Procedures for transferring annual land lease investment projects

Procedures for transferring annual land lease investment projects is a necessary step to ensure legality, transparency and continuity in the project transfer process between investors. Compliance with the process is a key factor for investment project transfer transactions to be legally effective and recognized by competent state agencies. The article below will analyze the steps to carry out procedures for transferring annual land lease investment projects.

Table of Contents

Conditions for transferring annual land lease investment projects today

According to the provisions of Clause 1, Article 46 of the Law on Investment 2020, investors have the right to transfer all or part of the annual land lease investment project when meeting specific conditions. These conditions ensure the legality and effectiveness of the transfer of the investment project. Including:

The investment project or portion of the transferred investment project is not subject to termination of operation according to the provisions of Clauses 1 and 2, Article 48 of the Law on Investment 2020;
Foreign investors receiving transfer of investment projects, part of investment projects must meet the conditions specified in Clause 2, Article 24 of the Law on Investment 2020;
Conditions according to the provisions of land law in case of transfer of investment projects associated with transfer of land use rights and assets attached to land;
Conditions according to the provisions of housing law and real estate business law in case of transferring housing construction investment projects or real estate projects;
Conditions specified in the investment policy approval document, Investment registration certificate or other relevant laws (if any);
When transferring investment projects, in addition to complying with the provisions of this Article, state-owned enterprises are responsible for complying with the provisions of law on management and use of state capital invested in production and business at the enterprise before making adjustments to the investment project.

Can annual land lease investment projects be transferred?

In addition, based on the provisions of Point c, Clause 1, Article 34 of the Land Law 2024, economic organizations, public service units, religious organizations, and affiliated religious organizations using land leased by the State with annual rental payments can only sell assets owned by them attached to land, assets owned by them attached to land and lease rights in land lease contracts when meeting the conditions specified in Article 46 of this Law.

In other words, the investor implementing an annual land lease investment project is only allowed to transfer part or all of the investment project as assets attached to land and rental rights in the land lease contract. Project transfer does not include the transfer of land use rights for which the state leases land with annual payment.

Therefore, in addition to the conditions specified in Clause 1, Article 46 of the Land Law 2024, the transfer of investment projects on annual leased land must also meet the following conditions:

Economic organizations, individuals, people of Vietnamese origin residing abroad, and economic organizations with foreign investment capital may sell assets that are projects attached to land leased by the State with annual land rental payment when the following conditions are met:

Assets attached to leased land are legally created and registered according to the provisions of law;
The construction has been completed in accordance with the detailed construction planning and the investment project has been approved and approved (if any), except in cases where it must be carried out according to an effective court judgment or decision, an enforcement decision of a civil judgment enforcement agency or a conclusion of a competent state agency on inspection and examination.

Economic organizations, individuals, people of Vietnamese origin residing abroad, economic organizations with foreign investment capital that are leased land by the State with annual land rent payment may sell assets attached to land and lease rights in lease contracts when the following conditions are met:

Conditions specified in Section 1;
Compensation, support, and resettlement money has been advanced but has not been fully deducted from the land rent payable.

The recipient of a project transfer of assets attached to land or purchase of assets attached to land and lease rights in a land lease contract may continue to use the land for the right purpose during the remaining land use term, continue to deduct the advance money that has not been deducted as prescribed in Point b, Clause 2, Article 46 of the Land Law 2024 and must carry out land registration procedures according to the provisions of the Land Law 2024.
In case of selling assets attached to land that are construction works that meet the conditions for dividing the plot, the plot can be divided to issue a Certificate of land use rights and ownership of assets attached to the land.
In case the State leases land with annual land rent payment to implement an infrastructure construction and business project, you may sell assets attached to the land when all the conditions specified in Clause 1, Article 45 of the Land Law 2024 and other conditions according to the provisions of the Law on Real Estate Business are met.

Procedures for transferring annual land lease investment projects

To carry out effective annual rental investment project transfer procedures, investors need to clearly grasp information related to the dossier components and the transfer procedure.

Profile components

Transferring annual land lease investment projects dossiers must be fully prepared according to the provisions of Clause 2, Article 46 of the Law on Investment 2020. Depending on the type of investment project, the dossier components may be different.

For investment projects in which the investor is approved according to the provisions of Article 29 of the Law on Investment 2020 and investment projects that are granted an Investment Registration Certificate, the application for adjustment of the investment project includes:

Document requesting adjustment of investment project;
Report on the implementation of the investment project up to the time of transfer;
Investment project transfer contract or other documents with equivalent legal value;
Copy of documents on the legal status of the investor receiving the transfer;
Copy of Investment Registration Certificate or investment policy approval document (if any); Decision on investor approval (if any);
Copy of land lease contract;
Proposal to adjust investment projects (if any);
Copy of BCC Contract (for investment projects in the form of BCC Contract);
Copy of one of the following documents of the investor receiving the transfer of the investment project: financial statements of the last 02 years or audit report of the investor’s equity, commitment to financial support of the parent company, commitment to financial support of the financial institution, guarantee of the investor’s financial capacity, documents explaining the financial capacity of the investor;
And other related documents.

For investment projects that do not fall into the above cases, the dossier composition shall comply with the provisions of law on civil, enterprise, real estate business and other relevant laws. In this case, the annual land lease investment project transfer documents usually include: investment project transfer contract; Minutes of handover of assets, obligations and rights related to the project; Documents proving the capacity of the investor receiving the transfer; and other related documents as required by law.

Sequence to be performed

For investment projects subject to investment policy approval as prescribed in Article 29 of the Law on Investment 2020 and investment projects granted Investment Registration Certificates, investors carry out procedures to adjust investment projects according to the provisions of Article 41 of the Law on Investment 2020 guided by Article 31, Decree 29/2021/ND-CP. Specifically:

Negotiate, agree and sign investment project transfer contracts

The first thing to do when transferring an investment project is that the parties must negotiate, agree and sign an investment project transfer contract according to the provisions of civil law.

The contract must clearly state the following basic information:

Information of the parties;
Detailed information about project implementation results up to the time of transfer;
Transfer value;
Payment method and term;
Time limit for handing over and receiving the project;
Rights and obligations of the parties;
Responsibilities of the parties;
Penalty clause for breach of contract;
Termination cases;
Effective date of the contract.

In addition, the contract may include other terms depending on the agreement between the parties.

Procedures for adjusting investment projects

When transferring an investment project or part of an investment project, it will lead to changes in a number of issues related to the project such as changing the investor, capital source for project implementation, project implementation time, etc. This leads to the Project Investor being forced to make adjustments to the investment project in accordance with the changed content. Here are the basic steps to perform this procedure:

1. For investment projects under the Prime Minister’s investment policy approval authority:

Pursuant to the provisions of Article 44 of Decree 31/2021/ND-CP, adjustment procedures include the following steps:

Step 1: The investor submits 08 sets of documents to the Ministry of Planning and Investment.

Step 2: Competent authorities conduct consultation:

Within 03 working days from the date of receiving the valid dossier, the Ministry of Planning and Investment sends the dossier to the competent state agency as prescribed in Clause 3, Article 32 of Decree 31/2021/ND-CP to get opinions on the contents of investment project adjustments.

Within 15 days from the date of receipt of valid documents, the consulted agencies shall have opinions on the content of adjusting the project within the scope of state management of that agency.

Step 3: Within 35 days from the date of receipt of valid documents, the Ministry of Planning and Investment prepares an appraisal report on the investment project adjustment contents to submit to the Prime Minister.

Step 4: Within 05 working days from the date of receiving the appraisal report from the Ministry of Planning and Investment, the Prime Minister decides to approve the investment policy adjustment. The decision to approve the investment policy adjustment is sent to the Ministry of Planning and Investment, the Investment and Investor Registration Authority, ministries and agencies related to the implementation of the investment project, and the investor approval agency (if any).

Note: For investment projects to build and operate infrastructure of industrial parks and export processing zones, investors submit documents to the Management Board of industrial parks, export processing zones, high-tech zones, economic zones or the Provincial Investment Registration Authority in case the Management Board of industrial parks, export processing zones, high-tech zones, and economic zones has not yet been established.

2. For investment projects under the investment policy approval authority of the Provincial People’s Committee

Pursuant to the provisions of Article 45 of Decree 31/2021/ND-CP, adjustment procedures include the following steps:

Step 1: The investor submits 04 sets of documents to the Provincial Investment Registration Authority.

Step 2: The investment registration agency processes the documents:

Within 03 working days from the date of receiving the valid dossier, the Investment Registration Authority sends the dossier to the competent state agency as prescribed in Point b, Clause 4, Article 33 of Decree 31/2021/ND-CP to get opinions on the contents of investment project adjustments;
Within 15 days from the date of receipt of valid documents, the consulted agencies shall have opinions on the content of adjusting the project within the scope of state management of that agency;
Within 25 days from the date of receiving valid documents, the Investment Registration Authority prepares an appraisal report on the adjusted contents of the investment project to submit to the Provincial People’s Committee;
Within 07 working days from the date of receiving the documents and appraisal report from the Investment Registration Authority, the Provincial People’s Committee decides to approve the investment policy adjustment. The decision to approve the investment policy adjustment is sent to the Investment and Investor Registration Authority, the Investor Approval Authority in case of investor approval according to the provisions of Clause 3, Article 29 of the Law on Investment, Departments and agencies related to the implementation of investment projects.

3. For investment projects subject to investment policy approval of the Management Board of industrial parks, export processing zones, high-tech zones, and economic zones

Pursuant to the provisions of Article 46 of Decree 31/2021/ND-CP, adjustment procedures include the following steps:

Step 1: The investor submits 04 sets of documents to the Management Board of industrial parks, export processing zones, high-tech parks, and economic zones.

Step 2: Competent agency processes documents:

Within 03 working days from the date of receiving valid dossiers, the Management Board of industrial parks, export processing zones, high-tech zones, and economic zones shall send dossiers to competent state agencies as prescribed in Point b, Clause 7, Article 33 of Decree 31/2021/ND-CP to get opinions on the contents of investment project adjustments;
Within 15 days from the date of receipt of valid documents, the consulted agencies shall have opinions on the content of adjusting the project within the scope of state management of that agency;
Within 25 days from the date of receiving valid documents, the Management Board of industrial parks, export processing zones, high-tech zones, and economic zones decides to approve the investment policy adjustment. The decision approving the investment policy adjustment is sent to investors and agencies related to the implementation of the investment project.

4. For investment projects that have been granted an Investment Registration Certificate and are not subject to approval to adjust investment policies

Pursuant to the provisions of Article 47 of Decree 31/2021/ND-CP, procedures for adjusting investment projects that have been granted Investment Registration Certificates and are not subject to approval to adjust investment policies are as follows:

In case of adjusting an investment project related to changing the name of the investment project, the name of the investor in the Investment Registration Certificate, the investor submits a written request to adjust the investment project to the Investment Registration Authority with documents related to changing the name of the investment project and the name of the investor. Within 03 working days from the date of receiving the written request to adjust the Investment Registration Certificate, the Investment Registration Authority shall adjust the Investment Registration Certificate for the investor.
If the investment project adjustment does not fall into the above cases, the investor submits 01 set of documents as section “Document components to be prepared” to the Investment Registration Authority. Within 10 days from the date of receipt of valid documents, the Investment Registration Authority will adjust the Investment Registration Certificate for the investor.

5. For investment projects other than those mentioned above, the transfer of investment projects or transfer of property ownership to the investor receiving the investment project after transfer shall be carried out in accordance with the provisions of law on civil, enterprise, real estate business and other relevant laws.

After completing the investment project adjustment procedures, the investment project transfer is basically complete.

>>> See more: Procedures for transferring investment projects associated with leased land.

Issues investors need to pay attention to

In-depth consulting services on annual land lease investment project transfer procedures at Long Phan Consulting Company

Long Phan Consulting Company provides in-depth consulting services on transferring annual land lease investment projects procedures. With a team of highly specialized and practical experience in the field of investment and land law, Long Phan Consulting Company has supported many domestic and foreign investors in successfully implementing annual land lease investment project transfer procedures.

Long Phan Consulting Company’s full support service includes:

Providing consulting services and reviewing legal documents of investment projects before carrying out transfer procedures;
Consulting on transfer conditions and procedures for each specific case;
Support drafting and negotiating investment project transfer contracts, ensuring the legal rights and interests of the parties involved in the transaction;
Drafting documents requesting adjustment of investment projects according to the provisions of law;
Representing investors to carry out investment project transfer procedures at competent state agencies;
Answer questions related to investment project transfer activities.

With a comprehensive support process and the ability to flexibly handle arising legal situations, Long Phan Consulting Company commits to accompanying customers throughout the annual land lease investment project transfer process, ensuring compliance with legal regulations, optimizing time and maximally protecting the legal rights of investors.

Frequently asked questions

Below are frequently asked questions related to procedures for transferring annual land lease investment projects.

Which agency has the authority to approve investment policy adjustments for projects subject to investment policy approval by the Provincial People’s Committee?

The Department of Planning and Investment is the competent authority to approve investment policy adjustments for projects subject to investment policy approval by the Provincial People’s Committee.

What content does an investment project transfer contract need to contain?

An investment project transfer contract should have the following main contents: information of participating parties, project information, transfer value, payment method, rights and obligations of the parties, dispute resolution terms.

What legal risks may arise during the transfer of annual land lease investment projects?

Legal risks that may arise include: disputes over land use rights, violations of investment regulations, failure to fulfill financial obligations, and issues related to transfer contracts.

Do foreign investors need to meet any special conditions when receiving annual land lease investment projects?

Foreign investors need to meet market access conditions as prescribed in Clause 2, Article 24 of the Law on Investment 2020.

Is it necessary to notify the land management agency after completing the annual land lease investment project transfer procedure?

After obtaining approval to adjust the investment policy or an adjusted investment certificate, the investor needs to carry out procedures for converting land use rights at the natural resources and environment agency according to the provisions of land law.

Conclude

Procedures for transferring annual land lease investment projects require investors to strictly comply with current legal regulations. To ensure that transferring annual land lease investment projects transactions are carried out legally and effectively, customers should consult with experts. Please contact Long Phan Consulting Company immediately via the hotline 0906735386 to receive in-depth advice on procedures for transferring annual land rental investment projects.