On July 15, 2024, the Government issued Decree No. 88/2024/ND-CP detailing compensation, support, and resettlement upon land expropriation by the state (effective from August 1, 2024) (“Decree 88”). Decree 88 is an important legal document detailing compensation, support and resettlement related to investment projects that renovate and rebuild apartment buildings that comply with the provisions of the law on housing. In this article, TNTP lawyer will analyze the new points of Decree no. 88/2024 to help readers understand the fundemental changes introduced by this decree.
1. New points of Decree 88
• Compensation with land of a different purpose or compensation with housing upon land expropriation by the state as prescribed in Clause 1, Article 96, Clause 1, Article 98, Clause 1, Article 99 of the Real Estate Law;
• Other case eligible for land compensation and the conditions for land compensation stipulated in Clause 3, Article 95 of the Real Estate Law; and
• Compensation upon land expropriation by the state in cases where the actual measured area is different from the area recorded on the land use right documents.
It can be seen that the main contents of Decree 88 have adjusted important issues in compensation, support, and resettlement upon land expropriation by the state. These are sensitive issues and need a legal framework to ensure the legitimate rights of land users when the State implements investment projects to renovate and rebuild apartment buildings.
2. Compensation with land of a different purpose, or compensation with housing upon land expropriation by the state as prescribed in Clause 1, Article 96, Clause 1, Article 98, Clause 1, Article 99 of the Land Law 2024
• According to regulations, the land price for calculating land fees when compensation with land of a different purpose or housing for households, individuals, and overseas Vietnamese who have been continuously using residential land or owning housing attached to land use rights in Vietnam shall be the land price determined according to the land price schedule at the time of approval of the compensation plan.
• If the land is compensated through a lease arrangement, and the rent is paid in whole sum for the entire lease period, the land value used to determine the rent is the specific price set by the competent People’s Committee at the time the compensation plan is approved.
• The land price used to calculate land use fees and land lease fees for compensation in the form of land with a different purpose of use than the expropriated land, for economic organizations whose residential land is expropriated, shall be the specific land price determined by the competent People’s Committee at the time of approval of the compensation, support, and resettlement plan.
• If there is a difference in value between the compensation amount and the land levy, land rent or house purchase amount when the expropriated land user is compensated with land of a different purpose or housing, the difference shall be addressed as follows:
– If the compensation amount is greater than the land levy, land rent or house purchase amount, the expropriated land user is entitled to difference;
– If the compensation amount is less than the land levy, land rent or house purchase amount, the expropriated land user must pay the difference;
– The Province People’s Committee shall, based on the land fund, housing fund and actual situation in the province, prescribe the conversion rate and requirements for compensation with land of a different purpose or housing to compensate the expropriated land user as prescribed in this Article.
From the above contents, it can be seen that Decree 88’s additional provisions in Clause 1, Article 96, Clause 1, Article 98, Clause 1, Article 99 of the Land Law 2024 have created a favorable legal framework, facilitated and supported for the principles of compensation, support, and resettlement when the State reclaims land, ensuring democracy, objectivity, fairness, publicity, transparency, timeliness and compliance with the provisions of law.
3. Other case eligible for land compensation and the conditions for land compensation stipulated in Clause 3, Article 95 of the Real Estate Law
In addition to the cases of compensation by land with a different purpose than the type of collected land or by housing when the State collects land as prescribed in Clause 1, Article 96, Clause 1, Article 98, Clause 1, Article 99 of the Real Estate Law 2024. Other cases of land compensation and conditions for land compensation as prescribed in Clause 3, Article 95 of the Real Estate Law 2024 include:
• Households and individuals are still entitled to land compensation although they have no land use rights documents provided that they are eligible for a Certificate of land use rights and ownership of property on land (hereinafter referred to as a Certificate of land use rights) as stipulated in Clauses 1, 2, 3, 4, 5 and 6 of Article 138 of the Land Law.
• Households and individuals are still entitled to land compensation although they have violated land laws before July 1, 2014, provided that they have continued to use the land stably since then (hereinafter referred to as use the land stably), and fall into cases eligible for a Certificate of land use rights as stipulated in Clause 1, Point a and Point c, Clause 2, Clause 3, Clause 4, Article 139 of the Land Law 2024.
• Households or individuals are still entitled to land compensation although the land was allocated without valid authorization under real estate law at the time of allocation, or the land was acquired through the purchase, liquidation, Government valuation, or distribution of housing and construction works on land not in accordance with the law before July 1, 2014, provided that they have been stably using the land since then.
Those who received land allocations without valid authorization between July 1, 2014 and the effective of the Land Law are still entitled to land compensation if they can provide proof of payment for the land use.
• Households or individuals whose land use right certificates indicate a land classification that differs from the classification stipulated in Article 9 of the Land Law or the actual land use, shall be compensated based on the reclassified land type as prescribed in Clause 2 of Article 10 of the Land Law 2024.
• Households or individuals are still entitled to land compensation although they were not issued with a Certificate of land use rights provided that they directly engaged in agricultural production and have been stably using the agricultural land before July 1, 2004.
Decree 88 provides more detailed regulations on households and individuals using land without land documents, or land allocated without proper authority, etc. to clarify which cases fall under which conditions to determine the scope of land compensation.
4. Compensation upon land expropriation by the state in cases where the actual measured area is different from the area recorded on the land use right documents
According to the provisions of Article 6 of Decree 88/2024/ND-CP, for households or individuals whose land is being expropriated by the state, if the actual measured area differs from the area stated on the land use right certificate, the housing and land use right certificate, the land use right certificate, the house ownership and other property on land certificate, or the land use right certificate and other property on land certificate (hereinafter referred to as “certificate”) or the document stipulated in Article 137 of the Real Estate Law, land compensation shall be made as follows:
• If the actual measured area is smaller than the area stated on the land use right certificate or the document stipulated in Article 137 of the Real Estate Law 2024, land compensation shall be based on the actual measured area as prescribed in Clause 6 of Article 135 of the Land Law 2024.
In cases where the actual measurement for land expropriation has been completed but subsequently, due to natural disasters, landslides or subsidence, the area of the measured plot of land has changed at the time of formulating the compensation plan, the measured data shall be used to formulate the compensation plan.
• In cases where the actual measured area is larger than the area stated on the land use right certificate or the document stipulated in Article 137 of the Land Law 2024, and there is no dispute with neighboring land users, the compensation area shall be determined based on the actual measured area as prescribed in Clause 6 of Article 135 of the Land Law 2024.
• If the location and coordinates specified in the land use right certificate or the document stipulated in Article 137 of the Land Law 2024 are incorrect, the compensation shall be determined based on the correct location and coordinates as established through actual measurement.
In fact, in the process of compensation settlement when collecting land, there are often many problems when there is a difference between the actual measured land area and the area recorded in the land use right documents, causing frustration for the people and directly affecting their legitimate rights. Now Decree 88 has specific regulations to resolve these problems. These are progressive regulations and contribute to ensuring the people’s legitimate rights.
The issuance of Decree 88 to provide detailed guidance for Land Law 2024 shows the Government’s great efforts and determination to avoid legal gaps. This will contribute to ensuring the rights of people whose land is collected, avoiding unnecessary complaints and lawsuits.
Above is an article by TNTP’s lawyer on the topic: “New points of Decree no. 88/2024/ND-CP regulations on compensation, support, and resettlement upon land expropriation by state”. We hope this article provides valuable insights for our readers.
Best regards.
