Lawyer Quach Thanh Luc - Director of Phap Tri Law Company (Hanoi Bar Association) said that agricultural land funds used for public purposes have been regulated in land law through many periods.
Article 45 of the 1993 Land Law and Clause 2, Article 15 of Decree No. 64-CP dated September 27, 1993 of the Government have regulations on establishing agricultural land funds for public purposes. This regulation continues to be recorded in Article 72 of the 2003 Land Law, Clause 1, Article 74 of Decree No. 181/2004/ND-CP, Article 132 of the 2013 Land Law and currently Clause 2, Article 6, Article 179 of the 2024 Land Law.
In essence, public land funds are agricultural land funds retained for commune-level People's Committees to manage and use for local public needs. This land fund originates from agricultural land funds and is formed on the basis of the provisions of land law through each period.
Therefore, it is necessary to distinguish between land managed by commune-level People's Committees and land belonging to agricultural land funds used for public purposes. These are two concepts that should not be identical.
An area of land may be managed by the commune-level People's Committee, but to determine that it is a public land fund, it is necessary to have a basis on the process of forming, establishing and managing the land fund according to legal regulations.
In reality, when people request the issuance of Certificates, there are cases where competent authorities base on maps, land registers or cadastral documents to determine the land area under the management of the People's Committee, thereby concluding that this is public land.
However, the determination of public land needs to be based on the dossier and land management process of the locality.
Clause 1, Article 179 of the 2024 Land Law stipulates that agricultural land funds used for public purposes "which have been established according to the provisions of land law through periods" can continue to be used to serve the public needs of the locality.
Therefore, when a competent authority determines a land area as public land, land users have the right to request clarification of this determination basis, for example:
Land allocation dossiers, agricultural land division through periods;
Cadastral maps, land registers and land registration dossiers;
Land statistics and inventory records;
Dossiers showing the formation and management of public land funds;
Decisions and documents on land management of localities;
Leasing documents, subcontracting documents or other documents showing the process of land management and use.
When receiving notification that the land being used is public land, Lawyer Quach Thanh Luc said that people should not only focus on proving the time of land use but also need to clarify the legal basis for determining public land.
First of all, it is necessary to request competent authorities to provide or clearly indicate documents as a basis for determining the land area belonging to the public land fund.
After that, it is necessary to review cadastral records through periods, in which special attention should be paid to maps, land registers, statistical records, land inventory and documents related to the origin, management and use of land.
If there is a difference between the cadastral records and the actual land use, it is necessary to determine the time of origin of that difference and the reasons leading to the change.
In necessary cases, land users can request competent authorities to check and compare cadastral records and the land management process through periods to have a basis for accurately determining the legal status of the land plot.
Land is managed through many stages with different legal systems, maps and cadastral records. A land plot may have undergone many measurements, registrations, mapping, statistics and inventories. Therefore, when determining whether a land area is public land or not, it is necessary to look at the entire process of formation and management of the land plot.
Not all land areas managed by commune-level People's Committees are implicitly public land. At the same time, the fact that an area of land is identified as public land should not only be based on a record on a map or land register without checking the bases for forming and managing the land fund.
For people who are using land stably for a long time, determining the correct legal nature of the land plot is of particular importance. If public land is not accurately determined, people may be directly affected in their right to register and be granted a Certificate of Land Use Rights.
