Answering questions from Lao Dong Newspaper readers, Lawyer Quach Thanh Luc - Director of Phap Tri Law Company (Hanoi Bar Association) said that for land used with violations under Article 139 of the Land Law, there are 3 cases including: land encroachment, land occupation and arbitrary change of land use purpose.
The act of encroaching on land, occupying land, and arbitrarily changing land use purposes is specifically regulated by law in the 2024 Land Law and related regulations on sanctioning administrative violations in the field of land. This is the basis for determining whether the land plot is subject to encroachment, occupation or arbitrary change of land use purpose or not.
First of all, to determine whether there is an act of land encroachment, land occupation or arbitrary change of land use purpose, functional agencies must base it on cadastral records, documents, land allocation decisions, recognition of land use rights and related documents.
For example, the dossier must clearly show the land area under the State's management but people have encroached and occupied; or the land has been recognized as pond land, but the land user arbitrarily uses it as residential land. Only then is there a basis to determine the violation.
According to Lawyer Quach Thanh Luc, if it has been determined to be a case of violation and the functional agency applies the correct legal regulations, the land user must comply with the handling of violations to carry out the next procedures.
When falling into this situation, land users may have to fulfill some financial obligations.
The first is the fine for land encroachment and land occupation. The fine level is specified in the regulations on sanctioning administrative violations in the field of land. For cases of land occupation with an area of less than 0.2 ha, the fine level is applied depending on each specific case.
In addition to the fine, the violator may also have to implement remedial measures, including forcing the return of illegal profits obtained from the violation.
Lawyer Quach Thanh Luc said that the amount of illegal profits to be returned is determined according to the formula and based on the time of violation, land price and related factors as prescribed.
In fact, there are cases where functional agencies calculate the period of violation from the time people start encroaching and occupying land to determine the amount to be paid back.
The lawyer cited a real file, in which people were identified as using land from 1996 to 2026, which is about 30 years. According to the initial calculation, the amount of illegal profits to be paid was determined to be up to about 189 million VND.
However, according to Lawyer Quach Thanh Luc, it is necessary to consider the time when the legal regulations on remedial measures forcing the return of illegal profits take effect to accurately determine the period of time used as a basis for calculation.
The third financial obligation mentioned by the lawyer is land use fees when people are recognized for residential land use rights.
For land encroached upon, occupied or used for improper purposes, if it meets the conditions to be recognized as residential land, the financial obligations still depend on the time of land use, the time of house construction and the time of violation.
When the State considers recognizing the right to use residential land for land areas originating from encroachment, occupation or arbitrary change of land use purpose, land users must fulfill financial obligations according to regulations.
The lawyer said that if the land plot has been accurately identified as belonging to cases of land encroachment, land occupation or arbitrary change of land use purpose, people need to base on the correct legal regulations to fulfill financial obligations and complete procedures for issuing certificates.
The issuance of certificates and recognition of residential land not only helps people have a legal basis for houses and land they are using but also ensures the right to transfer according to regulations.
According to the lawyer, in some cases, although people must fulfill financial obligations to be recognized as residential land, the value of land use rights after being legally recognized may be significantly higher.
You may have to pay 10 million VND/m2 of land use fees to be recognized as residential land, but the transfer price on the market may be at 20-30 million VND/m2. That is the benefit that needs to be considered," Lawyer Quach Thanh Luc analyzed.
According to Article 139 of the 2024 Land Law, the state opens a mechanism to consider issuing red books for encroached land that occurred before July 1, 2014, if land users are stable, have no disputes and are in accordance with planning. Encroachment cases from July 1, 2014 onwards are not recognized and must be handled for recovery.
