Short answer
According to the Land Law 2024 (No. 31/2024/QH15), land users may exercise rights of conversion, transfer, lease, inheritance, donation, mortgage, and capital contribution through land use rights when meeting all conditions as prescribed in Article 27. The specific timing depends on the type of land, form of use, and the category of land user.
What common rights do land users have under the 2024 Land Law?
According to Article 26 of the 2024 Land Law (No. 31/2024/QH15), land users shall enjoy the following common rights:
To obtain a Certificate of Land Use Rights and Ownership of Assets Attached to Land when conditions are satisfied;
To enjoy the fruits of labor and returns on investment on lawfully used land;
To receive state protection when others infringe upon their lawful rights and interests in land;
To have the right to change the purpose of land use in accordance with the Law;
To receive compensation, support, and resettlement when the State recovers land;
To lodge complaints, denunciations, and initiate legal proceedings against acts that violate their lawful land use rights and other acts that violate land law.
These common rights arise immediately when a land user is allocated land by the State, leases land, or has their lawful land use rights recognized.
Under what conditions may a land user exercise rights over their land use rights?
Clause 1 of Article 27 of the 2024 Land Law (No. 31/2024/QH15) provides:
"A land user may exercise rights to convert, transfer, lease, sublease, inherit, gift, mortgage, or contribute as capital with land use rights in accordance with the provisions of this Law and other relevant laws."
Thus, the conditions for a land user to exercise rights over land use rights are determined according to the 2024 Land Law and applicable legal regulations. Depending on each specific right such as transfer, lease, mortgage, or capital contribution with land use rights, the land user must satisfy the corresponding conditions prescribed by law.
Do notarization and authentication requirements affect the timing of exercising rights?
Yes. Clause 3 of Article 27 of the 2024 Land Law (No. 31/2024/QH15) clearly stipulates the mandatory form of contracts, which directly affects when a transaction becomes legally valid:
"Contracts for transfer, gift, mortgage, capital contribution using land use rights, land use rights and assets attached to land must be notarized or authenticated, except in cases provided in point b of this clause." (point a, clause 3, Article 27)
With respect to contracts for leasing or subleasing land use rights, or contracts where one or all parties are organizations engaging in real estate business activities, notarization or authentication is performed only upon request of the parties (point b, clause 3, Article 27). This means: the right to conduct a transaction is deemed to have been exercised lawfully only from the time the contract meets the proper formal requirements for each case.
From when may the economic organization receiving transferred land use rights exercise its rights?
According to Article 35 of the 2024 Land Law (No. 31/2024/QH15), the economic organization receiving transferred land use rights has the common rights and obligations prescribed in Articles 26 and 31 of this Law. Specific rights and obligations are determined depending on the source of land, whether the purpose of land use is changed, and the form of land use after change of purpose, specifically:
In the case of receiving transferred land with a source of being allocated by the State with land use fee payment or leasing with one-time payment for the entire lease term: The economic organization has the rights and obligations prescribed in clauses 1 and 3 of Article 33 (clause 2, Article 35).
In the case of receiving transferred agricultural land without changing the purpose of land use: The economic organization has the rights and obligations prescribed in clauses 1 and 3 of Article 33 (point a, clause 3, Article 35).
In the case of receiving transferred agricultural land and changing the purpose of land use to a form of State allocation with land use fee payment or leasing with one-time payment for the entire lease term: The economic organization has the rights and obligations prescribed in clauses 1 and 3 of Article 33 (point b, clause 3, Article 35).
In the case of receiving transferred agricultural land and changing the purpose of land use to a form of State leasing with annual land rent payment: The economic organization has the rights and obligations prescribed in clause 1 of Article 34 (point c, clause 3, Article 35).
Furthermore, for an economic organization using land that is permitted by the competent state authority to change the purpose of land use from land without land use fee payment to land with land use fee payment or leasing, rights and obligations are also determined according to the form of land use after the change of purpose, in accordance with clause 4 of Article 35.
From when may foreign-invested economic organizations exercise their rights?
According to Article 41 of the 2024 Land Law (No. 31/2024/QH15), the rights and obligations of a foreign-invested economic organization using land to implement an investment project in Vietnam are determined based on the form of land use and the form of payment of land use fees or land rent, specifically:
Lease with annual rent payment: A foreign-invested economic organization may exercise rights according to clause 2 of Article 41, including mortgaging and capital contribution with assets owned by it attached to land; selling assets attached to land and leasing rights under the land lease contract when conditions in Article 46 are met; leasing assets attached to land and leasing rights under the land lease contract; and subleasing land use rights for land that has completed infrastructure construction in cases permitted by law.
Lease or allocation of land with one-time land use fee payment: A foreign-invested economic organization may exercise rights according to clause 3 of Article 41, including transfer, lease, sublease, mortgage, and capital contribution using land use rights and assets owned by it attached to land during the land use term.
How does the land use term affect the timing of exercising rights?
According to point d, clause 1 of Article 45 of the 2024 Land Law (No. 31/2024/QH15), land must remain within its use term in order for a land user to exercise rights such as transfer, gift, lease, mortgage, or capital contribution using land use rights, except in cases of exception provided by law. Therefore, the land use term is one of the legal conditions that determines whether a land user may exercise these rights. For land with a defined use term, when the term expires, the land user must determine whether their case qualifies for continued land use or whether they must perform the extension procedure in accordance with Article 172 of the 2024 Land Law before conducting any transaction. In particular, continued use of land without extension in certain cases does not mean that the condition regarding land use term can be disregarded when exercising rights; the specific legal status of the land parcel must be determined according to applicable regulations.
What should be noted when determining the rights of a land user?
In summary, determining the rights of a land user must be based on the provisions of the 2024 Land Law and applicable laws, by examining the legal status of the land user, the source and form of land use, the land use term, the conditions for exercising each right, as well as the requirements regarding form and procedures for each transaction. For economic organizations and foreign-invested economic organizations, particular attention should be paid to specific provisions on rights and obligations corresponding to the form of land allocation, land leasing, and the method of performance of financial obligations related to land.
Satisfying the conditions for exercising rights, complying with notarization and authentication requirements, and completing registration procedures in accordance with regulations are matters that need to be considered separately to accurately determine the rights and obligations of the parties in each specific case.
If you or your business need to determine accurately the timing and conditions for exercising land use rights in a specific transaction, A&D Law Firm — a business law advisor in Vietnam — is ready to assist in reviewing files, advising on procedures, and representing you in conducting land transactions in accordance with the provisions of the 2024 Land Law (No. 31/2024/QH15).
This article is for reference purposes only and provides general legal information. It does not substitute for professional legal advice for specific cases. Please contact a lawyer for advice suitable to your actual situation.
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