Can A Will Be Made Over The Land Which Has Been Recovering And is In The Process Of Compensation?
According to the provisions of the Land Law 2013, land recovery is the State’s decision to recover the land use rights of the person to whom the State grants the land use right or the land of the user who violates the land law. The State may recover it for various reasons such as serving national defense and security, national socio-economic development, publicity, etc. The person whose land is recovered will be compensated by the State if they meet the prescribed conditions. Thus, whether the land that has been recovered and is in the process of compensation is still owned by the person whose land is recovered and do they have the right to dispose of the land that has been recovered by the State? Through this article, Phuoc and Partners would like to provide information and regulations related to the making of wills for land that has been recovered and is in the process of compensation.
Law on wills and inheritance as land
According to Article 624 of the Civil Code 2015, a will is an expression of an individual’s will to transfer his or her property to another person after death. Every sane and wise individual has the right to make a will to dispose of his or her property. According to the provisions of law, a will is considered legal if the content of the will does not violate the prohibition of the law, does not contravene social ethics and the form of the will is not contrary to the provisions of the law.
Accordingly, the inheritance includes the own property of the deceased and their part of the common property with others. When making a will, the person who leaves the inheritance has full authority to decide whom to leave the inheritance to or even disqualify the inheritance of his or her legal heirs.
For inheritance as land, the law prescribes more conditions for land users when exercising the right to convert, transfer, lease, inherit, donate, mortgage land use rights, and contribute capital with land use rights such as having a land use right certificate; the land must in the status of undisputed; The land use right is not distrained to secure the judgment enforcement, remaining within the land use term and other regulations as prescribed by the Land Law.
The right to make a will over the land which has been recovered and is in the process of compensation
When the land is recovered, the person with the land use right (if eligible) will be compensated by the State according to the provisions of law. The compensation may include Compensation for land, compensation for assets on land, compensation for remaining investment costs in land, etc. In principle, to be compensated when the State recovers land, the person whose land is recovered must have a certificate of land use right or meet the conditions to be granted a certificate of land use right as prescribed in Articles 99, 100, 101 of the Land Law 2013 but have not yet been granted.
According to the provisions of Clause 2 Article 74 of the Land Law 2013, when the State recovers land, the compensation shall be made by allocating land with the same use purpose as the recovered land, if there is no land for compensation, they usually compensated in cash at the specific land price of the type of land to be recovered, decided by the People’s Committee of the province at the time of the decision on land recovery.
With the above provisions, if there are grounds to determine that the person leaving the inheritance has lawful ownership rights to the land recovered by the State and the land recovery is in the case of compensation, they have the right to make a will to dispose of property, is the value of compensation for land, for others.
In practice, the land that has been recovered and is in the process of compensation is involved in disputes over the legal value when it is the inheritance. Many objections argue that as the land is an inheritance that has been recovered by the State – that is, the estate is no longer valid, the will not be valid as prescribed in Clause 3, Article 643 of the Civil Code 2015. Then, the value of compensation for land (if any) will be divided according to the provisions of law on inheritance to the heirs.
Meanwhile, many people argue that, if the land use right is legally created by an individual, but when that person is still alive, the State has made a decision to withdraw and the recovery is in the case of compensation, the compensation for the land owned by that individual. Therefore, they have the right to make a will to dispose of the value of compensation when the land is recovered.
The practice trial has shown that the Courts at all levels also have different views on the legitimacy of the will for the inheritance that is land recovered by the State and in the process of compensation. Therefore, in 2020, the Judicial Council of the Supreme People’s Court decided and established Case Law No. 34/2020 dated 05 February 2020 on the right to make a will to dispose of the compensation value for land in case the land recovered by the State with compensation as follows: When settling similar cases, the court must determine that the value of the recovered land use rights is guaranteed by the compensation value, so the person whose land is recovered has the right to make a will to dispose of the value of such compensation.
Thus, according to the provisions of Case Law No. 34/2020 dated 05 February 2020, if the will is legally established and the land recovery is in the case of compensation, the value of land use rights of the person whose land is recovered is still guaranteed by law in accordance with the provisions of the Land Law, so the person whose land is recovered has the right to make a will to dispose of the compensation value.
The above is an overview of the right to make a will for the land that has been recovered and is in the process of compensation. If you have trouble with legal issues of making of wills and carrying out the procedures for inheritance declaration for the land that has been recovered and is in the process of compensation, please contact us: Phuoc & Partners is a professional consulting firm established in Vietnam and currently has nearly 100 members working in three offices in Ho Chi Minh City, Hanoi and Danang. Phuoc & Partners is also rated as one of the leading consulting firms specializing in business law in Vietnam that has leading practice areas in the legal market such as Labour and Employment, Taxation, Merger and acquisition, Litigation. We are confident in providing customers with optimal and effective service.