MỨC PHẠT KHI CHUYỂN ĐỔI QUYỀN SỬ DỤNG ĐẤT NÔNG NGHIỆP MÀ KHÔNG CÓ SỔ ĐỎ / PENALTIES FOR TRANSFERRING

Legal situation: Dear Lawyer, I would like to ask whether transferring agricultural land use rights without a Land Use Right Certificate (“Red Book”) would be subject to penalties. I look forward to your advice. Thank you.

FDVN’s Opinion: Thank you for trusting and submitting your inquiry to FDVN Law Firm (“FDVN”). After reviewing the relevant legal provisions, FDVN provides the following opinion:

[1] Conditions for transferring agricultural land use rights

According to Clause 12, Article 3 of the Land Law 2024, the transfer of land use rights is a form of land use right assignment.

Under Point b, Clause 1, Article 37 of the Land Law 2024, households and individuals using agricultural land allocated by the State within the prescribed quota; land allocated by the State with land use levy; land leased by the State with a one-off rental payment for the entire lease term; land whose use rights are recognized by the State; or land obtained through conversion, transfer, donation, or inheritance, are entitled to transfer agricultural land use rights to other individuals.

The specific conditions for such transfers are provided in Article 47 and Clause 1, Article 45 of the Land Law 2024, as follows:

• Article 47 stipulates that individuals using agricultural land allocated by the State, or obtained through conversion, transfer, inheritance, or lawful donation, may only transfer such rights within the same provincial administrative unit to other individuals and are exempt from income tax and registration fees arising from the transfer.
• Clause 1, Article 45 provides that a land user may exercise the right to transfer land use rights when all of the following conditions are satisfied:

+ The land user possesses a Land Use Right Certificate, a Certificate of Ownership of Residential House and Land Use Rights, or a Certificate of Land Use Rights, Ownership of House and Other Assets Attached to Land, except in cases of agricultural land consolidation and exchange;

+ The land is not subject to dispute, or any dispute has been lawfully resolved by a competent authority, court judgment, arbitral award, or decision that has taken legal effect;

+ The land use right is not under distraint or subject to enforcement measures to secure judgment execution in accordance with civil enforcement laws.

It can be observed from these provisions except for the case of agricultural land conversion for land consolidation and parcel rearrangement, all other forms of agricultural land use right conversion must satisfy the condition of possessing a Land Use Right Certificate, a Certificate of Ownership of Residential House and Land Use Rights, a Certificate of Land Use Rights, Ownership of Residential House and Other Assets Attached to Land, or a Certificate of Land Use Rights and Ownership of Assets Attached to Land.

[2] Penalties for unauthorized or non-compliant transfers of land use rights

Pursuant to Clause 1, Article 17 of Decree No. 123/2024/NĐ-CP, individuals who transfer agricultural land use rights without satisfying the statutory conditions shall be subject to the following administrative penalties:

• A fine ranging from VND 2,000,000 to VND 3,000,000 for transferring agricultural land use rights without meeting any of the conditions prescribed under Clause 1, Article 45 of the Land Law 2024, including the act of transferring land use rights without a Land Use Right Certificate, except in cases of agricultural land consolidation or exchange;
• A fine ranging from VND 3,000,000 to VND 5,000,000 for transferring agricultural land use rights in violation of Article 47 of the Land Law 2024;
• A fine ranging from VND 5,000,000 to VND 10,000,000 for transferring agricultural land use rights in violation of both Clause 1, Article 45 and Article 47 of the Land Law 2024.

Furthermore, under Clause 2, Article 5 of Decree No. 123/2024/NĐ-CP, the above penalty levels apply to individuals. For organizations, the fine shall be twice the amount imposed on individuals.

Accordingly, transferring agricultural land use rights without a Land Use Right Certificate, except in cases of land consolidation or exchange, shall result in an administrative fine ranging from VND 2,000,000 to VND 3,000,000 for individuals, and from VND 4,000,000 to VND 6,000,000 for organizations.

The above constitutes FDVN’s legal opinion on your inquiry. We hope the information provided herein is helpful to you.

Nguyễn Thị Huyền Trang – FDVN Law Firm