Procedures for transferring commercial and service land of enterprises

Procedures for transferring commercial and service land of enterprises help optimize resources, recover investment capital, and restructure business operations effectively. A properly regulated transfer not only ensures the legal rights of the parties but also limits legal risks. Businesses need to clearly understand the conditions, processes, and necessary documents to carry out transactions quickly, transparently, and safely.

Can commercial and service land be transferred?

Commercial and service land belongs to the group of non-agricultural production and business land. Commercial and service land includes land for construction of commercial and service businesses and other works serving business, commerce and services.

According to Clause 3, Article 206 of the Land Law 2024, forms of commercial and service land use by individuals and organizations are regulated as follows:

• Land leased by the state: Economic organizations and individuals use land for commerce, services, and land for non-agricultural production establishments through the form of land lease by the State;
• Receive transfer of land use rights, lease land, sublease land, receive capital contributions in the form of land use rights from other economic organizations, individuals, and people of Vietnamese origin residing abroad;
• To sublease land associated with infrastructure from foreign-invested economic organizations;
• Contributing capital with land use rights: Economic organizations and individuals can contribute capital with land use rights to other organizations.

Thus, commercial and service land can carry out transfer procedures if it meets the legal conditions. Vietnamese organizations, individuals, and Vietnamese residing abroad are the subjects allowed to transfer or receive the transfer of commercial and service land.

The transfer of land must be attached to the land use right certificate and not be bound by disputes or asset distraint. To make a legal transfer, businesses need to ensure all relevant conditions and documents before conducting the transaction.

Conditions for transferring commercial and service land of enterprises

Current land law clearly stipulates general conditions when exercising the rights to convert, transfer, lease, sublease, inherit, donate, and mortgage land use rights; Capital contribution by land use rights. In order for businesses to be able to transfer commercial and service land, the following mandatory conditions are stipulated:

1. Subject conditions:

The transferor must be a Vietnamese economic organization, Vietnamese individual, household and Vietnamese residing abroad with legal land use rights.

The transferee can be an individual, household, domestic economic organization or a person of Vietnamese origin residing abroad.

2. Transfer conditions according to regulations:

• There is a Certificate of land use rights or Certificate of house ownership and residential land use rights or Certificate of land use rights, ownership of houses and other assets attached to land or Certificate of land use rights, ownership of assets attached to land, except in cases of inheritance of land use rights, conversion of agricultural land when consolidating fields, exchanging plots, donating land use rights to the State, residential community and cases specified in Clause 7, Article 124 and point a Clause 4, Article 127 of the Land Law 2024;
• The land is not in dispute or the dispute has been resolved by a competent state agency, the judgment or decision of the Court, or the decision or award of the Arbitration has taken legal effect;
• Land use rights are not distrained, other measures are applied to ensure judgment enforcement according to the provisions of the law on civil judgment enforcement;
• During the land use term;
• Land use rights are not subject to temporary emergency measures according to the provisions of law.

In addition, businesses also need to complete financial obligations related to land use rights such as registration fees and corporate income tax if arising from transfer activities.

If the above conditions are met, the enterprise can proceed to prepare a transfer contract. This contract needs to be notarized or authenticated at a notary practice organization or the commune-level People’s Committee where the land is located.

Complying with the correct conditions helps ensure legal transfer transactions, avoiding disputes and legal risks in the future.

Procedures for transferring commercial and service land of enterprises

Procedures for transferring commercial and service land of an enterprise include two main parts: transfer documents and implementation sequence. This is a strict legal process to ensure transparency and legality of land transactions.

Documents for transfer of commercial and service land

Transfer documents are an important basis for state agencies to consider and establish the rights and obligations of the parties in the transaction. Profile includes:

• Certificate of land use rights (original or notarized copy).
• Notarized or authenticated land use rights transfer contract.
• Identity card, household registration or CCCD of the representative of the transferor and transferee; Business registration certificate/investment license,…
• Marriage registration certificate or documents identifying common/separate assets (if any).
• Land change registration application according to form No. 09/DK.
• Registration fee declaration (according to the prescribed form).
• Corporate income tax return or personal income tax return.
• Tax registration declaration for transfer transaction.
• Map of land plot location and assets attached to land.

Preparing complete and accurate documents not only helps shorten procedure processing time but also ensures legality and limits risks arising during the transfer process.

Execution order

After preparing all valid documents, the parties proceed with the procedures for transferring commercial and service land according to a specific sequence of steps according to regulations. Complying with the correct order helps businesses complete transactions smoothly. The order for carrying out procedures for transferring commercial and service land of enterprises normally includes the following steps:

Step 1: Prepare and notarize/authenticate the Transfer Contract:

The two parties (transfer enterprise and transferee) negotiate and draft a Contract for transfer of commercial and service land use rights. This contract must be signed and notarized at a notary practice organization or authenticated at the People’s Committee of the commune/ward where the land is located (depending on the case according to regulations).

Step 2: Declare and fulfill financial obligations

The parties are responsible for declaring and paying taxes and fees related to the transfer at the competent tax authority, including:

• Corporate income tax (from real estate transfer activities) is declared and paid by the transferring enterprise (except in cases of exemption).
• Registration fees are declared and paid by the transferee.
• Other fees and charges (if any) such as application appraisal fees.

Step 3: Submit application for land change registration

Necessary documents are submitted at the Land Registration Office or District Registration Office Branch (if within jurisdiction). Ingredients include:

• Change registration application according to form No. 11/DK issued with Decree No. 101/2024/ND-CP.
• Certificate of land use rights (original).
• Land use rights transfer contract or document on the transfer of land use rights and ownership of assets attached to land.
• Minutes of asset valuation (if any).
• Documents for payment of financial obligations (if registration fees or income tax arise).
• Document on representation according to the provisions of civil law in case of carrying out procedures for registering land and assets attached to land through a representative.

Step 4: Receive and process documents

The land registration office receives documents. If the dossier is complete and valid, the receiving officer will record it in the book and give an appointment card to return the results. If the application is incomplete or invalid, the submitter will be instructed to supplement and complete it. This agency will verify the dossier, send cadastral information to the tax authority (if financial obligations have not been fulfilled), confirm changes in the issued Land Use Rights Certificate or submit to the competent authority to issue a new Land Use Rights Certificate to the transferee.

Step 5: Return results

On the appointment date on the ticket, the applicant goes to the Land Registration Office/One-Stop Department to receive the result: a Certificate of land use rights, ownership of houses and other assets attached to land that has been updated (recording the name of the transferee) or a new Certificate of Land Use Rights.

The above procedures need to be carried out properly and fully according to regulations to ensure the legality and validity of the transfer transaction.

>>> See more: Land change registration procedures updated in 2024.

Issues to note when transferring commercial and service land

Some key issues businesses need to pay special attention to when transferring commercial and service land:

• Check the legality of the land: Make sure the land has a valid red book, no disputes, distraints or planning problems. This is a prerequisite for the application to be approved by the authorities.
• Clear transfer contract: The contract content must be detailed, including terms related to transfer price, payment time, commitment to the legal status of the land and the rights and obligations of both parties.
• Verification of legal representation: The transferor being an enterprise must have a legal representative to sign the contract in accordance with the provisions of the Law on Enterprise and the company’s Charter.
• Pay attention to financial obligations: Taxes and fees such as corporate income tax and registration fees must be declared and paid in full to avoid administrative penalties or delays in the land use rights registration process.
• Processing time: Transfer documents are normally processed within 10–15 working days, but may be extended if there are missing documents or errors.

Anticipating and having a plan to handle these issues will help the business’s commercial and service land transfer process go more smoothly.

Consulting services on procedures for transferring commercial and service land of businesses at Long Phan Consulting Company

Long Phan Consulting Company provides comprehensive legal services in the procedures for transferring commercial and service land of businesses. We provide full support from land legal inspection to contract drafting, notarization and filing. Benefits customers receive from the service:

• Consulting on conditions for transferring land use rights in each specific case.
• Check the legal documents of the land, ensure the land is eligible for transfer.
• Draft a transfer contract according to a standard form, ensuring clarity and full benefits.
• Guide customers to notarize and authenticate contracts.
• Instructions for declaring and paying financial obligations: income tax, registration fees.
• Representatives submit documents and monitor processing progress at the Land Registration Office or other competent authority.

Long Phan Consulting Company has a team of in-depth expertise, knowledgeable about land law regulations, ensuring to support customers in carrying out procedures quickly and legally. We are committed to accompanying businesses from the beginning to completing the transaction.

Some frequently asked questions about procedures for transferring commercial and service land for businesses

To give you a clearer perspective on this issue, we provide some common questions about the procedures for transferring commercial and service land for businesses:

What is the basic difference when transferring commercial and service land leased by the State with one-time land rent payment and annual land rent payment?

For leased land with one-time rental payment for the entire lease period, businesses have the right to transfer land use rights and assets owned by them attached to the land. For leased land with annual land rental payments, businesses are only allowed to transfer their owned assets attached to the leased land and the rental rights in the land lease contract according to the law, and are not allowed to transfer land use rights.

Are there any special procedures for transferring commercial and service land in industrial parks and economic zones?

Basically, the procedure is similar to transferring external land, however, it is necessary to comply with the operating regulations of industrial parks and economic zones and may require confirmation from the Management Board of industrial parks and economic zones related to meeting the conditions and investment sectors in accordance with the planning.

When transferring land with factories and construction works on the land, what are the procedures?

The transfer must simultaneously carry out land use rights and ownership of assets attached to that land if the assets are owned by the transferor and are eligible for transfer. The transfer contract needs to clearly state both the transfer of land use rights and property ownership, and the change registration documents also need to show this content.

Principles for calculating corporate income tax (CIT) and registration fees when transferring commercial and service land?

Corporate income tax from real estate transfer is calculated based on taxable income (transfer price minus cost price and reasonable expenses) multiplied by the tax rate according to the provisions of the Law on Corporate Income Tax. Registration fee is paid by the transferee, calculated in percentage (%) according to local regulations on the land value at the time of registration (state price or price stated in the contract depending on regulations).

If the transferee is a foreign-invested enterprise, what is the difference?

Enterprises with foreign investment (FDI) are only allowed to receive transfer of land use rights in certain cases according to the Land Law 2024 (for example: receiving transfer of investment capital which is the value of land use rights, receiving transfer of land use rights in industrial parks, industrial clusters, high-tech zones…). It is necessary to carefully check the transfer receipt conditions for FDI enterprises according to specific regulations.

How to deal with land sublease or business cooperation contracts that are still valid on the land upon transfer?

The parties need to clearly agree in the transfer contract on the inheritance, termination or handling of rights and obligations related to this effective contract. The transferee can inherit those rights and obligations if the relevant parties agree and the law allows, or the parties agree to terminate the old contract.

Is it mandatory to value commercial and service land when transferring?

The law does not require a valuation certificate from an independent valuation organization in transfer documents, except in some specific cases (for example, related to state assets). However, valuation may be necessary for the parties to determine the transaction value or for internal corporate governance. Tax declaration prices must comply with tax authorities’ price regulations.

What are the legal consequences if errors or omissions are made in the transfer procedure?

Errors can lead to returned documents, additional requests, and extended processing time. Serious violations (such as providing false information, not being eligible for transfer) can lead to the contract being declared invalid, being subject to administrative sanctions, or giving rise to complex civil disputes.

Conclude

To carry out procedures for transferring commercial and service land in accordance with regulations and limit legal risks, customers should have professional support from a reputable legal unit. Please contact Long Phan Consulting Company immediately via the hotline 0906735386 for detailed advice and comprehensive support in the process of transferring commercial land and business services.