Vietnam: House ownership and land-use rights for overseas Vietnamese in Vietnam

Last Updated: 2 September 2014
Article by Dang Anh Quan

Many overseas Vietnamese have long anticipated being able to own a house in Vietnam. The law on land and housing in Vietnam is complicated1. Land ownership carries with it a historical, political and emotional overlay. The legal framework is comprised of the Land Law ("Land Law 2004")2 , Law on Residual Housing ("Housing Law 2006")3 and several Resolutions of the National Assembly's Standing Committee which deal rather specifically with overseas Vietnamese.

Land and housing issues involving overseas Vietnamese:

The eligibility of overseas Vietnamese to own a house is fairly limited, even though the Law on Amendment to Article 126 of the Housing Law 2006 and Article 121 of the Land Law 2004 ("Law on Housing and Land Amendment")4 does broaden the eligibility beyond what was set out in the Land Law 2004 previously. According to Article 1.1 of the Law on Housing and Land Amendment: "Any Vietnamese person residing overseas who is in the following categories and who is permitted by the competent Vietnamese authority to reside in Vietnam for three (3) months or more shall be entitled to own a house in Vietnam for such person and his or her family members to live in: (a) person with Vietnamese nationality; (b) person of Vietnamese origin in the following categories: a person returning for a direct investment in Vietnam pursuant to the law on investment; a person whose work has contributed to the country; a scientist, cultural activist or person with special skills needed by a Vietnamese body or organization, and who is working in Vietnam; or a person whose husband or wife is a Vietnamese citizen living in Vietnam." In addition, Article 1.2 provides that "Any person of Vietnamese origin not in the categories stipulated in clause 1(b) of this article and who has received a valid visa exemption certificate and is permitted to reside in Vietnam for a duration of three (3) months or more shall be entitled to own one separate residence or one apartment in an apartment block in Vietnam for such person and his or her family members to live in".

Pursuant to the Law on Housing and Land Amendment, an overseas Vietnamese owner has a legal right to lease out and/or authorize others to manage his house and to mortgage it with credit institutions licensed to operate in Vietnam. He is also entitled to compensation if the State recovers the land.

Land-use rights and house ownership in general:

A discussion of "land" and "houses"5 actually raises two different issues. Individuals or organizations do not have the right to own land in Vietnam. Land is owned by the entire Vietnamese people or, stated another way, land is owned by the State of Vietnam6 . Individuals or organizations only have the right to use land. "Ownership" of a house means both "to own the house" and "to have the right to use the land on which the house is built". So, the sale of a house means the transfer of the right to own the house and the right to use the land on which the house is built, from the seller to the purchaser. In the past, the purchaser received a "pink certificate" or a "red certificate" which indicates his ownership of the house and his right to occupy and use land on which the house is located, or other types of certificates which have similar effect. The reason for having different certificates is because the law governing land-related issues has been very dynamic and has changed considerably over time, and there have been different types of certificates that indicate the ownership of a house and the right to use the underlying land.

A further change occurred on August 1, 2009. On that date, the Ministry of Natural Resources and Environment became responsible to issue only one type of certificate to cover title over land. It is known as a Certificate of Land Use Right and Ownership of House and Other Assets on the Land ("New Certificate"), for uniform use throughout the country7. Existing certificates remain valid but current holders can apply for New Certificates.

Historical Land and House Reform:

As a result of historical events, there are many overseas Vietnamese who used to own or whose family used to own property in Vietnam and they seek to determine whether it is possible to recover the property which they or their family previously owned. This article addresses primarily the rights of overseas Vietnamese to recover land and houses previously owned by them or their families.

On April 14, 1977, the Government launched the so-called "Socialist Land and House Reform" policy ("Land and House Reform") in the southern provinces of Vietnam by promulgating Decision 1118 . Generally speaking, Land and House Reform was aimed at "nationalizing", "confiscating" or "managing" the land and houses of five categories of persons or organizations. The land and houses which were "nationalized" or "confiscated" by the State came under State ownership. Theoretically, land and houses which were managed by the State might not mean that the State became the owner of the land and the houses. It seems, however, that "State ownership" and "State management" in this context and in practice were not different, even though the legal documents created a difference. Whether the State confiscated or undertook to manage a house or land, in practice, its owner retained no real rights any more. Here, "to manage" unofficially meant "to own". The State took the action outlined below, and that action affected the persons and organizations as described.

  • The State nationalized land and houses which had been leased to other people by so-called "compradors, landlords, bourgeois, political and economic criminals, and reactionaries" ("landlords"). If the land and houses were leased by people other than the people so described, and if the land and houses exceeded the owner's actual residential needs, then the State managed them;
  • The State managed land and houses legally owned by absentee owners (these are people who abandoned their land and houses before or during the final days of the war). If the abandoned land and houses were being occupied by the absentee owners' close relatives (parents, husband/wife and/or children) with or without the absentee owners' authorization, the State allowed those relatives to continue to stay in the house, but it did not allow them to sell the house. If the land and houses were occupied by people other than the absentee owners' close relatives, the State still managed them and reserved only enough space within the house for those people to stay on, or the State "arranged" other space for them to live;
  • The State managed the land and houses of religious organizations, which were not being used for purposes of worship;
  • The State managed the land and houses owned by senior officials9 of the former Saigon government; and
  • The State managed the land and houses owned by foreigners.

All the land and houses subject to Land and House Reform were used for public purposes, were allocated to State officials, or were leased to other people by the State.

Land-use rights and house ownership after Land and House Reform and before promulgation of the Land Law 2004:

In 1991, the Government issued Decision 29710 stipulating that all land and houses which had been "managed" by the State under Land and House Reform would revert to the ownership of the State on July 1, 1991. This meant that any land and houses which had, thus far, been under State management would become the property of the State on July 1, 1991. "State management" became "State ownership". No claim regarding private ownership of those houses would be recognized.

However, there was an exception to Decision 297. That is, although Decision 111 stated the types of land and houses that would be managed by the State, the State was not always efficient enough to know every house, or every parcel of land on which it stood and which qualified for management. That is, the State originally "missed" some land and houses11 . So, on July 1, 1991 all houses12 that the State "missed" were considered to be privately owned by the real owners13 . The Decision did not touch on the situation where the State "missed" the land and houses of a person who had already left Vietnam--the absentee owner (see discussion below).

Also, according to Decision 297, people who owned a house could sell it or authorize other people to take care of it. In case the owner authorized another person to take care of his house, he would be considered to be the legal owner of the house once he returned to Vietnam to reside. If the house was subject to Land and House Reform but the State "missed" it, the owner had to give it to the State as a condition for leaving, and, in such case, the owner could not, as part of his preparation for leaving, authorized another person to take care of his house.

In respect of people who owned a house but left Vietnam illegally (eg, boat people): (1) if their house was occupied by people other than any of their close relatives, including their parents, husband/wife and/or children, the house became nationalized, (2) if their house was occupied by any of their close relatives, including their parents, husband/wife and/or children, the State would let those people own (possess) either part or all of it on a case-by-case basis. If they were permitted to own part or the entire house, they would have all rights (including ownership rights) in the permitted part of house or the entire house. Where people who owned a house but left Vietnam illegally and later returned to reside in Vietnam, the State agreed to "create conditions for them to have a space to reside"14 .

Land-use rights and house ownership after the promulgation of the Land Law 2004:

Together with the issuance of the Land Law 2004, the National Assembly released Resolution 2315 . It deals with the houses and land that were managed by the State for use during the course of implementation of house and land management policies and of the so-called "socialist transformation policies" which were in existence before July 1, 1991.

Resolution 23 states that the State shall not re-consider its policies on house and land management which were promulgated before July 1, 1991. Consequently, the State will complete the legal procedures regarding the transfer of categories of houses and land, which had been managed and arranged for use by the State under Land and House Reform, to ownership by the entire Vietnamese people.

Pursuant to Resolution 23, the Standing Committee of the National Assembly adopted Resolution 75516 , setting forth guidelines on how certain outstanding cases will be settled.

Of particular interest, Resolution 755 provides a number of possibilities for people to have their property restored or to obtain compensation for their property in some very limited instances, as follows:

  • Land and houses that were subject to Land and House Reform but for which the Government, in fact, failed to issue a decision to manage.
  • Land and houses that were intended to be managed by the Government and for which the Government issued a decision to manage, but until April 17, 2005--when Resolution 755 came into effect--the Government had neither managed nor allocated them to others.
  • Land and houses that the Government requisitioned for a defined period, and that period has now passed.
  • Land and houses that were subject to implementation of Land and House Reform, and which are being occupied by a private person, with a part of the land and/or house set aside by the Government for the owner. The portion set aside is reclaimable.

The above regulations do not speak specifically to the case of overseas Vietnamese.

On July 27, 2006 the National Assembly's Standing Committee adopted Resolution 103717 on civil transactions relating to residential houses established prior to July 1991 involving overseas Vietnamese. According to Resolution 1037, there is a possibility for overseas Vietnamese to claim ownership or the value of their house in the following situations:

  • The house has been leased or lent to another person by an overseas Vietnamese who was the owner of the house before July 1991;
  • The overseas Vietnamese owner authorized another person to manage the house;
  • The house was purchased by an overseas Vietnamese before July 1991, but the transfer of ownership of the house has not been completed;
  • Two houses were exchanged but formalities on the transfer of ownership of the houses has not been completed;
  • An overseas Vietnamese inherited or was given the house by another person.

The term "another person" includes individual persons, governmental organizations or non-governmental organizations, and the above transactions must have been conducted before July 1, 1991.

There are procedures to follow and documents to be presented in order to claim the ownership or the value of the house.

On August 24, 1998, that is, before Resolution 1037, the National Assembly's Standing Committee adopted Resolution 5818 . It addressed residential housing transactions which took place prior to July 1991 and which did not involve overseas Vietnamese. The existence of Resolution 58 and later Resolution 1037, side by side, has confused some local courts. The Supreme People's Court, therefore, on June 28, 2011, issued Official Document 91 ("OD 91")19 in order to guide the application of Resolution 58 and Resolution 1037.

According to OD 91, Resolution 1037 only regulates civil housing transactions which took place prior to July 1, 1991 and in which an overseas Vietnamese participated, also prior to July 1, 1991. Resolution 58 also regulates civil housing transactions which took place prior to July 1, 1991, and in which an overseas Vietnamese participated. However, under Resolution 58, participation of the overseas Vietnamese must have taken place on or after July 1, 1991.

A typical case involving house ownership by an overseas Vietnamese:

Consider the situation, for example, of an overseas Vietnamese who owned a house but left Vietnam before April 14, 1977, bringing with him the ownership documents of the house. Other people--non-relatives -- have continued to live in the house. He wants to know whether or not he can recover the house.

Since he left before April 14, 1977, his house would have been considered the "house of an absentee owner" under the regulations of Land and House Reform. The fact that "other people" are living in his house can be interpreted as follows:

  • The State has been managing the house but leases it to those people in the form of a lease20 . In this case, the overseas Vietnamese cannot claim back his house because the house has become State-owned since July 1, 1991 according to Decision 29721. If the State has been managing his house, then his original ownership documents no longer have validity. As a result of Decision 297, that house, as from 1991, belongs to the State. If so, the State probably issued a decision to manage the house and then leased the house to the people who are living in the house; or
  • Although "other people" are living in the house22, the State "missed" the house. So his ownership of the house is recognized by the State in compliance with Decision 297 and, according to Resolution 755, the State "will not implement the management in accordance with regulations of previous policies", and he will be "considered for issuance of an ownership certificate and land use rights certificate" if he returns and resides in Vietnam. If the State "missed" the house as described above, the house still belongs to its owner according to Decision 297.
  • If the overseas Vietnamese owner can prove that the house was his house, and that before July 1991, one of the transactions described in Resolution 1037 mentioned above took place, then it is possible for the overseas Vietnamese owner to reclaim the house. If there is no written contract reflecting the transaction, the overseas Vietnamese owner, of course bears the burden of proof. If the State recognizes his ownership, the original ownership documents of the overseas Vietnamese still have validity and they are important documents for him to use to try to recover his house or to claim compensation or in some cases to be allocated another house or another piece of land.

Conclusion

The Land Law 2004, Housing Law 2006, Resolution 1037 and Law on Housing and Land Amendment broaden the eligibility of overseas Vietnamese who wish to own a house in Vietnam. The eligibility is somewhat limited as overseas Vietnamese must fall within certain categories of persons, and they must be permitted to reside in Vietnam for at least three months. Nevertheless, the possibilities for ownership are much larger than they have ever been. However, from the standpoint of overseas Vietnamese who wish to recover a house or land which they or their family previously owned, the possibility to do so relies on very limited circumstances. We expect that pursuing such a claim will be time-consuming and that the outcome may be unpredictable.

Footnotes

1Current through February 2013.

2Passed on November 26, 2003 by the National Assembly of Vietnam and went into effect on July 1, 2004.

3Passed on November 29, 2005 by the National Assembly of Vietnam and went into effect on July 1, 2006.

4Passed on June 18, 2009 by the National Assembly of Vietnam with effect from September 1, 2009.

5We wish to clarify our use in this article of the term "house". In Vietnamese the term "house" can be used either as a place to live or, for example, as a factory. There is no clear distinction. We refer to "house" as a residence. However, even if the building is used for a broader purpose, the concepts we discuss are the same, but have to be adapted to a non-residential "house". Thus, while the word "house" in this article will mean primarily a residence, within the appropriate context, it can also be a building which is not a residence.

6Article 17 of the Vietnam 1992 Constitution as amended in 2001, and Article 5 of the 2003 Land Law.

7According to Article 4 of Law 38-2009-QH12, which was passed on June 19, 2009 by the National Assembly of Vietnam and went into effect on August 1, 2009.

8Decision 111/CP dated April 14, 1977 issued by the Council of Government (now the Government).

9These senior officials included military officials of the rank of major or higher, police officers of the rank of lieutenant or higher, administrative officials of the rank of manager from central to local government and other so-called anti-government people, etc.

10Decision 297/CT dated October 2, 1991 issued by the Council of Ministers (now the Government).

11An article of the Ho Chi Minh City Legal Journal (published on February 27, 2001) stated that in Ho Chi Minh City there are more than 30,000 houses subject to Land and House Reform which were likely "missed" by the State.

12The Decision does not mention "land" but it appears intended to include land.

13Article 1, Para 2 of Decision 297/CT states: "For houses under Land and House Reform, if the State has not carried out procedures to manage and actually has not managed, or has not used those houses, the State will recognize the ownership of the house owners".

14The law is unclear whether the phrase "create conditions for them to have a space to reside " means "to recover their house", "to be allocated another house", "to continue staying in their house without ownership", etc.

15Resolution 23/2003/QH11 dated November 26, 2003 issued by the National Assembly of Vietnam.

16Resolution 755/2005/NQ-UBTVQH11 dated April 2nd, 2005 issued by the Standing Committee of the National Assembly and took effect on April 17, 2005.

17Resolution 1037/2006/NQ-UBTVQH11 dated July 27, 2006 issued by the Standing Committee of the National Assembly and took effect on September 1st, 2006.

18Resolution 58/1998/NQ-UBTVQH10 dated August 24, 1998 issued by the Standing Committee of the National Assembly and took effect on January 1st, 1999.

19Official Document 91/TANDTC-KHXX issued by the Supreme People's Court on June 28, 2011.

20Circular 383/BXD dated October 5, 1991 issued by the Ministry of Construction.

21Decree 60/CP dated July 5, 1994 issued by the Government also confirms the State ownership of pre-1975 land and houses under Land and House Reform.

22Maybe, for one reason or another, his house was abandoned; then, other people without any authorization occupied it, and have continued to live in it.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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