Answering the question of Lao Dong Newspaper readers, Lawyer Quach Thanh Luc - Director of Phap Tri Law Company (Hanoi Bar Association) said that when considering the issuance of Certificates of Land Use Rights for land allocated without proper authority, it is necessary to put legal regulations in relation to each other, instead of just reading and applying each clause individually.
According to the lawyer, land allocation not under authority is a relatively complex legal issue, stemming from the shortcomings in the process of land allocation and allocation in the past. Therefore, the settlement of consequences needs to be fully based on the provisions of law to ensure the rights of land users.
Article 140 of the 2024 Land Law stipulates the issuance of Certificates for land allocated under improper authority in each period. Depending on each case, the determination of rights when issuing Certificates is related to the provisions of Article 138 of the 2024 Land Law on issuing Certificates for cases of using land without papers.
However, according to the lawyer, in the process of applying Article 138, one of the issues that easily gives rise to different understandings relates to the phrase "land plot with houses and works serving residential needs" in Clauses 2 and 3 of this Article.
In some cases, the phrase "having a house" is understood as at the time the functional agency inspects the current status, houses must exist on the land. Therefore, when inspecting and determining that there are no more houses on the land, the land plot can be determined according to the current status as agricultural land.
Meanwhile, in reality, there are cases where people said that they had previously built houses on land, but after a long period of use, the works deteriorated, were ruined and now only the foundation remains. Other documents and records may also show that the land plot was once used as residential land and has houses on land.
According to Lawyer Quach Thanh Luc, Clauses 2 and 3 of Article 138 use the phrase "for land plots with houses, houses and works serving life". This regulation does not use phrases such as "current status", "current" or the requirement that at the time of consideration, houses must necessarily exist on the land.
From there, the lawyer believes that the determination of "land with houses" needs to consider the entire land use process. Houses may have existed on the previous land plot but after a long time have deteriorated or no longer exist, and it is not necessary that at the time of inspection, the current status must still have the original construction.
According to the lawyer, this is especially necessary to consider for land plots that have been used since the 1980s, 1990s or before 1993. After decades, houses may have deteriorated, collapsed and people do not have the conditions to rebuild. The fact that the project no longer exists at the present time does not mean ignoring the entire previous land use process.
Therefore, according to lawyer Quach Thanh Luc's point of view, "land with houses" can be understood as land plots that used to have houses, it is not necessary that the current status at the time of consideration still has houses.
This is also a basis for people to study and compare with dossiers and documents proving the land use process to protect their legitimate rights and interests when determining residential land in cases under Article 138 and Article 140 of the 2024 Land Law.
The lawyer noted that determining the correct type of land is important for the rights and financial obligations of land users. If the land plot is not recognized as residential land and people have to carry out procedures to change the land use purpose, financial obligations may arise.
Therefore, when resolving cases of land allocation not under authority, it is necessary to consider Article 140 in relation to Article 138 of the 2024 Land Law, and at the same time compare the provisions on financial obligations in Decree 103/2024/ND-CP, Decree 291 and related legal regulations.
