Transferring state land lease rights: How to do it

Transferring state land lease rights is a legal form of transferring land use rights according to regulations, creating favorable conditions for investment and economic development. The transfer ensures transparency, clarity, legal safety, optimizes land resources, contributes to building modern infrastructure, improves land use efficiency, and brings benefits to the community. Refer to the article below to learn more about transfer procedures.

Is transferring state land lease rights allowed?

Transferring state land lease rights is only allowed when all legal conditions are met in accordance with the Land Law 2024 and its implementing regulations. Depending on the form of land lease, transfer conditions will be clearly delineated, helping to ensure the rights and obligations between participating parties. Specifically:

In case of land lease with one-time land rental payment for the entire lease period:

Pursuant to the provisions of Clause 1, Article 37 of the Land Law 2024, individuals who use land allocated by the State with land use fees, or lease land with a one-time land rent for the entire lease period have the right to transfer land use rights and assets owned by them attached to the land.

General conditions that need to be met as prescribed in Article 45 of the Land Law 2024 include:

• 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 case of land lease with annual land rental payment:

According to the provisions of Clause 37, Article 3 of the Land Law 2024, the right to rent land in a land lease contract is the right of the land user formed when the State leases land with annual land rent. Accordingly, the land user is transferred the lease right in the land lease contract; The transferee of lease rights in a land lease contract inherits the rights and obligations of the land user according to the provisions of the Land Law and other relevant laws.

Thus, according to the provisions of the Land Law 2024, investors are not allowed to transfer land use rights directly but can only sell legal assets attached to land with the right to lease according to the contract. The person who buys or receives capital contributions from the property must continue to lease land from the State for the determined purpose.

Conditions for selling assets attached to land and leasing rights in land lease contracts to be leased land by the state with annual land rental payment are stipulated in Article 46 of the Land Law 2024 as follows:

1. Economic organizations, individuals, people of Vietnamese origin residing abroad, and economic organizations with foreign investment capital may sell assets 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.

2. 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 the lease contract when the following conditions are met:

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

3. People who buy assets attached to land or purchase 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 money advanced but not yet 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.
4. In case of selling assets attached to land that are construction works that meet the conditions for separating the plot, the plot will be divided to issue a Certificate of land use rights and ownership of assets attached to the land.
5. In case the State leases land with annual land rental payment to carry out infrastructure construction and business projects, you may sell assets attached to the land when meeting 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.

However, for land leased with annual payments in industrial parks, industrial clusters, and high-tech zones, land users who have invested in building infrastructure and paid annual land rent have the right to sublease land on which infrastructure has been built in the form of annual land rent payments.

Procedures for transferring land lease rights of the State

Procedures for transferring State land lease rights must be carried out through competent State agencies according to administrative procedures. Documents and procedures are specifically specified in the Land Law 2024 and guiding documents.

Transfer of land lease rights with one-time payment of land rent for the entire lease period

Individuals using land leased by the State with a one-time rental fee for the entire lease period may transfer their land use rights and assets attached to the land according to the provisions of law. The transfer procedure includes the following steps:

Step 1: Sign the transfer contract

The seller and buyer negotiate and agree on the terms of the land use rights transfer contract.

• The contract needs to be made in writing and have all the main contents, including information of the parties, information about the land plot, transfer price, payment method, time of land delivery, rights and obligations of the parties, liability for breach of contract and other agreements.
• Land use rights transfer contracts must be notarized or authenticated according to the provisions of Clause 3, Article 27 of the Land Law 2024.

Note: In the case of a land use rights transfer contract in which one party or parties participating in the transaction is a real estate business organization, the transfer contract notarization or authentication is performed at the request of the parties.

Step 2: Carry out name transfer procedures (land change registration)

After the transfer contract has been notarized or authenticated, the parties are responsible for carrying out procedures for registering land changes (name transfer) at a competent state agency as prescribed in Article 37 of Decree 101/2024/ND-CP.

Documents to submit:

• Application for registration of changes in land and assets attached to land according to Form No. 11/DK issued together with Decree 101/2024/ND-CP.
• Original issued Certificate of Land Use Rights.
• The land use rights transfer contract has been notarized or authenticated.
• Document on representation according to civil law (if any).
• Certified copies of legal documents of the transferor (Business registration certificate) and transferee (ID card/Citizen identification card).
• Other documents related to the content of changes (if any).

Fulfill financial obligations: To complete the name transfer procedure, the parties must fulfill their financial obligations to the State according to the provisions of law, including:

• Declare and pay registration fee according to Form No. 01/LPTB issued with Circular 80/2021/TT-BTC.
• Individuals transferring land lease rights are obliged to declare personal income tax from real estate transfer activities according to regulations.

Where to submit application: The transferee submits the application for transfer of land use rights at one of the following locations:

• One-Stop Department of the Provincial People’s Committee.
• Land registration office or Land registration office branch where the land is located.

Document processing process:

• In case of submission at the One-Stop Department, the documents will be transferred to the Land Registration Office for processing.
• In case it is necessary to re-determine the residential land area, the receiving agency will transfer the documents to the Land Registration Office Branch.
• After receiving valid documents, the land registration agency will send cadastral information to the tax agency to determine financial obligations.
• The parties need to properly fulfill their financial obligations as notified by the tax authority.
• The land registration agency updates information about new land users in cadastral records and land use rights certificates.
• Return the updated Land Use Rights Certificate results to the transferee (individual).

Processing time: No more than 10 working days from the date of receipt of valid documents. For mountainous communes, islands, remote areas, areas with difficult socio-economic conditions, areas with particularly difficult socio-economic conditions, the implementation time is increased by 10 working days.

Procedures for transferring assets attached to land and lease rights in land lease contracts where the State leases land with annual land rental payment

This procedure requires the implementer to follow the process exactly, ensure complete records and cooperate with the authorities. Specifically includes the following steps:

Step 1: Sign a contract to transfer assets attached to land and rental rights in the land lease contract.

Step 2: In case the transfer changes the content recorded on the land use rights certificate, carry out the land change registration procedure as above.

>>> Reference: Land change registration procedures updated in 2024.

Consulting services on procedures for transferring state land lease rights at Long Phan Consulting Company

Long Phan Consulting Company provides in-depth support services for transferring State land lease rights, ensuring full compliance with legal regulations. Our experienced team will accompany you from preparing documents to completing procedures.

Main services include:

• Consulting on conditions and transferability for each type of leased land.
• Draft and review transfer contracts according to regulations.
• Support completing documents according to regulations.
• Representative working with State agencies.
• Monitor progress and handle arising problems.

With practical experience in hundreds of transfer documents, we are committed to supporting customers in optimizing the process, legalizing procedures and protecting interests throughout the process of transferring state land lease rights.

Some frequently asked questions about transferring state land lease rights

To give you a clearer perspective on this issue, we provide some common questions about transferring state land lease rights:

Who is responsible for paying personal income tax and registration fees when transferring land lease rights?

According to current tax laws, the transferor (seller) is usually obliged to pay personal income tax (if income is generated), and the transferee (buyer) is obliged to pay registration fees, unless the parties agree otherwise in the transfer contract.

Can foreign direct investment receive land lease rights from the State?

Foreign direct investment (FDI) can receive the transfer of land use rights with one-time payment for the entire lease period associated with the transfer of all or part of the investment project, complying with the provisions of the Land Law 2024 and the Law on Investment 2020. For land leased with annual payments, FDIs mainly receive the transfer of assets attached to the land and the State continues to lease the land for the determined purpose.

In case of land leased with annual payments, how does the transfer of assets attached to the land take place?

When transferring legally owned property attached to land leased with annual payments, the transferor and transferee carry out procedures for buying and selling the property. The person receiving the property transfer must carry out procedures to have the State continue to lease the land according to the determined land use purpose and use the land for the right purpose.

Can land lease rights currently mortgaged at the bank be transferred?

Mortgaged land use rights can still be transferred if there is written consent from the mortgagee (bank) and the transferee agrees to inherit the debt repayment obligation (if agreed). The mortgage release procedure or tripartite agreement needs to be carried out before or at the same time as the transfer procedure at the land registry.

Is it possible to transfer part of the area of ​​the leased land plot?

Transferring a portion of the leased land plot area can only be done if the remaining area and the transferred area meet the minimum area conditions for plot separation according to the regulations of the Provincial People’s Committee where the land is located, and must also be consistent with the detailed land use planning and approved by the competent authority.

How is the value of land lease transfer determined for tax calculation?

The transfer value for tax calculation (PIT, registration fee) is the actual price stated in the transfer contract. In case the price on the contract is lower than the land price in the land price list issued by the Provincial People’s Committee at the time of transfer, the tax authority will apply the price according to the land price list to calculate tax.

What are the specific procedures if rented land is attached to a licensed investment project?

If the leased land is attached to an investment project, the transfer of land use rights must be carried out simultaneously with the investment project transfer procedures according to the provisions of the Law on Investment 2020. The transferee must meet the conditions on project implementation capacity and must obtain approval from the investment management agency before carrying out land procedures.

What are the legal consequences if land lease rights are transferred incorrectly?

Transfers that do not comply with the conditions, order, and legal procedures (for example: not notarizing the contract, land not eligible for transfer) can lead to the contract being declared invalid. Transactions are not recognized by the State, changes cannot be registered and new Certificates issued, causing the risk of losing benefits for the parties.

Conclude

Transferring state land lease rights is a process that requires strict compliance with legal regulations and procedural documents. To ensure transactions are carried out legally, safely and effectively, customers should consult with a team of experts. Contact Long Phan Consulting Company immediately via the hotline 0906735386 to receive full consulting support and carry out transfer procedures quickly and according to regulations.