On July 30, 2024, the Government issued Decree 102/2024/ND-CP detailing the implementation of a number of articles of the Land Law 2024 ("Decree 102") to replace Decree 43/2014/ND-CP ("Decree 43"). In general, Decree 102 inherits the basic principles of Decree 43, detailing new issues and providing more detailed guidance on the previous issues in order to create a clearer legal framework, helping to remove obstacles for people and businesses in general, real estate project investors in particular. Accordingly, the main and most notable issues of Decree 102 are as follows:
1. Some general provisions:
1.1 A branch of a land registration office has independent legal status as a public non-business unit
If in the past, the branch of the land registration office was only a dependent accounting unit of the land registration office and was allowed to perform the functions, tasks and powers of the land registration office; Decree 102 has "upgraded" the Land Registration Office Branch into an agency with independent legal status (having legal status, having its own seal and being able to open an account) as a public non-business unit. This aims to strengthen decentralization but also improve the capacity and responsibility of subordinate agencies.
1.2 Land use plannings must be comprehensive and ensure conformity with local practices
Decree 43, when guiding the content of land use plannings and plans, mainly focuses on land use norms classified by each type of land and land use area. Meanwhile, Decree 102 requires the planning to add a number of important contents in the land use planning, specifically:
- Analyze and evaluate resources that directly affect local land use;
- Analyze and evaluate the current status of land use, changes in land use 10 years ago, results of implementation of the land use planning in the previous period, vision of land use planning from 20 to 30 years;
- Forecast the trend of land use restructuring in the planning period;
- Solutions and resources for the implementation of land use planning.
1.3 land use plan must fully reflect the projects and works expected to be implemented in the year in the locality
Decree 102 has more specific requirements than Decree 43 in the direction of requiring land use plans to gather land use needs of works and projects, including works and projects that have not yet been approved for investment guidelines and investment decisions, approving projects in cases where the State recovers land in service of national defense and security and socio-economic development.
In addition, Decree 102 also stipulates that in case an investment project or individual changes the land use purpose but must be permitted by a competent state agency, in case of changing the use purpose from agricultural land to commercial or service land with an area of 0.5 hectares or more, the land use demand must be registered and sent to the People's Committee commune level shall report to the district-level People's Committee for inclusion in the district-level annual land use plan.
1.4 Strengthening the development of land funds for implementation of housing projects and urban areas
In the context of the increasing demand for "residential land" but the increasingly limited source of residential land fund, Decree 102 supplements regulations to allow the implementation of the Land Fund Creation Project as a new "tool" to develop the residential land fund for the people. Accordingly, the project to create a land fund is implemented in two forms:
- Infrastructure construction projects to create land use right auction land funds for the implementation of investment projects on construction of urban areas with mixed and synchronous technical and social infrastructure systems with housing; and
- Infrastructure construction projects to create land use right auction land funds for the implementation of rural residential area projects; to arrange resettlement; project on arranging residential land for ethnic minorities.
The capital source for the implementation of the project to create a land fund shall be taken from state capital sources other than public investment or public investment capital in accordance with law.
1.5 New mechanism allows short-term land lease from the State
Decree 102 also adds a flexible mechanism to allow land lease in the short term. Accordingly, Decree 102 allows land fund development organizations to lease land areas and land-attached assets (if any) (from land funds and land-attached assets assigned and managed by the State) with a lease term of not more than 05 years. The land lease in this case will have to comply with a number of regulations as follows:
- The short-term land lease in this case is not subject to land use right auction, no bidding to select investors to implement projects using land, and does not have to meet the requirements on conformity with land use plannings and plans such as land allocation or land lease for the implementation of investment projects.
- Organizations and individuals that lease land in this case are not allowed to build permanent works and must commit to voluntarily dismantle the works when notified by the land fund development organization of the termination of the contract, and shall not be compensated for land, assets and investment expenses in the land.
- The lease must be made into a contract and the land lessee is not required to carry out land registration and is not granted a certificate.
- Organizations and individuals that lease land must pay a deposit for the responsibility for dismantling works.
This regulation creates a framework to allow the utilization/exploitation of unused land funds in the short term, contributing to creating a revenue for the state budget and opportunities to access land for organizations and individuals in need.
1.6 Specific regulations on adjustment of decisions on land allocation, land lease, permission to change land use purposes
Previously, Decree 43 and its amendments and supplements did not specify and detail the issue of adjusting decisions on land allocation, land lease, and permission to change land use purposes; This has led to a number of difficulties for organizations and individuals when the need to adjust the above decisions arises. Decree 102 provides more clearly in the direction that when there is a document of a competent state agency that changes the basis for a decision on land allocation, land lease or permission to change the land use purpose, organizations and individuals may adjust the land allocation decision, land lease, permission to change the land use purpose as prescribed on the order and procedures for land allocation, land lease, permission to change the land use purpose.
According to the provisions of the Land Law, the bases for decisions on land allocation, land lease and permission for land use purpose change include:
(i) A written approval of the winning result of the land use right auction.
(ii) Written approval of investor selection results.
(iii) The district-level annual land use plan and the investment decision or investment policy approval decision concurrently with the investor approval or the investor approval decision as prescribed or the written approval of the investor selection result.
(iv) District-level land use planning or general planning or zoning planning.
2. Specific regulations related to real estate projects
2.1 Residential land in urban areas is determined according to the nature of the area
Decree 102 provides more detailed guidance than Decree 43 on how to determine types of land, in which the most important issue is the determination of residential land. Accordingly, Decree 102 determines residential land in urban areas according to the nature of the land area (instead of the location of the land area as before), Specifically, residential land within the boundaries of ward and township administrative units and residential land within the boundaries of commune administrative units that have implemented new urban construction projects according to the urban and rural system planning. With this new determination, the financial obligations on land of investors are somewhat "increased", therefore, investors need to consider more carefully before implementing urban area projects at commune administrative units.
2.2. Specific guidance on the determination of the 24-month extension period for putting land into use
Accordingly, in addition to the contents inherited from the previous regulations, Decree 102 provides additional guidance in a number of specific cases as follows:
- In case the project is allocated or leased land according to the schedule, the extension of the land use term shall not exceed 24 months applicable to each part of such land area; The time for calculation of land use term extension shall not exceed 24 months from the start date of the 25th month from the time of completion of construction investment on that land area.
- In case by the time of examination and inspection, it is determined that the act of not using land has exceeded 12 consecutive months or has been delayed by more than 24 months, the time for calculating the extension of the land use term of not more than 24 months shall be counted from the date the competent agency allocates the land. the land lease is decided to be extended.
- Land users wishing to extend the progress of putting land into use must send a written request to the People's Committee of the level competent to allocate or lease land for consideration and decision on extension.
2.3 Guiding the allocation and lease of land in case the land is put up for auction 02 times unsuccessfully due to the absence of auction participants
Accordingly, in case the land put up for auction for land use rights 02 times is unsuccessful due to no auction participants, the competent People's Committee must post and publicly post information on the land use right auction for investors to propose investment projects within 30 days. Upon the expiration of the above time limit, if an investor proposes a project, the People's Committee shall decide to allocate or lease land. In case there are 02 or more investors proposing an investment project, an auction of land use rights must be organized according to regulations.
The land price for calculation of land use levy and land rent is the reserve price for the auction of land use rights, effective within 12 months from the date of unsuccessful auction; In case the land has not been allocated or leased for more than 12 months, the reserve price must be redetermined and the auction must be re-organized according to regulations.
2.4 Guiding in detail the agreement on the receipt of land use rights for the implementation of socio-economic development projects
Decree 102 specifically guides the agreement on the receipt of land use rights for the implementation of socio-economic development projects, including a number of key contents as follows:
- Competent agencies must appraise the following issues: Conditions for conformity with district-level land use planning/zoning planning/construction planning; Conditions for not violating the land law; In the case of receiving land use rights for project implementation... before deciding whether to approve or disapprove the transfer or capital contribution with land use rights for the implementation of socio-economic development projects.
- The time limit for the investor to complete the agreement to receive the transfer of the use right is not limited to 36 months as before.
- Accordingly, this time limit is decided by the competent state agency on the basis of the appraisal results. Upon the expiration of the time limit for completing the agreement stated in the written approval, if the investor has not completed the agreement, it may be considered for 01 additional extension not exceeding the time limit for completing the agreement in the written approval if the investor wishes to do so.
- In case the extension time limit has expired but the agreement has not yet been completed, the investor shall request adjustment of the project scope in accordance with the area already agreed upon with the land user and the project is eligible for consideration and approval of the investment policy by a competent state agency, the provincial-level People's Committee shall decide to allow the implementation of the project.
- Encouraging the agreement on receiving land use rights for project implementation
- In case the current land user does not have the right to transfer, lease or contribute capital with land use rights but has land-attached assets and land investment expenses, the investor is allowed to agree on the purchase of land-attached assets and land investment expenses. The State shall recover land from current land users for land allocation or lease, shall not auction land use rights, shall not bid to select investors to implement projects using land and must determine land prices according to regulations.
- In case the current land user does not have the right to transfer, lease or contribute capital with land use rights in accordance with the land law and has no land-attached assets or land investment expenses, the competent People's Committee shall decide to recover the land for land allocation. lease land to investors implementing projects without auctioning land use rights or bidding to select investors to implement projects using land.
2.5 Specific regulations on the obligations of investors with land for construction of apartment complexes and multi-purpose combined land
For land in apartment complexes
- The land area under the common use rights of the owners of apartments, offices, commercial and service establishments in the apartment building includes the land area for construction of apartment blocks, gardening, planting flowers and trees around the house and land for construction of infrastructure works outside the apartment building but to directly serve the apartment building handed over by the investor to apartment owners for self-management and use according to the investment project; accordingly, the apartment owner shall be granted a certificate for the area of the apartment and the area of land for common use as prescribed above according to the long-term stability period.
For multi-purpose combined land
The use of multi-purpose combined land must satisfy the following conditions:
- Using land for combined purposes is not a case of land use purpose change;
- The land area used for combined purposes must not exceed 50% of the land area used for the main purpose, except for the area of residential land used for multi-purpose combined purposes;
- Construction works on agricultural land for multi-purpose combined land use must be of appropriate scale and nature, easy to dismantle;
In addition, the use of multi-purpose combined land must be made into a plan and approved by the competent authority.
2.6 The investor may continue to use the land for 24 months from the date of termination of the investment project
Accordingly, in case of land recovery due to termination of the investment project, the investor may continue to use the land for 24 months from the date the investment project is terminated; within this 24-month period, the investor may transfer the land use rights and sell land-attached assets to other organizations and individuals in accordance with law.
After the sale of assets or transfer of land use rights has been carried out, buyers of land-attached assets or recipients of land use rights may continue to exercise the rights and obligations of land users to implement investment projects or propose the implementation of new investment projects in accordance with law.
Decree 102 takes effect from August 1, 2024./.
Comment: