The Department of Land Administration received a complaint and recommendation from Ms. N.T. T. H at the system for receiving and processing complaints and recommendations on legal documents related to the 2024 Land Law.
According to the reflected content, there are still many controversies and problems related to 5% rice land (garden for growing vegetables) allocated by Cooperatives (HTX) to members before 1993, i.e. before the Decree 64-CP dated September 27, 1993 on allocating agricultural land to households and individuals for stable and long-term use for agricultural production purposes was issued.
Ms. N.T. T. H requested the Ministry to guide the following contents:
1. For land plots originating from land allocated by cooperatives before Decree 64-CP dated September 27, 1993, which is 5% land according to the Cooperative Charter in 1959, not re-allocated according to Decree 64-CP, is this land plot determined to be 5% land belonging to the public land fund of communes and wards or not? Is the land user being granted a Certificate of Land Use Rights or not?
2. If people build houses on this land plot, is it considered a violation of the land law? When carrying out procedures for issuing a Certificate of Land Use Rights for the first time, will this case be considered and resolved according to Article 138 or Article 139 of the 2024 Land Law?
After research, the Department of Land Administration (Ministry of Agriculture and Environment) has the following opinions:
1. Determining the origin and issuing Certificates of land use rights and ownership of assets attached to land
Land law through periods all have regulations on the establishment, management, and use of public land funds (Article 45 of the 1993 Land Law; Clause 2, Article 15 of Decree No. 64-CP dated September 27, 1993 of the Government stipulating the allocation of agricultural land to households and individuals for long-term stable use for agricultural production purposes; Article 72 of the 2003 Land Law; Clause 1, Article 74 of Decree No. 181/2004/ND-CP dated October 29, 2004 of the Government on the implementation of the Land Law; Article 132 of the 2013 Land Law; Clause 2, Article 6 and Article 179 of the 2024 Land Law).
Based on the above regulations, to determine whether the land plot originating from a Cooperative allocated before Decree No. 64-CP dated September 27, 1993 is a public land fund of the commune or ward, it is based on land management records stored in the locality through various periods. The consideration of issuing Certificates of land use rights and ownership of assets attached to land is carried out as follows:
(1) In case of comparison with public land management records through periods without sufficient basis to affirm that the above land plot is public land, land users are considered and issued Certificates of land use rights and ownership of assets attached to land according to current regulations.
(2) In case the management and use of public land is ensured to be in accordance with the provisions of law, and the land being used has the origin of encroachment and occupation of public land before July 1, 2014, the land user is considered for issuance of Certificates of land use rights and ownership of assets attached to land according to the provisions of Clause 3, Article 139 of the 2024 Land Law, Point e, Clause 2, Article 11 of Resolution No. 254/2025/QH15 of the National Assembly stipulating a number of mechanisms and policies to remove difficulties and obstacles in organizing the implementation of the Land Law.
2. Issuance of Certificates of land use rights, ownership of assets attached to land
The determination of cases of using land for improper land use purposes according to the provisions of Clause 3, Article 139 of the Land Law is based on the land use purposes that have been allocated land by the State, leased land, and recognized land use rights compared to the current land use purpose of the land plot, on that basis determining whether land use belongs to violations in the field of land or not. The consideration of issuing Certificates of land use rights and ownership of assets attached to land for the first time for households and individuals currently using land is based on the types of land use rights documents specified in Article 137 of the Land Law.
In case there are no documents on land use rights mentioned above, the stable land use is determined according to the provisions of Clause 38, Article 3 of the Land Law. The confirmation of stable land use is based on the time and purpose of land use in one of the documents specified in Point 3 (b2), Section II, Content C, Part V, Appendix I issued together with Decree No. 151/2025/ND-CP dated June 12, 2025 of the Government.
Accordingly, the competent authority issuing the Certificate shall consider the issuance of Certificates of land use rights and ownership of assets attached to land according to the provisions of Article 138 or Article 139 of the Land Law.
