Land Law 2024 – Some Takeaways For Vietnamese Residing Overseas

From 1 January 2025, under the new Land Law 2024, Vietnamese who reside overseas and still hold Vietnamese nationality (Vietnamese citizens) will be treated as Vietnamese individuals residing in Vietnam in the matters relating to land use rights in Vietnam, while the land use scheme applicable to persons having Vietnamese origin (người gốc Việt Nam) remains as same as to the one applicable to overseas Vietnamese under the Land Law 2013. This is one of the key changes under the Land Law 2024 relating to Vietnamese residing overseas. This article provides some highlights of the land use scheme applicable to these two groups of land users: (i) Vietnamese citizens and (ii) persons of Vietnamese origin.

This post is written by Cao Khanh Linh and Nguyen Bich Ngoc.

Overseas Vietnamese – Who Are They?

The Land Law 2024 is silent on determination of “Vietnamese residing abroad” and “persons of Vietnamese origin”. Therefore, one should refer to the Law on Vietnamese Nationality to determine (i) the Vietnamese nationality or Vietnamese origin of an overseas Vietnamese, and (ii) which respective documents evidencing such citizenship or Vietnamese origin should be showed before Vietnamese authorities.

According to the Law on Vietnamese Nationality, “overseas Vietnamese” (người Việt Nam định cư ở nước ngoài) means (i) Vietnamese citizens and (ii) persons of Vietnamese origin, who permanently reside in foreign countries. The feature differentiating these two groups is whether a person still has Vietnamese nationality or not.

How Overseas Vietnamese May Acquire Land Use Rights In Vietnam?

Under the Land Law 2013, the same land use scheme applies to Vietnamese citizens permanently residing abroad and the persons of Vietnamese origin residing overseas.

Under the Land Law 2024, Vietnamese [citizens] residing overseas will be entitled to the land use scheme applicable to domestic Vietnamese citizens; while the persons of Vietnamese origin will have a narrower scope of land use rights (LURs).

The Land Law 2024 does not clarify whether an overseas Vietnamese can use his/her foreign passports for completing the relevant procedures to obtain LURs in Vietnam or he/she must obtain a valid Vietnamese passport first.

The table below summarizes the methods via which Vietnamese citizens and persons of Vietnamese origin can acquire land use rights.

Methods to receive LURs

Vietnamese citizens (incl. overseas Vietnamese citizens)

Persons of Vietnamese origin

Receiving a transfer of agricultural LURs via conversion of LURs

x

 

Receiving a transfer of LURs

x

 

Receiving a transfer of LURs in industrial zones, industrial clusters, hi-tech zones

 

X

Receiving investment capital being value of LURs

 

 

Receiving LURs as capital contribution

 

 

Receiving gifts being LURs 

x

 

Receiving inheritance of LURs

x

 

Receiving LURs via:

·        purchasing, lease purchase residential houses attached to residential land, receiving residential LURs in residential housing projects;

·        receiving inheritance of residential LURs and other types of LURs in the same land plot where the residential houses are located;

·        receiving gifts being residential houses attached to residential land from the persons in the order of priority of inheritance.

x

x

Being allocated land by the Government (and paying land use fee to the Government)

x

x

Being allocated land by the Government to implement residential housing projects for sale or for sale and leasing.

 

 

Being leased land by the Government (and pay land rent to the Government)

x

x

Recognition of LURs by the Government in respect of land which is currently used stably

x

 

Receiving LURs in accordance with decisions of competent authorities; agreement on enforcement of mortgage; acknowledgement of LURs auction; or documents about the division, separation of LURs in respect of land users having common LURs.

x

x

Receiving LURs via the division, separation, merger, consolidation, conversion of legal entity.

 

 

 

In a nutshell,

·        Persons of Vietnamese origin may not receive a transfer of LURs as Vietnamese citizens, except (i) LURs in industrial zones/industrial clusters/hi-tech zones, (ii) residential LURs in residential housing projects, and (ii) residential LURs associated with residential houses by way of a purchase, lease purchase, inheritance or receipt of gift being residential houses;

·        Persons of Vietnamese origin may not receive LURs as gifts or inheritance (except where the LUR is associated with inherited or donated residential houses as indicated above) as Vietnamese citizens; and

·        Persons of Vietnamese origin may be allocated land with land use fee, and/or leased land by the Government.

What Specific Rights Do Overseas Vietnamese May Have Over Their Owned Lurs And/Or Assets Attached To Land In Vietnam?

No.

Targeted rights to land and assets attached to land

Possible land use methods for Overseas Vietnamese citizens

Possible land use methods for Persons of Vietnamese origin

1

a)           Transferring LURs and assets attached to land;

b)           Leasing LURs and assets attached to land to other organizations, Vietnamese individuals and Persons of Vietnamese origin investing in Vietnam;

c)           Leaving LURs and assets attached land to heirs by way of will or pursuant to provisions of law (see comment (4) below);

d)          Mortgaging LURs and assets attached to land to permitted organization and/or individuals;

e)           Using LURs/assets attached as capital contribution;

f)            Donating LURs (and/or assets attached to land, if applicable) to the Government, and/or other organizations and individuals in accordance with law (see comment (3) below).

·        Using agricultural land (within  the prescribed quota) as allocated by the Government;

·        Using land allocated by the Government and paying land use fee to the Government;

·        Using land leased by the Government and paying land rent in lump sum for the whole lease term;

·        Having LURs recognized by the Government;

·        Having LURs by way of exchange, receipt of a transfer or gifts or an inheritance;

·        Using land leased or subleased in industrial zones/industrial clusters/hi-tech zones and making lump sum payment of land rent for the whole lease term.

·        Receiving transfer of LURs in industrial zones/industrial clusters/hi-tech zones;

·        Using land leased or sub-leased in industrial zones/industrial clusters/hi-tech zones and making lump sum payment of land rent for the whole lease term;

·        Receiving transfer of residential LURs in housing development projects;

·        Using land allocated by the Government and paying land use fee to the Government;

·        Using land leased by the Government and paying land rent in lump sum for the whole lease term (see comment (2) below).

2

g)           Exchanging agricultural LURs with other [Vietnamese individuals];

·        Receiving agricultural land via land allocation by the Government, receipt of transfer, inheritance, receipt of donation.

·        Not applicable

3

h)          Selling assets attached to land and leasing rights under the relevant lease contracts;

i)            Leaving assets attached to land to heirs;

j)            Donating assets attached to land;

k)           Leasing assets attached to land;

l)            Mortgaging assets attached to land to permitted organization and/or individuals;

m)         Contributing capital using the assets attached to land.

n) Sub-leasing leasing right under lease contract or subleasing LURs in industrial zones/industrial clusters/hi-tech zone (see comment (5) below).

·        Using land leased by the Government and making annual payment of land rent;

·        Using land leased in industrial zones/industrial clusters/hi-tech zones and making annual payment of land rent.

·        Using land leased by the Government and making annual payment of land rent (see comment (2) below).

 

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Written by Nguyen Quang Vu On In ,