Opinions on the draft revised Land Law: The need to complete regulations related to dispute resoluti

Land disputes are a common, complex type of dispute that greatly affects social activities and is an important issue not only in the process of resolving disputes, but this issue also has great impacts in individuals and organizations exercising their rights to land use rights. In our opinion, there are two major issues related to land disputes that the Draft revised Land Law 2023 (Draft Land Law) needs to be completed to ensure there is a complete legal basis to solve the problems posed in the recent implementation of the Land Law, which are: The draft Land Law needs to define the concept of "land in dispute" or sepecify conditions to determine "land in dispute"; The draft Land Law also needs to clarify the coordination relationship between litigation-conducting agencies and state land management agencies in resolving land disputes. 

FIRST, THE DRAFT LAND LAW NEEDS TO DEFINE THE CONCEPT OF "DISPUTED LAND" OR SPECIFY CONDITIONS FOR DETERMINING 'DISPUTED LAND'.

According to current regulations, Clause 24, Article 3, Land Law 2013 stipulates that "Land dispute means a dispute over the rights and obligations of land users among two or more parties in a land relationship". Curently, in the Draft Land Law, there are similar provisions in Clause 28, Article 3 of the Draft Land Law. However, when, what conditions and characteristics can determine a parcel of land, an area of land or a disputed land use right are not specified by the current Law and the Draft Land Law.

Meanwhile, the issue of "dispute-free land" is an extremely important condition for land users to exercise the rights to convert, transfer, lease, sublease, inherit, donate, mortgage of land use rights; Capital contribution using land use rights specified in Point b, Clause 1, Article 188 of the 2013 Land Law (or stated in Point b, Clause 1, Article 211 of the Draft Land Law). Without the condition "dispute-free land", land users will not be able to exercise their rights mentioned above. This is the core issue and a mandatory condition for land users to have and exercise rights on land according to the law. However, up to now, there is no regulation determining what "dispute-free land" is, or whether every parcel of land that exists today have the status of "dispute-free land" or not, how and when it can be determined that a plot of land is in the state of "dispute-free", which the current Law and Draft do not stipulate. And so, if there is no such regulation, then the current Law also has no regulations defining "disputed land" as a basis for determining the rights of land users. Currently, both the 2013 Land Law and the new Draft do not have regulations on what constitutes "dispute-free land" or "disputed land" , while this is an extremely important factor to determine actual rights of land users. Because, in some cases, although people are granted land use rights certificates, which are still within the period of use, are not distrained for enforcement or subject to other judicial measures, they cannot exercise their rights if the lands are considered "disputed land". So in which case is land considered “disputed land”, if the law does not clearly stipulate, the actual exercise of land users' rights will be affected.

Currently, there are a number of regulations determining the status of “disputed land” in a number of by-law documents, but they have not been uniformly regulated or brought into laws, leading to different interpretations and problems when applying.

According to Point c, Clause 1, Article 15 of Decree 99/2022/ND-CP on registration of security interests, if the property is in dispute, the registry may only refuse the registration when there is a document accepting or justifying the acceptance of settlement of dispute issued by the court or other dispute settlement authority. This regulation refers to property in general, including land use rights, from this regulation, it can be understood that when land use rights involve documents accepting or justifying the acceptance of settlement of dispute issued by the court or other dispute settlement authority, the property is determined to be "in dispute" and then it is impossible to register for a secured transaction in particular and exercise other rights of land users in general.

Meanwhile, according to the provisions of Circular No. 24/2014/TT-BTNMT supplemented with Article 11a in Circular 33/2017/TT-BTNMT, one of the cases where the State agency rejects the Registration and issuance of Certificate of land use rights, ownership of houses and other assets attached to land is upon receipt of a document from the agency competent to resolve land disputes on receipt of the application to resolve disputes over land and assets attached to land.

Thus, according to the Government's Decree,"disputed lands" are cases where there are documents accepting or proving that the land is being involved in dispute resolution processes. While according to the Circular of the Ministry of Natural Resources and Environment, the competent authority to resolve the dispute must have a written confirmation of receipt of the application to resolve the land dispute. There will be deviations in the time when land is confirmed to be in dispute, for example if a land dispute is initiated by one party in court, the time of filing a lawsuit (and receiving petition) is the date of filing, however it might take a long period for the court to accept the petition. In particular, within 03 working days from the date of receiving the petition, the Chief Justice of the Court assigns a Judge to consider the petition. Within 05 working days from the date of assignment, the Judge must review the petition to proceed with acceptance procedures. If it is deemed that the case is within the jurisdiction, the Judge will notify on the procedure for paying the court fee advance. Within 7 days, the plaintiff shall pay the court fee advance. After the Court receives the court fee payment receipt, the petition will be accepted (except in cases where the plaintiff is exempted or does not have to pay advance court fees, where the Judge must accept the case upon receiving the petition and attached documents, evidence).

Thus, the gap between the date of receipt of a lawsuit petition and the date of notification of acceptance of a land dispute settlement case is very long, but currently different regulations stipulate that this is a condition for determining whether the land is in dispute or not. During the period between those two times, according to Decree 99/2022/ND-CP, land use rights can still be the subject of mortgage, but according to Circular 33/2017/TT-BTNMT, land use right in this case is no longer eligible for mortgage.

In our opinion, when amended, the Land Law needs to clearly define "dispute-free Land" or regulate the status of "land in dispute" in the direction of determining when it is considered disputed land: When the Commune-level People's Committee has confirmed receipt of the application for conciliation of land disputes at the Commune-level People's Committee (for disputes that must go through conciliation procedures at the Commune-level People's Committee) or when there is confirmation from the Court accepting the lawsuit petition (for disputes related to land use rights but not required to go through conciliation procedures at the commune-level People's Committee).

SECOND, IT IS NECESSARY TO CLARIFY THE REGULATIONS ON THE COORDINATION RELATIONSHIP BETWEEN PROCEEDING AGENCIES AND STATE MANAGEMENT AGENCIES IN RESOLVING LAND DISPUTES AND MANAGING LAND ACTIVITIES

Link for full: Opinions on the draft revised Land Law: The need to complete regulations related to dispute resolution

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