Answering readers of Lao Dong Newspaper, Lawyer Quach Thanh Luc - Director of Phap Tri Law Company, Hanoi Bar Association - said: In case people use land without papers and have built houses before 1980 or from 1980 to before October 15, 1993, that area may be recognized as residential land.
The area recognized is based on the residential land recognition limit in the locality, which can be up to hundreds of square meters. In particular, in this case, land use fees are not required to be paid.
Meanwhile, if it does not fall into the cases specified in Article 138 but falls into Article 139, i.e., in cases of encroachment, occupation, or arbitrary change of land use purpose, land users will have to pay land use fees to be recognized as residential land.
According to the lawyer, the difference between the two cases may lead to a very large difference in financial obligations. For the same 100m2 of land, there are cases where 3 billion VND must be paid, but there are also cases where land use fees are not paid.
The important thing is to distinguish these two cases.
Lawyer Quach Thanh Luc analyzed that land used without papers may be land left by ancestors or previous owners and has been used for a very long time, in some cases from the 1920s, 1945s or 1960s. There are many types of land that are due to state administrative management activities or due to lost records, the State has not established relevant cadastral records.
This leads to cases where land does not have cadastral records or cadastral records are only established in very late stages, possibly in 1996, 1998 or 2004.
In these cases, it is necessary to consider the origin of the land and the actual use process. If the land has a long-standing origin, later the State will establish a cadastral record and people have land due to long-term use, not encroaching, not occupying anyone's land, then it must be considered according to Article 138.
According to the lawyer, when falling under the case specified in Article 138, the issue to be concerned about is the origin and process of land use, thereby determining the rights of land users according to regulations.
For cases under Article 139, it is necessary to answer the question of why people have that land area. If it is determined to be land encroachment and occupation, it must be clarified who the people encroached on and occupied land from.
In case it is considered encroachment and occupation of state land, according to the provisions of Article 13 of Decree No. 123/2024/ND-CP, there must be maps, cadastral records or documents showing that the State has managed and used that land area. That is, there must be a basis to show that the commune-level People's Committee has been assigned to manage the land area.
It is not that using land without determining the specific origin will naturally be considered encroachment and occupation. It is necessary to determine who the people encroached on and occupied the land from and whether there is a cadastral record showing the land management and use rights of that subject or not to have a basis to determine that it is encroachment and occupation," lawyer Quach Thanh Luc analyzed.
Another case that should also be noted is arbitrarily changing land use purposes. In fact, the situation of people filling ponds to build houses is quite common. To determine the act of arbitrarily changing land use purposes, first of all, it is necessary to determine that the land area has been allocated, recognized or managed by the State with a specific purpose of use.
Lawyer Quach Thanh Luc said that the demarcation of land without papers with land that violates the law is a complex issue and of great significance to the rights of land users.
Accordingly, if the land has been used for a very long time, before the State established the cadastral records, while the records established later are inaccurate or incomplete, competent authorities need to trace the origin and process of land use.
If there are grounds to determine that this is land without papers and does not fall into the case of encroachment and occupation, it must be considered according to regulations for land without papers. People cannot be identified as encroaching on or occupying land of an entity when at the time of starting to use the land, that entity has not been established with management and use rights for the land area.
Similarly, it is also impossible to determine that people arbitrarily changed the land use purpose if at that time there was no legal basis to determine the land use purpose of the land area or the land has been used stably by people for a very long time.
According to the lawyer, in these cases, it is necessary to consider fully the basis to determine that people use land without papers, reclaim, restore and manage and use land legally, instead of tacitly determining that it is encroachment and occupation of land managed by the commune-level People's Committee.
