Issues related to the land sector continue to be an area of interest for many people and businesses. On 3 April 2023, the Government issued Decree No. 10/2023/ND-CP amending and supplementing a number of articles of Decrees guiding the implementation of the Land Law (hereinafter referred to as Decree No. 10/2023/ND-CP). This Decree will come into effect on 20 May 2023. The release of this Decree is expected to resolve several problems in the application of the Land Law that the previous Decree has left behind.
We will review some prominent new regulations related to Decree 10/2023/ND-CP, including:
1. Land recovery requirements applied in case of terminating investment projects
According to Clause 2 Article 1 of Decree 10/2023/ND-CP adding Article 15b of Decree 43/2014/NĐ-CP dated 15 May 2014, if the State assigns land subject to land use taxes or leases out land for a lump-sum land rent paid for the entire lease period or leases out land and collects land use taxes on an annual basis, after expiry of the 24 months grace, if the investor fails to do so, the State may recover land without paying compensation for such land or legal land-attached property, except in the case of “force majeure” specified in clause 1 of Article 15 of Decree No. 10/2023/ND-CP.
In addition, Clause 1 Article 1 of Decree 10/2023/ND-CP prescribes that the period during which the land use schedule of an investment project is affected by a force majeure event shall be excluded from the duration of the default or delay in the use of land allowed for the grace period of 24 months as defined in point I of Clause 1 of Article 64 in the Land Law and Article 15b in Decree No. 10/2023/ND-CP.
Presidents of provincial People’s Committees shall consult the legal provisions on force majeure situation and the actual developments of investment projects to determine the period during which an investment project located in a province or centrally affiliated city is affected by force majeure. For an investment project located in at least two provinces or centrally affiliated cities, the Minister of Natural Resources and Environment shall issue his decision, after considering the proposals submitted by relevant provincial People’s Committees. Where necessary, an opinion survey involving concerned Ministries and central authorities may be conducted.
2. Auctioning of rights to use the State-assigned land subject to the land use levy, or land leased by the State
The method of auctioning land use rights aims to ensure transparency in the State’s assignment and lease of land, maximize budgetary revenue, and create investment capital for infrastructure construction and economic development. Accordingly, Decree 10/2023/ND-CP completes and clarifies the conditions for the participation of organizations, households and individual in the auction of land use rights, specifically as follows:
For organizations, which must be subject to land assign or lease by the State in accordance with land law. At the same time, organizations are not prohibited from participating in the auction. In addition, they must pay a deposit of 20% of the total value calculated at the starting price of the parcel or complex of parcels to be auctioned before attending the auction of land use rights. The Decree states that if two companies have cross-ownership according to the law on enterprises, only one company may attend the auction of land use rights.
Individuals and households participating in the auction of land use rights do not have to pay a deposit.
Regarding the conditions for auctioning land use rights, Decree 10/2023/ND-CP completes and clarifies that the starting price shall be determined by the competent authority. In addition, the cadastral map in 1/500 scale of the parcel used for the execution of a housing project is available with approval from a competent authority.
3. Implementation of online land-related administrative procedures
Agencies receiving and notifying decisions on land-related applications shall be responsible for following land-related administrative processes and procedures prescribed in laws on land. In case it is necessary to verify land applications or if, for other reasons, decisions on land applications are not rendered within the time frame for processing those applications, the agency receiving and processing them shall send written notifications to applicants or via the Public Service Portal or SMS, clearly stating the reasons for such actions.
The special feature is that people can make financial obligations in the form of direct payment or online via the payment solution integrated into the Public Service Portal.
4. Conditions and criteria for grant of permission to repurpose rice, protection forest or special-use forest land with the aim of executing investment project
According to Clause 9 Article 1 in Decree 10/2023/ND-CP, the conditions for repurpose rice, protection forest or special-use forest land are as follows:
(i) Firstly, these investment projects must obtain approval from investment policies or investment registration certificates.
(ii) Secondly, these investment projects must be consistent with the district’s land use planning schemes and included in the list of approved annual district’s land use plans.
(iii) Thirdly, a preliminary environmental impact assessment or environmental impact assessment has to be conducted under the law on environmental protection (if any).
(iv) Last but not least, it shall have compensatory afforestation plans or written notifications of fulfillment of payment obligations for compensatory afforestation according to Forestry law in case of reallocation of protection forest or special-use forest land; or topsoil use plans and written documents of fulfillment of payment obligations for protection and development of rice land in case of repurposing arable land dedicated to rice cultivation.
5. Other new points/provisions of Decree 10/2023/ND-CP
Besides the new provisions mentioned above, Decree 10/2023/ND-CP also amends and supplements the authority to grant land use right certificates; completes the process of land recovery in case of terminating the operation of an investment project in accordance with the law on investment and abolishes or replaces a number of provisions in the guiding decrees on the Land Law.
On the other hand, the Decree also stipulates the transition for cases where certificates signed by competent authorities before the effective date of this Decree have not yet been issued to land users or owners of land-attached property. The procedures for certificates procedures shall be continued in accordance with the regulations in force before the effective date of this Decree.
Or, in the application files for participation in land use right auctions have been received before the effective date of this Decree, the relevant laws in force on the date of receipt of such files shall continue to apply. If dossiers on adjustment of the decision on recovery, assignment, lease or permitted repurposing of land issued by the Prime Minister before July 1, 2004, have been received, regulations in force before the effective date of this Decree shall continue to apply.
The amendments and supplements prescribed in Decree 10/2023/ND-CP should not only create better conditions for participants in land transactions, but also advance the accountability of competent authorities and solve the rest of the problems that remain in the concrete implementation of the law on land.