Rights and Obligations of the Transferor in the Land Use Rights Transfer Relationship

Obligations of the transferor of residential land use rights. However, because residential land use rights are considered a property right and are involved in civil transactions including the transfer of residential land use rights, they fall within the scope of civil law and are specifically regulated by the Civil Code as follows:

2.1.5.1. Rights and obligations of the transferor in the relationship of transferring land use rights

Rights of the transferor: according to the provisions of Article 305 and Article 700 of the 2005 Civil Code, the transferor of residential land use rights has the following rights: to receive the money for the transfer of residential land use rights; in case the transferee is late in payment, the entitled party may extend the time for the transferee to fulfill the obligation and pay interest on the late payment amount at the interest rate prescribed by the State Bank corresponding to the late payment period at the time of payment, unless otherwise agreed.

The State's provision on the above is based on the legitimate interests of the land use right holders when they transfer their land use right to others. The law protects their rights by providing them with the right to receive money for the transfer of land use right; at the same time, they have the right to cancel the transfer contract and request compensation for damages when the transferee fails to fulfill the obligation to pay the transfer money as committed in the contract.

Obligations of the transferor: According to the provisions of Article 699 of the 2005 Civil Code, the transferor of land use rights has the following obligations:

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Transfer residential land to the transferee of residential land use rights with the correct area, land class, land type, location, number and condition as agreed;

Deliver documents related to the land use rights to the transferee. The land delivery must have the same area, location, number and land condition as stated.

agreement. This must be carried out in the presence of a representative of a competent state agency to ensure the rights of the transferee. From the above provisions, we can see that civil law has very strict regulations on the obligations of the transferor. This regulation comes from the viewpoint that land is owned by the entire people and is uniformly managed by the State. In order to have a basis to protect the interests of the transferee, to ensure the serious implementation of the transfer contract, the law stipulates that the transferor is obliged to transfer residential land to the transferee of residential land use rights with the correct area, land class, location, and condition as agreed in the contract. On the other hand, the transferor must also hand over documents related to residential land use rights to the transferee so that they can prove the legality of the transferred land plot when carrying out procedures at the competent state agency; at the same time, avoid the case where the transferor of residential land use rights benefits

Use this document to continue transferring to a third party.

2.1.5.2. Rights and obligations of the transferee

Rights of the transferee: According to Article 702 of the 2005 Civil Code, the transferee of land use rights has the following rights:

Request the transferor of residential land use rights to hand over documents related to residential land use rights;

Require the transferor of land use rights to hand over the full area, location, number and condition of the land as agreed;

Granted a certificate of land use rights for the transferred land; Use residential land in accordance with the provisions of law.

From the above provisions, we see the right to request the transferor of land use rights to deliver the full area, correct land class, correct location, correct condition as agreed in the contract and to deliver to us all legal documents on the land use rights of the transferor of land use rights corresponding to

Obligations of the transferor of residential land use rights. However, the characteristic of the transfer relationship of residential land use rights is to terminate the use of residential land by the transferor and at the same time establish residential land use rights for the transferee. Therefore, the law stipulates that the transferee of residential land use rights shall be granted a residential land use right certificate by a competent state agency for the entire transferred area. Granting a residential land use right certificate to the transferee of residential land use rights is also an obligation of the State through which the State exercises its management rights, while ensuring the rights of the land users. Thereby, the transferee of residential land use rights has sufficient legal basis when exercising his/her rights as permitted by law such as conversion, transfer, lease, etc.

Obligations of the transferee: According to Article 701 of the 2005 Civil Code, the transferee of land use rights has the following obligations:

Pay in full, on time and in the correct payment method as agreed to the transferor of residential land use rights; The law also stipulates that in case the transferee is late in paying, the provisions of the Civil Code on civil liability in the late performance of civil obligations shall apply, that is, interest must be paid on the late payment amount according to the basic interest rate announced by the State Bank corresponding to the late payment period at the time of payment, unless otherwise agreed;

Guarantee the rights of third parties to transferred residential land;

Fulfill financial obligations and other obligations as prescribed by land law (pay registration fees, land administration fees and use legally transferred land use rights)

Among the above obligations, the obligation to pay, on time and in the agreed manner to the transferor of residential land use rights is the basic obligation.

The original obligation of the transferee arises from the contract of transfer of residential land use rights, this obligation corresponds to the rights of the transferor of residential land use rights. Regarding the obligation to ensure the rights of third parties regarding land use, the law stipulates for both the transferee and the transferor. The remaining obligations are essentially the obligations of the land user, when transferring residential land use rights, the land user has invisibly transferred this obligation to the transferee, or in other words, these obligations are obligations derived from the obligations of the transferor of residential land use rights to the transferee. The obligation to register residential land use rights at a competent state agency and pay registration fees and land administration fees according to the provisions of law arises on the basis of state management of residential land use rights transfer relations. Accordingly, the transferee of residential land use rights must be responsible for registering at a competent state agency to be granted a residential land use rights certificate. At the same time, they must pay registration fees and land administration fees to compensate the State for the costs of state management of land and registration of residential land use rights.

2.1.6. Procedures for transferring land use rights

Residential land use rights are important property rights for every individual and household. To legally exercise residential land use rights, which are protected by the State, this important property right, when transferring residential land use rights, individuals and households must follow the correct procedures prescribed by the Land Law. The exercise of the right to transfer residential land by users must be mandatory through competent state agencies according to certain administrative procedures and processes, which are legal constraints and mechanisms to ensure that residential land users exercise their rights in the safest way. Through this, the role of state management in the land sector is demonstrated as well as ensuring the legitimate rights and interests of residential land users.

According to the provisions of law, organizations, households and individuals who are eligible to transfer residential land use rights according to the provisions of law must submit documents to transfer residential land use rights at the land registration office [15, Article 79].

Residential land use right transfer dossier includes: Residential land use right transfer contract; residential land use right certificate (or house ownership certificate attached to urban residential land use right); excerpt of residential land plot map and receipt of payment for residential land use fee.

When transferring land use rights, the parties involved in the transaction must comply with the following procedures:

Land users submit 01 set of documents to exercise the rights of land users and owners of assets attached to land.

The land registration office is responsible for checking the records. If the conditions for exercising the rights as prescribed are met, the following tasks shall be performed:

Send cadastral information to tax authorities to determine and notify financial obligations in cases where financial obligations must be fulfilled according to regulations;

Confirm the content of changes in the issued Certificate according to the regulations of the Ministry of Natural Resources and Environment.

In case it is necessary to issue a Certificate of land use rights, house ownership rights and other assets attached to land, prepare a dossier and submit it to the competent authority to issue a Certificate of land use rights, house ownership rights and other assets attached to land to the land user;

Adjust and update changes in land records and land database; hand over the Certificate to the land user or send it to the People's Committee at the commune level for handover in case of submitting the application at the commune level. [15, Article 79]

Thus, according to the provisions of the law on procedures for transferring residential land use rights, the transfer of residential land use rights and financial obligations is linked to the issuance of residential land use rights certificates. Linking the activities of the State land management agency with the activities of the tax agency in the direction of implementing administrative reform, overcoming the need to repeatedly prepare and examine records for transferring residential land use rights, examine the implementation of financial obligations before issuing residential land use rights certificates.

2.1.7. Payment and finance for land use rights transfer

2.1.7.1. Land use right transfer price

The price of land use right transfer is the price agreed upon by the parties, which may be consistent with the land price regulated by the State. When transferring land use right, the parties can consult land price at land valuation organizations as a basis for reference and agreement on appropriate transfer price. The State does not intervene in the price of land use right transfer transactions on the market, but only regulates the price to serve as a basis in the following cases: calculating land use fees, changing land use purposes, calculating land use tax, calculating fees and charges in land management and use, calculating fines for administrative violations in the land sector, calculating compensation to the State for causing damage in land management and use, and calculating the value of land use right to pay for people who voluntarily return land to the State [33, Article 114].

2.1.7.2. Regarding financial obligations when transferring land use rights

* Income tax from land use right transfer

Income tax from transfer of residential land use rights is a financial obligation of the land user when transferring residential land use rights. Based on the income of a certain amount of money from transferring State-owned residential land use rights, the transferor must pay an amount calculated as a percentage of the land price.

In other words, land price is considered the basis for calculating income tax from land use right transfer, which is levied on the income of the transferor. The State regulates the collection of income tax from land use right transfer to create revenue for the State budget to serve the State management of land, encourage effective land use and protect the legitimate rights and interests of land users when they are violated. If the price stated in the contract is lower than the local land price level and the land price frame prescribed by the State, it is only for reference when calculating tax. To avoid loss of revenue to the State budget, income tax from land use right transfer is calculated based on the price frame prescribed by the State. However, not all subjects have to pay tax. The State also regulates cases of transfer that are not subject to land use right transfer tax, including:

Income from real estate transfer between husband and wife; biological father, biological mother and biological child; adoptive father, adoptive mother and adopted child; father-in-law, mother-in-law and daughter-in-law; father-in-law, mother-in-law and son-in-law; paternal grandfather, paternal grandmother and grandson; maternal grandfather, maternal grandmother and granddaughter; siblings; Income from transfer of housing, land use rights and assets attached to land of individuals in case the individual has only one house or land; Income from the value of land use rights of individuals to whom the State has allocated land [37, Article 4].

According to the Law on Personal Income Tax, the basis for calculating land use right transfer tax is the land area, taxable land price and tax rate. The taxable land price is the price regulated by the People's Committee of the province or centrally-run city within the Government's price framework suitable to local reality.

The Personal Income Tax Law stipulates a land tax rate of 2%. “The land use right transfer tax is paid once by the transferor of the land use right according to the notice of the tax authority; This tax can also be paid by the transferee.

The land use right transferor shall declare and pay on behalf of the land use right transferor according to the agreement” [37, Article 9,11]. Such a provision is consistent with the spirit of the Civil Code, because the transfer of land use right must be carried out through a written contract. All contents of the contract, including this financial obligation, can be agreed upon as long as the agreement does not violate the provisions of law.

The Law also stipulates a number of cases that are exempted from land use right transfer tax. “ The subjects that are exempted from land use right transfer tax are policy subjects, disadvantaged subjects who need social protection such as people who are no longer able to work, people under the age of majority, lonely elderly people with no place to rely on...”. [37, Article 4].

* Fees and charges

Land use right registration fee is a budget revenue arising from the issuance of land use right certificates by competent State agencies. According to the provisions of Decree No. 45/2011/ND-CP dated December 21, 2011 of the Government on land use right registration fee, land use right registration fee is stipulated as follows:

The basis for calculating the registration fee is the price for calculating the registration fee and the registration fee percentage. In which, the price for calculating the registration fee for real estate is the land price regulated by the People's Committee of the province or centrally-run city according to the land price framework of the Government. The price for calculating the registration fee in the case of transferring residential land use rights is the taxable land value, including the transferred land area and the transfer price. Real estate of organizations and individuals must pay the registration fee when registering ownership and usage rights with competent State agencies . [11, Article 2]

The registration fee rate for real estate is 0.5%. However, if the new price frame is applied, the amount that the transferor of land use rights must pay to the State

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