On July 15, 2024, the Government issued the second Decree guiding the implementation of the Law on Land 2024 - Decree 88/2024/ND-CP ("Decree 88") regulating compensation, support and resettlement when the State recovers land to replace Decree 47/2014/ND-CP ("Decree 47"), it can be seen that the Government has prioritized the issuance of decrees guiding the most "hot" issues related to land belt. In general, the basic contents of Decree 88 are the inheritance of the previous provisions of Decree 47 and have been supplemented and adjusted to suit a number of new contents of the Law on Land 2024; accordingly, Decree 88 stipulates the main contents as follows:
- The Plan for Compensation, Support And Resettlement ("Compensation Plan") must specify in detail the compensation content to each specific person whose land is recovered
Previously, Decree 47 did not provide really clear and detailed guidance on the content of the Compensation Plan, so in some cases, the interests of the person whose land/assets were recovered were not really clearly guaranteed. Decree 88 overcomes the above problem in the direction of stipulating that the content of the Compensation Plan must be a synthesis of detailed plans on compensation, support and resettlement of each person whose land/assets are recovered; in which, it is necessary to clearly identify the personal identification number and phone number of each person whose land is recovered, the location of the area, the land use levy when allocating land for resettlement (if any), and the amount of money that has not yet fulfilled the financial obligations on land (if any).
In addition, Decree 88 also clearly stipulates that the maximum time limit for appraisal of the Compensation Plan is not more than 30 days from the date of receipt of a complete dossier. At the same time, in order to increase decentralization, avoid overlapping functions and tasks; Decree 88 requires agencies, organizations and persons competent to formulate, appraise and decide on the approval of the Compensation Plan to be responsible for strictly implementing their competence in accordance with the provisions of law, not being responsible for the contents of documents and papers contained in the dossier that have been approved by the agency, other competent organizations and persons shall approve, decide or settle beforehand.
- Supplementing a number of specific regulations to better ensure the interests of people whose land is recovered
- Concretizing priority policies for residential land users in areas with difficult and extremely difficult socio-economic conditions
The Land Law 2024 stipulates a number of priority contents for land users in areas with difficult and extremely difficult socio-economic conditions. Concretizing the above provisions, Decree 88 dedicates a clause with priority policies when the State compensates for land for residential land users in areas with difficult socio-economic conditions or areas with extremely difficult socio-economic conditions before July 1, 2014 without papers on land use rights land use. Accordingly
+ For the land area on which houses, houses and works in service of life have been built larger than the area of residential land recognized as prescribed in Clause 5, Article 141 of the Land Law, compensation shall be paid for residential land according to the actual land area for construction of houses, houses and works to serve that life.
+ In case of recovery of the whole or part of the land plot with houses, houses and works in service of life and the area of the land plot is smaller than the residential land recognition quota specified in Clause 5, Article 141 of the Land Law, compensation for residential land shall be paid for the entire recovered land area.
+ In case of recovery of land used for non-agricultural, commercial or service production and business purposes, compensation shall be made according to the actual used area recovered; the type of land for compensation calculation shall be applied as land allocated by the State with the collection of land use levy and a stable and long-term land use term.
- Land compensation is still carried out for a number of entities that have violated the law on land use or land papers that are not suitable for practice
Decree 88 supplements a number of cases and the following subjects are still entitled to receive compensation for land if they fully meet the conditions:
+ Households and individuals that are using land that violate the land law before July 1, 2014 but have used land stably and fall into the cases eligible for consideration for issuance of land use right certificates as prescribed.
+ Households and individuals currently using land that have land use right papers and the land type determined on the issued papers is different from the land classification as prescribed in Article 9 of the Land Law or different from the current land use status shall pay compensation according to the type of land after being re-determined according to regulations.
Accordingly, Decree 88 aims to better protect the rights of people whose land is recovered and contribute to removing problems arising from land problems left by historical factors.
- Provincial-level People's Councils may decide on specific policies on compensation, support and resettlement
Previously, Decree 47 stipulated that in case the State recovers land for the implementation of an investment project decided by the National Assembly and the Prime Minister approves the investment policy, the whole community must be moved, affecting the entire life, socio-economic and cultural traditions of the community, the Prime Minister will decide to decide on the policy framework for compensation, support and resettlement. However, in order to ensure that the policies on compensation, support and resettlement are "close" to the reality in the locality, Decree 88 stipulates that in this case, the provincial-level People's Council shall decide on specific policies on compensation, support and resettlement in accordance with each project and the actual conditions of the locality (specific policies here may be understood as higher incentives and more favorable conditions for people whose land is recovered compared to the provisions of law). However, Decree 88 has not specified the specific contents or scope of policies that the provincial-level People's Council can decide.
- Specific guidance on the compensation mechanism with land other than the type of land recovered by the State
Guiding the provisions of the Land Law 2024, Decree 88 allows compensation in cash or in residential land or in houses or in other land in case the land user is fully recovered residential land (or the remaining residential land area of the land plot after recovery is smaller than the minimum area as prescribed) and households, individuals who still have residential land or other houses in the communes, wards or townships where the recovered land exists.
In addition, Decree 88 clearly stipulates that the land price for calculation of land use levy when compensating with land with a different use purpose than the type of land recovered for households, individuals and people of Vietnamese origin residing abroad who are using residential land or owning houses attached to land use rights in Vietnam is the land price determined according to the price list land at the time of approving the compensation, support and resettlement plan; in case of compensation by land lease with the collection of land rent paid in lump sum for the whole lease period, the land price for which the land rent is calculated is the specific land price decided by the competent People's Committee at the time of approving the compensation, support and resettlement plan.
- Organizations and individuals causing environmental pollution are obliged to pay compensation for ground clearance in the polluted areas caused by them
The Land Law 2024 supplements the case where the State recovers land due to the risk of threatening human life or is no longer able to continue to use it. Accordingly, Decree 88 stipulates that compensation and support funds for these cases will be paid by the State Budget in case the cause of the threat comes from natural disasters; if the cause of the threat is caused by an organization or individual causing environmental pollution, such organization or individual must pay for the fund.
- Abolishing the general limit on security expenses for the organization of compensation, support and resettlement
Decree 47 limits the funding for the organization of compensation and site clearance to be deducted not more than 2% of the total compensation and support funds of the project; In practice, this regulation has created many difficulties for the process of organizing compensation and site clearance (because it does not properly reflect the actual conditions of each locality).
Instead, Decree 88 empowers provincial-level People's Committees to prescribe the level of expenditure guaranteed for the organization of compensation, support and resettlement of their localities (based on the actual situation in their localities); In case the locality has not yet stipulated the level of expenditure to ensure the organization of compensation, support and resettlement, it shall be based on the norms, standards and unit prices prescribed by competent state agencies (applicable to each project).
Thus, Decree 88 creates a more open and flexible mechanism that allows a more appropriate calculation of the cost of organizing compensation and site clearance to make the implementation more convenient. However, this also puts a higher requirement on ensuring that all costs must be reasonably calculated to avoid losses and negative phenomena.
Decree 88 takes effect from August 1, 2024./.
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