In case of not receiving a donation of land use rights
1. Cases in which land use rights cannot be donated:
Transfer of land use rights is the legal transfer of land use rights from one subject to another through the form of conversion, transfer, inheritance, donation of land use rights, or even capital contribution in the form of land use rights. land use rights for business or investment according to the wishes of the person with land use rights. However, current land law also stipulates a number of cases prohibiting the transfer or donation of land use rights. Pursuant to the provisions in Article 191 of the 2013 Land Law There are regulations on cases in which land use rights cannot be transferred and cases in which land use rights cannot be donated. As follows:
– Organizations, households, subjects identified as individuals in society, subjects that are residential communities according to the provisions of law, religious establishments, nationals of the Republic socialist Vietnam but residing in a foreign territory, foreign-invested enterprises will not be entitled to transfer or donate land use rights in cases where the law does not Allows the transfer or donation of land use rights;
– Economic organizations according to the provisions of law will not be allowed to receive transfer of land use rights for rice cultivation land, protective forest land, or special-use forest land from subjects identified as households or Individuals, except for cases where procedures for converting land use purposes have been carried out, the process of converting land use purposes must be consistent with land use planning and plans approved by competent state agencies. right to written consent and approval;
– Subjects identified as households and individuals according to the provisions of law that do not directly conduct agricultural production activities will not be allowed to receive transfer or donation of land use rights for rice growing land, this regulation is to avoid wasting resources and use the land for the correct purpose. To explain this issue more specifically, based on the provisions in Article 3 of Circular 33/2017/TT-BTNMT of the Ministry of Natural Resources and Environment on detailing Decree 01/2017/ND- CP dated January 6, 2017 of the Government amending and supplementing a number of Decrees detailing the implementation of the Land Law and amending and supplementing a number of articles of Circulars guiding the implementation of the Land Law (after Amended in Circular 14/2023/TT-BTNMT amending circulars related to land residence), there are regulations on grounds to identify individuals directly engaged in agricultural production. Some grounds can be mentioned as follows:
+ Currently using agricultural land allocated or leased by a competent state agency in any form, with land use rights recognized by a competent state agency, due to conversion or transfer transfer, inherit or donate, receive capital contribution with legal land use rights, are conducting agricultural land use activities but have not been recognized by a competent state agency;
+ Not subject to regular salary or those who have been retired, those who are determined to be those who retire due to loss of working capacity or quit their job and are entitled to social benefits;
+ Subjects with regular income from agricultural production activities on the land area being used according to the above analysis, including cases without regular income from force majeure events such as: natural disasters, environmental disasters, fires or widespread epidemics;
+ In case of allocating agricultural land to an individual according to the decision of a competent state agency in accordance with the provisions of Article 54 of the 2013 Land Law, carry out procedures for registering transfer or donation of rights. To use land for rice-growing land of individuals, it only needs to be based on the fact that those subjects do not receive regular salaries, or are retired, or have lost their ability to work. or quit your job and receive social benefits.
Besides, also based on the provisions in Clause 3, Article 3 of Circular 33/2017/TT-BTNMT of the Ministry of Natural Resources and Environment on detailed regulations of Decree 01/2017/ND-CP dated June 6, 2017. 01/2017 of the Government amending and supplementing a number of Decrees detailing the implementation of the Land Law and amending and supplementing a number of articles of Circulars guiding the implementation of the Land Law (later amended at Circular 14/2023/TT-BTNMT amending circulars related to land residence), has specific regulations on the bases for determining households directly engaged in agricultural production, specifically can be as follows:
+ Households that are using agricultural land that has been allocated or leased land by a competent state agency in any form in accordance with the provisions of land law, are using agricultural land that has been approved by a competent state agency. Competent authority recognizes actual land use rights, due to conversion or transfer, inheritance or donation, receipt of capital contribution in the form of land use rights, or currently using agricultural land without approval from the government agency. recognized by competent country;
+ There is at least one member in that household who is not eligible to receive a regular salary, those who have retired according to the provisions of law, those who retire due to loss of working capacity or quit their job but are entitled to benefits. social assistance;
+ Have a regular source of income from agricultural production activities based on the area being used in the cases according to the above analysis, including cases where there is no regular income due to reasons such as: due to force majeure such as natural disasters, environmental disasters, fires or actual epidemics;
+ In case of allocating agricultural land to subjects identified as households based on the provisions of Article 54 of the 2013 Land Law, register to receive transfer or donation of the household's rice land use rights. family, it only needs to be based on the case that in that household there is at least one member of the household who is not eligible to receive a regular salary, who has retired, is on leave due to loss of working capacity or quit your job but still receives social benefits.
– Households or individuals according to the provisions of law are not allowed to transfer or donate residential land use rights or receive agricultural land use rights in areas identified as protective forests. in strictly protected areas, in ecological restoration zones within the special-use forest system, if those households and individuals do not live directly in these areas.
So according to the above analysis, it can be said that it is necessary to fully comply with the regulations on cases of not receiving land use rights as prescribed in Article 191 of the 2013 Land Law.
2. What will be the punishment in case of not being given land use rights and intentionally violating them?
Pursuant to the provisions of Article 19 of Decree 91/2019/ND-CP of the Government on sanctioning administrative violations in the field of land (later amended in Decree 04/2022/ND-CP on correcting amend and supplement decrees on sanctions for administrative violations in the fields of land; water resources and minerals; hydrometeorology; surveying and mapping), with regulations on penalties for cases of Not allowed to receive land use rights as a gift according to the law, but still intentionally violates. As follows:
– In case of conversion, carry out mortgage activities according to the provisions of law for types of land allocated by competent state agencies or recognized land use rights in the form of land allocation without collection of history. land use, state agency competent to lease land in the form of land lease with annual payment, state agency competent to allocate land or recognize land use rights in the form of land allocation with payment or lease Renting land with a one-time payment for the entire rental period, but if financial obligations have not been fulfilled or the amount paid originates from the state budget, the form and level of penalties are specifically prescribed as follows:
+ Fine from 1,000,000 VND to 2,000,000 VND if the violating land area is found to be less than 0.05 hectares;
+ Fine from 2,000,000 VND to 5,000,000 VND if the violating land area is found to be from 0.05 hectares to less than 0.1 hectares;
+ Fine from 5,000,000 VND to 10,000,000 VND if the violating land area is found to be from 0.1 hectare to less than 0.5 hectare;
+ Fine from 10,000,000 VND to 20,000,000 VND if the violating land area is found to be from 0.5 hectares to less than 01 hectare;
+ Fine from 20,000,000 VND to 50,000,000 VND if the violating land area is found to be 01 hectare or more.
– In the case of land lease or sublease of land use rights, land is allocated by a competent state agency without collecting land use fees or land use rights are recognized by a competent state agency in the form of allocation. land without collecting land use fees, or being leased land by a competent state agency in the form of land lease with annual payment, or a competent state agency allocating land with collection of money or leasing with one-time payment. times for the entire lease period, but the financial obligation has not been fulfilled or the amount paid originates from the state budget, in the case of donating or receiving land use rights to the wrong subjects in areas In rural areas, the form and level of punishment are prescribed as follows:
+ Fine from 2,000,000 VND to 5,000,000 VND if the violating land area is found to be less than 0.05 hectares;
+ Fine from 5,000,000 VND to 7,000,000 VND if the violating land area is found to be from 0.05 hectares to less than 0.1 hectares;
+ Fine from 7,000,000 VND to 15,000,000 VND if the violating land area is found to be from 0.1 hectare to less than 0.5 hectare;
+ Fine from 15,000,000 VND to 20,000,000 VND if the violating land area is found to be from 0.5 hectares to less than 01 hectare;
+ Fine from 20,000,000 VND to 50,000,000 VND if the violating land area is found to be 01 hectare or more.
– In case of transferring, donating, or contributing capital with land use rights for types of land allocated by competent state agencies in the form of land use fees, the competent state agency shall declare receive land use rights in the form of land allocation without collecting land use fees, competent state agencies lease land in the form of annual rental payments, competent agencies allocate land with collection of land use fees or lease land with a one-time payment for the entire lease period, but financial obligations have not been fulfilled or the payment originates from the state budget, schools donate land use rights to the wrong people in the wrong areas. In rural areas, the form and level of punishment are specified as follows:
+ Fine from 3,000,000 VND to 7,000,000 VND if the violating land area is found to be less than 0.05 hectares;
+ Fine from 7,000,000 VND to 10,000,000 VND if the violating land area is found to be from 0.05 hectares to less than 0.1 hectares;
+ Fine from 10,000,000 VND to 20,000,000 VND if the violating land area is found to be from 0.1 hectare to less than 0.5 hectare;
+ Fine from 20,000,000 VND to 30,000,000 VND if the violating land area is found to be from 0.5 hectares to less than 01 hectare;
+ Fine from 30,000,000 VND to 100,000,000 VND if the violating land area is found to be 01 hectare or more.
– Public service units are leased land by a competent state agency once for the entire lease period. The land rent paid does not originate from the state budget, but transfer activities are carried out. or sublease land, donate or mortgage, contribute capital with land use rights but do not have the written consent of the competent authority in the rural area, the form and level of punishment are prescribed. As follows:
+ Fine from 5,000,000 VND to 10,000,000 VND if the violating land area is found to be less than 0.1 hectare;
+ Fine from 10,000,000 VND to 20,000,000 VND if the violating land area is found to be from 0.1 hectare to less than 0.5 hectare;
+ Fine from 20,000,000 VND to 50,000,000 VND if the violating land area is found to be from 0.5 hectares to less than 01 hectare;
+ Fine from 50,000,000 VND to 100,000,000 VND if the violating land area is found to be 01 hectare or more.
– In case of transfer, donation, capital contribution with land use rights, or sublease of land that is not subject to transfer, lease, sublease, or donation according to regulations, According to the land law in urban areas, the penalty level is determined to be 2 times the penalty level for rural areas according to the above analysis.
3. What are the conditions for transferring and granting land use rights?
Pursuant to the provisions of Article 188 of the 2013 Land Law, the conditions to be able to carry out transactions of conversion, transfer, lease, sublease, inheritance, gift, mortgage with use rights Land and national capital equal to land use rights are specifically stipulated as follows:
– Must have a land use right certificate issued by a competent authority;
– The types of land in the transfer process will not be in dispute;
– Land use rights are not distrained to ensure judgment enforcement;
– Still within the land use term.
In addition to the above conditions, it can be said that when land users exercise the right to convert, transfer, lease, sublease, inherit or donate land use rights, mortgage or contribute capital with land use rights, Land use must still fully meet the conditions prescribed in Article 191, Article 192, Article 193 and Article 194 of the 2013 Land Law. Thus, although all the conditions prescribed in Article 188 of the 2013 Land Law, however, is not allowed to receive land use rights as a gift according to Article 191. Then, according to the analysis above, land in 2013 must comply with that regulation.
Legal documents used in the article:
– Land Law 2013;
– Decree 43/2014/ND-CP detailing the 2013 Land Law;
– Circular 33/2017/TT-BTNMT of the Ministry of Natural Resources and Environment detailing Decree 01/2017/ND-CP dated January 6, 2017 of the Government amending and supplementing a number of Decrees detailing the implementation of the Land Law and amending and supplementing a number of articles of Circulars guiding the implementation of the Land Law;
– Circular 14/2023/TT-BTNMT amending circulars related to land residence;
– Decree 91/2019/ND-CP of the Government on sanctioning administrative violations in the field of land;
– Decree 04/2022/ND-CP on amending and supplementing decrees on sanctioning administrative violations in the field of land; water and mineral resources; hydrometeorology; surveying and mapping.