Answering the question of Lao Dong Newspaper readers, Lawyer Quach Thanh Luc - Director of Phap Tri Law Company (Hanoi Bar Association) - said: In principle, in case there are land use right documents, the type of land is determined based on the documents.
In case there are no papers, the determination of land type must be based on the current status of use. At the same time, depending on the time people build houses and works on land, the limit for residential land recognition, the limit for residential land allocation and the obligation to pay land use fees will be specifically determined.
However, there are cases where land users have documents as prescribed in Article 137 of the Land Law, but the current state of land use is different from the purpose stated on the documents.
Documents under Article 137 of the Land Law may determine that the land area is garden land, while in reality people have been allocated residential land. For this case, Article 7 of Decree 102/2024/ND-CP stipulates in the direction of ensuring the rights of land users.
Accordingly, if the documents specified in Article 137 of the 2024 Land Law state that the land use purpose is different from the actual use purpose and the determination according to the current status falls into a case that is more beneficial to the land user, the type of land can be determined based on the current status and actual land use process.
Depending on each specific case, land users may fall into the cases specified in Clause 2, Article 138 or Clause 3, Article 138 of the Land Law to be considered for recognition of land area according to the residential land allocation limit or residential land recognition limit.
In addition, Clause 6, Article 141 of the 2024 Land Law is also a regulation that people need to pay attention to. Even when a Certificate of Land Use Rights has been issued, in which a certain residential land area is determined, land users can still consider re-determining the type of land according to this regulation. If all legal conditions are met, the determined residential land area may be larger than the previously recorded residential land area.
Thus, the general principle is that people must use land for the right purpose. However, information about land type and land use purpose on papers in some cases may not be accurate, incomplete or not recorded.
At that time, land users can base on the above legal regulations to request competent state agencies to re-determine the type of land and consider recognizing the residential land area according to regulations, instead of tacitly choosing the option of changing land use purpose and having to fulfill corresponding financial obligations.
For example, determining the correct type of land is of particular importance for cases where, if carrying out procedures to change land use purposes, the amount of land use fees to be paid may be very large, such as the case of a household in Nghe An having to pay up to 4.5 billion VND for 300m2 of land.
Therefore, people need to compare the origin, documents, process and current status of land use with each specific regulation of the Land Law and guiding documents for implementation. In case the dossier is complicated or it is not determined which case they belong to, land users should consult a professional to consider the specific dossier, thereby ensuring their legitimate rights and interests.
