Vietnamlawmagazine

Dr. TRAN THI THO

Civil and Economic Law Department

Ministry of Justice

Since taking effect in 2004, the 2003 Land Law, together with its guiding documents, has received particular public interest and attained initial positive results. State administration of land through land use planning has been enhanced, actively contributing to the rational and effective distribution and use of land resources. Cases of land allocation and lease and change of land use purposes in contravention of many land use plans have come to an end. Most provinces and centrally run cities have adopted land use plans up to 2010 and for the five years from 2006 to 2010, although the elaboration, evaluation, approval and implementation of land use plans remain unsatisfactory. In some cases, planning has been impractical and unfeasible. Suspended planning and projects, and compensation and ground clearance problems have caused public concern, negatively affecting the livelihoods of people in many localities, delaying the execution of investment projects and causing land to go to waste. Violations of the land law are many, especially in compensation, support and resettlement upon recovery of land by the State.

Suspended land areas

According to a Ministry of Natural Resources and Environment report (No. 233/BC-BTNMT dated December 29, 2006), on the situation of land use under plans and investment projects nationwide, the term “suspended” is used in the following three cases:

(1) Suspended planning refers to planning on construction of works or projects which does not specify implementation schedules or which is not implemented on the prescribed deadline, which, as a result, restricts the rights of users of land areas covered by these plans to be granted land use right certificates, build or repair works and houses or transfer their land use rights.

(2) Suspended ground clearance refers to cases in which ground clearance is at a standstill, delayed and prolonged for many years and, therefore, projects cannot be started or their execution is halted.

(3) Suspended project refers to cases in which land areas allocated or leased by the State for the execution of investment projects are not used within 12 months or are used 24 months behind schedule as stated in the approved project dossiers, counting from the date of receipt of land areas and for which an extension is not permitted by competent authorities.

Suspended land areas nationwide

The following tables show the situation of suspended land areas in some representative localities.

Table 1. Suspended planning in select provinces

Table 2. Suspended ground clearance in select cities/provinces

Table 3. Suspended projects in select cities/provinces

(Source: Report No. 233/BC-BTNMT dated December 29, 2006, of the Ministry of Natural Resources and Environment)

Suspended land areas cause land and manpower waste and affect society and the people’s trust in public land administration. Following are some consequences, to name a few.

Irrational plans, particularly those which have been publicized together with the announcement that land will be recovered but have not been implemented for a long time (in some cases for dozens of years), have caused trouble to locals as they are not permitted to repair their homes and undertake other construction works. In some areas where planning for construction of technical infrastructure in service of people’s life is suspended, degraded roads and electrical and water supply and drainage systems cannot be repaired, greatly affecting the daily lives of residents.

As land is a valuable asset, suspended land areas directly affect the legitimate rights and interests of land users whose land-related civil transactions are improperly banned (in writing or orally), including transfer of land use rights, and eligibility to receive land use right certificates.

Once the people’s interests are infringed upon or are not satisfactorily settled, in localities with many suspended land areas, the number of land-related complaints increases, causing unrest that is sometimes uncontrollable by local administrations. By December 29, 2006, there were 3,852 citizen complaints and denunciations related to compensation, support and resettlement in suspended ground clearance projects. Localities which saw great numbers of lodged complaint petitions included Vinh Phuc with 32 projects and 645 petitions; Lang Son seven projects and 436 petitions; Kien Giang 20 projects and 413 petitions; Dong Thap 41 projects and 313 petitions; Tien Giang nine projects and 177 petitions; Binh Duong seven projects and 199 petitions; and Long An seven projects and 145 petitions. Prolonged complaint cases related to compensation, support and resettlement and involving large numbers of people which have been unsuccessfully settled by administrations at different levels in many localities in the past have considerably affected the effectiveness of state administration, social order and public security.

Causes of suspended land areas

Suspended land areas can be attributable to state agencies, investors and even local inhabitants. However, this article stresses to the following causes:

In the past, the Party and State have paid great attention to improving land-related institutions and policies. The Party Central Committee (IXth term) adopted at its 7th plenum a resolution on continued renewal of land policies and laws in the period of accelerated national industrialization and modernization. The National Assembly passed consecutive amendments to the 1993 Land Law in 1998, 2001 and 2003, while the Government has promulgated numerous decrees guiding in detail the enforcement of the Land Law.

However, quick changes brought about by the market economy system and particularly vigorous development of the real estate market have turned land into an extremely valuable asset and have quickly made land-related regulations and policies outdated and incapable of meeting practical requirements, especially policies on compensation, support and resettlement upon land recovery by the State. Recently, the Government promulgated Decree No. 84/2007/ND-CP exclusively dealing with inadequacies in these procedures.

Land planning efforts are weak. In many localities, urban upgrade and expansion plans are of little or no feasibility since they have been worked out under subjective and arbitrary instructions of local leaders who simply wanted to leave their “personal stamps” on these plans.

Some plans are due and proper but unclear on implementation roadmaps, causing misunderstanding and a simplistic perception that these plans must be implemented immediately and that land users are at once banned or restricted from exercising their lawful rights. In some cases, due to a shortage of funds, publicized plans could not be implemented, especially those on technical infrastructure construction projects (e.g., a project to build a park in the city of Vinh in Nghe An province; a project on Bao Dinh Tay Avenue in Tan An town, Long An province; a project to build a railway station for Di An in Binh Duong province; a project on Thanh Da center in Binh Thanh district, Ho Chi Minh City; and a project to build a stadium in Quang Ngai province. Dong Nai province in particular had 224 suspended projects due to inadequate funding.

Procedures for making investment and approving plans prior to land recovery remain complicated and slow to renew. Administrative work following the approval of plans and the observance of legal provisions on revision and cancellation of plans were not strictly pursued.

Some local administrations fail to carry out land use planning in a flexible manner and to properly coordinate among different levels and branches. They have not effectively carried out public information efforts to help people clearly understand the law. In many cases, district-level administrations shirked their responsibilities and lacked the boldness and resoluteness to settle complaints lodged by just a few households that refuse to agree with compensation and ground clearance solutions, leading to prolonged ground clearance work.

Many public employees engaged in compensation and ground clearance work come from different branches and lack experience and knowledge about land policies and laws. They often fail to give clear explanations about land policies and laws to the public and even act contrary to the law, giving rise to complaints that prolong ground clearance efforts.

Legal solutions

Reality shows that the situation of suspended land areas in Vietnam has had many consequences that are difficult to deal with. A series of vigorous, comprehensive and coordinated solutions are needed in institutions, organization and human resources.

First, the land law should be further improved. In the immediate future, it is urgent to review and cancel all backward and obsolete provisions that obstruct the healthy development of legal relations concerning land, such as individuals’ land use and land hand-over and receipt between competent authorities and land users. Yet, the repeated revision and promulgation of too many legal normative documents on land have caused difficulties to not only the people and enterprises but also state officials and legal experts. This problem should be overcome soon. A fundamental and long-term solution is to codify all legal provisions on law under a land code aiming to unify and perfect the system of land policies and laws, raise the effectiveness of the management and use of land resources, and form a comprehensive legal framework on the real estate market.

Second, new laws should be promptly promulgated to ensure the uniformity and enforceability of the legal system on land. In addition to the existing laws, including the Law on Protection and Development of Forests, the Construction Law, the Housing Law and the Real Estate Business Law, the following should be formulated and promulgated:

(1) A law on socio-economic development planning (covering land planning work).

Land planning (from the formulation, appraisal, approval and implementation to the adjustment of plans) has revealed many weaknesses and constraints. This has posed the need for a law on these activities in order to improve the quality and content of planning in response to the process of the renewal of state administrative duties and interventions in the socialist-oriented market economy. The planning process should be renewed in the direction of promoting democracy, mobilizing all resources in the society for national socio-economic development, improving the supervision of planning and plans (from supreme oversight by the National Assembly to community-based supervision under the Prime Minister’s Decision No. 80/2005/QD-TTg of April 18, 2005, and relevant legal documents).

(2) A law on land taxes.

In 1993, in addition to the Land Law, the National Assembly passed the Law on Agricultural Land Tax and the Ordinance on Housing and Land Tax.

As the Land Law has seen numerous amendments, these two laws also need to be revised accordingly. At present, the Government is directing various ministries and branches to review and reduce farmers’ contributions, including reduction of and exemption from agricultural land use tax, irrigation charges, contributions to building rural infrastructure and various social and charity funds. It is planned that this reduction and exemption policy will be continued well beyond 2010. Therefore, the revision of the current Law on Agricultural Land Tax or the promulgation of a new one is not urgent. But it is necessary to revise the 1992 Ordinance on Housing and Land Tax with a view to ensuring equal land use obligations, i.e., users of more expensive land areas, especially urban land areas, must pay higher taxes and higher or more progressive tax rates must be applied to extra-quota land areas. A law on property tax governing both land and house taxes should also be drafted and enacted to impose tax rates suitable to different land prices and house values, especially on those who hold many plots of land and houses, contributing to restricting real estate speculation and making the operation of the real estate market healthier.

(3) A law on real estate registration

This law aims to keep track of the status of real estate (location, area, type of estate, planning status, ownership, land use rights, right transfer, etc.). Compilation of legal records for real estate is a precondition for civil real estate transactions and the real estate market to develop in a transparent manner, removing limitations caused by the absence of a single real estate registration agency and ensuring quick and transparent real estate registration.-