and the LURs fees paid for such land did not come from the State budget. A local partner to which LURs have been transferred from an entity other than the State and the money which paid for such transfer did not come from the State budget. A local partner which was leased land by the State before July 1, 2004 and has paid the land rent for the entire term of the lease; if a prepaid period of at least five years remains, it has the right to contribute the leased land as capital for the remainder of the period for which it has paid. 4.3 Land Rent Incentives: Land and water surface rent exemptions and reductions apply to a number of investment projects which satisfy certain conditions such as investment in encouraged sectors or certain fields of business and/or encouraged geographical locations. FICs and foreign parties to BCCs may enjoy land and water surface rent exemptions between 03 years to the whole operation period and land and water surface rent reduction in some cases. Table 4.2 Land and Water Surface Rent Exemptions and Reductions: Criteria ( for investment projects in Land /water surface rent exemptions Land/ water surface rent reductions Page 4

5 -sectors with special investment incentives which are located in areas with specially difficult socio-economic conditions or economic zones -Construction of apartments for industrial part workers Education, health, care, culture, sport, science and technology -BOT,BTO and PP form -sector with investment incentives -Business and production relocation under planning or due to environment pollution. Areas with difficult socio-economic conditions -Areas with special difficult socio-economic conditions or economic zones -sectors with special investment incentives Sectors with investment incentives which are located in area with difficult socio-economic condition -sectors with investment incentives which are located in areas with specially difficult socio-economic conditions or economic zones -sectors with special investment incentives which are located in areas with difficult socio-economic condition Agriculture sector suffering from natural disasters or fires which caused a loss of less than 40% of output Agriculture sector suffering from nature disasters or fires which cause a loss of 40% or more of output Non-agriculture sector suffering from natural disasters, fires or force majeure During the whole operation period 3 years from the date of operation 7 years from the date of operation 11 years from the date of operation 15 years from that date of operation Corresponding rent reduction to be considered In the affected year 50% rent reduction for the termination period of operation 4.4 Land Price: Land Price is determined in three ways: I. by the relevant People s Committee; II. via auction; or III. by land users upon transfer/lease, sublease of LURs, or contribution of LURs as capital. Page 5

6 The Government determines land price based on the actual value of the land under normal circumstances. If there is a large discrepancy between their calculations compared to the market price, the Government must adjust the price. The provincial People's Committee issues an official land price for each specific type of land on the first of January every year. The official land price must not be 20% higher than the maximum price or 20% lower than the minimum price of the land price framework provided by the Government. 4.5 Lease of Commercial Property: As an alternative to leasing a piece of land, service or software companies may consider leasing an office in a commercial building. The procedure for leasing such an office is comparatively simple and is not subject to any approval by Vietnamese authorities. 4.6 Land Clearance: Under the Land Law, foreign organizations and individuals and overseas Vietnamese investing in Vietnam are not required to pay compensation and assistance for the resettlement of residents. However, if these have been paid in advance, it will be deducted from the relevant rental. The State will take charge of site clearance and compensation to displaced land users when withdrawing land for use by foreign organizations and individuals and overseas Vietnamese. Foreign investors may enter negotiations directly with the current land users regarding site clearance and compensation. 4.7 Lease of Premises: The procedure for the lease of property is simple and not subject to any approval by Vietnamese authorities. Any foreign company can consider leasing an office in commercial building or sub-lease from another company located in an Industrial Zones, Export Processing Zones and High Technology Zones 4.8 Land Lease Contract: Instead of obtaining the Land Use Right in the form of capital contributions from the local partner to a joint venture company, a foreign investor may consider leasing the land directly from the government after he/she establishes an FIC in Vietnam. The land lease agreement identifies the project land, fixes the duration of the land use rights, and specifies the leasing fee to be paid by the developer to the people s committee LUR Transfer: As mentioned above. The LUR owner paid land rentals in lump-sum for the whole lease terms shall be entitled to Page 6

7 transfer LUR and assets attached to the land to others Similar to the case of lease of LUR contract for transfer of LUR must be in written form. Notarized by the state notary public and registered at the LUR Registration Office for approval the transferor shall be taxed on the income derive from the LUR transfer and the transferee shall be required to pay LUR transfer free LUR Mortgage: The current laws permit the LUR owner to mortgage a part or whole of their LURs and assets attached to the land at credit institutions licensed to operate in Vietnam To be eligible for executing this right, it should be noted again that the land users are required to pay land rentals in lump-sum in advance for the whole lease terms. The mortgage of LUR and assets attached to the land is currently listed into secured transactions and is required to be registered at the LUR Registered at Offices at provincial-level, District level or communal people Committees Land Use Right Certificate Application: Application Dossier Investment Certificate working day waiting period Tax Registration To be submitted 10 working days after receiving investment certificate. Working day waiting period applies. Land Use Right Certificate 20 working day waiting period) Application for Land Lease Land Cadastral Map 2 working day waiting period In Vietnam, each province and municipality has its own land registry system, which is managed at the district/commune level. In 2008, however, a pilot project was started with nine provinces (three in the north, three in the Centre and three in the south) running on the same land registry system. The goal of this project is to have a full-scale common national registry system by Foreign Investments in Real Estate: Foreign developers may invest in both commercial housing projects and low income housing projects. Foreign commercial housing developers must obtain a certificate of investment under the common Investment Law as stated in Section 1 of Part A above. If more than one developer is interested in developing the project, then the project will be Page 7

8 awarded through bidding. The scope of real estate businesses that foreign developers are permitted to carry out is narrower than that for domestic investors. Generally, foreign investors can choose to invest in the following real estate project: I. Invest in the creation of house and building for sale, lease out or grant of hire purchase; II. Invest in upgrading land and to invest in infrastructure works on the leased land in order to lease out land with completed infrastructure; III. Other services in real estate such as: services in real estate brokerage, real estate evaluation, real estate trading floor services, real estate consultancy services, real estate auctioning services, real estate advertising services and real estate management services. Foreign investors are not permitted to (i) buy a house or a construction work for re-sale, lease or hire purchase and (ii) lease a house or a construction work for sub-lease as those two activities are reserved for domestic investors. With respect to investment projects in residential houses where their investors make one payment of land rental for the entire term, the investors will be entitled to build residential houses for sale and for lease. If the payment of land rental is made annually, the FIE is permitted to build residential houses for lease only. A joint venture who invests in residential houses for sale and has the land contributed by the Vietnamese party will not be required to pay land rental New Urban Center Development: Foreign and domestic investors can develop new urban centers in Vietnam. A new urban center must cover at least 50 hectares unless it is surrounded by existing urban centers or bounded by other projects. In such a case it may cover from 20 to 50 hectares. Selection of new urban center developers can be through bidding or appointment. They also have to maintain a debt/equity ratio not exceeding 5 to 1 and are allowed to issue project bonds. New urban center projects using a land are of less than 200 hectares can be decided by the provincial People s Committee. Larger projects must be submitted to the Prime Minister s for his approval following appraisal by the relevant provincial People s Committee Land Management in Ho Chi Minh City and Incentives in Investing in Ho Chi Minh City To lease land for foreign investment projects, a foreign investor must submit to the Ho Chi Minh City Department of Natural Resources and Environment or the Management Board of the Southern Part of Ho Chi Minh City the following documents: Application for Land Lease; Investment License; Page 8

9 Land Cadastral Map; The investor is required to prepare the application for land lease. In the case where application files submitted at the Board of Management of Southern Part of city, such body, after examining files, shall transfer it to the Department of Natural Resources and Environment. An application for land lease can be submitted to the Department of Natural Resources and Environment after such enterprise obtain an Investment License from competent State agent because it needs to submit an Investment License for application of land use rights. With respect to investment projects requiring approval from State agents, foreign investors can complete the application file with such approval before receiving land use rights. Within twenty working days of receiving the application for land lease, the City People s Committee shall decide and sign the Decision in land lease and the Department of Natural Resources and Environment will sign and give out the Land Use Certificate to the FIEs. With respect to the projects in site that have not yet been cleared, the Department of Planning and Investment is responsible for providing foreign investors with an average compensation rate for land recovery. After the People s Committee of city signs the decision of land recovery, People s Committee of District shall cooperate with investors in carrying out the compensation and clearance of such areas. In addition, if such projects are encouraged and the land compensation for such projects is large, the Ho Chi Minh City People s Committee will consider supporting foreign investors with the clearance or compensation expenses with the amount that does not exceed the total land rental paid. In some specific cases, the Ho Chi Minh City People s Committee will support the investors by carrying out the compensation and clearance in advance or demolishment and resettlement for inhabitants in the areas. After getting the investment silence, the investors have to reimburse the People s Committee of Ho Chi Minh City such compensation and clearance expenses plus interest (equivalent to the current interest rate of the State Bank). During the process of project preparation, the investor could also obtain information about urban planning and architecture, rental charges, legality, land status, source and land categories of Ho Chi Minh City at the Department of Planning and Investment (DPI) or Investment and Trade Promotion Center (ITPC). The Information and Housing Registration Center (Department of Natural Resources and Environment) is responsible for providing cadastral map to investors within two (02) working days of receiving the requests. If the maps are not available, within two (02) working days, the Department will inform and instruct the investors on the procedures for setting up the map of the project location. Page 9