Is reclaimed land entitled to ownership and construction?

Is reclaimed land entitled to ownership and construction?
Posted date: 17/01/2022

Legal situation:

My family owns a land plot in Thanh Tri, Ha Noi. The land of 500m2 has been reclaimed and used stably for over 30 years. The land is located adjacent to To Lich river bank. A part of the land is used for stable housing, and the remaining land is for trees and livestock. Now, my family has expanded more reclaimed land and built a temporary house on the remaining land, but the commune-level People’s Committee prevented us and requested us to pay administrative fines and demolition. In the minutes, it is written that my family violated construction on non-agricultural land managed by the commune. Therefore, I would like to ask that is it correct if the commune-level People’s Committee imposes these penalties on my family, and what should I do to protect our lawful benefits? Sincerely thank you.

Answer:

Thank you for trusting and sending your questions to FDVN Law Firm (“FDVN”). For your consulting request, after researching the relevant legal provisions, FDVN would like to send you some references as follows:

Based on the information you provided, the land parcel that you are using is reclaimed land, which has been used stably for over 30 years, and now has a stable house on that land, and the rest is used for farming and raising livestock. However, this land plot has not been granted the certificate of land use rights. According to the provisions of law, the certificate of land use rights is a legal document for the State to certify the lawful land use rights and ownership of houses and other land-attached assets of the persons with land use rights, house ownership rights, and ownership of other land-attached assets. Thus, the fact that your family has not yet obtained the certificate of land use rights is also a disadvantage.  

To protect the lawful rights, your family needs to carry out the procedures for registration of land use rights to be granted the first land use right certificate. 

Grounds to be issued the certificate of land use rights are in Article 100 of Land Law 2013, specifically as follows:

Article 100. Grant of the certificate of land use rights and ownership of houses and other land-attached assets to households,

individuals, and communities that are using land and have documents on land use rights

1. Households and individuals that are using land stably and have one of the following documents shall be granted a certificate of land use rights and ownership of houses and other land-attached assets without having to pay land use levy:

a/ The documents on land use rights made before October 15, 1993 issued by a competent authority 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; 

b/ 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;

c/ 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;

d/ 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;

e/ 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;

f/ The document on land use rights issued by a competent authority of the former regime to land users;

g/ Other documents issued before October 15, 1993, in accordance with the Government’s regulations.

2. Households and individuals that are using the land and have one of the documents specified in Clause 1 of this Article 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 the effective date of this Law, and there is no dispute on that land, shall be granted a certificate of land use rights and ownership of houses and other land-attached assets without having to pay land use levy.

3. 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, shall be granted a certificate of land use rights and ownership of houses and other land-attached assets. In case they have not fulfilled their financial obligations, they shall fulfill those obligations in accordance with law.

4. Households and individuals using land that is allocated or leased by the State from October 15, 1993, to the effective date of this Law and have not been granted a

certificate, shall be granted a certificate of land use rights and ownership of houses and other land-attached assets. In case they have not fulfilled their financial obligations, they shall fulfill those obligations in accordance with law.

5. Communities using land with communal houses, temples, shrines, hermitages, worship halls or ancestral temples; agricultural land prescribed in Clause 3, Article 131 of this Law, and that land is dispute-free and is certified as the land used commonly by the community by the commune-level People’s Committee, shall be granted a certificate of land use rights and ownership of houses and other land-attached assets.

In case of your family does not have one of the above documents as prescribed in Article 100 of Law on Land 2013 but is still eligible to apply for the certificate of land use rights if your family meets the conditions specified in Clauses 1, 2 Article 101 of Law on Land 2013: 

1. Households and individuals using the land prior to the effective date of this Law and having none of documents prescribed in Article 100 of Law on Land 2013 that have a book of status of permanent residence in the locality and are directly engaged in agriculture, forestry, aquaculture or salt production in areas with difficult socio-economic conditions or especially difficult socio-economic conditions, and are certified by the commune-level People’s Committee that the land has been used stably and dispute-free, shall be granted a certificate of land use rights and ownership of houses

and other land-attached assets without having to pay land use levy.

2. Households and individuals using land and having none of documents prescribed in Article 100 of Law on Land 2013 that have used land stably before July 1, 2004, with no violations of the land law and such land is certified by the commune-level People’s Committee as dispute-free and conformable with the land use master plan, detailed urban construction master plan and master plan on construction of rural residential areas approved by competent state agencies, shall be granted a certificate of land use rights and ownership of houses and other land-attached assets.

If falling into one of the above cases, you can contact the district-level People’s Committee, the district-level land registration Office to carry out procedures to apply for the issuance of the certificate of land use rights to your family’s land. In case of being rejected, you can file a lawsuit in Court to request recognition of land use rights for your family. 

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. 

Lê Quân – FDVN Law Firm


 

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