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Land barriers

See lesson 1: Land and the poor, the rich

Vietnam Week introduces the opinion of lawyer Truong Thanh Duc:

“Buy land use rights” 2 times

Many provisions of Law of the Land make real estate business difficult. For example, an enterprise has “purchased” land use rights from organizations and individuals, including residential land, but still has to pay the State to switch to the regime of land allocated by the State with the collection of use fees. leasing land with one-time rental payment for the entire lease period or paying annual rent in advance. That’s like having to “buy land” twice.

Or the enterprise buys assets (through or without auction, from or not from the equitized enterprise), together with the purchased land use right, which is actually buying land in many cases, but when doing a project Real estate must be auctioned to buy the land again, no different than buying twice. Not to mention it is very easy to lead to a deadlock in resolving the legal ownership of the real estate on the land.

In addition, land is in the name of a number of land users such as households, but it is not possible to identify specific individuals, which also causes many difficulties for real estate business.

Therefore, it is necessary to amend the above provisions of the Land Law to solve many conflicts, problems and inadequacies.

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Many provisions of the Land Law make real estate business difficult. Illustration

Difficult “ground clearance”

The spirit of the principles of Land Law 2013 When the State recovers land, it is better to guarantee the interests of people whose land is recovered.

This principle is also further affirmed in Article 1 on “Evaluating performance results”, Resolution No. 82 dated June 14, 2019 of the National Assembly on “Continuing to improve and improve the effectiveness and efficiency of the project.” implement policies and laws on planning, management and use of land in urban areas”: “Policies for land acquisition, compensation, support and resettlement are more tightly regulated and better guaranteed. rights of people whose land is recovered, increasingly creating consensus among the people”. However, this principle is almost never implemented in practice.

Land Law 2013

Regulations: Land users, when recovered by the State, are compensated at specific prices on the basis of the land price bracket according to market prices.

However, the land price bracket set by the Government and the Provincial People’s Council in general, as well as the specific land price decided by the People’s Committee in particular, are often far below the market price, so it is very difficult to implement compensation and settlement. ground clearance in general and the ground for implementing projects of real estate enterprises in particular. This is an issue that needs to be reviewed quickly, because the management agencies seriously violated the principles set by them during the past 18 years, from the 2003 Land Law to the 2013 Law.

Therefore, it is necessary to amend in the direction of realizing the principle of “better guaranteeing the rights of people whose land is acquired”.

Housing real estate business is tightened

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Housing is a very important field for real estate businesses and also depends a lot on the provisions of the land law on the payment of land use fees, site clearance, and handover of project boundaries. . Meanwhile, these issues in the Land Law still have many shortcomings, often leading to problems and delays. According to regulations (**), the fact that companies real estate

Mobilizing capital for housing development can only be done through 3 forms, including the case of “capital contribution, investment cooperation, business cooperation, joint venture, association of organizations and households” , personal”.

Parties to capital contribution, investment cooperation, business cooperation, joint venture or association may only distribute profits (in cash or shares) on the basis of the percentage of contributed capital as agreed in the contract. Investors may not apply the form of capital mobilization specified at this point or other forms of capital mobilization to distribute housing products or to prioritize registration, deposit, enjoyment of the right to buy houses or to distribute housing. divide the land use rights in the project to the party to which the capital is mobilized, except for the case of capital contribution to establish a new legal entity to be assigned by the State as the investor in the housing construction project. It is reasonable that the law stipulates “capital contribution, investment cooperation, business cooperation, joint venture and association” by individuals, especially as consumers as above. However, it is very unreasonable to apply to all organizations, including professional real estate enterprises, even contrary to the provisions of the Land Law,enterprise Law ,investment law

. In fact, the bank loans of real estate enterprises for investment cooperation and business cooperation are also entangled. Therefore, it is necessary to amend the Land Law, Real Estate Business Law and housing law

in the direction of allowing, even encouraging, real estate businesses to “cooperate in investment, business cooperation, joint venture, association” with each other to implement projects.

The Land Law has a great influence on the economy in general and businesses in particular, so it should be considered and revised, overcoming obstacles and inadequacies, contributing to creating a solid foundation for the development. . Lan Anh

write the

Article 55 on “Conditions of real estate formed in the future to be put into business”, Law on Real Estate Business 2014; Article 68 on “Principles of raising capital for housing development”; Article 69 on “Capital for commercial housing development”, Law on Housing 2014 and Article 19 on “Signing contract to raise capital for commercial housing development”, Decree No. 99/2015/ND- Government’s CP “Detailing and guiding the implementation of a number of articles of the Housing Law”, amended and supplemented by Decree No. 30/2019/ND-CP and Decree No. 30/2021/ND- CP; Article 9 on “Mobilizing capital for commercial housing development”, Circular No. 19/2016/TT-BXD of the Minister of Construction “Guiding the implementation of a number of contents of the Housing Law and Decree No. 99/2015/ND-CP of the Government detailing and guiding the implementation of a number of articles of the Law on Housing”, amended and supplemented by Circular No. 02/2019/TT-BXD and Circular No. 07/2021/TT-BXD. (**) Clause 1, article 74 on “Principles of compensation for land when the State recovers land”; Article 113 on “Land price bracket”; Article 114 on “Land price list and specific land price”.

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