ISSUANCE OF LAND USE RIGHTS CERTIFICATES, OWNERSHIP CERTIFICATES OF ASSETS ATTACHED TO LAND IN ACCORDANCE WITH LAND LAW TO PROTECT THE RIGHTS OF REAL ESTATE BUYERS IN HỒ CHÍ MINH CITY
ISSUANCE OF LAND USE RIGHTS CERTIFICATES, OWNERSHIP CERTIFICATES OF ASSETS ATTACHED TO LAND IN ACCORDANCE WITH LAND LAW TO PROTECT THE RIGHTS OF REAL ESTATE BUYERS IN HỒ CHÍ MINH CITY
Lê Chí Cường
MSc, Inspection – Legal Department, Saigon University
ABSTRACT
The issuance of Land Use Rights Certificates, ownership certificates of assets attached to land is an important step, and can be considered the final step of the land coordination process. The issuance of the certificates aims to establish all necessary legal grounds for state management of land; to create a legal basis to protect the legal rights and interests of land users. The article discusses the provisions of the law on land related to the issuance of the certificates; factors affecting the protection of the rights of real estate buyers in the issuance of the certificates; suggestions and recommendations to improve land law in general, as well as the issuance of the certificates in particular.
Keywords: certificate, land use rights, real estate buyer, Land Law.
I. INTRODUCTION
The Land Use Rights Certificate, ownership certificate of assets attached to land (hereinafter referred to as the Certificate) is a legal document issued by the State to confirm the lawful land use rights and ownership of assets attached to the land of the person entitled to such rights and ownership (Clause 21, Article 3 of the 2024 Law on Land); it is issued by the State to land users during the process of state land management.
In Vietnam, land is owned by the entire people, with the State acting as the representative owner and unified manager. The State assigns land use rights to land users according to regulations. While the State is the representative owner of all land, it does not directly exploit or use the land but transfers land use rights to land users. This transfer is carried out through various forms such as land allocation, land leasing, recognition of land use rights, etc., and the issuance of the Certificate to land users.
This is a very complex land coordination process. It simultaneously reflects the State’s ownership of land and its land management activities. The land coordination process must also align with the common interests of the entire society and meet the requirements of a market economy (Thái, 2018). The land coordination process culminates in the State issuing the Certificate to land users to establish all the necessary legal grounds for state land management and to create a legal basis for protecting the legitimate rights and interests of land users.
In recent times, despite the competent authorities proposing numerous solutions and developing various plans to organize the issuance of the Certificate, there are still many difficulties, obstacles, and low efficiency. The fundamental reasons are as follows:
Firstly, the system of legal documents on the issuance of the Certificate still has many limitations, shortcomings, and is not optimal.
Secondly, land users themselves do not have a proper understanding of their rights and obligations when participating in land-related legal relationships, or they have committed legal violations related to land (such as arbitrarily subdividing land plots, changing land use purposes against regulations, conducting land use rights transactions through informal agreements, etc.), which has affected the issuance of the Certificate.
According to the report from the Department of Natural Resources and Environment of Hồ Chí Minh City, from 2015 to 2022, the total number of dossiers received was 165,716, of which 107,195 dossiers have been resolved and 58,521 dossiers are being resolved. The statistics over the past 8 years show that the number of received dossiers has increased each year, with an average of 107,195 dossiers resolved (approximately 64.6%) and 58,521 dossiers being resolved (approximately 35.4%).
In the first year of implementation, the resolution rate was quite low (only 20.2%, as the 2013 Law on Land had just come into effect and the Land Registration Office was newly established); however, in the following 7 years, the resolution rate gradually increased, averaging around 67.3%, with the remaining 32.7% of dossiers still being resolved (CM, 2023).
Therefore, we can see that research on both theoretical and practical aspects of the current issuance of the Certificate is an urgent requirement. A smooth issuance of the Certificate ensures the protection of the rights of real estate buyers.
II. FACTORS AFFECTING THE PROTECTION OF REAL ESTATE BUYERS’ RIGHTS IN THE ISSUANCE OF THE CERTIFICATE
- Delimitation of authority for Certificate issuance
Article 136 of the 2024 Law on Land stipulates the authority for issuing Land Use Rights Certificates, ownership certificates of assets attached to land as follows:
Firstly, the initial issuance authority of the provincial-level People’s Committee for land users includes: domestic organizations such as state agencies, the Communist Party of Vietnam’s agencies, people’s armed forces units, the Vietnam Fatherland Front, socio-political organizations, socio-political-professional organizations, social organizations, socio-professional organizations, public non-business units, and other organizations as prescribed by law; economic organizations as prescribed by the Investment Law;
religious organizations, subordinate religious organizations; foreign organizations with diplomatic functions, including diplomatic missions, consulates, and other foreign representative offices with diplomatic functions recognized by the Vietnamese Government; representative agencies of organizations under the United Nations, intergovernmental organizations, and representative agencies of intergovernmental organizations; overseas Vietnamese; and foreign-invested economic organizations. The provincial-level People’s Committee is authorized to delegate the issuance of the Certificate to the land management agency at the same level.
Secondly, the initial issuance authority of the district-level People’s Committee for land users includes: domestic individuals, overseas Vietnamese who are Vietnamese citizens, and residential communities. The issuance and confirmation of changes to the Certificate in cases of land registration changes are carried out by the land registration organization and its branches based on the land user.
Compared to the 2013 Law on Land, the 2024 Law on Land provides more detailed and specific regulations on the authority for issuing the Certificate. However, in terms of the approach to determining authority, the State still relies on the factor of land users without considering the differences, diversity, and complexity of the local real estate market. This has created difficulties in the issuance of the Certificate in large provinces and cities, with Hồ Chí Minh City being a typical example.
Resolution No. 98/2023/QH15 dated June 24, 2023, of the National Assembly on the pilot implementation of specific mechanisms and policies for the development of Hồ Chí Minh City, granted authority and decentralization in many important fields, including resources and environment. To protect the rights of real estate buyers, Hồ Chí Minh City can leverage its advantages in the specific mechanisms to delineate the authority for the issuance of the Certificate in accordance with practical requirements.
- Determining land prices
According to the 2024 Law on Land, land price is the value of land use rights calculated in money per unit area of land (Clause 19, Article 3). This is a fundamental financial obligation that land users must fulfill, serving as the basis for the State to issue the Certificate. Clause 10, Article 13 of the 2024 Law on Land stipulates the State’s rights as the representative owner of land:
“Regulate principles and methods for land valuation; promulgate the land price table and decide specific land prices.” The implementation of this State right still has many inadequacies and limitations, directly affecting the fulfillment of land users’ financial obligations, leading to delays in the issuance of the Certificate. Currently, a significant number of land users have not received their Certificate due to this reason.
According to the 2023 plan of the Department of Natural Resources and Environment of Hồ Chí Minh City to accelerate the issuance of the Certificate, specifically for commercial housing projects, the number of units that have not been issued a Certificate is divided into 6 groups:
– Group 1: 8,159 units have no legal obstacles and are only waiting for confirmation of completed financial obligations.
– Group 2: 30,061 units have not been issued a Certificate because the project enterprises are slow in submitting the application for the Certificate.
– Group 3: 10,019 units have not been issued a Certificate due to obstacles related to new types of real estate not yet regulated in legal documents.
– Group 4: 19,958 units have not been issued a Certificate due to the need to fulfill additional financial obligations.
– Group 5: 4,653 units have not been issued a Certificate due to other obstacles.
– Group 6: 8,235 units have not been issued a Certificate because they are under inspection, examination, or investigation (Long, 2023).
Decree No. 71/2024/NĐ-CP dated June 27, 2024, of the Government on land prices will come into effect when the 2024 Law on Land comes into effect. This decree will address the issues and bottlenecks in land price determination. The application of land valuation methods such as comparison, income, surplus, and land price adjustment coefficients will help resolve the backlog of Certificate issuance dossiers for commercial housing projects.
Additionally, the 2024 Law on Land introduces several new provisions:
Firstly, it grants the Government the authority to prescribe other land valuation methods not provided for in the 2024 Law on Land, subject to the approval of the Standing Committee of the National Assembly. This provision facilitates the competent state agencies in issuing the Certificate for cases such as:
– Issuance of the Certificate for households, individuals, and residential communities using land with documents on land use rights.
– Issuance of the Certificate for households and individuals using land without documents on land use rights, provided they have not violated land law and the land was not allocated inappropriately.
– Resolution of cases where households and individuals using land have violated land law before July 1, 2014.
Secondly, for Certificate issuance applications that have been received by competent authorities but have not been issued by the effective date of the 2024 Law on Land, the procedures will continue to be handled in accordance with the 2013 Law on Land and its detailed implementing regulations and guidelines. If the land users request to apply the 2024 Law on Land, the competent authorities will resolve the procedures according to the provisions of this law.
- Improving, publicizing, and ensuring transparency of the national land database
According to the 2024 Law on Land, the national land database is a collection of land databases where data is arranged and organized for access, exploitation, sharing, management, and updating through electronic means (Clause 14, Article 3). The national land database contains data on land-related legal documents; cadastral data; data on land investigation, evaluation, protection, restoration, and improvement; data on land use planning and plans; land price data; data on land statistics and inventory; data on land inspection, examination, public reception, dispute resolution, complaints, and denunciations related to land; and other land-related data.
The establishment of a land database plays a particularly important role in state land management and in developing a healthy and thriving real estate market. The improvement, publicization, and transparency of the land database bring great efficiency and benefits to both the State and land users in the issuance of the Certificate, specifically:
Firstly, the State has a comprehensive and reliable basis to issue the Certificate with high accuracy; addressing discrepancies between the information on the Certificate and actual land use. Throughout the country’s development, land law and state land management have undergone many changes. However, these changes have not kept pace with the development of the real estate market; land information and data remain unclear; and activities such as administrative boundary management, surveys, measurements, cadastral record management, land statistics, and inventory still have limitations. Combined with the rapid development of scientific and technical conditions, including AI technology, it is more necessary than ever to improve the land database, creating a foundation for the State to issue the Certificate with high accuracy.
Secondly, land users have a complete legal basis to participate in real estate transactions without facing risks. According to points a and b, Clause 1, Article 45 of the 2024 Law on Land, which stipulates the conditions for exercising the rights of conversion, transfer, lease, sublease, inheritance, donation of land use rights; mortgage, capital contribution with land use rights; receiving the transfer, receiving the donation of land use rights, land users must meet conditions such as having a Certificate and the land not being in dispute.
This regulation confirms that although the land user has a Certificate, if the land is in dispute, the land use rights cannot be transacted. In other words, even though the land user has been issued a Certificate, land disputes may still occur.
Meanwhile, the 2024 Law on Land clearly states that the Land Use Rights Certificate, ownership certificate of assets attached to land is a legal document for the State to confirm the lawful land use rights and ownership of assets attached to the land of the person entitled to such rights and ownership. The Certificate is issued by the competent state agency to the land user according to legal procedures; however, the risk of land disputes may still arise.
To address this situation, to reassure land users in real estate transactions, and to protect the rights of real estate buyers, improving, publicizing, and ensuring the transparency of the land database plays an important role.
- Ensuring the right to be issued a Certificate for land users
Clause 1, Article 26 of the 2024 Law on Land stipulates the general rights of land users: “To be issued the Land Use Rights Certificate, ownership certificate of assets attached to land when they meet the conditions as prescribed by the land law.”
Clause 2, Article 15 of the 2024 Law on Land stipulates the State’s responsibility towards land users: “To issue the Land Use Rights Certificate, ownership certificate of assets attached to land to land users when they meet the conditions as prescribed by the land law.” Article 136 of the 2024 Law on Land specifies the authority for issuing the Land Use Rights Certificate, ownership certificate of assets attached to land.
From these provisions and practical experience, we can see that land users are in a weaker position in land-related legal relationships when it comes to the issuance of the Certificate. According to legal science, for one party in a legal relationship to achieve their rights, the other party must fulfill their obligations. Moreover, the land law has not clearly defined the relationship between land users and the State in the issuance of the Certificate as either a commanding, authoritative relationship or an equal, negotiated one.
According to the author, the Party’s policies and the State’s laws on land exploitation and use are always market-oriented. Specifically, individuals and organizations wishing to use land must incur a cost that aligns with the market price rules (land use rights auction). Therefore, once land users have fulfilled their obligations and met the conditions, the State must fulfill its obligation to issue the Certificate. Only in this way can the right to be issued the Certificate for land users be guaranteed.
III. PROPOSALS AND RECOMMENDATIONS
From the above analysis, the author offers the following proposals and recommendations:
Firstly, regarding the delimitation of authority for issuing the Certificate, Hồ Chí Minh City should adhere closely to the provisions of the 2024 Law on Land for issuing the Certificate; leveraging the advantages of Resolution No. 98/2023/QH15 to:
(1) Decentralize and delegate authority to the Thủ Đức City People’s Committee to issue the initial Certificate for land users who are economic organizations as stipulated by the Investment Law using land in Thủ Đức City, except for foreign-invested economic organizations.
(2) Assign the Thủ Đức City Land Registration Office Branch to issue the Certificate and confirm changes in case of land registration changes for the above-mentioned land users.
(3) Regularly evaluate the implementation results as a basis for application in other satellite cities established in the future.
Secondly, regarding land price determination, Hồ Chí Minh City should:
(1) Promptly implement Decree No. 71/2024/NĐ-CP.
(2) Develop a comprehensive plan for land price determination, clearly specifying the groups of Certificate issuance subjects that need land price determination (as stipulated from Articles 137 to 150 of the 2024 Law on Land), and determine land valuation methods for each group.
(3) Decentralize and delegate authority to Thủ Đức City in establishing a specific land price appraisal council for the land users mentioned in the above proposal.
(4) Create mechanisms and conditions to form and develop land valuation consulting organizations.
Thirdly, regarding the improvement, publicization, and transparency of the national land database, Hồ Chí Minh City should:
(1) Utilize technological, scientific, and technical advancements to the maximum to perfect land data for each land plot in the city.
(2) Enhance security and safety, and prohibit any acts of information distortion in the data.
(3) Provide the best conditions for organizations and individuals in need of land to access land data through public electronic services.
Fourthly, regarding ensuring the right to be issued the Certificate for land users, the author suggests:
(1) Competent state agencies and authorities need to change their perspectives and respect the rights of land users in land-related legal relationships; thereby continuing administrative procedure reforms, applying digital technology, and establishing simple and convenient procedures for issuing the Certificate, benefiting land users.
(2) During the development process, land law should aim for equality in the rights and obligations of parties involved in land-related legal relationships, specifically in the issuance of the Certificate.
IV. CONCLUSION
Protecting the rights of real estate buyers in the issuance of the Certificate is an urgent requirement in current practice. Competent state agencies must issue the Certificate in a timely and accurate manner; thoroughly study the affecting factors such as the delineation of authority for issuing the Certificate; determination of land prices; improvement, publicization, and transparency of the national land database; and ensuring the right to be issued the Certificate for land users.
From this, the State can perfect land law; build a transparent and healthy real estate market; and contribute to the overall development of the country.
REFERENCES
- Resolution No. 98/2023/QH15 dated June 24, 2023, of the National Assembly on the pilot implementation of specific mechanisms and policies for the development of Hồ Chí Minh City.
- Decree No. 71/2024/NĐ-CP dated June 27, 2024, of the Government on land prices.
- CM. (2023). Hồ Chí Minh City: Resolving obstacles in the issuance of Land Use Rights Certificates. Communist Party of Vietnam Electronic Newspaper. Retrieved from https://dangcongsan.vn/xa-hoi/tp-ho-chi-minh-thao-go-vuong-mac-trong-cap-giay-chung-nhan-quyen-su-dung-dat-641292.html, accessed on July 1st, 2024.
- Long, H. (2023). Hồ Chí Minh City: Accelerating the issuance of land use rights certificates for commercial housing projects. Hồ Chí Minh City Party Committee Electronic News. Retrieved from https://www.hcmcpv.org.vn/tin-tuc/tphcm-%20day-nhanh-tien-do-cap-giay-chung-nhan-quyen-su-dung-doi-voi-cac-du-an-nha-o-%20thuong-mai-1491908410, accessed on July 1st, 2024.
- Thái, L. Q. (2018). Textbook on Land Law. Hong Duc Publishing House, Hà Nội.
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