Circular No. 09/2006/TT-BTNMT guiding the transfer of land lease contracts and issuance of certificates of land use rights when state-owned enterprises are converted to joint-stock companies

CIRCULAR

Guidelines for transferring land lease contracts and issuing certificates of land use rightswhen converting state-owned enterprises into joint-stock companies

__________________________ 

Pursuant to the Land Law dated November 26, 2003;

WHEREAS, Decree No. 181/2004/NĐ-CP dated October 29, 2004 of the Government on the implementation of the Land Law;

Pursuant to Decree No. 187/2004/NĐ-CP dated November 16, 2004 of the Government on converting state-owned enterprises into joint-stock companies;

Pursuant to Decree No. 17/2006/NĐ-CP dated January 27, 2006 of the Government amending and supplementing certain articles of the Decree guiding the implementation of the Land Law and Decree No. 187/2004/NĐ-CP on converting state-owned enterprises into joint-stock companies;

Pursuant to Directive No. 04/2005/CT-TTg dated March 17, 2005 of the Prime Minister on accelerating and firmly implementing the shareholding reform of state-owned enterprises;

Pursuant to Decree No. 91/2002/NĐ-CP dated November 11, 2002 of the Government stipulating the functions, tasks, powers, and organizational structure of the Ministry of Natural Resources and Environment;

The Ministry of Natural Resources and Environment guides the transfer of land lease contracts and issuance of certificates of land use rights when converting state-owned enterprises into joint-stock companies as follows:

I. SCOPE AND APPLICABLE SUBJECTS

Thông tư này quy định chi tiết khoản 4 Điều 38 Luật Thủy sản số 18/2017/QH14 đã được sửa đổi, bổ sung tại điểm c khoản 21 Điều 14 Luật số 146/2025/QH15.

This Circular guides the transfer of land lease contracts and issuance of certificates of land use rights when converting state-owned enterprises into joint-stock companies.

Thông tư này áp dụng đối với tổ chức, cá nhân có liên quan đến hoạt động kinh doanh đối tượng thủy sản nuôi chủ lực trên lãnh thổ Việt Nam.

a) Provincial People's Committees; Departments of Natural Resources and Environment; Districts' Natural Resources and Environment Offices; cadres responsible for land administration at communes, wards, and towns; Land Registration Office.

b) State-owned enterprises using land that have been approved by the Prime Minister for conversion into joint-stock companies, and joint-stock companies established through the shareholding reform of state-owned enterprises as prescribed in Decree No. 187/2004/NĐ-CP dated November 16, 2004 of the Government on converting state-owned enterprises into joint-stock companies (hereinafter referred to as Decree No. 187/2004/NĐ-CP).

In cases where state-owned enterprises fall under the scope of restructuring, modernizing, and developing state-owned farms and forestry farms as prescribed in Decree No. 170/2004/NĐ-CP dated September 22, 2004 on restructuring, modernizing, and developing state-owned farms and Decree No. 200/2004/NĐ-CP dated December 3, 2004 on restructuring, modernizing, and developing state-owned forestry farms (collectively referred to as state-owned farms and forestry farms), before implementing the shareholding reform to convert them into joint-stock companies, they must complete the restructuring, modernizing, and developing of state-owned farms and forestry farms, including reviewing the current status of land use, preparing detailed land use plans for approval by provincial People's Committees, and being allocated land, leased land, and issued certificates of land use rights according to the guidelines set forth in Circular No. 04/2005/TT-BTNMT dated July 18, 2005 of the Ministry of Natural Resources and Environment guiding measures for managing and using land during the restructuring, modernizing, and developing of state-owned farms and forestry farms.

II. REVIEWING THE CURRENT STATUS OF LAND USE, TRANSFERRING LAND LEASE CONTRACTS, AND ISSUING CERTIFICATES OF LAND USE RIGHTS WHEN CONVERTING STATE-OWNED ENTERPRISES INTO JOINT-STOCK COMPANIES

1. Reviewing the current status of land funds managed and used by enterprises that have not yet received certificates of land use rights

a) Provincial People's Committees, Ministries, agencies equivalent to ministries, government agencies, and state-owned holding corporations are responsible for directing state-owned enterprises directly subordinate to them that have been approved by the Prime Minister for conversion into joint-stock companies, and joint-stock companies established through the shareholding reform of state-owned enterprises as prescribed in Decree No. 187/2004/NĐ-CP but have not yet received certificates of land use rights to conduct reviews and report the current status of land use in accordance with Articles 52 and 63 of Decree No. 181/2004/NĐ-CP dated October 29, 2004 of the Government on implementing the Land Law (hereinafter referred to as Decree No. 181/2004/NĐ-CP) and in accordance with points b and c of this clause.

b) For state-owned enterprises mentioned in point a of this clause, the review of the current status of land use includes:

- Total area of land currently managed and used, including the area of land directly used by the enterprise; the area of land jointly operated with other economic sectors; the area of land leased or lent for use; the area of land transferred; the area of land encroached upon or occupied; the area of land in dispute; the area of unused land; the area of land allocated for residential purposes for households of employees working at the enterprise or those who have retired or left work according to regulations.

- Area of land by source of use, including land granted by the State without payment of land use fees; land granted by the State with payment of land use fees; land leased by the State with one-time payment or multiple payments; land leased by the State annually; land acquired through transfer of land use rights; land encroached upon or occupied.

- Duration of land use for land granted or leased by the State; if the decision on granting or leasing land does not specify the duration, the duration of land use shall be recorded as "undetermined."

- Fixed assets attached to land in use, including construction works; forest trees and perennial garden trees, in accordance with the provisions of the Certificate of Land Use Rights issued together with Decision No. 08/2006/QĐ-BTNMT dated July 21, 2006 of the Minister of Natural Resources and Environment.

- Implementation of financial obligations related to land.

c) The results of the review as stated in point b of this clause shall be compiled into reports using forms 01/HT-ĐĐ and 02/HT-ĐĐ issued together with this Circular and must be clearly reflected on the extract from the cadastral map or the cadastral record for areas without cadastral maps.

The review results shall be prepared in three (03) copies, one (01) copy to be kept, one (01) copy to be sent to the supervising agency, and one (01) copy to be sent to the provincial People's Committee where the land is located (in cases where the supervising agency is the provincial People's Committee, only two [02] copies need to be prepared).

In cases where enterprises use land in multiple provinces or centrally-administered municipalities, separate reports on the review results shall be prepared for each provincial location where the land is situated.

d) Based on the report on the results of the land use status review as stated in points b and c of this clause, the Department of Natural Resources and Environment shall be responsible for inspecting the actual situation and submitting to the Provincial People's Committee for decision on handling as follows:

-For joint-stock companies established according to the privatization of state-owned enterprises as prescribed in Decree No. 187/2004/NĐ-CP, determine the area of unused land, land used for purposes other than those assigned, the area of land lost due to negligence, the area of land encroached upon or occupied, the area of land leased, lent, or cooperatively used in violation of the law, the area of land currently in dispute to be resolved in accordance with Article 51 of the Land Law and points c, d, đ of Clause 2, Article 52 of Decree No. 181/2004/NĐ-CP; determine the area of land being used for the intended purpose assigned or rented; guide the current land users to complete procedures for issuing certificates of land use rights for areas being used for the intended purpose assigned or rented; guide land users to complete procedures for issuing certificates of land use rights in accordance with this Circular for areas meeting the conditions for issuance of such certificates.

-For state-owned enterprises that have been approved by the Prime Minister to convert into joint-stock companies, determine the area of unused land, land used for purposes other than those assigned, the area of land lost due to negligence, the area of land encroached upon or occupied, the area of land leased, lent, or cooperatively used in violation of the law, the area of land currently in dispute to be resolved in accordance with Article 51 of the Land Law and points c, d, đ of Clause 2, Article 52 of Decree No. 181/2004/NĐ-CP; determine the area of land being used for the intended purpose assigned or rented; determine the area of land transferred to the joint-stock company for use in accordance with the approved privatization plan.

2. Transfer land lease contracts and adjust or issue new certificates of land use rights for cases where state-owned enterprises are implementing privatization according to plans approved by the Prime Minister.

a) When formulating the privatization plan, clearly specify the selection of the form of the State leasing land with annual rent payments or the State allocating land with payment for land use rights for each plot of land; the plan for handling land use fees payable when choosing the form of the State allocating land with payment for land use rights in cases where the land has already been leased by the State, has already been allocated by the State with payment for land use rights but the land use fee paid has originated from the State budget, or has legally acquired land use rights from others with funds paid for acquisition originating from the State budget.

During the process of formulating the privatization plan, the Land Registration Office under the Department of Natural Resources and Environment shall be responsible for providing cadastral files and sending cadastral data to tax authorities to determine land use fees payable and related financial obligations.

b) In cases where state-owned enterprises have been issued certificates of land use rights, after completing privatization, the joint-stock company shall complete procedures for registering changes in land use in accordance with Article 143 of Decree No. 181/2004/NĐ-CP to amend the name of the land user and the origin of land use on the certificate of land use rights issued.

In cases where joint-stock companies choose the form of the State leasing land, the Department of Natural Resources and Environment shall terminate any existing land lease contracts signed with the State (if any) and sign new land lease contracts with the joint-stock company before issuing certificates of land use rights.

c) In cases where state-owned enterprises have not yet been issued certificates of land use rights, after completing privatization, the joint-stock company shall submit applications for certificates of land use rights in accordance with Article 137 of Decree No. 181/2004/NĐ-CP and the guidelines set out in Clause 3 of this Section.

3. Issuing certificates of land use rights to joint-stock companies established through the privatization of state-owned enterprises using land without certificates of land use rights.

a) In cases where joint-stock companies have been established after completing privatization but have not conducted reviews and handled land use as prescribed in Article 52 of Decree No. 181/2004/NĐ-CP, the joint-stock company must conduct a review of the current land use status in accordance with the guidelines in Clause 1 of this Section and develop a production and business plan to be submitted to the Provincial People's Committee for approval to accompany the application for a certificate of land use rights. The production and business plan shall be developed in accordance with Article 52 of Decree No. 181/2004/NĐ-CP, including the selection of the form of the State leasing land with annual rent payments or the State allocating land with payment for land use rights for each plot of land that has already been leased by the State, has already been allocated by the State with payment for land use rights but the land use fee paid has originated from the State budget, or has legally acquired land use rights from others with funds paid for acquisition originating from the State budget.

b) In cases where joint-stock companies have been established after completing privatization and have already conducted reviews and handled land use as prescribed in Article 52 of Decree No. 181/2004/NĐ-CP, the joint-stock company shall submit applications for certificates of land use rights and must fulfill financial obligations as prescribed before receiving the certificate of land use rights.

The procedures for issuing certificates of land use rights shall be carried out in accordance with Article 137 of Decree No. 181/2004/NĐ-CP.

III. IMPLEMENTATION

1. Effective date

This Circular shall take effect fifteen (15) days from the date of publication in the Official Gazette.

2. Responsibilities for Implementation

Provincial People's Committees, municipal people's committees under the central government, ministries, ministerial-level agencies, governmental agencies, and State-owned holding corporations are responsible for directing the implementation of this Circular./.