Decree No. 10/2023/ND-CP Amending and supplementing some articles of the decrees guiding the implementation of the Land Law

Amending and supplementing certain Articles of Decrees guiding the implementation of the Land Law

Pursuant to the Government Organization Law dated June 19, 2015; the Law amending and supplementing certain Articles of the Government Organization Law and the Local Administration Organization Law dated November 22, 2019;

The Government issues this Decree on management and development of industrial clusters.

Pursuant to the Auction Law dated November 17, 2016;

Pursuant to the Investment Law dated June 17, 2020;

Pursuant to Resolution No. 39/2021/QH15 dated November 13, 2021 of the National Assembly on the National Land Use Plan for the period 2021-2030 with a vision to 2050, and the National Land Use Plan for the five-year period 2021-2025;

At the proposal of the Minister of Natural Resources and Environment,

The Government promulgates this Decree amending and supplementing certain Articles of Decrees guiding the implementation of the Land Law.

Article 1. Amending and supplementing certain Articles of Decree No. 43/2014/NĐ-CP dated May 15, 2014 detailing the implementation of certain provisions of the Land Law

1. Supplement Clause 4 of Article 15 as follows:

"4. The time affected by force majeure shall not be counted towards the 24-month extension period provided for in point i, Clause 1, Article 64 of the Land Law and Article 15b of this Decree.

The Chairman of the People's Committee of a province shall base on the provisions of the law regarding force majeure cases and the actual implementation of investment projects to determine the time affected by force majeure for a project within the territory of a province or centrally governed city. In case the project is located in the territories of two or more provinces or centrally governed cities, the Chairman of the People's Committees of the relevant provinces or centrally governed cities shall propose, and the Minister of Natural Resources and Environment shall consider and decide; if necessary, opinions of relevant ministries and sectors shall be sought."

2. Amending and supplementing Article 15b as follows:

"Article 15b. Recovery of land in the event of termination of an investment project according to the laws on investment

The recovery of land in the event of termination of an investment project according to the laws on investment, except in cases where the State recovers land according to Clause 1, Article 64 and Clause 1, Article 65 of the Land Law, shall be carried out as follows:

1. In the case where the State grants land with payment of land use fee or leases land with payment of annual rent, the recovery of land shall be handled as follows:

a) The investor may continue to use the land for 24 months from the date the investment project is terminated according to the laws on investment;

b) Within 24 months from the date the investment project is terminated according to the laws on investment, the investor may transfer the right to use the land or sell lawful assets attached to the land to another investor according to the laws.

If the investor fails to complete the transfer of the right to use the land or sell lawful assets attached to the land to another investor within the extended 24-month period, the State shall recover the land without compensation for the land or assets attached to the land, except in cases of force majeure as stipulated in Clause 1, Article 15 of this Decree.

2. In the case where the State leases land with annual rent, the recovery of land shall be handled as follows:

a) The investor may continue to use the land for 24 months from the date the investment project is terminated according to the laws on investment;

b) Within 24 months from the date the investment project is terminated according to the laws on investment, the investor may sell lawful assets attached to the land to another investor according to the laws. The State shall recover the leased land from the seller and lease it to the buyer.

If the investor fails to sell lawful assets attached to the land to another investor within the extended 24-month period, the State shall recover the land without compensation for the land or assets attached to the land, except in cases of force majeure as stipulated in Clause 1, Article 15 of this Decree."

3. Supplementing Article 17a as follows:

"Article 17a. Auctioning the right to use land when the State grants land with payment of land use fee or leases land

1. Organizations participating in the auction of the right to use land must meet the following conditions:

a) They belong to the subjects eligible for the State to grant land or lease land according to Articles 55 and 56 of the Land Law. In the case of auctioning a plot of land or a project consisting of one or more plots of land, if there are two (02) companies or more that have cross-shareholdings according to the laws on enterprises, only one company can participate in the auction of the right to use land;

b) They meet the conditions prescribed in Clause 3, Article 58 of the Land Law, Clauses 2 and 3, Article 14 of this Decree;

c) They must deposit a bid bond equal to 20% of the total value of the plot of land or area of land at the starting price for the auction of the right to use land;

d) They are not prohibited from participating in the auction according to the laws;

đ) They meet the conditions prescribed by the laws on housing and the laws on real estate business for the case of auctioning the right to use land to implement housing projects or other real estate development projects.

2. Conditions for households and individuals participating in the auction of the right to use land:

a) They belong to the subjects eligible for the State to grant land or lease land according to Articles 55 and 56 of the Land Law and meet the conditions prescribed in points c and d, Clause 1 of this Article;

b) In the case where households and individuals participate in the auction of the right to use land to implement investment projects, they must ensure the conditions prescribed in point a of this Clause and points b and đ, Clause 1 of this Article.

3. Conditions for land put up for auction of the right to use land include:

a) They comply with the provisions of Clause 1, Article 119 of the Land Law;

b) They have been decided by competent authorities on the starting price for the auction of the right to use land;

c) The auction of the right to use land shall be conducted for each plot of land;

d) There is a detailed plan at a scale of 1/500 approved by the competent authority for land used to implement construction projects.

4. From the date of announcing the auction results, the bid bond and interest (if any) shall be converted into earnest money to guarantee the fulfillment of financial obligations by the land user.

In case the successful bidder does not pay or does not pay the full amount of the bid price for land use rights as stipulated in point d, Clause 5, Article 68 of this Decree, the successful bidder shall not be entitled to reclaim the deposit. If the successful bidder has paid more than the deposit amount, the excess amount shall be refunded by the State according to the provisions.

4. Supplement Clause 5 of Article 32 as follows:

"5. For construction works used for tourism accommodation purposes on commercial and service land, if they meet the conditions prescribed by laws on land, construction, and real estate business, they shall be certified with ownership rights attached to the land for commercial and service purposes; the land use period shall be in accordance with Clause 3, Article 126 and Clause 1, Article 128 of the Land Law. The owner of the construction work shall bear legal responsibility for meeting the conditions prescribed by laws on construction and real estate business.

The certification of ownership rights for construction works as provided in this clause shall be carried out in accordance with Clauses 1, 2, 3, and 4 of this Article. Information about the land plot on the Certificate of Ownership must comply with the purpose and duration of land use as prescribed by law."

5. Amend and supplement Article 37 as follows:

"Article 37. Issuance of Certificates of Ownership for cases specified in Clause 4, Article 95, and Clause 3, Article 105 of the Land Law

1. For localities that have established Land Registration Offices as prescribed in Clause 1, Article 5 of this Decree, the issuance of Certificates of Ownership and amendments to issued Certificates shall be conducted as follows:

a) The Land Registration Office shall handle organizations, religious establishments; overseas Vietnamese implementing investment projects; foreign organizations and individuals; foreign-invested enterprises;

b) Branches of the Land Registration Office or the Land Registration Office shall handle households, individuals, community groups, and overseas Vietnamese owning houses attached to residential land in Vietnam;

c) The Land Registration Office and its branches may use their own seals to issue Certificates of Ownership and amend issued Certificates.

2. For localities that have not established Land Registration Offices as prescribed in Clause 1, Article 5 of this Decree:

a) The Department of Natural Resources and Environment shall issue Certificates of Ownership for organizations, religious establishments; overseas Vietnamese implementing investment projects; foreign organizations and individuals; foreign-invested enterprises;

b) The People's Committee of the district shall issue Certificates of Ownership for households, individuals, community groups, and overseas Vietnamese owning houses attached to residential land in Vietnam.

3. In cases where the provincial People's Committee delegates the Department of Natural Resources and Environment to issue Certificates of Ownership of land use rights, house ownership, and other assets attached to land as prescribed in Clause 1, Article 105 of the Land Law, the seal of the Department of Natural Resources and Environment may be used.

4. The Ministry of Natural Resources and Environment shall specify the cases of issuing Certificates of Ownership of land use rights, house ownership, and other assets attached to land when registering changes in land status and assets attached to land, and amending issued Certificates."

6. Supplement Clause 5 of Article 46 as follows:

"5. In cases where agricultural and forestry companies have decisions to allocate land or lease land according to approved land use plans as prescribed in Clauses 1, 2, and 3 of this Article, and subsequently the State recovers such land for purposes as stipulated in Articles 61 and 62 of the Land Law, there shall be no adjustment to the land use plan; the recovery of land shall be carried out in accordance with current laws."

7. Amend Clause 6, and supplement Clauses 7 and 8 of Article 60 as follows:

"6. Implementation of administrative procedures related to land on electronic platforms

a) Based on specific conditions regarding land information technology infrastructure and managed databases, the agencies responsible for receiving applications and delivering results of administrative procedures related to land as prescribed in this Article shall organize the receipt of applications and delivery of results through electronic platforms in accordance with the Government's regulations.

b) For cases of implementing registration and issuance of Certificates of Ownership on electronic platforms, the following procedures shall apply:

The agency responsible for receiving and processing applications shall implement land-related administrative procedures in accordance with laws on land; in cases where verification or other reasons prevent the timely delivery of results, the agency shall notify the applicant via written communication, the Public Service Portal, or SMS, specifying the reasons.

The land user or owner of assets attached to land shall fulfill financial obligations as prescribed by law either directly or through online payment functions on the Public Service Portal.

The agency responsible for receiving or processing applications shall notify the applicant to submit original Certificates of Ownership and other required documents after fulfilling financial obligations.

Delivery of results of administrative procedures shall be conducted at the agency receiving applications or through public postal services, or at designated locations for cases involving land registration, other assets attached to land, issuance, replacement, or reissuance of Certificates of Ownership.

7. The land user or owner of assets attached to land requesting implementation of administrative procedures related to land as prescribed in this Article shall bear legal responsibility for the accuracy and truthfulness of the declared contents and documents submitted."

The agency receiving the dossier is responsible for checking the completeness of the dossier components; the agency handling administrative procedures related to land is responsible for implementing within the scope of authority and timeframes prescribed by law, without being liable for contents in documents and papers included in the dossier that have been approved, reviewed, approved, or resolved by other competent agencies or persons prior to this.

8. The connection, sharing of data, and electronic interconnection between agencies to implement administrative procedures and financial obligations payment of the person requesting the procedure shall be carried out in accordance with the provisions of laws on administrative procedures in the electronic environment and laws on the single-window mechanism.

8. Supplement Article 65a as follows:

“Article 65a. Procedure and process for reclaiming land in cases where investment projects cease operations as stipulated by laws on investment.

1. The investment registration agency or the investor sends a document terminating the operation of the investment project using land, as prescribed by laws on investment, to the natural resources and environment agency at the location of the land, except in cases provided for in point d, Clause 2, Article 48 of the Investment Law.

2. After receiving the document terminating the operation of the investment project, the natural resources and environment agency is responsible for inspecting and determining investment projects whose operations have ceased and which require land reclamation.

3. The process of reclaiming land and organizing the implementation of the land reclamation decision shall be carried out in accordance with the provisions of Article 15b and Clauses 2, 3, and 4 of Article 66 of this Decree.”

9. Supplement Article 68a as follows:

"Article 68a. Conditions and criteria for changing the purpose of land use from rice cultivation land, protective forest land, special-use forest land to other purposes to implement an investment project

1. Having an investment project that has been approved for investment orientation or granted an investment registration certificate in accordance with the laws on investment.

2. Being consistent with the land use plan at the district level, the investment project must be included in the annual land use plan of the district which has been approved according to the laws.

3. A plan for replanting forests or a document completing the responsibility to pay for replanting forests as prescribed by laws on forestry for cases where the purpose of using protective forest land or special-use forest land is changed to another purpose; a plan for utilizing surface soil layers and a document completing the responsibility to pay for protecting and developing rice-growing land as prescribed by laws on agriculture for cases where the purpose of using specialized rice-growing land is changed to another purpose.

4. Having a preliminary environmental impact assessment or an environmental impact assessment in accordance with the laws on environmental protection (if applicable).

5. The agency or person authorized to review and approve the proposal to change the purpose of using protective forest land, special-use forest land, or rice-growing land to another purpose shall only be responsible for the contents specified in Clause 2 and Clause 3 of this Article; they shall not be responsible for other contents that have been reviewed, approved, decided, or resolved by other competent agencies or persons prior to this.

10. Supplement Article 68b as follows:

“Article 68b. Procedure and process for allocating land, leasing land in cases stipulated in Clause 3, Article 29 of the Investment Law.

For cases where investors are approved according to Clause 3, Article 29 of the 2020 Investment Law, the procedure and process for allocating land, leasing land, and allowing changes in land use purposes shall be applied as prescribed in Clause 3, Article 68 of this Decree. The competent authority shall implement the procedure for approving investors when the investors meet the conditions prescribed by relevant laws.

The agency or person authorized to handle the procedures for allocating land, leasing land, and allowing changes in land use purposes shall not be responsible for contents regarding approval of investment proposals, selection of investors as prescribed by laws on investment, laws on housing, and other relevant laws.”

11. Amend and supplement Article 72 as follows:

“Article 72. Procedure and process for registering and issuing Certificates of Land Use Rights, House Ownership Rights, and Other Property Rights Attached to Land for persons receiving transfers of land use rights, purchasing houses, or construction works in residential development projects and non-residential real estate development projects.

1. After completion of the construction, the developer has the responsibility to submit the following documents to the Department of Natural Resources and Environment:

a) For residential development projects:

Certificate or decision on land allocation or lease issued by the competent authority; financial obligation fulfillment certificates of the project developer, if there is a change in financial obligations, then proof of completion of financial obligations for such changes must be submitted (except in cases of exemption or delayed payment as prescribed by law);

Floor plans of constructed houses and land, either as completed floor plans or design drawings with dimensions of each sold apartment matching the actual construction and signed contracts; Construction permit (if applicable); Notification from the construction management agency allowing the developer to accept the project completion inspection or approve the results of the final acceptance of the project for use as prescribed by construction laws; list of apartments and construction works including apartment number, land area, construction area, and common and private usage areas for each apartment; for apartment buildings, the plan must show the shared land area dimensions and building floor plans, floor plans of each level and each apartment.

b) For non-residential real estate development projects:

Certificate of Land Use Rights, House Ownership Rights, and Other Property Rights Attached to Land; financial obligation fulfillment certificates of the project developer, if there is a change in financial obligations, then proof of completion of financial obligations for such changes must be submitted (except in cases of exemption or delayed payment as prescribed by law);

Design drawings matching the actual construction and signed contracts; Notification from the construction management agency allowing the developer to accept the completion inspection of construction works or approve the results of the final acceptance of construction works for use as prescribed by construction laws; list of properties (construction works, construction parts) including property name, land area, common and private usage areas for each property.

2. Within thirty days from the date of receiving valid files, the Department of Natural Resources and Environment shall be responsible for inspecting the current land use status, housing, and non-residential construction projects, and the conditions for transferring land use rights, selling housing, and non-residential construction projects of the project developer.

After completing the inspection, the Department of Natural Resources and Environment shall notify the project developer of the inspection results; send notifications along with diagrams of houses, lands, and non-residential construction projects inspected to the Land Registration Office to process registration of houses, lands, and non-residential construction projects for the buyer in cases meeting the legal requirements; publicly announce the inspection results on the electronic information website of the provincial People's Committee and the Department of Natural Resources and Environment where the land is located.

3. The project developer has the responsibility to submit one set of registration files to issue the Certificate of Land Use Right, House Ownership, and Other Assets Attached to the Land on behalf of the transferee of land use rights, house purchaser, or non-residential construction project purchaser, or provide the files to the buyer for self-registration. The files include:

a) Application for land registration, issuance of the Certificate of Land Use Right, House Ownership, and Other Assets Attached to the Land;

b) Contract on transfer of land use rights, sale of housing, and non-residential construction projects in accordance with the law;

c) Handover record of houses, lands, and non-residential construction projects.

4. The Land Registration Office shall be responsible for:

a) Checking legal documents in the file; confirming whether the conditions for issuing the Certificate of Land Use Right, House Ownership, and Other Assets Attached to the Land are met or not;

b) Sending cadastral data to the tax authority to determine financial obligations;

c) Updating information into the cadastral file, land database (if applicable);

d) Issuing the Certificate of Land Use Right, House Ownership, and Other Assets Attached to the Land as stipulated in Article 37 of this Decree;

đ) Requesting the project developer to submit the issued Certificate of Land Use Right, House Ownership, and Other Assets Attached to the Land for correction into the cadastral file, land database;

e) Delivering the Certificate of Land Use Right, House Ownership, and Other Assets Attached to the Land to the applicant.

5. The Land Registration Office shall accept files, process registration procedures, and issue Certificates for the transferee of land use rights, house purchaser, or non-residential construction project purchaser in housing development projects and real estate business projects that are not housing development projects, provided that all required files have been submitted in accordance with Clause 3 of this Article.

12. Amend and supplement Article 101 as follows:

"Article 101. Competence to adjust decisions on land recovery, land allocation, land lease, and change of land use purpose before July 1, 2014

The competent authority deciding on land recovery, land allocation, land lease, and change of land use purpose according to the Land Law 2013 shall have the competence to decide on adjustments for cases where there are decisions on land recovery, land allocation, land lease, and change of land use purpose, regardless of the competence to make such decisions before July 1, 2014."

Article 2. Amend and supplement some articles of Decree No. 44/2014/NĐ-CP dated May 15, 2014 on land prices as follows:

1. Supplement Clause 4 of Article 16 as follows:

"4. In cases where the methods for determining land prices prescribed in Clauses 1, 2, 3, and 4 of Article 4 of this Decree are applied, the People's Committee of the province shall be responsible for issuing a decision to approve specific land prices within a period not exceeding 90 days from the date the competent state agency issues a decision on granting land use rights, leasing land, changing the purpose of land use, allowing the conversion from annual payment of land lease fees to one-time payment for the entire lease period, extending the term of land use, or adjusting the term of land use."

2. Supplement Article 18a as follows:

"Article 18a. Time of collection of land lease fees for cases of extension of land use term and adjustment of land use term

1. For cases where the land user is granted an extension of the land use term by the competent state agency upon expiration of the term, the time of collection of land lease fees is the first day of the subsequent lease term.

2. For cases where the land user is granted an adjustment of the land use term by the competent state agency, the following shall apply:

a) In cases where the land has been leased by the State with one-time payment for the entire lease period, the time of collection of land lease fees is the time when the State decides to adjust the land use term. The collection, deduction, and refund of land lease fees shall be carried out in accordance with the laws on collection of land lease fees;

b) In cases where the land has been leased by the State with annual payment of land lease fees, the time of collection of land lease fees for the first stable rental price cycle is the time when the State decides to adjust the land use term to calculate annual land lease fees."

Article 3. Amend and supplement some articles of Decree No. 148/2020/NĐ-CP dated December 18, 2020 of the Government amending and supplementing some decrees detailing the implementation of the Land Law

1. Amend and supplement Clause 12 of Article 1 (Clause 2 of Article 14b of Decree No. 43/2014/NĐ-CP) as follows:

"2. Commercial and service land use."

2. Amend and supplement Clause 21 of Article 1 (Point d Clause 5 of Article 68 of Decree No. 43/2014/NĐ-CP) as follows:

"d) Within five working days from the date the successful bidder completes their financial obligations, the natural resources and environment authority shall submit to the competent authority for issuance of the Certificate of Land Use Right, signing of the land lease contract in cases of land leasing; organizing the handover of land on-site and delivering the Certificate of Land Use Right; directing the updating and correction of the land database and land registry records.

If the successful bidder does not pay or pays insufficiently the auction-winning bid amount for land use rights within 120 days from the date of the decision recognizing the auction-winning result, the People's Committee at the competent level shall cancel the decision recognizing the auction-winning result for land use rights."

3. Amend and supplement Clause 1 and Clause 5 of Article 4:

"1. For cases of using land for production and business purposes as stipulated in Article 16 of Decree No. 43/2014/NĐ-CP, where the land area managed by the State, agricultural land used for public welfare purposes, and which can be separated into an independent project but the State has already decided to reclaim and grant land or lease land to the investor before the effective date of this Decree, the investor may continue to use the land until the end of the land grant or lease term. In cases where there is a decision to reclaim land but no decision to grant or lease land, the provisions of this Decree shall apply, except for cases stipulated in Point b Clause 2 Article 118 of the Land Law.

For cases where the provincial People's Committee has approved the transfer, contribution, or lease of agricultural land use rights for non-agricultural investment projects before the effective date of this Decree, and the approval document exceeds 36 months from the date of signature but the investor has not yet implemented the agreement with the land user and the land use for the project is consistent with the approved land use plan, the investor must reapply for the provincial People's Committee's approval according to the provisions of this Decree.

5. In cases where the competent authority has selected investors to implement investment projects in accordance with the laws on investment before the effective date of this Decree, and they fall under the category of being granted land or leased land without going through the auction process as stipulated in Point b Clause 2 Article 118 of the Land Law, they may continue to proceed with the procedures for granting land or leasing land without going through the auction process."

Article 4. Transitional Provisions

1. In cases where the Certificate of Land Use Right has been signed by the competent authority before the effective date of this Decree but has not yet been handed over to the land user or owner of attached assets, the procedures shall continue to be carried out according to the regulations prior to the effective date of this Decree.

2. In cases where the application for auction of land use rights was received before the effective date of this Decree, the procedures shall continue to be carried out according to the laws in effect at the time of receiving the application.

3. In cases where applications to adjust decisions on land recovery, land allocation, land leasing, or permission to change land use purposes issued by the Prime Minister before July 1, 2004 have been received, the procedures shall continue to be carried out according to the regulations prior to the effective date of this Decree.

Article 5. Implementation Provisions

1. This Decree takes effect from May 20, 2023.

2. Replace the phrase "place of permanent residence registration" with the phrase "place of permanent residence" in Article 3a of Decree No. 43/2014/NĐ-CP dated May 15, 2014 of the Government (supplemented pursuant to Clause 2 of Article 2 of Decree No. 01/2017/NĐ-CP dated January 6, 2017 of the Government amending and supplementing some decrees detailing the implementation of the Land Law).

3. Replace the phrase "issue certificates of land use rights, ownership of houses and other assets attached to the land for cases authorized according to regulations" in Clause 4, Article 2 of Decree No. 01/2017/NĐ-CP with the phrase "issue and confirm changes to certificates of land use rights, ownership of houses and other assets attached to the land according to regulations".

4. Substitute the phrases in the Appendix accompanying Decree No. 148/2020/NĐ-CP dated December 18, 2020, amending and supplementing certain Decrees detailing the implementation of the Land Law as follows:

a) Replace the phrase "Identity Card" with the phrase "Identity Card/Citizen Identity Card/Personal Identification Number" in Form No. 01;

b) Replace the phrase "Identity Card, Personal Identity Card" with the phrase "Identity Card/Citizen Identity Card/Personal Identification Number" in Form No. 02;

c) Replace the phrase "registered permanent residence address, identity card number" with the phrase "registered permanent residence address, identity card/citizen identity card/personal identification number" in Form No. 05.

5. Repeal the following provisions:

a) Clause 4 and Clause 5 of Article 5b of Decree No. 43/2014/NĐ-CP dated May 15, 2014 of the Government (supplemented according to Clause 6 of Article 2 of Decree No. 01/2017/NĐ-CP dated January 6, 2017 of the Government amending and supplementing certain Decrees detailing the implementation of the Land Law);

b) Clause 14, Clause 23, Clause 45 and Clause 62 of Article 2, and Clause 6 of Article 3 of Decree No. 01/2017/NĐ-CP dated January 6, 2017 of the Government amending and supplementing certain Decrees detailing the implementation of the Land Law;

c) Clause 6 and Clause 7 of Article 1 of Decree No. 148/2020/NĐ-CP dated December 18, 2020 of the Government amending and supplementing certain Decrees detailing the implementation of the Land Law.

Article 6. Responsibilities for Implementation

The Minister, Heads of ministerial-level agencies, Heads of government-affiliated agencies, Chairpersons of People's Committees at all levels, and other related organizations and individuals are responsible for implementing this Decree./.