On April 3, 2023, the Government issued Decree 10/2023/ND-CP amending and supplementing to several articles of Decrees on instructions for implementation of the Law on Land. This Decree will come into effect on May 20, 2023. Decree 10/2023/ND-CP has amended and supplemented several land policies to implement the Government's overall direction to remove difficulties and obstacles for localities, people, and businesses. Specifically, the following changes have been made:
Firstly, new regulations on the issuance of Land Use Right Certificate
Under Article 7 of Article 1 of Decree 10/2023/ND-CP, further guidance has been provided for cases of online issuance of land ownership certificates (through the National Public Service Portal). Specifically, if the result of the dossier settlement is not provided on time, the receiving agency must clearly state the reason why and notify the citizens through various means such as:
+ Written notification;
+ Through the National Public Service Portal;
+ Via SMS messages;
In particular, citizens can pay land taxes, land use fees, and land registration fees directly or online through the payment function of the National Public Service Portal. After fulfilling the financial obligations, the receiving agency or the dossier settlement agency shall notify the citizens to submit the original Land Use Right Certificate and other required documents as prescribed. The result of the dossier settlement can be provided at the receiving agency or via postal service or at a requested location. This means that citizens can apply for land ownership certificates online and receive the dossier through the postal service without having to go to the office in person.
Secondly, supplementing the conditions for allowing the conversion of land designated for rice cultivation for investment projects, as specified in Article 68a of Decree 43/2014/ND-CP.
According to Decree 10/2023/ND-CP, Article 68a of Decree 43/2014/ND-CP is supplemented with conditions and criteria for allowing the conversion of land designated for rice cultivation, protected forest land, and special-use forest land for other purposes to implement investment projects (with listed attached conditions).
Thirdly, the amendment of the authority to grant Land Use Right Certificate
Under Article 5, Clause 1 of Decree 10/2023/ND-CP amending and supplementing Article 37 of Decree 43/2014/ND-CP related to the authority to issue land use certificates in cases specified in Clause 4 of Article 95 and Clause 3 of Article 105 of the Land Law,
For administrative subdivisions where Land Registration Offices have set up, Certificates or endorsement of changes in the existing Certificates may be granted, subject to the following regulations:
- Land Registration Offices: For organizations, religious institutions, Vietnamese individuals residing abroad investing in projects; foreign organizations, individuals; and foreign-invested enterprises.
- Branches of Land Registration Offices or Land Registration Offices: For households, individuals, communities, and Vietnamese individuals residing abroad who own houses attached to land use rights in Vietnam.
Land Registration Offices and Branches of Land Registration Offices are authorized to use their own seals affixed to grant Certificates or endorsement of changes in the existing Certificates.
Thus, Decree 10/2023/ND-CP has amended the authority to issue land use certificates and confirm changes to the issued certificates, aiming to facilitate administrative procedures for citizens by allowing them to be carried out at the Land Registration Office without having to go to the Department of Natural Resources and Environment.
Fourthly, supplementing the procedure for land recovery in case of termination of investment projects in accordance with investment regulations:
Decree No. 10/2023/ND-CP amending Article 65a of Decree No. 43/2014/ND-CP on the procedures for land recovery in case of termination of investment projects, in accordance with investment regulations, is as follows:
- The investment registration agency or the investor shall submit a written notification of the termination of the investment project using land as defined in laws on investment to the natural resources and environment authority having jurisdiction over the project land, except for cases specified in point d, clause 2 of Article 48 of the Investment Law.
- Upon receiving the written notification of the termination of the investment project, the natural resources and environment authority shall be responsible for inspecting and determining the investment projects that are terminated and require land recovery.
- The land recovery and implementation of the decision on land recovery shall be carried out in accordance with the regulations stipulated in Article 15b, clause 2, clause 3, and clause 4 of Article 66 of Decree No. 43/2014/ND-CP.
Fifthly, the new legal adjustments related to legal issues for new types of real estate including officetel, shophose, and condotel
In recent times, new types of real estate such as officetel, shophouse, and condotel have faced legal challenges in the process of obtaining certificates of ownership. This situation not only affects the rights of buyers and businesses but also has negative impacts on the transparency of the market. The Decree No. 10/2023/ND-CP issued by the Government, which amends and supplements certain provisions of the Decrees guiding the implementation of the Land Law, will take effect from May 20, 2023. Real estate businesses believe that this Decree will help resolve legal issues for businesses and buyers of hotel apartments, resort condominiums, officetels, vacation villas, and other commercial and service properties for accommodation and tourism purposes.
Under Clause 4 Article 1 of Decree No. 10/2023/NĐ-CP amending Article 5 of Decree No. 43/2014/ND-CP, the provincial Department of Natural Resources and Environment has a sufficient legal basis to issue certificates for tourist apartments, resolving issues for granting certificates for condotels. However, Article 4 of Decree No. 10/2023/ND-CP does not provide a general regulation for granting certificates for all construction projects used for commercial or service accommodation purposes, but only specifies the granting of certificates for construction projects used for tourist accommodation purposes as regulated by the law on tourism for commercial or service land, the scope of regulation of Article 4 of Decree No. 10/2023/ND-CP is narrow, only applying to construction projects used for tourist accommodation purposes as regulated by the law on tourism. This inconsistency with Article 2 of Decree No. 02/2022/ND-CP needs to be amended and supplemented to ensure consistency and comprehensiveness in regulating the scope of application of the law. Therefore, it is necessary to amend and supplement Article 4 of Decree No. 10/2023/ND-CP, and add provisions to Article 5 of Decree No. 43/2014/ND-CP to grant certificates for condotels, officetels, and other construction projects used for commercial or service accommodation purposes, to ensure consistency and comprehensiveness in the legal framework.
Furthermore, regarding condotels and resort villas for tourism and vacation, whether they are eligible to be granted certificates to buyers. According to the content of Article 32 of Decree 43/2014/ND-CP, it has already regulated the issuance of certificates for the entire construction by the investor. The additional content in Clause 4 of Decree 01/2017/ND-CP provides a detailed recording for each construction item. However, Decree 01/2017/ND-CP's regulation on issuing separate certificates for each item is not clear and can easily be misapplied in the case of issuing certificates for individual stalls in commercial centers or individual animal pens in animal farms...
The amendment in Clause 11, Article 1 of Decree 10/2023/ND-CP (amending Article 72 of Decree 43/2014/ND-CP) still poses challenges for local authorities in issuing certificates for individual condotel units in tourism projects, as the 2014 Law on Real Estate Business only specifies the responsibilities of real estate business project investors without defining which projects are considered real estate business projects. In reality, many tourism projects are only approved and granted investment registration certificates based on the Tourism Law, rather than the Law on Real Estate Business, with the objective of operating as tourism activities. Investors often add real estate business as an additional business line in their registration, but it is not the primary objective of the project.
Therefore, it is necessary to clearly define all specific criteria for accurately identifying projects and types of real estate, to avoid errors in practice, and to facilitate local authorities in implementation.
