The Ministry of Natural Resource and Environment (MONRE) recently published a draft new land law (Draft) for collection of public comments before submitting the Draft to the National Assembly. Among other notable changes introduced by the Draft, the change to regulations on land rental payment method may attract attention. While this issue has been briefly covered by our comment of draft Land Law, below are our in-depth comments on the proposed change:

• Under the Draft, the land users, who lease land from the Government, may select to pay land rental on either annual basis or lump-sum basis for the whole term if their lands are (i) lands for implementing projects of agricultural manufacturing, forestry, aquaculture, salt production, or (ii) lands for industrial zone, industrial cluster, export-processing zone, or hi-tech zone. With respect to other types of land, the only option available to the land user is payment of land rental on an annual basis. This regulation appears to be an unwelcome change given that under the current Land Law 2013, the land users are free to choose a suitable land rental payment method regardless of their types of land. In addition, this gives rise to several issues as discussed below.

The answer is not clear. Under Article 119.2 of the Civil Code 2015, in case the law requires a civil transaction to be made in writing and having notarized, the parties to the transaction must comply with such requirement. In the context of transactions involving land, Article 167.3 of the Land Law 2013 expressly requires agreement on transferring land use right to be notarized or certified, except for the case provided under Article 167.3(b) where at least one party to such agreement is an entity doing real estate business.

However, Article 167.3 of the Land Law 2013 does not make clear whether the agreement on transfer of sole land-attached asset requires a notarization. Article 167.3(b) only provides that a contract for transfer of land-attached asset to which one party or both parties are entity(ies) doing real estate business will be notarized at the parties’ request. It is not clear if the wording of Article 167.3(b) can be interpreted that if neither party to the contract is an entity doing real estate business, then the contract must be notarized.

On the other hand, one may rely on Article 119.2 of the Civil Code 2015 to take a view that the notarization of contract will only mandatory if the law expressly requires so. Accordingly, the notarization of contract for transfer of land-attached asset between the non-real estate business parties should also be optional.