On the morning of November 13, the National Assembly discussed in Groups the draft Resolution on piloting the implementation of commercial housing projects through agreements on receiving land use rights or having land use rights.
Group 15 includes the National Assembly delegations of the provinces: Quang Tri, Yen Bai, Binh Phuoc and Binh Thuan. Deputy Head of the National Assembly Delegation of Binh Thuan province Nguyen Huu Thong chaired the discussion session.
Untangling the bottlenecks in land access
After listening to the National Assembly deputies discuss and contribute ideas to complete the draft Resolution on piloting the implementation of commercial housing projects through agreements on receiving land use rights or having land use rights, Minister of Natural Resources and Environment Do Duc Duy spoke to explain and clarify some issues of concern to the deputies.
Minister Do Duc Duy emphasized that the issuance of this draft pilot Resolution is very necessary, the nature of the draft Resolution is for us to supplement a method of land access in the implementation of commercial housing projects. Previously, according to the provisions of the 2003 Land Law and the 2005 Housing Law, for the implementation of commercial housing projects, there were two mechanisms for transferring land use rights: compulsory transfer mechanism and voluntary transfer mechanism.
Specifically, the compulsory transfer mechanism is that the State reclaims land to allocate to investors through land use fee auctions or bidding to select investors to implement investment projects using land. The voluntary transfer mechanism is that investors negotiate with people who are currently using land to have land funds to implement commercial housing projects, or investors who are currently using land request competent state agencies to allow them to change the land use purpose to implement commercial housing projects. Thus, there are two transfer mechanisms through four forms of land access.
Next, the 2010 Housing Law and the 2013 Land Law continued to allow all four forms of land access to implement commercial housing projects as in the 2003 Land Law and the 2005 Housing Law. However, when the National Assembly passed the 2014 Housing Law, it limited the form of receiving land use rights transfer or changing land use purposes. In particular, the 2014 Housing Law stipulates that in the case of receiving a transfer, only residential land can be transferred; and in the case of having land use rights and requesting the State to change the land use purpose, that area must include a part of residential land area.
“This limits the cases of land access in the form of receiving land use rights transfer as well as having land use rights compared to the 2003 Land Law and the 2005 Housing Law,” the Minister emphasized, and said that the 2013 Land Law does not regulate or control cases where the State reclaims land to hand over to investors through the form of bidding to select investors or auctioning land use rights. That is, the scale of the project can be large or small, although it is not approached in the direction of investors receiving land use rights or investors having land use rights compared to the previous stage, but the State can reclaim land with projects that are not limited in terms of area scale.
However, according to Minister Do Duc Duy, in the 2024 Land Law, Articles 79 and 127 stipulate that the State will only reclaim land for urban development projects with synchronous technical infrastructure, social infrastructure and housing. Thus, according to current urban law, the scale is usually from 20 hectares or more, and in cases with smaller areas and not ensuring synchronous urban elements, the State will not reclaim land. Thus, the method of the State reclaiming land to hand over to investors will not be implemented. At the same time, the regulations on cases where the State allows investors to receive land use rights or investors who are currently holding land use rights are also controlled and narrowed like the 2014 Housing Law. That is, it only applies to cases where if the land use rights are received, 100% of the area received must be residential land or if there are land use rights, there must be a part of residential land.
“This leads to projects under urban areas and if the land is not residential land, there is no way to access the land, because it is not in the case of land recovery by the State and also not in the case of the State allowing the right to use the land, or having the right to use the land but changing the land use purpose. This leads to difficulties for localities with few large-scale projects. Therefore, this pilot Resolution submitted to the National Assembly for promulgation aims to remove those difficulties, solve the bottleneck in the method of accessing land to implement commercial housing projects,” said the Minister.
The name and duration of the pilot are appropriate.
Another content is about the name, delegate Hoang Sy Dong said that we should accept the opinions of some National Assembly deputies in the Economic Committee's Inspection Report, which is "piloting the implementation of commercial housing projects through receiving the transfer of land use rights or having the right to use land but that land is not residential land". Minister Do Duc Duy said that the original name when the Government registered with the National Assembly was correct. However, in the process of drafting the Resolution, it was found that if it was regulated like that, it would not cover all cases. Because there are situations where investors receive the transfer of land use rights, and the land received includes both residential land and non-residential land. If we immediately include in the name of the Resolution that only cases that are not residential land can receive the transfer of rights, there will be problems.
According to the Minister, there are also opinions that the name as drafted may overlap with the Land Law. Because the Land Law also stipulates cases where the transfer of rights is allowed. However, in the draft Resolution, the Government has designed an additional clause 5, Article 1 to exclude projects that have been permitted by land law, specifically the 2024 Land Law, to receive the transfer of land use rights or are currently having land use rights. If any case has been regulated by land law, it will be excluded from the scope of regulation of this Resolution. Thus, the name is still comprehensive and ensures that it does not overlap with the 2024 Land Law that has been allowed for implementation.
Regarding the criteria for implementing the pilot project, Minister Do Duc Duy said that the draft Resolution stipulates that no more than 30% of the additional residential land area during the planning period compared to the existing residential land area is allowed. The reason for this provision is that Resolution 18 of the Central Committee stipulates that land allocation and leasing are mainly carried out through auctions of land use rights and bidding for projects using land. Thus, the Resolution of the Central Committee stipulates that the main options are auctions or bidding. Therefore, the third form is receiving the transfer of rights or the fourth form is changing the land use purpose for land with the right to use. If we implement it, it will not be the main one. Therefore, the Government proposes a maximum of 30%. Thus, the remaining 70% will be implemented through bidding or auctions in accordance with the spirit of Resolution 18.
Some delegates suggested that it should be expanded to rural areas and not just limited to urban areas. Minister Do Duc Duy said that currently, according to the provisions of Clause 27, Article 79 of the Land Law, the State is allowed to reclaim land in the case of projects with a synchronous urban scale and allows land to be reclaimed for projects developing rural residential areas. Thus, in rural residential areas, there is already a method for the State to reclaim land and localities still implement it normally. Therefore, it is not necessary to add another form of agreement in rural areas. Ensure that there is no overlap with the cases that can be implemented under the 2024 Land Law.
Regarding the delegate's opinion that the criteria stated that different types of land are implemented, so what mechanisms and sanctions need to be designed or established to ensure food security, maintain stability of 3.5 million hectares of rice land, and ensure an average national forest cover of 42%. The Minister said that this issue has been implemented and strictly controlled right from the stage of land use planning, then urban planning, and construction planning. When planning, we had to determine how much agricultural land was converted to non-agricultural purposes, how much residential land was implemented during the planning period to still ensure the stable maintenance of rice land area of 3.5 million hectares and the stable maintenance of forest cover of 42%. This step is the step where we carry out the planning, which area within the planned area for commercial housing development will be subject to the method of State land acquisition and which area will be subject to the method of investors receiving land use rights transfer. But it is only within the approved planning area.
Another content, the National Assembly deputies also mentioned that the pilot implementation period is 5 years, but there should also be sanctions in case the investor has difficulty in receiving the transfer of rights or the transfer period is prolonged. Minister Do Duc Duy explained that currently, the 2024 Land Law has very specific regulations on handling cases where investors receive the transfer of land use rights and how to extend the extension period, and in case the extension period expires without successful agreement for the entire area, there is also a handling mechanism. Therefore, in the draft Resolution, it is mentioned that the implementation of the agreement to receive land use rights is implemented according to the 2024 Land Law, which includes handling all cases of extension, many cases are not successfully implemented so there are no further regulations in this Resolution.
Regarding procedures, the Minister said that although the Land Law has stipulated procedures for agreeing to receive land use rights to implement investment projects in general, including housing projects, some National Assembly deputies said that there should be specific and detailed regulations for the type of project implementing land access in this way. The Government has accepted and in the draft Resolution there is a provision that the National Assembly assigns the Government to specify the procedures for projects implementing the pilot mechanism, as well as projects implementing the pilot mechanism that are related to land originating from national defense and security land.
Source: https://baotainguyenmoitruong.vn/bo-truong-do-duc-duy-lam-ro-quy-dinh-thuc-hien-du-an-nha-o-thuong-mai-thong-qua-thoa-thuan-ve-nhan-quyen-su-dung-dat-383055.html
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