Transfer of land use right without a red book?

Wed, 22 Jul 2020 16:26:00  |  Print  |  Email   Share:

According to Article 188 of the Land Law, one of the conditions for land users to transfer land use rights is to have a certificate of land use right and house ownership. and other properties associated with the land.

BicLand Investment Joint Stock Company (in Hanoi) is implementing a project to build a packaging and construction glass factory on an area of ​​about 10,000m2 in commune A, district B, province C. This land, which is currently managed as land specializing in wet rice cultivation, is planned to be non-agricultural land - production and business.

To implement the project, the Company has been instructed by some Department of Planning and Investment to guide some project registration documents as follows:

- Approval document on investment policy and introduction of investment project location issued by the provincial People's Committee;

- Decision on investment policy issued by the provincial People's Committee for the project in accordance with the provisions of Law on Investment 2015;

- Provincial People's Committee's written approval for the company to "receive land use right transfer, change the land use purpose, adjust the land use term in commune C, district B to carry out the factory construction project on" producing packaging and constructional glass ”;

- Extract of the project implementation land area prepared and issued by Provincial Land Registration Office C;

- Because the project is implemented in the area of ​​rice cultivation, the Company has registered and approved by the provincial People's Council to change the purpose of using rice land to non-agricultural land - production and business;

- Decision on establishment of Compensation, Support, and Clearance Council of District B to measure, inventory and verify the origin of land use, assets attached to land currently under the management of Commune A People's Committee. micro project implementation;

- Document of Commune People's Committee A permitting the Company to access information about people with agricultural land within the scope of project implementation;

- A record of successful agreement with all representatives of households having land in the project area for land use rights transfer price and the time of transfer was made on December 15, 2017 (participants signed) agreement is the person named in the certificate of land use right);

Now, when the Company conducts a contract of transfer of agricultural land use rights to households, there are a number of administrative situations that are handled by stakeholders (including state agencies and organizations). notarization and authentication), leading to the inability of the Company to complete the transfer procedure.

Through the receiving and responding System to recommendations of businesses, BicLand Investment Joint Stock Companywould like to request the agency to guide the following cases:

Situation 1: If the people have written a statement of "losing land use right certificate", will people be allowed to sign land use rights transfer contracts with the Company? (assuming that the lost certificate was determined to be issued by a competent authority in 2004).

Scenario 2: If people present a land use right certificate with the content "Certificate of agricultural land use rights to Mr. X's household; Area of ​​2,000m2, in parcels of land: plot 1, map sheet 2; plot 3, map sheet 4; plot 5, map sheet 6. The certificate was issued in 2004 ”;

Mr. X's household, at the time of issuing the land use right certificate has 5 people, including: Mr. X, Mr. X's wife and their 3 children. Mr. X's family has been allocated land since 1993 under the Government's Decree No. 64 / CP on assigning agricultural land to households and individuals for stable and long-term use for agricultural land use.

So, who has the right to sign a contract of transfer of agricultural land use rights with the Company?

Situation 3: In case the Company has completed the transfer of 9,800m2, the remaining 200m2 cannot be performed by one of the following reasons:

- One of the household members does not agree to transfer;

- Inability to contact the rest of the family member who has not been declared dead or missing by the Court;

- One of the family members has died, passing with no will, unable to declare the inheritance due to a dispute or a court has not been accepted or the court has not resolved.

BicLand Investment Joint Stock Company would like to ask, What should the company do? Is the company allowed by the competent authority to change the purpose of use of the land that the Company has transferred? If the above 200m2 area affects the construction of the factory according to the site plan, what should the company do?

Regarding this issue, The General Department of Land Administration, Ministry of Natural Resources and Environment has the following opinions:

Transfer of land use right requires a Certificate

Scenario 1: In accordance with Article 188 of the Land Law,  Land users may exercise the rights to exchange, transfer, lease, sublease, inherit, donate or mortgage land use rights and contribute land use rights as capital when Having the certificate, ownership of houses and other land-attached assets.

Therefore, in case the land user loses the certificate, it is necessary to carry out the procedure to re-issue the certificate in accordance with Article 77 of Decree No. 43/2014 / ND-CP dated May 15, 2014 of the Government. detailing the implementation of a number of articles of the Land Law so that land use rights can be transferred.

The implementation of the procedures for re-granting the lost certificate is aimed at avoiding risks to enterprises after completing the procedures for receiving land use rights transfer, avoiding disputes and lawsuits.

This must be agreed in writing by household members

Situation 2: According to Clause 29 Article 3 of the Land Law,  Households using land are those who are related to marriage, bloodline and nurture in accordance with the law on marriage and family, are living together and have the right to use common land at the time of being assigned by the State land, land lease, recognition of land use rights; receiving land use right transfer”.

According to Clause 5 Article 14 of Circular No. 02/2015 / TT-BTNMT dated January 27, 2015 of the Minister of Natural Resources and Environment detailing a number of articles of Decree No. 43/2014 / ND -CP and Decree No. 44/2015 / ND-CP dated May 15, 2014 of the Government Any person who has his/her name on the certificates or is authorized as prescribed in Clause 1, Article of the Decree No. 43/2014/NĐ-CP shall be permitted to perform signing the contract, written transaction for land use rights, ownership of land-linked properties only if all members of the household using the land agree in writing and such agreement must be authenticated or certified as true copy according to the law provisions.”.

Therefore, when a certificate is granted to a household, when signing a land use right transfer contract, the person named on the certificate or an authorized person in accordance with civil law shall sign contracts and only perform the contract when the members of the household use the land in writing and that document has been notarized or authenticated in accordance with the law.

Termination of civil rights and obligations on the basis of free and voluntary

Situation 3: According to Clause 2 Article 3 of the 2015 Civil Code, an individual or a legal entity establishes, exercises and terminates its civil rights and obligations on the basis of freedom and voluntary commitment agreement. Any commitment or agreement that does not violate the prohibition of the law, is not contrary to the social ethics that takes effect to the parties and must be respected by other entities.

Therefore, for the above-mentioned problems, the Company needs to have a careful study and survey of the area where the investment project is prepared for, considering the factors that affect the project implementation schedule to determine. determine the scale of investment, the investment in accordance with the provisions of law while avoiding risks for businesses.

By: Online Newspaper of the Government / Translator: HaiYen-Bizic

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