DISCUSSION ON THE POLICY OF CHANGING THE RESETTLEMENT LAND RECEIVER'S NAME IN DA NANG CITY

However, in reality, there were many cases where people committing the conveyance before July 01, 2014, carried out the procedure, request for paying the fee and being granted the certificate of land use rights after July 01, 2014, for the reason of not acknowledging the City’s policy. Now, 2 cases are incurring: (i) Committing to the conveyance and having paid land use levy and (ii) Committing to the conveyance and having not paid land use levy. There are many problems in determining financial obligations (land use levy) and procedures for granting certificates of land use rights in the two above cases.

 

The legality of the policy of changing the resettlement land receiver’s name in Da Nang City

 

The nature of this policy is the transfer of the right of the recipient of the resettlement land to be granted the land use rights to another person wishing to receive land use rights at the time the transferor has not been granted a certificate land use right certification. In this case, comparing the provisions of the law on land over the periods of time, there are inappropriate legal issues clearly analyzed as follows:

 

Is the commitment of conveyance of  the person receiving the resettlement land use right a transfer of land use right?

 

Transfer of land use rights means the transfer of land use rights from one person to another by ways of exchange, transfer, inheritance or donation of land use rights, or contribution of land use rights as capital. Among the five above forms of land use right transfer, the form of changing the name of the recipient resettled land use rights is like the form of land use right transfer which is the buyer pays a sum of money to be transferred land use rights by the seller.

 

Considering the legality of the above transaction:

 

Firstly, on the conditions for the transfer of land use rights:

 

According to the provisions of the law on land through periods of time, the transfer of land use rights can only be conduced when the following conditions are met:

(i) Obtaining the land title;

(ii) No dispute on the land;

(iii) The land use rights are not distrained to secure judgment execution;

(iv) Within the land use term.

 

In comparison with the policies of Da Nang city, at the time the parties commit to carrying out the conveyance, the seller has not been granted a land title. In some cases, the competent State agency has not issued a decision to allocate land for resettlement.

 

Second, the time when the land user is allowed to exercise the right of transfer

 

At the time when People’s Committee of Da Nang city issued the policy for the conveyance, it was stipulated in Clause 1, Article 98 of Decree No.181/2004/ND-CP[1] that the time when land users were entitled to exercise the right to transfer land use rights were as follows:

 

* Where land users are not allowed to delay the performance of financial obligations or to debit the financial obligations, they may exercise the land users' rights only after they have fulfilled their financial obligations according to law provisions;

 

* Where land users are permitted by competent State agencies' decisions to delay the performance of their financial obligations or to debit their financial obligations, they may exercise the land users' rights after such decisions are issued;

 

* Where land users are allowed to delay the performance of their financial obligations or to debit the financial obligations according to law provisions, they may exercise the land users' rights after the issuance of land assignment decisions, decisions permitting the change of land use purposes, the signing of land lease contracts.

 

Thus, the fact that a land user has the right to transfer the land use right to another person without fulfilling their financial obligations will depend on whether the State agency decides to delay the implementation or allow the debt to be debited as permitted by laws. If the seller agrees to allow the land purchase and sale when the seller has not fulfilled the financial obligations but does not distinguish according to each of the above cases, it will not be consistent with the law.

 

Then, from August 15, 2011, there was a amended provision in Article 7 of Circular No. 93/2011/TT-BTC[2], in which was emphasized: “Before transferring their land areas, households or individuals permitted to owe land use levies shall fully pay the owed levies”. In Land Law 2013,  at Clause 1 of Article 168, this provision has been legalized as follows: “Land users may exercise the rights to transfer, lease, sublease, donate and mortgage land use rights and to contribute land use rights as capital upon receipt of a certificate… A land user who is allowed to delay the performance of, or owe, his/her financial obligations, may exercise his/her rights only after fulfilling all financial obligations.”

 

Thus, in the case where the conveyance to receive the reclaimed land use right is an activity of transferring the land use right, according to the analysis above, this transaction has not met the conditions allowed by law. The policy of the People's Committee of Da Nang city, which allows the parties to transfer land use rights based on the resettlement papers without the owner’s land use right certificate, regardless of whether they are in the case being delayed/allowed to debit the performance of financial obligations, was inconsistent with the law.

 

Is the commitment to change the name of the person receiving the resettlement land use rights a legal authorization transaction?

 

An authorization contract is understood as an agreement between the parties whereby an attorney is obliged to perform the work on behalf of the authorizer, and the authorizer only has to pay remuneration, if there are agreements or law provisions stipulates[3]. At that time, the authorized party has civil rights and obligations arising from civil transactions established and performed by the representative within the scope of authorization[4].

 

Thus, the purpose of authorization contract is that the authorized person, on behalf of and for the sake of the authorizer, performs one or several works as agreed.

 

Authorization in practice is very common such as authorization to participate in legal proceedings, authorization to dispose of property, authorization to receive documents, papers... In civil transactions arising with third parties, both authorizer and authorized person are involved parties having the same purpose and the authorizer is responsible for the rights and obligations arising with a third person in civil transactions established within the scope of authorization. It should also be noted that the authorization time is limited and will be terminated under circumstances in which the authorization expires or one of the parties dies[5].

 

This is completely different from the nature of the conveyance of the resettlement land use right under the policy of Danang City because the result of this activity is the transfer of land use rights between the transferor and the transferee. The transferee does not perform this activity as the representative of the transferor but is an independent party wishing to buy the land use right and paying the transferor for the lawful long- term ownership of the land without the ownership termination.

 

Hence, it is against the nature of these independent transactions if the commitment to the conveyance is determined the authorization transaction.

 

So what is the nature of the commitment to change the name of the person receiving the resettlement land use right?

 

The nature of the commitment to change the name of the person receiving the resettlement land use right is a civil transaction. Civil transactions are expressed in two forms, which are unilateral legal acts or contracts of individuals, legal entities and other entities in order to give rise to, change or terminate civil rights and obligations[6].

 

The procedure for this policy is as follows: “Regarding procedures: requesting the head of household to make 02 applications (02 parties commit not to sue with confirmation of the People's Committee of the local ward or commune)”[7]. The commitment to the conveyance derives from the unilateral legal act of the transferor. However, if there are an agreement and commitment of the transferee in the document on name conversion in the document on not filing a complaint with the confirmation and endorsement of the communal People's Committee, this is no longer a unilateral legal act of a party. It becomes a civil contract between the two parties that gives rise to the rights and obligations of both parties on the committed contents. Although the transferor and the transferee have committed not to complain or sue as above, this commitment does not mean that the parties will lose the right to complain or initiate a lawsuit.

 

Thus, if assessing and screening the policy of changing the name of the receiver of resettlement land use right in Da Nang city with the transfer of land use rights and authorization under the law provisions. There are not suitable points. It is necessary to define that this is a civil transaction or a civil agreement between the parties to comply with the city's guidelines. Both are honest parties in a land-use right transfer transaction. This is the basis to be able to orient the solution for arising disputes (if any).

 

Consequences arise from the policy for changing the name of the receiver of resettlement land use right

 

Who is granted an land use right certificate and what is the procedure issued?

 

It is suggested that Clause 54, Article 2 of Decree 01/2017/ND-CP should be applied to amend Clause 1 Article 82 of Decree 43/2014/ND-CP to issue the land use right certificate to the transferee.

 

In which:

 

“A user of a land parcel that has not been certified, if using such land parcel under a following circumstance but not in an event defined in Section 2 of this  Article, shall apply for land registration and for initial certification of land use  right with or without ownership of house and properties attached to land as per the Land Law and this Decree without undergoing the procedure for transfer of land use right. In addition, the agency taking in the application cannot request the transferee of land use right to submit the contract and documents on land use right transfer as per the laws:

 

a) The land parcel was acquired through transfer or donation of land use right before 01st January 2008;

 

b) The land parcel was acquired through transfer or donation of land use right from 01st January 2008 to a date before 01st July 2014 and the documents on land use right pursuant to Article 100 of the Land Law and Article 18 of this Decree is are available;

 

c) The land parcel was acquired through inheritance of land use right before 01st July 2014”

 

There are some conditions to meet to apply this provision:

 

The use of land must originate from the receipt of the transfer, donation, or inheritance of land use rights. As analyzed above, it is not consistent with the law if it is considered that the change of the name of the person receiving the resettlement land use right is a transfer of land use rights.

 

(1) The change of name from January 1, 2008, to before July 1, 2014, was not automatically done according to the above provisions but requires papers on land use rights as specified in Article 100 of Law on Land and Article 18 of Decree 43/2014/ND-CP. In case of committing to change the name of receiver of resettlement land, the land without land use right papers is specified in Article 100 of the Land Law and Article 18 of Decree 43/2014 / ND-CP.

 

(2) It is applied to the land users  having the demand of obtaining the Certificate of land use rights, ownership of houses and other land-attached assets. Stable land use means the continuous use of land for a certain main purpose from the time the land was used for that purpose to the time the is Certificate of land use  rights, ownership of houses, and other land-attached assets issued. The starting time of stable land use is determined according to one of the papers specified in Clause 2, Article 21 of Decree No. 43/2014/ND-CP.

 

So, to apply the above provisions, the applicant for the Certificate does not need to submit a contract or document on the transfer of land use rights but needs to prove that he or she is a land user. In case the buyer of land is not using the land or has not implemented the activities of continuous use of the land, whether the above provisions are applied or not, it is necessary to reconsider. Because a rule applies to all subjects, the entities not meeting the conditions cannot be manipulated to apply the rule. In this case, recipients are changing their name to receive resettlement land-use rights but they are not land users.

 

Does the transferor or the transferee have to pay the land use levies?

 

From March 14, 2006, according to Official Letter No. 1518/UBND-QLDTh of People’s Committee of Da Nang city, the policy for conveyance was only applicable to the case of “having fully paid for land use fees” or “having not debited land use levy and paid 100% in full”. However, in reality, there are cases where the land-use levies are not paid or not paid in full but the conveyance procedure is allowed to be carried out. In these cases, it is necessary to clarify whether the transferor or the transferee is the subject responsible for paying the outstanding land use levies.

 

Land use levy means an amount of money that a land user shall pay to the State when being allocated land with land use levy by the State, permitted to change the land use purpose, or having land use rights recognized by the State.[8]. Land users may be allocated land or leased land, have land use rights recognized by the State, or acquire land use rights in accordance with Law on land[9].

 

In principle, the transferor (the party to which the State allocates land for resettlement) is the subject responsible for paying land use fees and the transferee is not automatically responsible for the payment of land-use levies. Therefore, it is not consistent with the above law provisions if the People's Committee of Da Nang city promulgates a regulation requiring the buyer to pay the outstanding land-use levies.

 

Is the provision of Article 2 of Decree No. 79/2019/ND-CP applicable to resolve it?

 

Article 2 of Decree No. 79/2019/NĐ-CP stipulates the resolution where the land-use levy is allowed to be debited over periods of time have not yet repaid all of their outstanding debts before this Decree enters into force (December 10, 2019).

 

If this Decree is applied to handle the case where the transferee (the recipient of the resettlement land) pays the land-use levies, he/she will encounter the following problems:

 

(1) For subjects of application of Decree 79/2019/ND-CP who are "Households and individuals whose land use levy has been debited on the Certificate in accordance with the law over periods of time", the creditor of the land use levy is the transferor and the debit must be shown on the certificate of land use rights. Thus, the subject is inappropriate if the Decree 79/2019/ND-CP is applied for cases where the transferee (the recipient of land for resettlement) was not granted the certificate or did not obtain the decision on land allocation.

 

(2) The procedures for the payment and writing of of land use levy debts are specified in Clause 5, Article 1 of this Decree[10]

 

- Based on the notice of the tax agency, the household and individual pay the outstanding land-use levy at the State Treasury;

 

After making the payment of the land use levy, the household or individual shall submit a dossier including Certificate (original), receipt of land use levy (original) at the office for writing off the debt of land use levy recorded in the Certificate;

 

- The office is responsible for checking and comparing the documents submitted by the household or individual to write off the land use levy shown on the Certificate and returning the Certificate to the household or individual within a working day.

 

If carrying out this procedure, in order to write off the debt, it is required to obtain the original certificate of land use right while the policy of conveyance is implemented when the transferor does not obtain the certificate. Thus, it is not appropriate  to apply the procedures under Decree 79/2019/ND-CP in this case.

 

Should Decision on land allocation be issued?

 

According to Article 27 of Decision No. 15/2017/QĐ-UBND of Da Nang City[11] amended by Decision No. 17/2020/QĐ- UBND[12] on land allocation as follows:

 

* Within no more than 03 (three) working days from the date on which the land user requested to receive resettlement land (actual receipt of land), the authority in charge of compensation is responsible for the procedures for on-site land handover to the land users;

 

* Within no more than 02 (two) working days from the date of handing over the land to the land user, the authority in charge of compensation is responsible for the procedures and transfers all documents to the Division of Natural Resources and Environment to  submit them to the People's Committees of districts for promulgation of  land allocation decisions;

 

* Within no more than 05 (five) working days from the date of receiving a complete application, the Department of Natural Resources and Environment prepares the procedure and submits the application to the People's Committee of the district to issue the decision on land allocation and send the decision for the branch of the land registration office in the district to transfer address information under the law regulations.

 

Land allocation decisions are mandatory procedures to arrange land resettlement. According to the above content, the land allocation decision will be issued to the land user. The land user is understood as the persons defined in Article 5 of Law on land 2013, who are assigned or leased the land by the State, recognized the land use rights and receive the transfer of land use rights under  Law on land. That means that the land user is the seller (the party receiving the land to arrange resettlement).

 

Thus, the solution of not issuing a land allocation decision will not be consistent with the order and procedures set by the People's Committee of Da Nang city. Besides, the subject is inappropriate if that decision is issued to the buyer (the recipient land for resettlement).

 

3. Solving the problems of the conveyance policy to receive resettlement land in reality

 

Viewpoints from the practice of the People’s Courts for disputes arising from the policy of conveyance in Da Nang city

 

In fact, Da Nang city currently arises many disputes related to the policy of conveyance to receive resettlement land. Common types of disputes are the seller's request to cancel the previous commitment to change the name of the seller, request to cancel the land use right certificate (if any) of the seller... Besides, there are other cases such as the request to cancel later transactions of land use right transfer between the purchaser and another third party, cancellation of issued land use right certificates related to the resettlement land lot, redundancy inheritance, and distribution of inheritance...

 

The practical trial of the Court shows that normally, the conveyance transactions between the transferor and the transferee are not declared invalid but recognized by the Court on the following legal practical basis:

 

(1) The court determined that the commitment to the conveyance of receiving land use rights is a voluntary agreement of the parties, which is implemented under the policy of the city of Da Nang, neither party is at fault in the application of land use rights. Currently, there is no conclusion that the policy of conveyance in the People's Committee of Da Nang city is illegal. Thus, the transactions arising from this policy do not violate the prohibition of the law nor the social morality.

 

(2) The conveyance of the land use rights, whether identified as transfer or donation of land use rights, has been done in practice when the seller knows without objecting to the buyer's land use activities. The buyer is allowed to publicly and continuously use the land plot for a stable way without objection not being sanctioned by a competent State agency for administrative violations in the field of land.

 

(3) The provisions of Resolution 02/2004/NQ-HDTP has been applied by  the Court to recognize the land use right transfer transaction established after October 15, 1993, for the eligible cases to apply, specifically:

 

According to point b.2 of Subsection 2.3, Section 2 of Part II of Resolution 02/2004/NQ-HĐTP, in case where  the land use right transfer contracts, at the time of signing such land use rights, did not satisfy the conditions for transfer under the provisions of Point a4, subsection 2.3, Section 2 of Resolution 02/2004/NQ- HDTP. This means that the land has not been granted a land use right certificate, and the contract has not been certified or authenticated by a competent state agency but has since been issued with a land use right certificate by the competent People's Committee. The dispute, which was requested to be settled by the Court on July 1, 2004, is not considered invalid due to violation of these conditions.

 

* According to point b.3, subsection 2.3, Section 2 of Resolution 02/2004/NQ- HĐTP, in case of violation of the above- mentioned conditions, the Court still recognizes the contract if, after performing the transfer contract, the transferee has planted perennial trees, built a permanent house... and the transferor does not object and also not be handled by the competent state agency for administrative violations under the State's regulations on the handling of administrative violations in the field of land.

 

In terms of the form of the contract, according to Article 129 of the 2015 Civil Code, civil transactions are violating the conditions of validity but will not be declared invalid if they fall into the following case:

 

If the form of a civil transaction, required to be established in writing, does not comply with regulations of law, but a party or the parties has/have fulfill at least two third of the obligations in the transaction, a court, at his/her/their request(s), shall issue a decision on recognition of the validity of such transaction.

 

If the form of a civil transaction, required to be established in writing, violates against regulations on notarizing or authorization, but a party or the parties has/have fulfill at least two third of the obligations in the transaction, a court, at his/her/their request(s), shall issue a decision on recognition of the validity of such transaction. In this case, the parties need not perform the notarizing or authorization.

 

In case the transferor and the transferee are parents and children, the Court also applies Caselaw No. 03/2016/AL adopted by the Judges Council of Supreme People's Court dated April 6, 2016 published under Decision 220/QD-CA dated April 6, 2016 of the Chief Justice of the Supreme People's Court as follows: “In the case where parents grant the land use right of a certain land area to their child and his/her spouse, the couple has built a permanent house on that land area for their residence; when the couple was building, their parents and other family members did not have any objections; the couple even used the house and land continuously, publicly, and stably, have implemented procedures to declare their land use rights, and have been granted the certificate of land use rights, then it must be determined that the land use rights are gifted to the couple.”

 

In fact, the arising cases are very diverse. Depending on the details of each case, the instruction of the Court’s resolution is also different. However, in general, the Court won’t base on the policy of conveyance in Danang city to determine that the conveyance commitments between the transferor and the transferee were void and nun. Therefore, in some cases, the Court recognizes the commitment transactions between the parties, while maintaining the legal value of the Certificate of land use rights, ownership of houses and other land-attached assets granted to the transferee. The rights of the transferee are still guaranteed in terms of the land use rights granted to them.

 

Currently, there are many new solutions to solve problems related to the policy of conveyancing and receiving resettlement land in Da Nang city such as not issuing a land allocation decision; requesting the transferee to pay land use fees. It is allowed to apply Decree 79/2019/ND-CP to the transferee who is entitled to the same land use levy payment policy as for those who are arranged for resettlement. However, these are all different contents from the current law.

 

Therefore, in the case where the People's Committee of Da Nang city promulgating and applying these solutions, it will create  a difference in comparison to the system of legal documents of higher authorities, leading to the inspection and supervision of Superior state agencies according  to Article 112 of the Constitution 2013. We may enact some regulations to overcome the consequences of some inappropriate regulations in the past, but the new regulations are not consistent with the current law.

 

To avoid repeating the current cases when Da Nang City's policies are reviewed by ministries and superior agencies, legal assessment leads to replacement, cancellation, and affecting the overall operation of the city. While the government apparatus directly affects the legitimate and legal rights of the people affected by the policy, the government of Da Nang city needs to have solutions to completely solve the problems, but still must ensure compliance with applicable laws.

 

Therefore, Da Nang city must request guidance from the Government and relevant ministries to resolve and deal with problems that are still problematic when dealing with policies (before here) on the conveyance of the transferee of the land use right to arrange resettlement. Based on guidance and instruction from central competent agencies, it is possible to find out the ways to handle the regulatory issues to deal with current problems. Or, in case of exceeding their authority, propose competent legislative or regulatory agencies to issue appropriate legal regulations to regulate, prescribe or guide problems encountered in Da Nang city.

Written by Lawyer Le Cao, Lawyer Tran Hau, Lawyer Nguyen Cong Tin - FDVN Law Firm

REFERENCES

1. Constitution of the Socialist Republic of Vietnam 2013;
2. Civil Code No. 44-L/CTN, (National Assembly, October 28, 1995);
3. Civil Code No. 33/2005/QH11, (National Assembly, June 14, 2005);
4. Civil Code No. 91/2015/QH13, (National Assembly, November 24, 2015);
5. Land Law No. 13/2003/QH11, (National Assembly, November 26, 2003);
6. Land Law No. 45/2013/QH13 (National Assembly, November 29, 2013);
7. Decree 181/2004/ND-CP, (Government, October 29, 2004) On the implementation of the Land Law;
8. Decree No. 43/2014/ND-CP, (Government, dated May 15, 2014) detailing the implementation of several articles of the Land Law;
9. Decree 01/2017/ND-CP, (Government, January 6, 2017) amending and supplementing some decrees detailing the implementation of the Land Law;
10. Decree No. 45/2014/ND-CP, (Government, dated 15/5/2014) regulating the collection of land use fees;
11. Decree No. 79/2019/ND-CP, (Government, October 26, 2019) amending Article 16 of the Government's Decree No. 45/2014/ND-CP dated May 15, 2014, on land use levy collection;
12. Decree No. 198/2004 / ND-CP, (Government, dated December 3, 2004) regulating the collection of land use fees;
13. Decree No. 17/2006/ND-CP, Government, dated January 27, 2006) amending and supplementing some articles of decrees guiding the implementation of land law;
14. Decree No. 120/ND-CP, (Government, dated December 30, 2010) Amending and supplementing some articles of Decree No. 198/2004 / ND-CP dated December 3, 2004, of Government on the collection of land use fees;
15. Circular 93/2011/TT-BTC, (Ministry of Finance, June 29, 2011) Amending and supplementing Circular No. 117/2004/TT-BTC, dated December 7, 2004 current Decree 198/2004/ND-CP, dated 03/12/2004 on the collection of land use fees;
16. Resolution 02/2004/NQ-HDTP, (Council of Judges of the Supreme People's Court, August 10, 2004) guiding the application of the law in the resolution of civil and marriage cases and family ("Resolution 02/2004 / NQ-HDTP").