Under the current law of Vietnam, it is possible that “land use rights” (quyền sử dụng đất) are considered “immovable properties”. The following arguments support the view that land use rights are immovable properties under Vietnamese law:

Land use rights (LUR) are property rights (quyền tài sản), which is a property (tài sản). Properties are divided into movable properties (động sản) and immovable properties (bất động sản). Immovable properties are defined to include: (i) Land; (ii) House and construction work attached to land; (iii) Other properties attached to land, house or construction works; and (iv) other properties as stipulated by law.
Regarding item (iv) above, LURs are stipulated under Article 5.4 of the Law on Real Estate Business 2014 as types of “immovable properties made available for trading” (bất động sản đưa vào kinh doanh). This view is also adopted by Dr. Do Van Dai in his book on Civil Code 2015.
Regarding item (iii), Dr. Nguyen Minh Tuan considers LURs being immovable properties because they are “properties attached to land”.
In the Court Precedent 26/2018, the Supreme Court has applied the 30-year limitation period for a claim for distribution of immovable property for the inheritance in dispute which includes LUR. Arguably, the Supreme Court has taken the view that LUR are immovable properties.
The following arguments support the view that land use rights are not immovable properties under Vietnamese law:

Based on the change in the wording of Article 5.4 of the Law on Real Estate Business 2014 in comparison with Article 6.1(b) of the Law on Real Estate Business 2006, it is no longer clear whether LUR are immovable properties made available for trading. The wording of Article 5.4 of the Law on Real Estate Business 2014 could be interpreted to mean: the land (the use right of which is permitted to be transferred, leased out or sub-leased out in accordance with the law on land) is immovable property made available for trading, and the LUR of such land is the direct tradable.
The Civil Code 2015 does not make clear whether the property attached to land can be non-physically attached to such piece of land. Accordingly, there is a potential view that the Civil Code 2015 is referring to physically attached properties and LUR are not properties attached to land. This view might be supported by the wording of Articles 318.3, 325 and 326 of the Civil Code 2015 where there is a separation between LUR and properties attached to land (if LUR are considered properties attached to land, then such Articles should have used “other properties attached to land” in connection with LUR rather than “properties attached to land”).

This post is contributed by Le Thanh Nhat and edited by Nguyen Quang Vu.

Vietnam Business Law