Land allocation, land lease, change of land use purposes in investment projects in Vietnam
Investors who intend to investing on land-using projects may pay attention to how they can get land use rights from the State. What are regulations on consultations with ministries on land-using projects on islands or in border or coastal communes, wards and township? What are conditions on persons allocated or leased land by the State? What are Force majeure circumstances which affect the land use schedule of investment projects? In this articles, you will find the answers for above questions with Lawyer X!
Legal grounds
Decree No. 43/2014/ND-CP dated May 15, 2014, detailing a number of articles of the Land Law
Consultations with ministries on land-using projects on islands or in border or coastal communes, wards and townships
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:
+ 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;
+ 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;
+ The Ministry of Public Security, for land parcels in coastal communes, wards or townships adjacent to land parcels used for security purposes.
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.
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.
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
Investment projects using land for non-business purposes shall not apply the conditions specified in Clause 3, Article 58 of the Land Law.
+ Investment projects to build houses for sale or lease or both sale and lease in accordance with the housing law;
+ Investment projects to deal in real estate associated with land use rights in accordance with the law on real estate business;
+ Production or business projects not funded by the state budget.
The condition of financial capacity to ensure the land use according to the investment project’s schedule is prescribed as follows:
+ 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;
+ Being able to raise capital for implementation of the project from credit institutions, foreign bank branches and other organizations and individuals.
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:
+ Results of the handling of violations of the land law committed by local projects archived at provincial-level Natural Resources and Environment Departments;
+ 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.
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.
Force majeure circumstances which affect the land use schedule of investment projects
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:
+ Natural disasters, environmental disasters;
+ Fires and epidemics;
+ Wars;
+ Other Force majeure circumstances as decided by the Prime Minister.
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:
+ 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 13th month since the land handover;
+ 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 25th 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 25th month since the planned time of completion of construction investment in such land area.
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.
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Frequently asked questions
Provincial-level departments and sectors shall determine the land use demands and propose land-using projects within provincial-level land use norms for every district-level administrative unit; district-level People’s Committees shall determine the land use demands of their localities.
The land areas used for construction of public facilities serving the community’s common interests inside and outside urban areas or rural residential areas under the investment projects and approved detailed construction plan shall be handed over to the localities for management without being granted certificates of land use rights and ownership of houses and other land-attached assets.
During the implementation of the plan on land recovery, investigation, survey, measurement and inventory, the investor may conduct survey and measurement for elaboration of an investment project in accordance with the investment law and construction law. The competent agency shall carry out procedures for appraisal of the investor’s land use demand and conditions for land allocation or land lease;
Conclusion: So the above is Land allocation, land lease, change of land use purposes in investment projects in Vietnam. Hopefully with this article can help you in life, please always follow and read our good articles on the website: lsxlawfirm.com
