Conditions for recognition of land used in practice

Legal situation:

I live in Thanh Hoa. My family was granted a land plot from 1982-1983 with an area of ​​more than 2 rods. However, currently, when looking back at the land area in the red book, I have found out that the land area is only 288 square meters. Now, I want to distribute the land to make a  red book for my son. So, I would like to ask if the land area not in the red book will be recovered. How to remake the red book with the current land area? Sincerely thank you.

Answer:

Thank you for trusting and sending your questions to FDVN Law Firm (“FDVN”), after researching the legal provisions, we would like to send you some opinions as follows:

According to Clause 5 Article 98 of Land Land 2013:

“Article 98. Principles of grant of certificates of land use rights and ownership of houses and other land-attached assets

5. If there is a difference in the area between the actual surveyed data with data recorded on the documents as prescribed in Article 100 of this Law or in the granted certificate while the boundaries of the land parcel in use have not changed compared with the boundaries of the land parcel at the time of receiving the document on land use rights and there is no dispute with the adjacent land users, the land area is determined in accordance with the actual surveyed data for granting or changing the certificate. Land users do not have to pay land use levy for the positive balance in area, if any.

In case of resurvey and the boundaries of the land parcel change compared with the boundaries of the land parcel at the time of receiving the document on land use rights and the surveyed area is larger than the area recorded in that document, the balance area (if any) may be considered for the grant of a certificate of land use rights and ownership of houses and other land-attached assets in accordance with Article 99 of this Law”.

Legal documents specified in Article 100 of Land Law 2013 include:

• The documents on land use rights before October 15, 1993, which were granted by a competent agency in the process of implementing the land policy of the Democratic Republic State of Vietnam, the Provisional Revolutionary Government of the Republic of South Vietnam or the Socialist Republic of Vietnam;
• Temporary certificates of land use rights granted by competent state agencies, or having their names recorded in the Land Register Book or Cadastral Book before October 15, 1993;
• Lawful papers on inheritance or donation of land use rights or land-attached assets, documents on hand-over of land-attached gratitude house or charity house;
• The document on the transfer of land use rights or purchase of residential land-attached houses before October 15, 1993, and such houses were certified as being used before October 15, 1993, by the commune-level People’s Committee;
• The document on liquidation of residential land-attached houses by the State or document on purchase of a state-owned house in accordance with law;
• The document on land use rights issued by a competent authority of the former regime to land users;
• Other documents issued before October 15, 1993 such as land registers and field establishment registers made before December 18, 1980, one of documents made during the process of land and field registration under the Prime Minister’s Directive No. 299-TTg of November 10, 1980, etc.
• Households and individuals that are having one of the documents as mentioned above bearing the names of other people accompanied by the documents on transfer of land use rights signed by the related parties, but have not performed the procedures for the transfer of land use rights in accordance with law prior to July 1, 2014, and there is no dispute on that land;
• Households and individuals that are allowed to use land pursuant to a decision or a judgment of the People’s Court, a judgment enforcement decision of a judgment enforcement agency, a document recognizing results of the successful conciliation or a decision of a competent state agency on settlement of land disputes, complaints or denunciations which was executed;
• Households and individuals using land that is allocated or leased by the State from October 15, 1993 to July 1, 2014 and have not been granted a certificate.

Based on the information you provided, you were granted a land plot from 1982-1983 with an area of more than 2 poles. However, currently, there are only 288 meters in the Land Use Right Certificate, so, if you have one of the above following documents, then:

• In case of the boundaries of the land parcel in use have not changed compared with the boundaries of the land parcel at the time of receiving the document on land use rights and there is no dispute with the adjacent land users, the land area is determined in accordance with the actual surveyed data for granting or changing the certificate. You do not have to pay land use levy for the positive balance in the area, if any. 
• In case of resurvey and the boundaries of the land parcel change compared with the boundaries of the land parcel at the time of receiving the document on land use rights and the surveyed area is larger than the area recorded in that document, the balance area (if any) may be considered for the grant of a certificate of land use rights and ownership of houses and other land-attached assets. 

Therefore, FDVN advises that you should contact the District-level land Registration Officer to be supported for the grant and change the certificate of land use rights, ownership of houses, and land-attached assets according to actual use previously granted. 

Above is FDVN LAW FIRM’s opinion for your consulting requests based on studying the relevant legal provisions. Hopefully, FDVN’s advice would be helpful to you. 

Nguyễn Thị Sương – FDVN Law Firm

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