Chương IV Nghị định 43/2014/NĐ-CP: Thu hồi đất, giao đất, cho thuê đất, chuyển mục đích sử dụng đất

Chapter IV

LAND RECOVERY, ALLOCATION, LEASE AND USE PURPOSE CHANGE

Article 13. Consultations with ministries on land-using projects on islands or in border or coastal communes, wards and townships

1. For projects with foreign direct investment on islands or in border or coastal communes, wards and townships not subject to approval or investment decision of the National Assembly or Prime Minister, before considering and approving the investment policy, provincial-level People’s Committees shall send written requests to the following ministries for opinion:

a/ The Ministry of National Defense, Ministry of Public Security and Ministry of Foreign Affairs, for land parcels on islands or in border communes, wards or townships;

b/ The Ministry of National Defense, for land parcels in coastal communes, wards or townships adjacent to land parcels used for national defense purposes, except the cases in which restricted areas have been determined under regulations;

c/ The Ministry of Public Security, for land parcels in coastal communes, wards or townships adjacent to land parcels used for security purposes.

2. Within 20 days after receiving a written request for opinion, the Ministry of National Defense, Ministry of Public Security and Ministry of Foreign Affairs shall send their written opinions to provincial-level People’s Committees.

3. In case projects specified in Clause 1 of this Article use rice cultivation, protection forest or special-use forest land under Point a, Clause 1, Article 58 of the Land Law, ministries shall be consulted before these projects are submitted to the Prime Minister.

Article 14. Detailed provisions on conditions on persons allocated or leased land by the State or permitted by the State to change land use purpose to implement investment projects

a/ Investment projects to build houses for sale or lease or both sale and lease in accordance with the housing law;

b/ Investment projects to deal in real estate associated with land use rights in accordance with the law on real estate business;

c/ Production or business projects not funded by the state budget.

2. The condition of financial capacity to ensure the land use according to the investment project’s schedule is prescribed as follows:

a/ Having own capital for implementation of the project equal to at least 20% of the total investment, for projects using less than 20 hectares of land; or to at least 15% of the total investment, for projects using 20 hectares of land or more;

b/ Being able to raise capital for implementation of the project from credit institutions, foreign bank branches and other organizations and individuals.

3. The identification of persons to be allocated or leased land by the State or permitted by the State to change the land use purpose to implement investment projects not in violation of the land law in case they are using land allocated or leased by the State for implementation of other investment projects must be based on the following grounds:

a/ Results of the handling of violations of the land law committed by local projects archived at provincial-level Natural Resources and Environment Departments;

b/ Contents of violations of the land law and results of the handling thereof publicized on the websites of the Ministry of Natural Resources and Environment and the General Department of Land Administration, for other local projects.

4. The examination of the conditions specified in this Article shall be conducted at the same time with the appraisal of the land use demands of investors upon the grant of investment certificates, appraisal of investment projects, elaboration of economic-technical reports or investment approval in accordance with the investment law and construction law in case of land allocation or lease not through the auction of land use rights or change of land use purpose. In case land use rights are auctioned, the examination of the above conditions shall be conducted before the auction of land use rights is organized.

Article 15. Force majeure circumstances which affect the land use schedule of investment projects and point of time for counting the land use term extension of 24 months in cases land is not put to use or the land use schedule is late

1. Force majeure circumstances which directly affect the land use schedule of investment projects allocated or leased land by the State under Point i, Clause 1, Article 64 of the Land Law include:

a/ Natural disasters, environmental disasters;

b/ Fires and epidemics;

c/ Wars;

d/ Other Force majeure circumstances as decided by the Prime Minister.

2. The point of time for counting the land use term extension of 24 months in case land is not put to use or the land use schedule is late is prescribed as follows:

a/ In case an investment project fails to put land into use for 12 consecutive months after receiving land handed over in the field, the investor may extend the land use term for 24 months counted from the 13^th month since the land handover;

b/ In case the land use schedule of an investment project is 24 months late compared with the schedule stated in the project documents since the land handover in the field, the point of time for counting the land use term extension of 24 months is the 25^th month since the planned time of completion of construction investment.

In case the project is allocated or leased land according to schedule, the land use term extension of 24 months shall apply to each land area allocated or leased as scheduled; the point of time for counting the land use term extension of 24 months is the 25^th month since the planned time of completion of construction investment in such land area.

3. Provincial-level People’s Committees shall review, handle and publicize on then websites investment projects that have failed to put land into use for 12 consecutive months or have land use schedules 24 months late compared with those stated in project documents; projects that have their land use terms extended; and projects that have late land use schedules due to Force majeure circumstances; and provide information to be publicized on the websites of the Ministry of Natural Resources and Environment and the General Department of Land Administration.

Article 16. Use of land for production and business purposes through purchase of land- attached assets, receipt of transferred or leased land use rights or receipt of land use rights contributed as capital

The use of land for production and business purposes through purchase of land-attached assets, receipt of transferred or leased land use rights or receipt of land use rights contributed as capital must adhere to the following principles:

1. It is conformable with approved and publicized district-level annual land use plans.

2. Localities no longer have clear ground areas for use for proper production and business purposes, except for projects in the sectors or areas eligible for investment incentives.

3. In case investors receive transferred land use rights but have to change the land use purpose, they may do so only after competent People’s Committees permit in writing the land use purpose change and land use term adjustment suitable to the use of land for production and business.

4. In case the land area for implementation of a production or business project has a land parcel on which the current land user has no right to transfer, lease or contribute land use rights as capital in accordance with the land law, the investor may reach agreement to purchase land-attached assets of the current land user and the State shall recover land, change the land use purpose and lease land to the investor for project implementation. The contract on purchase and sale of land-attached assets must clearly state that the asset seller voluntarily returns the land for recovery and lease by the State to the asset purchaser.

Article 17. Notification of land recovery, composition of land recovery enforcement boards, expenses for land recovery enforcement, settlement of complaints about and lawsuits against land recovery enforcement

The notification of land recovery, composition of land recovery enforcement boards, expenses for land recovery enforcement, settlement of complaints about and lawsuits against land recovery enforcement prescribed in Articles 61 and 62 of the Land Law must comply with the following provisions:

1. The natural resources and environment agency shall submit to the same-level People’s Committee for approval a plan on land recovery, investigation, survey, measurement and inventory, covering the following contents:

a/ Reason for land recovery;

b/ Area and location of the land parcel to be recovered as stated in the existing cadastral dossier or detailed construction master plan approved by a competent state agency. In case land is recovered according to the project implementation schedule, the land recovery schedule must be clearly stated;

c/ Plan on investigation, survey, measurement and inventory;

d/ Tentative plan on relocation and resettlement;

dd/ Assignment of the tasks of making and implementing a compensation, support and resettlement plan.

2. A notice of land recovery must have the contents specified at Points a, b, c and d, Clause 1 of this Article.

3. A land recovery enforcement board shall be composed of:

a/ Chairperson or vice chairperson of the district-level People’s Committee as the head;

b/ Members who are representatives of district-level finance, natural resources and environment, inspection, justice and construction agencies; the commune-level Fatherland Front Committee; the organization in charge of payment of compensations and ground clearance and the commune-level People’s Committee of the locality where the land is located, and some other members decided by the chairperson of the district-level People’s Committee.

4. The public security force shall base itself on land recovery enforcement plans to make plans to protect order and safety in the process of implementation of land recovery enforcement plans.

5. When enforcing the land recovery, if coerced persons refuse to receive their assets under Point c, Clause 4, Article 71 of the Land Law, enforcement boards shall hand over their assets to commune-level People’s Committees for preservation in accordance with law.

6. Persons whose land is recovered and related organizations and individuals may file lawsuits about land recovery in accordance with the law on complaints.

Pending the issuance of decisions on settlement of complaints, complainants shall continue to comply with land recovery decisions or land recovery enforcement decisions. In case state agencies competent to settle complaints conclude that the land recovery is unlawful, the uncompleted enforcement shall be stopped, issued land recovery decisions shall be cancelled and compensations for damage (if any) caused by land recovery decisions must be paid.

In case the land recovery is related to rights and interests of other organizations and individuals in the use of land in accordance with other relevant laws, the State shall recover land or enforce land recovery decisions under regulations before the rights and obligations related to the land use are completely settled between persons whose land is recovered and such organizations and individuals in accordance with relevant laws.