THE GOVERNMENT THE SOCIALIST REPUBLIC OF VIETNAM Independence - Freedom - Happiness No. 84/2007/NĐ-CP Hanoi, May 25, 2007 DECREE On supplementary regulations for issuance of Certificate of land use right, land recovery, implementation of land use right, proceeding and procedures of compensation, support, resettlement upon land recovery by the State, and settlement of land claim THE GOVERNMENT Pursuant to the December 25, 2001 Law on Organization of the Government; Pursuant to the November 26, 2003 Land Law; At the proposal of the Minister of Natural Resources and Environment and Minister of Finance, DECREE: Chapter I GENERAL PROVISIONS Article 1. Scope of regulation 1. This Decree provide supplementary regulations on some cases for issuance of Certificate of Land use right, Certificate of housing ownership and residential land use right (hereafter called commonly Certificate); on implementation of rights of land users; on land recovery and compensation, support of land; on proceeding and procedures of land recovery, compensation, support and resettlement upon land recovery by the State serving for objectives of national defence and security, national interests, public interest and economic development and settlement of land claims. 2. Issuance of Certificate, land recovery, implementation of rights of land users, compensation, support, resettlement upon land recovery by the State, settlement of land claims which are not stipulated in this Decree, shall be handled according to the current regulations. Article 2. Subjects of application 1. Agencies in charge of State management on land, and agencies, organizations, individuals relating to land administration. 2. Land users and organizations, individuals relating to land use.
Chapter II DETAILED REGULATIONS FOR SOME CASES OF IMPLEMENTATION OF LAND USE RIGHT AND ISSUANCE OF CERTIFICATE Law Article 3. Land used stably as stipulated in clause 4, Article 50 of Land 1. Land stably used as stipulated in Clause 4, Article 50 of Land Law meets the following criteria: a) Land used successively for only one major purpose from the time of starting using land for that objective to the time of being issued with Certificate or the time of receiving decision on land recovery made by the State authorized agency for circumstances of not yet being issued with Certificate; b) Land used successively as stipulated in item a) of this Clause with change of land users and such a change has not caused any dispute of land use right. 2. Definition of time to start stable land use based on date and purposes of land use recorded on one of the following documents: a) Receipts of agricultural land use tax, house and land tax; b) Minutes or decision on administrative punishment for land use, minutes or decision on administrative punishment for building construction works attached to land; c) Decision or judgment of People s Court which have been entered in to force, decision on enforcement of judgment on assets attached to land made by Judgement Execution Agency; d) Decision on settlement of land disputes made by the State authorized agency which have been entered into force; minutes on reconciliation of land disputes with signatures of related parties and confirmation of representatives from People s Committees of Commune, ward, or district town levels (hereafter called commonly Commune People s Committee) in the place where the land located; đ) Decision on settlement of claims and denunciations relating to land use made by the State authorized agencies; e) Documents of registration of permanent residence, long-term provisional residence for the house attached to residential land; Identity card or birth certificate recording address of the house attached to land; 2
g) Documents of allocation, distribution, allotment of house or land made by the agency or organization who are assigned by the State to administrate and use land; h) Documents of buy or sell of house, other assets attached to land or documents of buy or sell of land, transfer of land use right with signatures of concerned parties (no need to have confirmation made by an agency or organization); i) Map, record book, report on land survey for various periods; k) Registration of house or land certified by Commune People s Committee at time of registration. 3. In case times of using land shown in documents as stipulated in Clause 2 of this Article are different, time of starting to use stably land is defined based on documents with the earliest date of using land. 4. In case there is not any of documents as stipulated in Clause 2 of this Article or time of writing document and objectives of land use is not recorded clearly on that document, it is necessary to have certified by Commune People s Committee about time to start using land and objectives of land use based on collection of contribution ideas of people who have ever resided starting using land, which is owned by people having the request to confirm in the residential area having land in the same time (such as village, hamlet, small village, highland village, residential group). Article 4. Time of defining financial obligations when submitting application file for Certificate or change of purposes of land use, land allocation or land lease 1. For economic organizations who are allocated with land by the State authorized agency with land use fee or lease, their financial obligations are defined in compliance with policies and price of land at time of having decision on land allocation or land lease; in case time of land allocation does not match with time recorded in decision on land allocation or land lease, their financial obligations are defined according to policies and price of land at practical time of land allocation. 2. In case land user submitted full of application file in order for Certificate, or change of purposes of land use to the State authorized agency before 01 January 2005 (the date of applying new land price in accordance with the provisions in Decree No 188/2004/NĐ-CP dated 16 November 2004 on method to define price of land and price frame for various categories of land - herein after referred to as Decree No 188/2004/NĐ-CP) but the functional agency delaying in implementation of procedures or guiding preparation for application file unsuitable with regulations, change of application form, change of the authority to issue Certificate or the authority to allow change of purposes of land use make land user re-submitting or 3
submitting supplementary file, the applicant s financial obligations for the State are defined at time of submitting a full of reasonable application file. 3. In case land user have submitted application file for Certificate, or change of purposes of land use to the State authorized agency from 01 January 2005 afterwards, price of land applied for definition of financial obligations is decided by Provincial People s Committee at time of submitting a full of reasonable application file. If functional agency delays in implementation of procedures or guiding preparation for application file unsuitable with regulations, the applicant can implements right to claim for administrative behaviours causing delay in handling application file or guiding preparation for application file unsuitable with regulations, this agency shall be punished in accordance with provisions in Article 175 Decree No 181/2004/NĐ-CP dated 29 October 2004 of the Government on enforcement of Land Law (hereinafter referred to as Decree No 181/2004/ND-CP); the applicant s financial obligations for the State are defined at time of submitting a full reasonable application file. 4. Based on Application File Record Book or Receipt of Application File, Land Use Right Register Office or Commune People s Committee in the place receiving application files shall be responsible for confirmation in writing about the time when land user submits a full reasonable application file as stipulated in Clause 2 of this Article and transferring it to Tax Agency as a basis for calculation of financial obligations of land user. Article 5. Debt of land use fee 1. Households, individuals who are incapable to pay land use fee for the State as stipulated in Clause 4, Article 5 of Decree No 17/2006/NĐ-CP dated 27 January 2006 by the Government on adjustment and supplementation of some articles of decrees on guiding execution of Land Law and Decree No 187/2004/NĐ-CP by the Government on change of State owned company into joint-stock company (hereinafter referred to as Decree No 17/2006/NĐ-CP) and in case households and individuals are allocated with land for resettlement by the State and want to record as debt, they shall be allowed to record debt of land use fee on Certificate after submitting their request of recording debt attached with application file for Certificate or application file for change of purposes of land use or file for allocation of resettlement land. When reconciling debt, land users shall pay based on price of land at time of paying debt and be deleted with debt of land use fee on Certificate. 2. When reconciling debt of land use fee as stipulated in Clause 1 of Article 17 Decree No 198/2004/ND-CP, land users shall pay debt of land use fee on a basis of price of land at time of issuing Certificate, when reconciling debt of land use fee as stipulated in Clause 4 of Article 5 of Decree No 17/2006/ND-CP in case of record as debt before this decree takes implementation effect the land users shall pay debt of land use fee on a basis of debt amount as recorded on the Certificate. 4
3. Ministry of Natural Resources and Environment and Ministry of Finance shall guide proceeding and procedures of debt record and debt reconciliation. Article 6. Supplementary procedures for allowing change of purposes of land use for land having assets attached with land being public asset For land having assets attached with land being public asset under administration of the State agency at Central level and State owned enterprises, Provincial People s Committee or centrally - managed cities (hereafter called commonly Provincial People s Committee) shall makes decision on allowing change of purposes of land use only after having agreement in writing made by Ministry of Finance on changing using function of that public asset for other purposes. Article 7. Exemption, decrease of land use fee for people having merit for the Revolution when issuing Certificate Exemption, decrease of land use fee for people having merit for the Revolution carried out in accordance with regulations on preference treatment to people having merit for the Revolution. Article 8. Issuance of Certificate for agricultural production land 1. For circumstances of having completed implementation of the last method of accumulation of land, transfer of fields for agricultural production land, People s Committees at district, provincial town, or provincial city (hereinafter referred to as District People s Committee) shall revoke Certificates issued previously for many land fields and issue new Certificate for each of land field in accordance with provisions in Clause 3, Article 48 of Land Law. 2. For circumstances the method of accumulation of land, transfer of fields for agricultural production land is not completed yet, if household or individual using land has the request, District People s Committee shall issue only one common Certificate of land use right for all land fields under of the same household or individual; after completion of accumulation of land, transfer of fields, issuance of Certificate shall be carried out as stipulated in Clause 1 of this Article. 3. Ministry of Natural Resources and Environment guides issuance of Certificate as stipulated in Clause 2 of this Article. Article 9. Issuance of Certificate in case of using agricultural land for establishment of farm in rural area 1. When issued with Certificate for farming land in rural area, farming land user shall not have to pay land use fee for change of purposes of land use from land for agricultural production, land for forest production, land for aquaculture, 5
and land for salt production to other agricultural land in the following circumstances: a) Construction of glasshouses and other kinds of house serving for purposes of planting, including methods of indirect planting on land; b) Construction of farms houses for breeding poultry, cattle and other kinds of animal allowed by the law; c) Construction of nurseries for cultivating seedlings, or stud animals; d) Construction of warehouses containing agricultural products, plant protection chemicals, fertilizers, machines, agricultural production tools serving for farm in site. 2. When transfer the land use purpose from land for annual plant cultivation which is not a land for wet rice cultivation, land for perennial plant cultivation, land for aquaculture, land for forest production to other agricultural land as stipulated in items a, b, c and d, Clause 1 of this Article or transferring from land for wet rice cultivation to establishments of cultivating rice varieties, farming land users shall register the change of purposes of land use according to the provisions in Clause 2, Article 36 of Land Law. Article 10. Issuance of Certificate for land used by communities and religious establishments 1. Proceeding and procedures of issuing Certificate for communities are executed in accordance with proceeding and procedures for households or individuals as stipulated in Article 135 and Article 136 Decree 181/2004/ND-CP. 2. Proceeding and procedures of issuing Certificate for religious establishments are executed in accordance with proceeding and procedures for organizations as stipulated in Article 137 of Decree No 181/2004/NĐ-CP. 3. Land used by religious establishments for purposes of agricultural production, forest production, non-agricultural production, charitable establishments and land used by religious establishments as stipulated in Clause 1, Article 99 of Land Law (including circumstances of receiving transfer or grant before 01 July 2004) and then Commune People s Committee certified that there is not any dispute, the land shall be issued with Certificate, and used according to land using mechanism corresponding to those purposes as carried out for household or individual allowed to land use purpose change follow the decision of the Province People s Committee; land used by religious establishments for purposes of agricultural production, forest production, non-agricultural production and trading, or charitable establishments which are not allocated by the State without paying land use fee shall be allowed to execute rights of 6
transfer, grant, present, lease of land use right, pledge, guarantee by land use right in accordance with legal regulations on land. Article 11. Issuance of Certificate for circumstances of transferring land use right but not completing procedures of transfer in accordance with the regulation 1. In case people using land who received transfer, inheritance, grant of land use right or house attached with residential land use right (hereinafter referred to as transferees) before 01 July 2004 are not issued with Certificate and only have document relating to transfer of land use right with signature of transferor (without confirmation about transfer of land use right by the authorized agency), they shall not have to implement procedures of transfer of land use right. Transferee submits application file for Certificate in accordance with provisions in Clause 1, Article 135 or Clause 1, Article 136 of Decree No 181/2004/ NĐ-CP. 2. In case parties has made contract or document relating to transfer of land use right, house attached with residential land but transferor does not submit Certificate or one of documents of land use right as stipulated in Clause 1 and Clause 5, Article 50 of Land Law (called document of land use right) for implementing procedures of transfer, it should carry out the following works: a) Transferee submits application file including application form for Certificate and contract, document of transfer of land use right; the place receiving the application file as stipulated in Article 122 of Decree No 181/2004/ NĐ-CP; b) Based on contract, document of transfer of land use right, Land Use Right Register Office shall inform in writing to transferor, and post up a notice at office of Commune People s Committee in the place having the land to inform about implementing procedures of issuing Certificate for transferee and cancelling documents of land use right not yet delivered to transferee in case of transfer of land use right for the whole piece of land; about implementing procedures of issuing Certificate for transferee and adjusting or newly issuing Certificate in case of transfer of land use right for a part of land; in case of not clearly knowing address of transferor, it shall post up notice in local newspaper for three successive times (cost of publishing paid by the applicant for Certificate); c) After thirty (30) days from the date of posting up notice or publishing the first time in local newspaper about implementation of procedures to issue Certificate for transferee, if there is not any request for settlement of dispute, procedures of issuing Certificate shall be realized in accordance with provisions in Article 135 or Article 136 of Decree No 181/2004/NĐ-CP or legal regulations on housing; People s Committee at the level to have the authority of issuing Certificate shall make decision on cancelling Certificate issued to transferor if 7
transferor does not submit Certificate; if transferor submits Certificate, it shall adjust Certificate or issue the new Certificate according to guidance of Ministry of Natural Resources and Environment. In case there is request for settlement of dispute, Land Use Right Register Office shall guide parties to submit their request to the State agency having the authority to settle dispute as stipulated in Article 135 and Article 136 of Land Law. Article 12. Issuance of Certificate for individuals using land who die before being handed over Certificate In case the applicant for Certificate dies before being handed over Certificate, Land Use Right Register Office shall be responsible for reporting to District People s Committee to cancel Certificate signed and inform inheritor to submit supplementary file as stipulated in item a Clause 1 Article 151 of Decree No 181/2004/NĐ-CP for being issued with Certificate. Article 13. Issuance of Certificate in case inheritor of land use right is foreigner or Vietnamese permanently residing abroad not belonging to subjects allowed to buy house attached with residential land use right 1. In case all inheritors of land use right, land use right and assets attached with land (in this Article called commonly land use right) are all foreigners or Vietnamese permanently residing abroad not belonging to subjects allowed to buy house attached with residential land use right in Vietnam as stipulated in Clause 1, Article 121 of Land Law and Clause 2 Article 126 of Law on Housing (in this Article called commonly as Vietnamese permanently residing abroad not belonging to subjects allowed to buy house attached with residential land use right in Vietnam), inheritor is not issued with Certificate but allowed to transfer or grant land use right for inherited land in accordance with the following regulations: a) In case of transfer of land use right, proceeding and procedures of transfer of land use right shall be carried out as stipulated in Article 148 of Decree No 181/2004/NĐ-CP, in which inheritor is called transferor in contract of land use right transfer; b) In case of grant of land use right, grantee shall belong to subjects as stipulated in Clause 6 Article 113 of Land Law and Clause 2 Article 126 of Law on Housing; proceeding and procedures of grant are carried out in accordance with provisions in Article 152 of Decree No 181/2004/NĐ-CP, in which inheritor is called grantor in contract or agreement of grant; c) In case of not transferring or granting land use right, inheritor or representative having the authorization as stipulated submits application file of receiving inheritance to Land Use Right Register Office for updating in land book and following up. 8
2. In case, of among inheritors there is a Vietnamese permanently residing abroad not belonging to subjects allowed to buy house attached with residential land use right in Vietnam, and others under subjects inherited with land use right in accordance with the legal regulations on land and there is not yet distribution of land use right inheritance to each of inheritor, inheritors or representatives having the authorization as stipulated submit application file of receiving inheritance to Land Use Right Register Office for updating in land book and following up. After handling distribution of inheritance, issuance of Certificate to people belonging to subjects issued with Certificate, for Vietnamese permanently residing abroad not belonging to subjects allowed to buy house attached with residential land use right in Vietnam, their inheritance shall be settled in accordance with regulations in Clause 1 of this Article. 3. Inheritor in circumstances as stipulated in item c of Clause 1 and Clause 2 of this Article shall authorize in writing the people to look after or temporarily use land and comply with obligations in accordance with legal regulations on land and relating others. Article 14. Issuance of Certificate in case of land used by household, individual before 15 October 1993 who do not have one of documents as stipulated in Clause 1 Article 50 of Land Law 1. For households or individuals using land with house, construction works who do not have one of documents as stipulated in Clause 1 Article 50 of Land Law but land used stably before 15 October 1993 and not belonging to one of circumstances of using land as stipulated in Clause 4 of this Article, and currently confirmed by Commune People s Committee that land does not have any dispute, Certificate shall be issued in accordance with the following provisions: a) At time of implementing procedures of issuing Certificate for land under the area having planning of land use or detailed planning of urban development or planning of rural residential area development (hereinafter referred to as planning) approved and use of land suitable with those planning and not having decision on land recovery in case land should be recovered, it shall be issued with Certificate. In case of land with house, land user shall not have to pay land use fee for part of residential land used but that part of land does not exceed the limit of allocated residential land for each of household, individual in accordance with provisions in Clause 2 Article 83 and Clause 5 Article 84 of Land Law at time of issuing Certificate; for part of residential land used exceeding the limit (if any), user shall pay land use fee according to the fee level as stipulated in item a Clause 3 Article 8 of Decree No 198/2004/NĐ-CP dated 03 December 2004 9
issued by the Government on collecting land use fee (hereinafter referred to as Decree No 198/2004/NĐ-CP). In case of land with construction works (not being house), it is need to define area of non-agricultural land and area of agricultural land based on the real situation of land use. Land user shall not have to pay land use fee for the part of non-agricultural land. For part of land defined as agricultural land, provisions of Clause 2 of this Article shall be applied; b) In case at time of implementing procedures of issuing Certificate there is no planning approved, land user is issued with Certificate as stipulated in item a) of this Clause; c) In case land is used before time of planning approved but at the time of issuing Certificate, land use does not match with planning approved and the State authorized agency does not have any policy or document of land recovery as stipulated in Article 49 of this Decree, land user is issued with Certificate as stipulated in item a of this Clause; d) In case land is used before time of planning approved but at time of issuing Certificate, land use does not match with planning approved and there has been policy of land recovery in writing as stipulated in Article 49 of this Decree, land user is not issued with Certificate but allowed to use land based on the real situation of land use until there is decision on land recovery; đ) In case planning has been appraised, adjusted by the State authorized agency and a part of land or the whole land matches with that adjusted planning or in case the State authorized agency makes decision on cancelling the planning, land user shall be issued with Certificate as stipulated in item a of this Clause. 2. For households, individuals using land under category of agricultural land but not having one of documents as stipulated in Clause 1 Article 50 of Land Law but land used stably before 15 October 1993 and not belonging to one of circumstances of using land as stipulated in Clause 4 of this Article, and currently confirmed by Commune People s Committee that land does not have any dispute, Certificate shall be issued according to the following provisions: a) Households, individuals directly taking part in agricultural production shall be issued with Certificate and they do not have to pay land use fee for part of land used but this part of land does not exceed the limit of allocated agricultural land as stipulated in Article 70 of Land Law and Clause 1 Article 69 Decree No 181/2004/NĐ-CP; the remaining part of agricultural land (if any) shall be transferred to be land for lease from the State. 10
b) Households, individuals not directly taking part in agricultural production shall be issued with Certificate in the form of land lease from the State for part of land used. For agricultural land in the same land field with house which is not recognised as residential land, households, individuals using land shall be issued with Certificate as stipulated in item a of this Clause. 3. Residential land field with garden or pond used before 18 December 1980 shall be issued with Certificate as stipulated in Clause 2 Article 45 of Decree No 181/2004/NĐ-CP and this land field is divided from the land which does not have one of documents of land use right as stipulated in Clauses 1, 2 and 5 Article 50 of Land Law, the remaining part of land after dividing shall be issued with Certificate as stipulated in Clause 2 Article 45 of Decree No 181/2004/NĐ-CP. 4. Households, individuals shall be not issued with Certificate for part of land used before 15 October 1993 in case at time of starting using land there was one of the following violations (excluding circumstances as stipulated in Clause 5 of this Article): a) Violate detailed construction planning approved by the authorized agency and publicized; b) Violate detailed planning of construction space approved by the authorized agency and publicized for part of land allocated to organizations, communities for administration; c) Encroaching or occupying safe corridor of public works publicized, and set up landmark; d) Encroaching or occupying roadway, roadside, and pavement which have construction marks; đ) Encroaching or occupying land for public purposes, special used land, land of organization, unused land and other violations which have had documents notified such violation the land user is still intentional to violate. 5. Households, individuals using land which is under circumstances as stipulated in Clause 4 of this Article but suitable with planning at time of issuing Certificate shall be issued with Certificate and pay land use fee according to the fee level as stipulated in items a, b and c, Clause 1, Article 15 of this Decree. Article 15. Issuance of Certificate for land used by households, individuals after 15 October 1993 1. Households, individuals using land who do not have one of documents as stipulated in Clause 1 Article 50 of Land Law but land used from 15 October 11
1993 to 01 July 2004 and not belonging to one of circumstances of using land as stipulated in Clause 4 Article 14 of this Decree, currently confirmed by Commune People s Committee that the land does not have any dispute, suitable with planning approved or there is not any approved planning at time of carrying out procedures of issuing Certificate, Certificate shall be issued in accordance with the following regulations: a) In case households, individuals are using land with house, they should pay land use fee according to the fee level as stipulated in item a Clause 3 Article 8 Decree No 198/2004/NĐ-CP for part of land used but this part of land does not exceed the limit of allocated residential land for each of household, individual as stipulated in Clause 2 Article 83 and Clause 5 Article 84 of Land Law at time of issuing Certificate; for part of residential land practically used exceeding the limit (if any), they should pay land use fee according to the fee level as stipulated in item b Clause 3 Article 8 Decree No 198/2004/NĐ-CP. b) In case households, individuals are using land with construction works (not being house), it is need for defining area of non-agricultural land and area of agricultural land based on real situation of land use. Land user has to pay land use fee for part of non-agricultural land according to fee level as stipulated in item a Clause 3 Article 8 Decree No 198/2004/NĐ-CP; price of land for land use fee is price of land which to use for the same catology of non-agricultural land. c) For part of land defined as agricultural land, it shall be implemented as stipulated in Clause 2 Article 14 of this Decree. 2. Households, individuals using land from 15 October 1993 to 01 July 2004 and the whole land or part of land do not have one of documents as stipulated in Clause 1 Article 50 of Land Law, and confirmed by Commune People s Committee that land does not have any dispute, but unsuitable with planning approved for the place having planning or at time of starting using land there were violations as stipulated in Clause 4 Article 14 of this Decree that whole of the land parcel or part of the land parcel shall not be issued with Certificate but allowed to provisionally use land based on real situation until there is decision on land recovery by the State authorized agency. 3. The State shall not recognize land use right, shall not issue Certificate and recover the whole area of land encroached, occupied and allocated, leased not under the right authority after 01 July 2004. Article 16. Issuance of Certificate in case of land allocated not under the right authority before 01 July 2004 but land user paid land use fee For land allocated not under the right authority but land user has documents to prove payment of land use fee to authorized agency, organization for using land before 01 July 2004, and currently confirmed by Commune 12
People s Committee that land does not any dispute, suitable with planning, land user shall be issued with Certificate in compliance with the following provisions: 1. Land used stably before 15 October 1993 shall issued with Certificate for part of land allocated and it shall not have to pay land use fee. 2. Land used stably from 15 October 1993 to before 01 July 2004 shall be implemented as follows: a) For part of land allocated belonging to category of agricultural land or non-agricultural land but not being residential land, Certificate shall be issued and user shall not have to pay land use fee; b) For part of land allocated to be residential land within the limit of allocated land as stipulated in Clause 2 Article 83 and Clause 5 Article 84 of Land Law, Certificate shall be issued and user shall not have to pay land use fee; for the remaining part of land with house (if any), Certificate shall be issued and user shall have to pay land use fee according to the fee level as stipulated in item a Clause 3 Article 8 of Decree No 198/2004/NĐ-CP; for the remaining part of land without house (if any) defined as agricultural land based on real situation of land use, if land user requests to change into non-agricultural purposes, Certificate shall be issued and user shall pay land use fee according to the fee level as stipulated in Clause 2 Article 5 of Decree No 17/2006/NĐ-CP. Article 17. Regulation on the dividable minimum area and issuance of Certificate for the part of land field smaller than the minimum area 1. Provincial People s Committee stipulate the minimum area allowed to be divided for each category of land corresponding to specific conditions of locality. 2. For land field currently used having the area smaller than the minimum area as stipulated by Provincial People s Committee but meeting conditions for issuing Certificate, land user shall be issued with Certificate; construction of house or works in this land field shall be complied with regulation of Provincial People s Committee. 3. Certificate shall not be issued for land divided into two or many land parcels includes one or many small land parcels with the area smaller than the minimum area as stipulated by Provincial People s Committee. 4. Notary Agency, Communal People s Committee does not allow implementing procedures of notarization of transfer of land use right for land divided into two or many land parcels includes one or many small land parcels with the area smaller than the minimum area as stipulated by Provincial People s Committee. 13
Article 18. Issuance of Certificate in case there is difference between data of area practically measured and data of area recorded in document of land use right 1. In case area of land field is smaller than the area recorded in document of land use right according to data of area practically measured in compliance with technical norms of land measurement, Certificate shall be issued based on the practically measured area of land; land user shall not to receive back the land use fee paid (if have) for the area of land smaller than the area of land recorded in document of land use right. 2. In case area of land field is larger than the area recorded in document of land use right according to data of area practically measured in compliance with technical norms of land measurement, Certificate shall be issued according to the following provisions: a) In case the current boundary of land field does not change compared with time of having document of land use right, there is not any dispute with other land users of neighbouring lands, and the practically measured area of land at time of issuing Certificate is larger than the area of land recorded in document of land use right, Certificate shall be issued based on the practically measured area of land: land user shall not have to pay land use fee the area of land larger than the area of land recorded in document of land use right; b) In case the current boundary of land field changes compared with time of having document of land use right, the practically measured area of land is larger than the area of land recorded in document of land use right, and currently confirmed by Commune People s Committee that the larger part of land was due to reclamation or receiving transfer of land use right from the previous land user, land used stably and no dispute, Certificate shall be issued for the whole practically measured area, the user shall comply with financial obligations on land for the different part of land area in accordance with the legal regulations on land; c) In case the current boundary of land field changes compared with time of having document of land use right, the practically measured area of land is larger than the area of land recorded in document of land use right, and currently confirmed by Commune People s Committee in the place having land that the larger area of land was taken from encroachment or occupancy, that part of the land shall be handled as stipulated in Clause 4 and Clause 5 Article 14 or Clause 2 Article 15 of this Decree. Article 19. Issuance of Certificate in case of dividing or combining land field 1. Application file in case of dividing or combining land field includes: 14
a) Application form for dividing or combining land field written by land user in case of dividing, combining land field as the request of land user and in case of dividing, combining land field due to receiving transfer of land use right as stipulated in item k and item l Clause 1, Article 99 of Decree No 181/2004/NĐ-CP; b) Certificate or one of documents of land use right as stipulated in Clauses 1, 2 and 5 Article 50 of Land Law; in case of dividing or combining land field due to receiving transfer of land use right as stipulated in item k and item l Clause 1 Article 99 Decree No 181/2004/NĐ-CP, there shall be more documents as stipulated item a Clause 1 Article 140 Decree No 181/2004/NĐ-CP. 2. Division or combining land field based on demand of land user is carried out as follows: a) Land user who want to divide or combine land field should make a set of application file for submission to Department of Natural Resources and Environment if being organization, religious establishment, Vietnamese permanently residing abroad, international organization, foreigner; and for submission to Division of Natural Resources and Environment if being household or individual; b) Right in the date of receiving a full of reasonable application file or at latest the next working day, Department of Natural Resources and Environment or Division of Natural Resources and Environment (called commonly Agency for Natural Resources and Environment) shall be responsible for submitting to Land Use Right Register Office under administration to prepare for land management file; c) For land field that land survey is not required, right in the date of receiving a full of reasonable application file or at latest the next working day, Land Use Right Register Office shall be responsible for excerpting land map, duplicating land survey record and transferring the case to Agency for Natural Resources and Environment at the same level; In case of dividing or combining land field that land survey is required, within 07 working days since the date of receiving the file, Land Use Right Register Office shall be responsible for carrying out land survey of newly divided or combined land, excerpting land registration map, excerpting land management file and transferring to Agency for Natural Resources and Environment at the same level; d) Within 03 working days since the date of receiving excerption of land registration map, excerpting of land management file, Agency for Natural Resources and Environment shall be responsible for submitting to District People s Committee for consideration, signing Certificate for new land field; 15
Department of Natural Resources and Environment shall be responsible for signing Certificate for new land field in case of being authorized or submitting to Provincial People s Committee for consideration, signing Certificate for new land field in case of not being authorized; đ) Within 03 working days since the date of receiving submission, People s Committee at the authorized level shall make consideration, sign and send Certificate to Agency for Natural Resources and Environment under its administration; e) Right in the date of receiving Certificate signed or at latest the next working day, Agency for Natural Resources and Environment shall be responsible for handing over the original of Certificate for new land field to land user; sending copy of Certificate signed, the original of revoked Certificate or one of revoked documents of land use right as stipulated in Clauses 1, 2 and 5 Article 50 of Land Law to Land Use Right Register Office under its administration; sending notice about change of land use to Land Use Right Register Office under management of Department of Natural Resources and Environment for adjustment of original land management file. 3. In case of dividing land field that the State recovered a part of land, based on decision on land recovery, Agency for Natural Resources and Environment shall be responsible for dividing land field as stipulated in items b, c, d, đ and e Clause 2 of this Article. Article 20. Land use and issuance of Certificate for land serving for project of development of urban area, rural residential area and production, trading areas with multi-purposes of land use 1. For land serving for project of development of urban area (include urban residential), rural residential area and production, trading areas with many parts of land having different purposes but not being industrial zone, economic zone, high tech zone, the issuance of the Certificate shall be carried out as follows: a) For part of land serving for public purposes, project owner shall not have to pay land use or land lease fee; b) For each part of land suitable with purposes of use defined in investment project, project investor allow to choose pay land use fee in accordance with regulations in Decree No 198/2004/NĐ-CP or pay land lease fee as stipulated in Decree No 142/2005/NĐ-CP dated 14 November 2005 on collection of land lease fee, water surface lease fee (hereinafter referred to as Decree No 142/2005/NĐ-CP). 2. In case part of land serving for implementation of project of urban area development, rural residential area and production, trading land areas has many parts of land for different purposes, Certificate shall be issued for each of land 16
field suitable with detailed approved construction planning and in accordance with the legal regulations on land. Article 21. Revocation of Certificate which issued illegally 1. In case there is report made by investigation agency or inspection agency concluded that Certificate was issued not in accordance with the law, the State agency with the authority to issue Certificate shall be responsible for making consideration, if the conclusion is correct, then this agency shall decide on revoking Certificate issued. 2. In case the State agency with the authority to issue Certificate carries out itself checks and finds out that Certificate was illegally issued, then the Agency shall be responsible for sending notice in writing to inspection agency at the same level for checking; Inspectors at district level shall be responsible for inspecting Certificate issued by District People s Committee; Inspectors at provincial level shall be responsible for checking Certificate issued by Provincial People s Committee or Provincial Department of Natural Resources and Environment. If result of inspection shows that Certificate was issued not in accordance with the law, the State agency having issued Certificate shall make decision on revoking Certificate issued. 3. In case organizations or citizens find out that Certificate was illegally issued, then they shall submit recommendations and facts to the State agency having issued Certificate. The State agency having issued Certificate shall be responsible for making consideration, handling as stipulated in Clause 2 of this Article. 4. Revoking Certificate issued for circumstances not stipulated in Clause 2 Article 42 of Decree No 181/2004/NĐ-CP, Clauses 1, 2 and 3 of this Article shall be only carried out when judgement or decision of People s Court becomes effective. Chapter III DETAILED REGULATIONS FOR HANDLING SOME CIRCUMSTANCES OF HAVING CHANGES OF LAND USE RIGHT Article 22. Right to lease asset attached to land in case of being leased by the State and paying annual land lease fee Economic organizations or individuals leasing land of the State and paying annual land lease fee shall be allowed to lease their own assets attached leased land; leaseholder shall use assets in land in accordance with purposes as defined in decision on land lease made by the State authorized agency. 17
Article 23. Land use right of economic organizations jointly ventured between domestic and foreign investors which changed into 100% foreign capital economic organizations 1. In case economic organizations jointly ventured between domestic and foreign investors is changed into 100% foreign capital economic organizations, part of land contributed to joint-venture capital shall be changed into form of leasing land from the State with land lease fee payment for one time or annual land lease fee payment option. 2. Lease time of land as stipulated in Clause 1 of this Article shall be defined as follows: a) In case land contributed to joint-venture is used stably and permanently, lease time is seventy (70) years since the date of joint-venture economic organization changing into 100% foreign capital economic organization. b) In case land contributed to joint-venture is used with limited time, leasing time is the remaining of land use time of land contributed to joint-venture. 3. Ministry of Finance shall be responsible for guideline on handling of financial obligations on land in case of joint-venture economic organisation changes to be 100% foreign capital economic organization. Article 24. Land use right of joint-venture economic organization between domestic and foreign investors, of 100% foreign capital economic organization in case of receiving transfer of investment project 1. Joint-venture economic organization between domestic and foreign investors, of 100% foreign capital economic organization (in this Article referred as foreign capital economic organization) shall be received transfer of project using land of domestic economic organization in the following circumstances: a) Investment project of development of infrastructure for industrial parks, export processing zones, industrial group and other concentrated business areas with the same mechanism of land use as stipulated in Clause 1 and Clause 2 Article 35 of this Decree; b) Investment project belonging to economic zone, high tech zone; c) Investment project of development of infrastructure of urban area, rural residential area; d) Investment project of development of business or production; đ) Investment project of development and trading of house that has completed construction of synchronous infrastructure. 18
2. Receiving transfer of project using land as stipulated in Clause 1of this Article is carried out the legislation of Real estate bussiness and following stipulates: a. In case project using land is received transfer but the tranfer site is dometic economic organization is allocated, received transfer of land use right by the State but paid fee not coming from State budget sources, value of land use right shall be plus in totall value of tranfer project contract; the foreign capital economic organizations to implementation follow the procedures of registering land use right lease and shall not have to paid land lease fee to State; b. In case project using land is received transfer but the tranfer site is dometic economic organization is allocated, received transfer of land use right by the State but paid fee coming from State budget sources or land allocated without land use fees, value of land use right not shall be plus in totall value of tranfer project contract; the foreign capital economic organizations to implementation follow the procedures of registering land use right lease and allow to choose pay land lease fee in accordance with annual rental or full one-off payment for the whole lease term; c. In case project using land is received transfer stipulated in Point a this Clause but land is originally used within the limited time, lease time of foreign capital economic organization receiving transfer of project is the remaining of land use time before transfer; in case land is originally used stably and permanently, lease time of foreign capital economic organization receiving transfer of project is 70 years since the date of signing the contract of project transfer and if the land users are still in need of such land that extended for multiple times but it shall not exceed 70 years for each of time; foreign investor shall not pay land lease fee during the extended time. 3. Foreign capital economic organization receiving transfer of project building houses for business purposes in the land that domestic economic organization allocated by the State for permanent and stable use and paid land use fee not coming from State budget sources, after selling houses shall not pay the State the difference between land use fee and land lease fee as stipulated Clause 2 Article 81 of Decree No 181/2004/NĐ-CP; who buy residential buildings attched to residential land use righs allowed to permanent and stable land use. 4. Ministry of Natural Resources and Environment and Ministry of Finance guide implementation of provisions in this Article. 19
Article 25. Handling land use right for land contributed by State owned enterprise to joint-venture economic organization while that enterprise is equitizing 1. In case State owned enterprise is allocated, leased with land of the State but does not pay land use fee or land lease fee yet, or allocated, leased, received transfer of land use right by the State but paid fee coming from State budget, value of land use right of the land contributed shall not be put into equitisation of enterprise; before equitisation of enterprise considered as capital of the State contributing to joint-venture economic organization. 2. In case State owned enterprise is allocated, leased, received transfer of land use right by the State but paid fee not coming from State budget sources, value of land use right of the land contributed shall be put into equitization of enterprise. Article 26. Handling land use right for land of Non-agricultural Cooperative contributed by members of Co-operative but changed into form of leasing land of the State In case Non-agricultural Co-operative is using land contributed by members of Co-operative but changed into form of land lease according to Directive No 245/TTg dated 22 April 1996 by the Prime Minister on carrying out some urgent works in administration, using land of domestic organizations allocated, leased with land of the State and Decree No 85/CP dated 17 December 1996 on guidelines on execution of Ordinance on rights and obligations of domestic organizations allocated or leased with land of the State, it shall not have to lease land from the State. Co-operative has rights and obligations of land user as stipulated in Clause 1 and Clause 2 Article 110 of Land Law. Provincial Department of Natural Resources and Environment shall be responsible for cancelling land lease contract signed with Co-operative and adjusting Certificate issued or issuing new Certificate to the Co-operative. Article 27. Right of selecting one of the various forms of using land in case of implementing investment project of development of house for rent 1. Investor who is domestic economic organization, Vietnamese permanently residing abroad shall be allowed to select one of forms that the State allocates land and collects land use fee or rents land and collects annual land use fee to implement project of development of house for rent. 2. Investor who is Vietnamese permanently residing abroad, individual or foreign capital economic organization shall be allowed to select one of forms that the State lease land and lease land fee is paid for one time during the whole period of lease or paid annually to implement project of development of house for rent. 20