Ms. Nguyen Thi Hong Thao (Quang Nam Province) bought 635m2 of land for perennial crops since 2005, converted 100m2 to residential land to build a house, the rest she works as a garden to grow perennial and fruit trees. Currently she wants to transfer 300m2 to residential land.

According to the guidance of the Department of Natural Resources and Environment, according to Circular 33/2017 / TT-BTNMT, Ms. Thao must carry out procedures for splitting the parcel when changing the purpose of 300m2 of land to residential land.

Ms. Thao, who referred to Circular 33/2017 / TT-BTNMT, found the regulation "in the case of a residential parcel with a garden or pond, there is no need to carry out the procedure for splitting the parcel when changing the purpose of using a part of the land" .

Ms. Thao would like to ask, is the land for perennial crops in her residential parcel currently considered a residential parcel with garden or pond? When you change the purpose of a part of the remaining land for perennial crops to residential land, do you have to go through the procedure to split the parcel?

The Ministry of Natural Resources and Environment answers this issue as follows:

Article 103 of Law on Land 2013 states:

" Article 103. Determination of residential land area with respect to land with ponds and gardens

1. In order to be considered as residential land with gardens and ponds of households or individuals must be located within a land parcel with existing houses.

2. If a land parcel with gardens and ponds was formed before December 18, 1980, and the land user possesses one of the documents on land use rights as prescribed in Clauses 1, 2 and 3, Article 100 of this Law, the area of residential land shall be determined in accordance with such documents.

3. In case the residential area is not indicated clearly in documents on land use rights prescribed in Clauses 1, 2 and 3 of Article 100 of this Law, the residential land area to be recognized without payment of land use levy must not exceed 05 times the residential land allocation quota prescribed in Clause 2, Article 143, and Clause 4, Article 144 of this Law.

4. If a land parcel with gardens and ponds was formed in the period from December 18, 1980, to before July 01, 2004, and the land user possesses one of the documents on land use rights as prescribed in Article 100 of this Law and the land area is indicated clearly in those documents, the residential land area shall be determined according to those documents.

5. If a land parcel with gardens and ponds was formed in the period from December 18, 1980, to before July 01, 2004, and the land user possesses one of the documents on land use rights as prescribed in Article 100 of this Law and the land area is not indicated clearly in those documents, the residential land area shall be determined as follows:

a) The provincial People’s Committee shall, based on the local conditions and customs, prescribe the residential land recognition quota for each household in accordance with local customs and the number of members in the household.

b) If the land parcel is larger than the prescribed residential land recognition quota of the locality, the residential land area shall be determined equal to the residential land recognition quota of the locality.

b) If the land parcel is smaller than the prescribed residential land recognition quota of the locality, the residential land area must be determined as the whole area of the land parcel.

5. In case there are no documents on land use rights as prescribed in Article 100 of this Law, and the land has been used stably since before October 15, 1993, the residential land area shall be determined under Clause 4 of this Article. In case the land has been used stably from October 15, 1993, the residential land area shall be determined in accordance with residential land area allocated to each household or individual as prescribed in Clause 2, Article 143, and Clause 4, Article 144 of this Law.

6. After the residential land area is determined under Clauses 2, 3, 4 and 5 of this Article, the remaining land area with gardens and ponds shall be used for the current land use purpose under Clause 1, Article 10 of this Law.

7. The Government shall detail this Article.”.

Based on the above provisions, Ms. Thao is requested to study and contact the local natural resources and environment agency for guidance on implementation of administrative procedures in accordance with law.