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The Vietnam Real Estate Association (VNREA) has recently submitted a document providing feedback on several aspects of the draft Resolution of the National Assembly stipulating mechanisms and policies to address difficulties and obstacles in the implementation of the Land Law.
Accordingly, VNREA contributed five suggestions; including proposing amendments to three provisions already stipulated in the draft and adding two provisions not yet included in the draft Resolution.
Regarding the two additional proposals, VNREA cites Article 5 of the Draft Resolution, which stipulates the application of land price tables to determine land use fees and land lease fees for all projects when land is allocated, leased, or its purpose of use is changed, in all cases.
However, according to VNREA's analysis, in reality, there are investment projects in newly developed areas or projects with large land use scales that do not have land price lists, or if land price lists exist, their application would be inappropriate. In such cases, it is necessary to determine specific land prices according to the land price determination methods stipulated in the current Land Law to calculate land use fees and land lease fees.
VNREA proposes adding regulations specifying cases where specific land prices apply to calculate land use fees and land lease fees for projects when the State allocates land, leases land, or changes land use purposes, including: projects with a large land use scale of 100 hectares or more and investment projects in newly developed areas that do not yet have a land price list.
In addition, VNREA proposes adding a regulation on calculating the supplementary fee for the period before land prices are determined. Based on point d, Clause 2, Article 257 of the 2024 Land Law, Decree 103/2024/ND-CP stipulates that the supplementary fee for those who received land allocation/lease decisions before August 1, 2024, but whose land prices have not yet been determined, will be calculated at 5.4%/year (expected to be adjusted down to 3.6%/year) of the land use fee/land lease fee payable for the period before land prices are determined.
The argument is that investors benefit from the unpaid land use/lease fees. This view is incorrect and inappropriate – VNREA emphasized. Currently, the responsibility for determining land prices rests with state agencies, not with land users.
The demand for land users to be held responsible in this case is unfounded. When land users have not paid land use fees or land rent, they cannot exercise their land use rights: the right to buy/sell/transfer/mortgage… because, according to regulations, these rights can only be exercised after fulfilling their financial obligations regarding the land, VNREA analyzed.
Therefore, VNREA proposes adding a clause regulating the handling of additional fees based on the distinction of specific cases. For cases where decisions on land allocation, land lease, permission to change land use purposes, permission to switch from annual land lease payments to one-time payments for the entire lease period, land use extension, adjustment of land use duration, or adjustment of detailed planning have been made in accordance with land law and other relevant laws before the effective date of this Law, but the land price has not yet been determined, the determination of land lease fees and land use fees shall be carried out in accordance with points a, b, and c, Clause 2, Article 257 of the 2024 Land Law.
In addition, land users must pay supplementary fees for the period for which land use fees and land rent have not been calculated, as stipulated in points a, b, and c of Clause 2, Article 257 of the Land Law, if the land user has put the land area for which land use rights have been granted into exploitation, business, or use.
Land users are not required to pay additional fees for the period for which land use fees or land rent have not been calculated, as stipulated in points a, b, and c of Clause 2, Article 257 of the Land Law, if the land user has not yet put the land area for which land use rights have been granted into exploitation, business, or use. If the land user has already paid the additional fees for the period for which land use fees or land rent have not been calculated, the amount paid will be refunded or offset against other financial obligations to the State…
Regarding the three proposed amendments, VNREA cited: Clause 7, Article 3 on land acquisition, compensation, support, and resettlement stipulates that "The deduction of compensation, support, and resettlement amounts advanced by the investor from the land use fee and land lease fee payable shall be calculated for the entire project in accordance with Clause 2, Article 94 of the Land Law."
However, according to VNREA, the Land Law stipulates that in cases where investors advance compensation, support, and resettlement funds, these funds can be deducted from the land use fees and land lease fees of the project. If, after deducting the land use fees and land lease fees of the projects, there is still a remaining amount, it can be included in the total investment capital of the project.
Therefore, this regulation does not truly guarantee the rights and does not truly attract investors to participate in advancing compensation, support, and resettlement funds; especially in the case of projects that are exempt from or eligible for reduction of land use fees and land lease fees – VNREA analyzed.
Therefore, VNREA proposes allowing investors to continue deducting advance payments for compensation, support, and resettlement from other financial obligations that the investor is required to pay.
Furthermore, point d, Clause 1, Article 5 stipulates that the basis for calculating land use fees includes: infrastructure construction costs for the land area that the investor hands over to the State; the infrastructure construction costs specified in this point are determined according to the provisions of the law on construction.
According to VNREA, the draft only stipulates the calculation of infrastructure construction costs for the land area that the investor hands over to the State, which is inappropriate. This is because the nature of land price tables is a general regulation, and land prices in these tables are usually based on existing land parcels. Infrastructure development projects that do not have land handed over to the State (such as industrial park infrastructure development projects) will not be eligible for infrastructure cost deductions.
Alternatively, investment projects will have different infrastructure investment costs depending on geological conditions and scale, especially those in new areas or reclaimed land, which have very high costs for land leveling and infrastructure construction. Therefore, calculating only the infrastructure costs for the land area that the investor hands over to the State would not ensure fairness.
Based on this reality, VNREA proposes that when determining land prices, the infrastructure costs of the entire project should be calculated, not just for the land area that the investor hands over to the State. Simultaneously, regulations should be added regarding the handling of land reclamation costs for land reclamation projects when determining land prices (currently, land reclamation costs are included in the project development costs when determining land prices using the surplus method).
Another point that VNREA commented on is point b, Clause 13, Article 3, which stipulates the transitional provisions for land acquisition, compensation, support, and resettlement, stating: "In cases where, before the effective date of this Resolution, there is no decision approving the compensation, support, and resettlement plan, the land acquisition, compensation, support, and resettlement shall be carried out in accordance with the Land Law and the provisions of this Article."
According to VNREA, the use of the phrase "cases before the effective date of this Resolution where no decision has been made" does not accurately determine the timeframe in which the event occurred. There may be cases where no decision approving the compensation plan was made before the effective date of the Resolution, but by the time the Resolution takes effect, such a decision has been made. Therefore, VNREA proposes amending it to "Cases where no decision has been made by the effective date of this Resolution...".
Source: https://vtv.vn/de-xuat-them-co-che-xac-dinh-gia-dat-xu-ly-tien-thu-bo-sung-trong-du-thao-nghi-quyet-ve-luat-dat-dai-100251027194905912.htm
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