Law on land allocation for investment in commercial housing construction

construction of commercial houses has many characteristics compared to the allocation of land for other purposes, more specifically the allocation of land for economic-service activities, allocation of land for construction of social houses. nature, about the land owner, the purpose of the land 9 assignment, on land price determination, the mode of land allocation. 2.1.4. Methods of land allocation for investment in construction of commercial housing Investors in commercial housing construction can access the land use rights through three ways: to transfer land use rights, receive capital contribution with land use rights or receive or assign land or lease land from the State. If the investor receives land from the State, this is the transfer of land use rights in the primary market. In other words, the State's land allocation to land users has formed a primary real estate market. If the investor receives the transfer of land use rights or receives capital contribution with land use rights, this is the transfer of land use rights in the secondary market. Current land legislation allows land allocation through one of two methods: land allocation through auction and land allocation without auction. 2.1.5. Principles of land allocation for investment in construction of commercial houses Land allocation for investment in the construction of commercial housing of the State is aimed at achieving the following objectives: (1) Ensuring the efficient exploitation of the value of land use rights to promote socio-economic development national association, realizing the goal of building a market-oriented economy in the socialist orientation; (2) Generate revenue for the state budget to reinvest in construction of social welfare works, develop infrastructure for the country and perform its social management duties; (3) Providing more housing supply to meet the housing needs of the society, also providing more goods supply to the real estate market in general and housing market in particular. Therefore, the assignment of land for construction of commercial houses must be based on the principles to help the State achieve the above-mentioned objectives, including: - Principles of land allocation for investment in construction of commercial houses must ensure openness and transparency. - Principles of land allocation for investment in the construction of commercial houses must ensure that investors have opportunities to access land use rights in a convenient and fair manner. - Principles of land allocation for investment in the construction of commercial housing must comply with the rules of the market economy. - Principles of land allocation for investment in the construction of commercial houses must ensure the efficient exploitation of land resources. 2.2. General theory of the law on land allocation for commercial housing construction 2.2.1. Concept of law on land allocation for investment in commercial housing construction The law is a system of codes of conduct generally enforced or recognized by the State to regulate social relations, serve and protect the interests of the strata of the population in the society. The law on allocation of land for investment in the 10 construction of commercial houses is a system of legal provisions governing social relations arising during the process of land allocation from the State attached land use fees to investors in the of commercial housing construction. 2.2.2. Legal structure of land allocation for investment in commercial housing construction Land relations and land use rights are subject to various laws and legal documents. The current system of legal documents governing land relations is vast, including: (1) The normative group regulates the content, authority and management of land allocation for housing construction. Commerce; (2) Regulatory group regulates conditions for entities to be allocated land for investment in construction of commercial houses and conditions for land use rights and commercial houses to participate in the real estate market; (3) The normative group regulates the investment activities of the investor in the construction of commercial houses; (4) The normative group regulates the relationship of procedures and procedures for land allocation to investors for commercial housing construction. On that basis, the law on land allocation for investment in construction of commercial houses ensures the following adjustments: - Firstly, the conditions for being allocated land for investment in the construction of commercial houses, subjects are assigned land for investment in the construction of commercial houses, the authority to allocate land for investment in the construction of commercial houses. - Secondly, the order and procedures for land allocation for investment in construction of commercial houses, which include dossiers of application for land allocation for investment in construction of commercial houses, procedures and organization of auction land use rights for commercial housing, determining land prices in land allocation for commercial housing construction. - Thirdly, the rights and obligations of the investor in commercial housing construction, including the financial obligations of the investor in the construction of commercial houses, the investor's guarantees for the construction of commercial houses. Constructing a commercial housing project. - Fourthly, policies on the development of commercial housing, including investors to build commercial houses, planning, plans and targets for commercial housing development. - Fifthly, inspect and supervise the process of land allocation to invest in the construction of commercial houses. 2.2.3. Dominant factors affecting the law on land allocation for commercial housing construction The first factor that influences the law on land allocation to invest in the construction of commercial houses in Vietnam is the land ownership regime and land use rights. The second factor that influences the law on land allocation to invest in the 11 construction of commercial houses is the rule of the market economy. The third factor that influences and influences the law on land allocation for investment in the construction of commercial houses is the organization structure of the state. The fourth factor that influences and impacts on the law on land allocation to invest in the construction of commercial houses is the issue of environmental protection, social security, and population size. 2.2.4. The process of formation and development of the law on land allocation for investment in commercial housing construction The Land Law of 1987 and the Land Law of 1993 had no regulations on allocation of land for investment in the construction of commercial houses. Commercial housing only appears in the market economy, when the demand for housing of people, especially in urban areas, is high and the demand for goods to develop the real estate market. Law No. 10/1998 / QH10 amended and supplemented a number of articles of the 1993 Land Law, which for the first time added provisions on the allocation of land for construction of commercial houses. After that, the law on land allocation for investment in construction of commercial houses continued to be shaped and completed gradually with the promulgation of legal documents on land, houses, real estate business and trade. trade and investment. Currently, along with the introduction of the 2013 Land Law replacing the 2003 Land Law, the 2014 Housing Law was issued in place of the 2005 Housing Law, the 2014 Real Estate Business Law replacing the Law. The 2005 real estate business, the 2014 Investment Law replacing the 2005 Investment Law, the 2014 Enterprise Law replacing the 2005 Enterprise Law are really steps to improve the law on land allocation for investment in commercial housing construction in our country today. Conclusion of Chapter 2 Chapter 2 systematizes common theoretical issues on land allocation for commercial housing construction and the law on land allocation for commercial housing construction, including concepts, characteristics, methods, principles of land allocation for investment in construction of commercial houses; concepts, structure, dominant factors and the process of formation and development of the law on land allocation for investment in construction of commercial houses. The research results in chapter 2 will be a premise for studying and assessing the provisions of the law on land allocation for investment in the construction of commercial houses and a theoretical foundation for the thesis to present solutions. complete the law on land allocation to invest in the construction of commercial houses in Vietnam. 12 CHAPTER 3 LAW AND PRACTICAL IMPLEMENTING THE LAW ON LAND ALLOCATION FOR INVESTMENT IN COMMERCIAL HOUSING CONSTRUCTION IN VIETNAM 3.1. Contents of land allocation for investment in commercial housing construction 3.1.1. Bases for land allocation for investment in commercial housing construction The grounds of land allocation for investment in the construction of commercial houses are also grounds for land allocation, land lease and change of land use purposes in general, including: (1) The district-level annual land-use plan has been approved by the competent state agency. Annual district-level land use plans need to be formulated according to processes, in accordance with principles, ensuring scientific, uniform and comprehensive. Based on this basis, the state agency has the authority to allocate land, and the implementation will be carried out seriously and closely for land users, ensuring that the allocation and management adjusting the land fund in each locality for different needs and purposes, including land allocation for commercial housing construction, will ensure fairness, rationality and feasibility, creating the equality for investors in accessing land to realize business activities; Project status is suspended, planning is suspended. (2) Land use demand reflected in the investment project, application for land allocation: This ground is provided to ensure the investor to build commercial housing - land users, really need it, avoiding "take-a-seat" status in land allocation, land lease, causing wastefulness and social injustice. However, for the current land use needs, the Land Law has no specific quantitative provisions to determine whether investors really need land use. Therefore, this base is still limited to formality, too general, especially in land allocation without land use right auctions. 3.1.2. Conditions for land allocation to invest in commercial housing construction It is necessary to specify the conditions for land allocation to implement investment projects, in order to avoid the spread of land use purpose, which affects the area of rice cultivation land, special-use forest land, and protective forest land. In addition, the provisions on conditions for land allocation for investment projects are also significant in screening qualified investors as well as ensuring project implementation progress, avoiding land hoarding, corruption land. According to Article 14 of Decree No. 43/2014 / ND-CP detailing the implementation of a number of articles of the 2013 Land Law (Decree No. 43/2014 / ND-CP), a project on housing construction In the commercial sector, it also belongs to the group of projects that need to meet the conditions of land allocation, land lease, and change of land use purpose in accordance with Article 58 of the 2013 Land Law and its guiding 13 documents. Thus, the condition of being allocated with land for investment in the construction of commercial houses under current law includes two groups of conditions: conditions for competent state agencies in deciding to allocate land and conditions for investors to implement commercial housing projects. 3.1.3. Subjects are assigned land to invest in the commercial housing construction Entities assigned land for investment in the construction of commercial houses are those assigned by competent state agencies to execute commercial housing construction projects. According to current law, there are three groups of subjects who are allocated land to build commercial housing: The first group is an economic organization, including enterprises, cooperatives, and other economic organizations in accordance with civil law, except for foreign- invested enterprises. The second group is Vietnamese residing abroad: this entity must establish a business or cooperative to conduct real estate business activities. The third group is foreign-invested enterprises. All three groups of subjects can be allocated land by the State to implement investment projects on construction of commercial houses. With this provision, the Land Law has narrowed the difference in access to land use rights between economic organizations, households, and individuals with foreign-invested enterprises and oversea Vietnamese. 3.1.4. Competence to allocate land for investment in construction of commercial houses The competence to allocate land for commercial housing construction is prescribed in Clause 1, Article 59 of the 2013 Land Law. Specifically, the competent to allocate land for investment in the construction of commercial houses belongs to the provincial People's Committee. Provincial People's Committees are not allowed to authorize other entities to allocate land. 3.1.5. Procedures for land allocation for commercial housing construction Regulations on the procedures for auction of land use rights upon land allocation have been relatively complete and specific so that this activity is more marketable and more objective. These regulations on order and procedures for land allocation are specifically and publicly provided so that people can grasp and avoid ambiguity leading to a part of cadres taking advantage of harassment of people and forcing People to pay unofficial expenses when carrying out administrative procedures on land. In fact, regulations on the order and procedures for land allocation for investment in the construction of commercial houses in particular and land allocation in general still exist some following shortcomings: Firstly, the boundary in the purpose of land acquisition between the socio- economic development project and the socio-economic development project is not obviously defined in the Land Law. 14 Secondly, the regulations on land allocation for investment in the construction of commercial houses without auction are non-market. Thirdly, the Land Law has not clarified the concept of land acquisition for socio-economic development for the sake of the nation and the public. 3.1.6. Rights and obligations of entities assigned land for investment in commercial housing construction Investors in commercial housing construction when they are assigned land for investment in the construction of commercial houses also have the common rights and obligations of land users in accordance with the land law. In addition, the investor in the construction of a commercial housing has some specific obligations, such as the obligation to ensure a minimum percentage of floor area of an apartment building (Clause 2, Article 16 of the Law on Housing 2014), which requires investment in synchronous construction of technical and social infrastructure systems (Clause 3, Article 26 of the Law on Housing 2014), obligations to invest in construction of social houses on the land fund for construction of commercial houses, development projects urban development (Article 5 of Decree No. 100/2015 / ND-CP on development and management of social housing). Investors in commercial housing construction have the obligations: payment of land use levies, compensation and ground clearance obligations; obligations to comply with regulations on a minimum area of apartment buildings in commercial housing projects and synchronization of technical and social infrastructure systems. By contrast, investors building commercial houses have the following rights: the right to transfer the project in part or in whole the project; right to mobilize capital from other entities to carry out the project;... 3.1.7. Inspection and supervision in land allocation for investment in commercial housing construction The basis of inspection and supervision activities of land allocation for investment in construction of commercial houses is aimed at controlling the activities of disposing of public assets, avoiding corruption and abuse of power in the field of land, avoiding violations policies and laws on land, disrupting master plans, land use plans and state budget losses. Due to the nature of the Vietnamese State, the principles of organization and operation of the state apparatus, the activities of supervising the activities of competent state agencies in land management in general and in operation the land allocation to invest in the construction of commercial houses, in particular, is the National Assembly, the People's Councils at all levels, the Vietnam Fatherland Front and its member organizations and all Vietnamese citizens on the principle of "People know, people discuss, people do, and people monitor” and of land inspectors. 3.2. Practical implementation of the law on land allocation for commercial housing construction 3.2.1. Achievements of law enforcement in land allocation for commercial housing construction in Vietnam The results achieved in the implementation of the law on land allocation for commercial housing construction are presented mainly in the following prominent 15 aspects: Firstly, the work of land use planning and planning has paid attention to the spatial position of each type of land. This has contributed to improving the quality of land use planning and plans. In addition, the 2013 Land Law also stipulates that land use planning and plans must consult with the community. Approved land use plannings and plans must be publicized and responsibility for publicizing land use plannings and plans to specific agencies. Limiting the adjustment of land use plannings and plans to ensure the stability, publicity and transparency of the implementation of the state's land management function. Secondly, the law on land allocation to invest in the construction of commercial houses has helped shape and strongly develop the real estate market. The market of primary land use rights of Vietnam in recent years can be said to have achieved many important results. The implementation of the law on land allocation for investment in commercial housing construction has contributed to promoting the development of the real estate market as well as providing a large amount of housing for people, especially in urban areas. big market. Thirdly, the enforcement of the law on land allocation for commercial construction investment through the auction of land use rights under the 2013 Land Law has encouraged a huge revenue source for the state budget. Fourthly, administrative procedures in land allocation for investment in the construction of commercial houses are increasingly transparent, creating favorable conditions for enterprises to invest in the construction of commercial houses. Fifthly, the 2013 Land Law also created equality among entities in accessing land use rights to implement commercial housing investment projects. 3.2.2. Constraints, obstacles, and causes in law enforcement practice in land allocation for investment in commercial housing construction in Vietnam In addition to the achieved achievements, the reality of implementing the law on land allocation for investment in construction of commercial houses still has some limitations as follows: Firstly, although the 2013 Land Law has made great efforts in improving the quality of land use plans and plans. However, there are still inconsistencies between land use plannings and plans at all levels, especially at the provincial and district levels, with socio-economic development plans, urban development plans and regional development plans. Therefore, there is still a situation of arranging commercial housing projects regardless of population size and technical infrastructure. Secondly, the allocation of land for investment in the construction of commercial houses without auction is often done much lower than the market price, leading to budget revenue losses. Thirdly, there is still a situation of adjustment of planning, not using the land, using the land for improper purposes, assigning projects illegally, delayed project implementation, which often happens, resulting in breaking the rules of urban planning, wasting land, and loss of state budget. 16 Fourthly, the failure to perform or inadequate fulfillment of financial obligations to the State such as: land use levy when being allocated land with land use levy by the State, permission to change land use purpose, recognition of land use rights; land rents when leased by the State; land use tax ... causing damage to the state budget. Fifthly, there are many types of mixed real estate business activities, including commercial housing construction, especially the emergence of a new concept; "Land for housing construction does not form residential units" but the current legal framework has not been adjusted, resulting in many associated consequences. Sixthly, the current law has not specified the mechanism of capital contribution of foreign investors to ensure financial conditions of "input" legally. Seventhly, the unclear allocation of cases of land allocation for investment in the construction of commercial houses for the purpose of socio-economic development in the national interest, public interest and cases of land allocation to Investment in the construction of commercial houses for business purposes is one of the causes leading to the prolonged land dispute. * Causes of these problems include two groups of causes: Objective cause group: The current regulations on land price determination are still unreasonable and subjective; many provisions of the land law on land allocation for investment in the construction of commercial houses are still unreasonable: (1) the regulations on the appraisal of land use needs of investors in the application file for land allocation are still too general and formal but have not been quantitative and have not developed a set of criteria for assessing needs land use of investors when applying for land allocation; (2) it is not necessary that stipulate the conditions for land allocation for commercial housing construction investment projects to competent state agencies in land allocation decisions are subject to the written approval of agencies, ministries, the relevant offices. This invisibly creates an "ask - give" mechanism in the relationship of land allocation for construction of commercial houses with the conversion of land use purpose, facilitating corruption and bureaucracy to arise; (3) the conditions on land allocation for commercial housing construction for investors are still very general, such as provisions on conditions to mobilize capital in credit institutions, expenditures foreign bank branches, other organizations, and individuals are not specific; regulations on conditions for not violating the land law are too general, but have not specified how many times the violations, how serious the violations are, whether they have remedied the consequences or not; (4) regulations that allow investors to be allocated land for investment in the construction of commercial housing through non-market auctions, resulting in group interests, land allocation at prices lower than market prices in order to self-seeking or assigning land allocation to "backyard" investors of competent and degenerated officials. Subjective cause groups: (1) the connection between the subjects for self- seeking purposes and a part of competent officials who degenerate into "interest 17 groups"; (2) many localities allocate land in contravention of the law, in particular, many investment projects on construction of commercial houses, investors are allocated land through designation without auction, so the determination prices according to current methods of each locality are subjective and arbitrary; (3) The inspection and supervision of the enfo