On the Government Portal, Ms. N.T. H asked: In 2003, Mr. A's household including Mr. A and his wife were granted land use rights for plot 267 of the 1995 cadastral map with an area of 416.4 m2. In 2003, Mr. A built a house and encroached on plot 268 which is Tram Xa land with an area of 121.6 m2.
In 2008, Mr. A died, leaving no will. Mr. A has 3 children. On October 27, 2014, Mr. A's eldest son was registered for land use right change and was allocated the right to use plot 267 according to the 1995 cadastral map. And Mr. A's eldest son still uses the original status quo.
In case Mr. A's son does not belong to the household registration of Mr. and Mrs. A's family and is not registered for temporary residence at land plot 267, from what time is the act of occupying public land by Mr. A's son determined? What if some long-term residents confirm that Mr. A's son lives there?
The Ministry of Agriculture and Environment answers this question as follows:
Clause 31 Article 3 of the Land Law stipulates:
31. Land encroachment is the act of land users moving landmarks or boundary lines of land plots to expand the area of land use without permission from competent state agencies or without permission from the legal user of the encroached land area".
According to the provisions of Article 3 of Decree No. 123/2024/ND-CP dated October 4, 2024 of the Government stipulating penalties for administrative violations in the field of land, land encroachment is an ongoing act.
Point a, clause 5, Article 5 of Decree No. 123/2024/ND-CP stipulates:
5. The handling of administrative violations and application of remedial measures in cases of transactions related to land use rights transfer, lease, sublease, and capital contribution with land use rights shall be carried out as follows:
a) In case of administrative violations occurring before the transfer of land use rights, the land use right transferor shall be administratively sanctioned and must take measures to remedy the consequences of the violations committed by themselves according to regulations. In case the transferor is a dissolved or bankrupt organization, an individual who has died without an heir or moved to another place but is certified by the People's Committee of the commune where the land is located at the time of discovery of the violation, the address cannot be determined and it does not fall into the case of land recovery by the State, the transferee is not administratively sanctioned but must take measures to remedy the consequences caused by the transferor.
The transferee of rights shall be administratively sanctioned and take remedial measures for the violations committed by them (if any);".
Therefore, from October 27, 2014, when the eldest son completes the procedures for registration of changes and directly manages and uses the current status of the land plot (including the encroached land), he is the person who commits the act of encroaching on land.
Regarding administrative violations, forms, penalties and remedial measures for land encroachment are specified in Article 13 of Decree No. 123/2024/ND-CP.
The Ministry of Agriculture and Environment requests you to study the above regulations and contact the commune-level People's Committee where the land is located, is managing the dossier and origin, and land use process to be considered, specifically guided and implemented according to regulations.
