30.11.2020, 20:03

Have a land transfer agreement to do an industrial cluster project?


Have a land transfer agreement to do an industrial cluster project?

The use of land to carry out an industrial cluster project is in the case where the State acquires land, compensates, and site clearance for the purpose of socio-economic development for the benefit of national, public.

The Truong An Industrial Service Joint Stock Company (in Hanoi) has referenced the provisions in Article 62 of the Land Law: “The State acquires land for socio-economic development for the benefit of the nation and the public in schools. the following:

1. To execute projects of national importance with investment policy decided by the National Assembly for which land must be recovered;

2. Implementation of projects which are approved or decided by the Government’s Prime Minister, for which land must be recovered, including: …

3. Implementation of projects approved by provincial People’s Councils that require land recovery, including: (Chinhphu.vn)

… d) Construction projects for new urban areas, new rural residential areas; embellishment of urban centers and rural residential areas; industrial clusters; centralized production and processing zones of agricultural, forestry, aquatic and marine products; projects to develop protective forests and special-use forests; … ”.

Currently, the Company is applying for approval to establish and invest in technical infrastructure of industrial clusters according to Decree 68/2017 / ND-CP. The investor proposes to implement the project in the form of investor agreement to receive the transfer, receive capital contribution with organizations, households and individuals (for land eligible to participate in the real estate market. real); implement an agreement to buy assets attached to land of current land users as prescribed (for land ineligible to participate in the real estate market).

In the opinion of the Company, the word “must have” in Article 62 of the Land Law can be understood in many meanings. Therefore, the Company requests the competent authority to comment on the above proposal of the Investor. The company wants to know whether the investment and development project of an industrial cluster must be implemented in the form of land acquisition by the State? Can the investor choose to implement the project in the form of agreement to receive the transfer of land use rights?

Regarding this issue, the Ministry of Natural Resources and Environment has the following opinions:

According to the proposed content, the Truong An Industrial Service Joint Stock Company is applying for approval to establish and invest in technical infrastructure of industrial clusters in accordance with Decree 68/2017 / ND-CP dated 25th/ 5/2017 of the Government on the management and development of industrial clusters;

The company proposes to use land to implement industrial cluster projects through the form of receiving transfer, leasing land use rights, receiving capital contribution with land use rights for production and business.

At Point d, Clause 3, Article 62 of Land Law2013: “The State shall recover land for socio-economic development for the sake of the nation and the public in the following cases:

3. Implementation of projects approved by provincial People’s Councils that require land recovery, including:

… d) Construction projects for new urban areas, new rural residential areas; embellishment of urban centers and rural residential areas; industrial clusters; centralized production and processing zones of agricultural, forestry, aquatic and marine products; projects to develop protective forests and special-use forests; ”.

In Clause 1, Article 73 of the 2013 Land Law: “1. The use of land for implementation of production and business projects or works is not subject to the State’s land recovery prescribed in Articles 61 and 62 of this Law but is consistent with the already established land use plannings and plans. if approved by a competent State agency, the investor shall receive the transfer, lease of land use rights, or contribute capital with the land use right according to the provisions of law ”.

Pursuant to the above provisions, the use of land to execute industrial cluster projects falls under the case where the State recovers land, compensates and site clearance for use for socio-economic development purposes for the benefit of public interest.