Recognition limit for residential land for pre-1980 land use

Mr. Hoang Hai Minh from Ho Chi Minh City found himself referring to the regulations regarding land and came across the provision of the recognition limit for residential land with gardens and ponds before 1980 (belonging to the agriculture land group attached to housing), which is a maximum of 5 times.

Mr. Minh asked whether the case of land used for stable purposes such as repairing cars attached to residential houses before 1980 falls under the category of production land or service land, and whether the recognition limit can be considered according to the spirit of residential land with gardens and ponds.

Currently, Mr. Minh has not found specific regulations regarding how land used for production and business before 1980 is recognized.

The Ministry of Natural Resources and Environment responded to this issue as follows:

According to Article 103 of the Land Law 2013, the determination of residential land area for cases with gardens and ponds is as follows:

1. The garden and pond land of households and individuals is defined as residential land within the same plot of land where the house is located.

2. For cases where the plot of land with a garden and pond was formed before December 18, 1980, and the user has one of the types of documents on land use rights specified in Articles 1, 2, and 3 of Article 100 of this Law, the residential land area is determined according to those documents.

In case the types of documents on land use rights specified in Articles 1, 2, and 3 of Article 100 of this Law do not clearly define the residential land area, the recognized residential land area will not have to pay land use fees and will be determined as not exceeding 5 times the land allocation limit for residential land specified in Clause 2 of Article 143 and Clause 4 of Article 144 of this Law.

3. For cases where the plot of land with a garden and pond was formed from December 18, 1980, to before July 1, 2004, and the user has one of the types of documents on land use rights specified in Article 100 of this Law, and the documents clearly state the residential land area, the residential land area is determined according to those documents.

4. For cases where the plot of land with a garden and pond was formed from December 18, 1980, to before July 1, 2004, and the user has one of the types of documents on land use rights specified in Article 100 of this Law, but the documents do not clearly state the residential land area, the residential land area is determined as follows:

a) Based on the conditions and local customs specified in the province, the People’s Committee determines the recognition limit of residential land suitable for each household, according to the local customs based on the population size of the household.

b) In case the land area is larger than the recognition limit of residential land, the residential land area is determined according to the recognition limit of residential land in the locality.

c) In case the land area is smaller than the recognition limit of residential land, the entire plot of land is determined as residential land.

5. For cases where there are no documents on land use rights specified in Article 100 of this Law, but the land has been used stably before October 15, 1993, the residential land area is determined according to the provisions in Clause 4 of this Article. In case the land has been used stably since October 15, 1993, the residential land area is determined according to the land area allocated to each household or individual specified in Clause 2 of Article 143 and Clause 4 of Article 144 of this Law.

6. The remaining garden and pond land, after determining the residential land area according to the provisions in Clauses 2, 3, 4, and 5 of this Article, is determined for the current purpose of use according to Article 10, Clause 1 of this Law.

7. The Government regulates this Article in detail.

Based on the recognition of land use rights, Article 20, Clause 1 of Decree No. 43/2014/ND-CP dated May 15, 2014, provides detailed regulations on the implementation of some provisions of the Land Law:

1. Households and individuals who have been using land with houses or other construction works before October 15, 1993, and have obtained confirmation from the commune People’s Committee that there is no disputed land use, and the land use at the time of submitting the application for issuance of the Certificate of Land Use Rights, Ownership of Residential House, and Assets Attached to Land is in accordance with land use planning, detailed urban construction planning, urban point construction planning, or new rural construction planning approved by competent state agencies (referred to as planning) or not in accordance with the planning but have been using the land since before the approval of the planning or using the land where there is no planning, shall have the land use rights recognized as follows:

a) For plots of land with houses where the land area is smaller than or equal to the recognition limit of residential land specified in Clause 4 of Article 103 of the Land Law, the entire plot of land is recognized as residential land.

In case the land area exceeds the recognition limit of residential land, the recognized residential land area is determined based on the recognition limit of residential land. If the land area for building residential houses and other construction works is larger than the recognition limit of residential land, the recognized residential land area is based on the actual land area of the residential houses and other construction works.

b) For plots of land with non-agricultural production, trade, and service construction works, the land is recognized as non-agricultural production land, commercial land, and service land based on the actual land area of the construction works. The land use form is recognized as land allocation with land use fees, and the land use term is stable and long-term.

c) For plots of land with both houses and non-agricultural production, trade, and service construction works, if the land area is larger than the recognition limit of residential land, the residential land area is recognized according to the provisions in Point a of this Clause. The remaining land area with production, trade, and service construction works is recognized according to the provisions in Point b of this Clause.

d) For the remaining land area after being determined according to the provisions in Points a, b, and c of this Clause, it is recognized as agricultural land according to the provisions in Clause 5 of this Article.

Therefore, the land law has regulations on granting the Certificate of Land Use Rights, Ownership of Residential House, and Assets Attached to Land in the case of households and individuals using land with houses or other construction works before October 15, 1993.