For every country, land is a valuable resource with profound significance for existence and development. In Vietnam, the role of land is recognized in Clause 1, Article 54 of the 2013 Constitution: “Land is a special resource of the nation, an important source for the country’s development, managed according to the law.” Due to this importance, the management of land resources is also particularly significant.
1. Concept of Residential Land
The concept of land is defined by the Ministry of Natural Resources and Environment in Article 4 of Circular 14/2014/TT-BTNMT on the Regulation of Technical Investigation of Land Degradation as follows: “Land is an area with specific boundaries, position, area, and has relatively stable or cyclically changing properties, which can be predicted and affect the current and future use of land by natural, economic, and social factors such as: soil, climate, topography, geomorphology, geology, hydrology, vegetation, animal habitat, and human production activities.” Thus, the concept of land or commonly known as a region, plot, or piece of land is recognized by law and land use rights are granted to individuals and organizations.
Residential land is classified into the group of non-agricultural land, including residential land in rural areas and urban areas. The definition of residential land in rural areas is stipulated in Clause 1, Article 143 of the 2013 Land Law as follows: “Residential land used by households and individuals in rural areas includes land for building houses, constructing life-serving works, gardens, ponds within the same plot of land belonging to rural residential areas, in accordance with the land use planning and rural residential point construction planning approved by the competent state agency.” According to this definition, residential land in rural areas not only includes land used by households and individuals for daily living activities but also includes gardens and ponds within the same plot of land belonging to rural residential areas, in other words, garden and pond land within the same area of residential land of households and individuals is also identified as residential land.
2. Concept of Residential Land Use Rights
Currently, the concept of residential land use rights is not specifically regulated by law but is understood through the concepts of property rights and the right to use in the 2015 Civil Code. Regarding the concept of “Property Rights”: “Property rights are rights valued in money, including property rights to intellectual property objects, land use rights, and other property rights.” According to this definition, residential land use rights are property rights that can be valued in money. Additionally, according to Article 189 of the 2015 Civil Code on the Right to Use: “The right to use is the right to exploit the utility, enjoy benefits, and yield from the property. The right to use may be transferred to others by agreement or by law.” Through these two concepts, it can be understood that residential land use rights are the rights of the land user to exploit the utility, enjoy benefits and yield from the land, and these rights can be transferred to others by agreement or by law
3. Concept of Transferring Residential Land Use Rights
Up to now, current land laws have not specifically defined this concept but it is generalized through the concept of land use rights transfer: “Transfer of land use rights is the transfer of land use rights from one person to another through forms of exchange, transfer, inheritance, donation of land use rights, and contribution of land use rights as capital.” Thus, transferring residential land use rights is one form of transferring land use rights, which is the transfer of residential land use rights from one user to another. Legally, transfer is a transaction of residential land use rights through a contract, whereby the land user voluntarily terminates the right to use a certain area of residential land under their use, transfers that right to another subject, and receives an amount of money equivalent to the value of that residential land.
Thus, transferring land use rights in general, transferring residential land use rights in particular, is a civil transaction through which the subjects achieve their desires when participating in the transaction: the recipient of residential land use rights has the right to exploit the benefits from the land and in return, this subject must pay an equivalent amount of value to the residential land use rights. Besides, the activity of transferring residential land use rights must also comply with the legal regulations in terms of both content and form to ensure legal value and protection by the law.
4. Principles of Transferring Residential Land Use Rights
- Firstly, the land user is only allowed to transfer residential land use rights to subjects as regulated by the law. Specifically, in Clause 1, Article 169 of the 2013 Land Law, Clause 1, Article 28 of the 2024 Land Law. The law also clearly states the cases that are not allowed to receive the transfer of residential land use rights in Article 191 of the 2013 Land Law.
- Secondly, the land user who wants to transfer the residential land use rights of their land must meet certain conditions (specified in detail in Article 188 of the 2013 Land Law).
- Thirdly, when transferring residential land use rights, the parties have the right to agree on the contents of the contract, but the content must comply with the provisions of the 2015 Civil Code and the land law.
- Fourthly, the recipient of residential land use rights must also comply with the state’s regulations on the use of residential land after receiving the transfer.
5. Conditions for Transferring Residential Land Use Rights
- Having a land use rights certificate: Exceptions according to Article 45 of the 2024 Land Law include: inheritance of residential land use rights; donation of residential land use rights to the State, community; receiving residential land use rights to implement socio-economic development projects, whereby households and individuals using land that have not been granted certificates but are eligible to be granted are allowed to transfer residential land use rights to implement projects.
- Land is not disputed: According to Clause 24, Article 3 of the 2013 Land Law on land disputes: “Land disputes are disputes about the rights and obligations of land users between two or more parties in land relations.” This definition can be used to determine this condition.
- Land use rights are not seized to ensure the execution of judgments: Seizing property is one of the measures taken by state agencies to ensure the execution of judgments according to civil procedural law and civil judgment enforcement law. This measure is applied in cases where the subjects required to execute the judgment do not voluntarily fulfill their obligations as stated in the decision or when the voluntary deadline has expired, the subject required to execute the judgment still does not fully perform their obligations.
- Within the land use term: The condition “within the land use term” is also inherited by the 2024 Land Law, however, in Clause 1, Article 171, it is stipulated: “Residential land” is land used stably and long-term.
The law on transferring residential land use rights in Vietnam plays a crucial role in regulating the real estate market and ensuring the rights and obligations of parties involved in land transactions. It provides a legal framework for the transfer process, including conditions, procedures, and documentation required. This law aims to protect the interests of both buyers and sellers, prevent disputes, and promote transparency in the real estate market. By adhering to these regulations, individuals and organizations can ensure that their land transactions are conducted legally and efficiently. The law also contributes to the sustainable development of the real estate sector by encouraging responsible land use and investment. Overall, the law on transferring residential land use rights is essential for maintaining order and fairness in Vietnam’s real estate market.
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_Nguyen Thu Phuong_