1. What is land allocation without proper authority?

Land allocated without authority is a situation in the field of land management and use, when land is allocated or distributed to households, individuals or organizations where the person or agency allocating the land does not have the authority according to the law. provisions of law. This can lead to a violation of the rights and responsibilities of the land allocation agency, causing unfairness and difficulties in land management and use. According to the provisions of Clause 1, Article 23 of Decree 43/2014/ND-CP, it clearly stipulates cases of land allocated without proper authority:

- In case of land allocation without proper authority to households or individuals: This applies in situations where the head of a residential area or the commune-level People's Committee has allocated land to the household or individual. individuals who do not comply with the provisions of land law. These people do not have the authority according to the law to carry out land allocation.

Even in this case, land allocation may have occurred over many periods, including amendments and promulgations of land-related laws, but still do not comply with jurisdictional regulations. An important point is that the regulations on the agency competent to allocate land to households and individuals are still agreed to be the district-level People's Committee (district, district, town, and provincial city). If land is allocated to households or individuals that do not originate from the district People's Committee, this may be considered land allocated without proper authority.

- In case an organization self-distributes or allocates land without proper authority: This applies in cases where an organization has been allocated land or leased land for use by the State, but then this organization self-distributes, Allocating land to officials, employees, and cooperative members without complying with the law. These organizations do not have the authority according to the law to carry out land allocation.

This self-distribution and arrangement of land can be carried out by many different organizations, including defense units, enterprises, companies, educational and training establishments at all levels, hospitals, agencies, other unit. However, even if this organization distributes land for housing and other purposes, if it does not comply with the regulations on authority, this can also be considered a case of land not being allocated properly. correct authority.

2. Can I get a red book if I buy land from someone who was allocated land incorrectly?

Phase 1: Land that was used stably before October 15, 1993 is one of the special cases specified in Clause 2, Article 23 of Decree 43/2014/ND-CP. According to this regulation, if the land was used stably before October 15, 1993, without disputes and in accordance with the planning, the current land user has the right to be granted a Certificate of Land Use Rights. ownership of houses and other assets attached to land for the land area allocated according to regulations.

- Conditions for issuance of Certificate: To be granted a Certificate of land use rights, land users need to meet the following two main conditions:

+ No disputes: The land that the land user is using is not in dispute, meaning there is no controversy or opposition about land use rights from other parties.

+ Consistent with planning: Land use must comply with local approved planning, ensuring that land use does not violate that planning regulations.

- Area to be granted a Certificate: Determining the area to be granted a Land Certificate will comply with the following specific regulations:

+ For land plots with houses: If the land plot area is less than or equal to the residential land recognition limit, the entire land plot area will be recognized as residential land. Residential land recognition limits will vary depending on each locality.

+ For land plots with both houses and construction works for production, commerce, and non-agricultural services: Residential land area is recognized as prescribed for land plots with houses. The remaining area where a project has been built will be recognized as non-agricultural land according to the purpose of use of that project.

+ For land plots with construction works for production, commerce, and non-agricultural services: Land area is recognized as non-agricultural land (non-agricultural production establishments, commercial land, and services) according to the actual area of ​​construction of that project.

+ For the remaining land area after being determined as residential land and other non-agricultural land, this land area will be determined as agricultural land.

Phase 2: Land was used stably from October 15, 1993 to before July 1, 2014

Pursuant to Clause 3 of Article 23 of Decree 43/2014/ND-CP, it is specifically stipulated in cases where land is not allocated according to authority and has been used stably for a period from January 15. October 1993 to before July 1, 2014, if there is no dispute and in accordance with the planning, the land user will be granted a Certificate of land use rights, housing ownership, and ownership of other properties. Other assets attached to land as prescribed in Clause 2 of Article 20 of this Decree.

In cases where a plot of land has a garden or pond attached to a house or other buildings, the remaining area without houses or buildings will be determined as agricultural land according to its current use status. in. If a land user wishes to change the land use purpose to non-agricultural purposes, the land use purpose conversion procedure must be carried out.

Similar to the period before October 15, 1993, during this period, households and individuals need to pay attention to the following two important legal issues:

- Conditions to be granted a Certificate:

+ No disputes.

+ Consistent with planning.

Although the conditions for being granted a Certificate in the above two stages are the same, the difference lies in the area for which the Certificate will be issued and the amount of land use fees that must be paid.

- Area to be granted Certificate:

+ For land plots with houses and land plot area less than or equal to the residential land allocation limit, the entire land plot area will be recognized as residential land (residential land allocation limit will vary depending on each province, central city).

+ In case the land plot has a house and the land plot area is larger than the residential land allocation limit, the residential land area will be recognized as equal to the residential land allocation limit. In case the area of ​​land for construction of houses and works to serve daily life is larger than the residential land allocation limit, the area of ​​residential land will be recognized according to the actual area where houses and works to serve life have been built. live there.

+ For land plots with construction works for production, trade, and non-agricultural services, the land area of ​​non-agricultural production establishments will be recognized; Commercial and service land will be recognized according to the actual area of ​​construction of those works (the form of land use will be recognized as the form of land allocation with collection of land use fees, the land use term is long term settlement).

+ For land plots with both housing and construction works for production, commerce, and non-agricultural services where the land plot area is larger than the residential land allocation limit, the residential land area as well as the base land area Non-agricultural production, commercial and service land will be recognized according to regulations for each type of land as stated. The remaining land area after determining the residential land area and other non-agricultural land area according to regulations will be determined as agricultural land.

Phase 3: From July 1, 2014 onwards

If a household or individual is allocated land by the State, but not by the district People's Committee, not only will they not be granted a Certificate, but they will also be at risk of having the entire allocated land area revoked.

=> Land allocated without proper authority refers to the case where land is not allocated by the competent authority, according to each implementation stage (People's Committee at district and provincial levels). Although this is a case of land allocated incorrectly according to authority, if this land has been allocated and demarcated before July 1, 2014, it can still be granted a Certificate if the prescribed conditions are met.

3. When the book is issued, how is the land use fee payable determined?

According to Article 8 of Decree 45/2014/ND-CP, the land use fee payable is specifically regulated for each period as follows:

Stage 1: Land was allocated without proper authority before July 1, 2004

Case 1: Using land with stable housing

- In case of using land with a house before October 15, 1993 and having documents proving that money has been paid to an agency or organization to use the land, the land use fee is not required.

- In case of using land with stable housing during the period from October 15, 1993 to before July 1, 2004 and there are documents proving that money has been paid to use the land, the use fee will be collected. land is as follows:

+ If documents prove that money has been paid to use land according to the collection rate prescribed by the 1993 land law, land use fees will not be collected.

+ If documents proving that money has been paid to use land is lower than the levy prescribed by the 1993 land law, the amount paid will be converted into a percentage of the area for which land use fees have been paid. according to the policy and land price at the time of payment; The remaining land area will have land use fees collected according to the policy and land price at the time of the decision to recognize land use rights.

- In case of using land with stable housing before July 1, 2004 and without documents proving that money has been paid to use the land, when the Certificate is issued, land use fees will be collected as follows:

If the land has been used stably since before October 15, 1993, then collect land use fees:

+ Equal to 40% of the land use fee according to the residential land price for the land area within the local residential land allocation limit according to the land price specified in the Land Price List at the time of the decision to recognize land use rights.

+ Equal to 100% of the land use fee according to the residential land price for the area exceeding the residential land allocation limit (if any) according to the specific land price at the time of the decision to recognize land use rights.

If the land has been used stably from October 15, 1993 to before July 1, 2004, land use fees will be collected:

+ Equal to 50% of the land use fee for the area within the residential land allocation limit according to the land price specified in the Land Price List.

+ Equal to 100% of the land use fee for the area exceeding the residential land allocation limit (if any) according to the specific land price at the time of the decision to recognize land use rights.

Case 2: Remaining land area without housing (if any)

- The remaining land area without houses is determined to be agricultural land according to the current status of use when issuing the Certificate.

- If the land user requests to convert to residential land and is granted a Certificate of residential land use rights by a competent state agency, he must pay a land use fee equal to the difference between the land use fee collected and the land use price. Residential land with land use fees collected based on agricultural land price at the time of decision to change purpose.

Stage 2: Land was allocated without proper authority from July 1, 2004 to before July 1, 2014

According to Article 9 of Decree 45/2014/ND-CP amended by Clause 4, Article 2 of Decree 123/2017/ND-CP, land use fees must be paid as follows:

- Must pay 100% land use fee according to the specific land price at the time of decision to recognize land use rights.

If there are documents proving that money has been paid to use land according to regulations, the amount paid will be deducted from the land use fee payable; The deduction level does not exceed the land use fee payable.

- In case of using land with construction works other than housing, if granted a Certificate of land use rights for non-agricultural production and business as a form of land allocation with collection of land use fees with a term of use. In the long term, 100% of the land use fee must be paid according to the specific land price of the type of non-agricultural production and business land with the highest land use term specified in Clause 3, Article 126 of the 2013 Land Law at the time of decision. decision to recognize land use rights.