[FREE LEGAL ADVICE]
QUESTION:
Em chào anh / chị, hiện tại em có một số câu hỏi và lời khuyên của anh / chị về luật đất đai, anh / chị có thể giúp em và cho em lời khuyên không ạ?
My problem:
– My family has lived in the riverfront land opposite the school since 1992, the last time my house was repaired and rebuilt, but someone filed a complaint with the Commune People's Committee.
– The Commune People's Committee invited his father to come down to make a record, because he did not understand the law, his father signed a written agreement not to build a permanent house. The commune has said that this is the school's land, now it is proposed to withdraw and strike back the construction of my house.
– My director went to ask the reception department at the district People's Committee, the person there said keep doing it, no problem, but did not allow the issuance of the Decision.
– Due to not being able to find a place to live, my family still decided to build a prefab house, and this morning the commune cadastral office made a record again, but my family did not sign it.
– The Cadastral said that T2 will continue to invite you to work.
Let me ask you:
– Is it right or wrong for the People's Committee to do so?
– Is there any way to continue living in that part of the land?
As for the land: this is donated land but the donor has already passed away, there is no dispute with anyone, it's just that someone harmed my family so I filed a lawsuit.
ANSWER:
Greetings from MEDLAW, thank you for sending your question to us, based on the information you provided, we would like to advise as follows:
Contact your question, according to the information we received, your family has lived in the donated land since 1992. It can be understood that land donation is the voluntary transfer of ownership of the land (real estate) their rights to others without asking for compensation, bearing the nature of the gift-giving relationship in civil transactions. Pursuant to Clause 1, Article 459 of the 2015 Civil Code, when donating real estate, it must be made in writing, notarized, authenticated or registered for ownership. Because the information you provide is incomplete, MEDLAW will advise in the following 2 cases:
Case 1: There is a donation document for a legal land use right
In this case, your family will be granted a Certificate of land use rights, ownership of houses and other land-attached assets if there is a lawful donation of land use rights and no disputes arise. according to the provisions at point c, clause 1, Article 100 of the 2013 Land Law. Accordingly, it is legal to build a permanent house on this land. In addition, based on Article 66 of the 2013 Land Law, the authority to recover land belongs to the People's Committees of districts or provinces, and the People's Committees of communes do not have the authority to recover land. Therefore, the request of the commune-level People's Committee to recover land is against the provisions of the law.
Case 2: There is no document to donate the legal land use right
In case your family has no documents to donate land use rights, there are two possible situations. If the People's Committee has documents proving that this land belongs to the University, your family will not have ownership rights to this land and may have the land recovered. If both parties cannot provide proof of ownership of the land, that is, the owner of the land cannot be determined, your family can apply for a certificate of land use right, ownership of the land. own houses and other land-attached assets to build permanent houses as prescribed in Article 101 of the 2013 Land Law. Since your family has been using land since 1992, if your family is directly engaged in agricultural production, Agriculture, forestry, aquaculture, salt making in areas with difficult socio-economic conditions, areas with extremely difficult socio-economic conditions and certified by the People's Committee of the commune where the land is located. Those who have used land stably and without dispute will be granted a certificate of land use rights and ownership of houses and other land-attached assets and are not required to pay land use levy. Or, if your family has been using the land steadily since before July 1, 2004, it has not violated the law on land and has been certified by the commune-level People's Committee as undisputed land, in accordance with the land use plan. land, urban construction detailed planning, rural residential area construction planning already approved by a competent state agency, for the area where the planning is available, a certificate of land use right, land use right own houses and other assets attached to land. The determination of land for stable use will be based on Article 21 of Decree No. 43/2014/ND-CP. Specifically, stable land use is the continuous use of land for a certain main purpose from the time of commencement of land use for that purpose to the time of issuance of the land use right certificate or to the time of decision. land recovery decision of a competent state agency in case the certificate of land use right, certificate of ownership of house and residential land use right, certificate of land use right and certificate of land use right has not been issued. own houses and other assets attached to land.

Specific legal grounds in your case:
According to Clause 1, Article 459 of the 2015 Civil Code on gifts of real estate:
1. Gifts of real estate must be made in writing, notarized, authenticated or registered, if the real estate is subject to registration of ownership as prescribed by law.
According to Article 66 of the 2013 Land Law, the authority to recover land includes:
1. Provincial-level People's Committees shall decide to recover land in the following cases:
a) Recovery of land from organizations, religious establishments, overseas Vietnamese, foreign organizations with diplomatic functions, foreign-invested enterprises, except for the case specified at Point a. b Clause 2 of this Article;
b) To recover agricultural land belonging to the public land fund of communes, wards and townships.
2. District-level People's Committees shall decide to recover land in the following cases:
a) Recovery of land from households, individuals and communities;
b) Recover residential land from overseas Vietnamese who are entitled to own houses in Vietnam.
3. If there are both subjects specified in Clauses 1 and 2 of this Article in the land recovery area, the People's Committee of the province shall decide on land recovery or authorize the People's Committee of the district to decide on land recovery. soil.
According to point c, clause 1, Article 101 of the 2013 Land Law on granting certificates of land use rights and ownership of houses and other land-attached assets to households and individuals that are using land without papers. about land use rights:
1. Households and individuals that are using land stably and possess one of the following papers shall be granted a Certificate of land use rights and ownership of houses and other land-attached assets and not land use levy must be paid:
c) Lawful papers on inheritance or donation of land use rights or land-attached assets; papers for handing over houses of gratitude, houses of love attached to land.
According to Article 101 of the Land Law 2013 on Issuance of Certificates of land use rights and ownership of houses and other land-attached assets to households and individuals that are using land without documents on land use rights. land is as follows:
1. Households and individuals that are using land before the effective date of this Law without the papers specified in Article 100 of this Law, have permanent residence in the locality and directly engage in agricultural production. Agriculture, forestry, aquaculture, salt making in areas with difficult socio-economic conditions, areas with extremely difficult socio-economic conditions, are now approved by the People's Committees of communes where the land is located. If the person who has confirmed that he/she has used the land stably and without disputes, he/she shall be granted a certificate of land use rights and ownership of houses and other land-attached assets and shall not be required to pay land use levy.
2. Households and individuals currently using land do not have the papers specified in Article 100 of this Law but the land has been used stably before July 1, 2004 and has not violated the law on land , which is now certified by the People's Committee of the commune as undisputed land, in accordance with the land use planning, urban construction detailed planning, rural residential area construction planning approved by the housing authority. If the country has the authority to approve the planning, the certificate of land use rights and ownership of houses and other land-attached assets will be granted.
According to Clause 1, Article 21 of Decree No. 43/2014/ND-CP, “Stable land use is the continuous use of land for a certain main purpose from the time of commencement of land use for that purpose. up to the time of issuance of the Certificate of land use rights, ownership of houses and other land-attached assets or to the time of land recovery decisions of competent state agencies in case the Certificate has not been issued. receipt of land use rights, certificates of ownership of houses and residential land use rights, certificates of land use rights, ownership of houses and other land-attached assets (hereinafter collectively referred to as certificates of land use rights). take).

The content of our consultation is based on the information provided by the Client, is for reference only and based on the legal provisions in force at the time of consultation. In case you ever need detailed consultation, please contact us directly for specific advice.
In case you ever need detailed consultation, please contact us directly for specific advice.
Here is our answer to the question. If you have a need for free legal advice, please leave a question on the group or message the Admin for answers.