According to the new regulation, after 30 days from the date of completion of the transfer of land and assets associated with land between the transferor and the transferee without any change registration (to the name of the owner), a serious fine will be imposed. This is stipulated in Decree 91/2019/ND-CP (hereinafter referred to as Decree 91) dated November 19, 2019 by the Government on sanctioning administrative violations in the field of land, effective from January 05, 2020.
Mr. Le Thanh Tuan, Director of Dong Nai Land Registration Office (Department of Natural Resources and Environment) said, according to Clause 2, Article 17, Decree 91 on sanctioning of administrative violations in the field of land, if the transfer, inheritance or donation of a land use certificate fails to register for changes, the transferee (buyer, recipient, heir) shall be fined as follows: in rural areas, a fine of 1-3 million VND shall be imposed if no change registration is made within 24 months after the deadline; a fine of from 2 to 5 million VND shall be applied if it is overdue for 24 months from the overdue date without any change registration; for urban areas, the fine level is 2 times higher for each corresponding case in rural areas (the highest one is 10 million VND/ violation).
In addition, the provisions of Decree 91 stipulates the authority of Chairman of People's Committees at all levels and specialized inspectors to handle administrative violations regarding land. This sanctioning regulation aims to limit illegal disputes, land and housing transfers, causing difficulties in the management and planning of land in the area.
Mr. Le Thanh Tuan said that according to the law, the transfer of land use right shall be made in a contract, notarized and certified according to regulations. However, the fact that there still exists the transfer of land use rights and assets associated with land in contravention of the law (also known as manual trading) or the transfer of land use rights but without registration of changes (to the name of the owner) in land registration agencies as prescribed.
This situation stems from people not grasping the legal provisions on land transfer or arbitrarily transferring as agreed by the two parties. According to the provisions of Article 4 of the 2013 Land Law, the land is owned by the people and is under the ownership of the State and uniformly managed by the State, the State just grants the rights to land users; therefore, when a transaction on LUR occurs, the parties shall formulate a "LUR transfer contract", but not a "land purchase contract". Also according to Point a, Clause 3, Article 167 of the 2013 Land Law, contracts on transfer, donation, mortgage, and capital contribution with land use rights and assets associated with land shall be made into contract in a form according to the law and be notarized or authenticated.
“The sale, purchase or transfer of land by private agreement or the transferee not continuing to carry out the registration of changes are strictly prohibited as prescribed in Clause 4, Article 12 of the 2013 Land Law. These practices cause difficulties in land management of state agencies due to changes in land users through this transfer are not registered at land registration agencies as prescribed”, said Mr. Tuan.
Mr. Tuan also said the fact that land use right transfer is not notarized according to regulations and not registered for changes in competent state agencies also causes land plot subdivision for sales and illegal construction, breaks rules of land use planning and construction planning, forms spontaneous residential areas without minimal infrastructure requirements and traffic connections, leads to disputes and land complaints, and results in difficulties in recovery and compensation for site clearance for project implementation by competent agencies.
In addition, according to Mr. Tuan, the situation of receiving the transfer of land use rights but not timely registering to transfer the name, without being notarized or authenticated according to regulations will bring many legal risks for the participants in the transaction, especially transferees of land use rights. If the transfer is not in accordance with regulations, it will not be registered and granted with a LURC; susceptible to some bad subjects to take advantage for deception and land dispute; there will be no compensation when the State implements projects that require land acquisition, etc. In general, transferees of land use rights in contravention of regulations will face many legal risks as well as economic losses. Particularly for cases of transferring by private agreement in contravention of law, they will not be recognized by law.
Lam Khue
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