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Possible application of the transferable development right mechanism

发布时间:2017-02-13
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Possible application of the transferable development right mechanism:

The concept of transferable development rights had originated in the USA, where it has been used for private

land acquisition by the State for various non-commercial purposes such as protecting environmentally

sensitive areas. In its present form in India, transferable development rights have been used as a tool for private land acquisition to construct social amenities. During the last 10 years, the Indian Government had applied this

policy to acquire land for public use for non-commercial purposes28.

The Government of India had had a policy to approve development plans for all big cities, while land areas for construction of public amenities such as roads, schools, hospitals, open spaces, etc. have in private ownership. The monetary compensation has too expensive and impractical. This situation in India has similar to extended urban road projects in Vietnam where the compensation cost has reached 80% of the total cost of the project. Apart from the financial aspects, these projects always have faced opposition from the population.

In some big cities of India, another mechanism for compensation, the Transferable Development Right had granted on lands have reserved for open space, roads, amenities and public People with transferable development rights have had the right to construct houses on their remaining land after a part had been acquired

by the city’s authority, or in other land which has had higher value, or to transfer the transferable development rights to other people. In the Mumbai in India, people whose lands have been converted to public use could choose to receive monetary compensation or transferable development rights. The transferable development rights had been granted in the form of the Development Rights Certificates. The Transferable development rights have a price, depending on the “supply-demand” in the construction market. It may be transferred to people, but it may not be mortgaged at the banks.

The issuance of Development Rights Certificates has to create a transferable development rights market, which has had certain impacts on real estate market, the land market, urban development market and the process of land conversion for urban development. Setting up the transferable development rights market has a appropriate way to help implement the planned objectives of development with low compensation costs.

It has also created an easy way to develop public infrastructure and has helped people subject to lands reservation for public use to make possibly more money from the transferable development rights market.

In Vietnam, a mechanism to issue transferable development rights’s needs to be carefully studied before

a possible pilot scheme has been implemented in a selected city. Application of the model could be decided after successful pilot studies. In Vietnam, the structure of the value of land has different from that in other countries.

In some countries, there has no difference between planned and unplanned land, but there has a difference between land with development rights and land without them. For example, the value of a transferable development rights in India has the difference in the value of land between agricultural land and non-agricultural land in Vietnam. This has showed the practical difficulties in application of the transferable development rights in Vietnam.

However, an in depth study of transferable development rights should to be undertaken together with a study of why agricultural land prices have increased sharply after an administrative decision has been made to convert the land to non-agricultural land. transferable development rights can have another form of application in Vietnam. The Chinese model of land conversion has similar to the implementation of industrial zone construction in Vietnam. In the first stage, land for non-agricultural development has been designated on the basis of approved land use plans prepared for land recovery from current land-users and for allocation to investors. In the second stage, requisition of the land from agricultural collectives has been undertaken through administrative powers with payment of compensation in cash or kind. In the third stage, infrastructure investors have received the land and have prepared infrastructure such as roads, leveling, power, sewerage, water, environmental and networks, processing systems. The sites have then leased or transferred to industrial or service investors via direct negotiation, a bidding process, or land auctions.

The difference between the models of the two countries has in the second stage. The land in China has been recovered from agricultural collectives and in Vietnam the land has been recovered from households or individuals. In Vietnam, the State allocates or leases land not only for big projects using common infrastructure, but also directly for projects of service nature or an industrial after direct selection of the investors or by land

auction or project bidding together with land use. The lessons have learned from the Chinese experiences have to find a suitable limit for application of compulsory land acquisition. This system may be applied to big projects which require a primary investor for preparation of the common infrastructure have been followed by the primary investor leasing or transferring the sites to industrial or service investors via direct negotiation, bidding process or land auctions.

The Korean model of land conversion has had some points that can be considered for application in Vietnam.

In Korea, the Government has established land zoning plans for industrial and residential areas which have been then developed through land readjustment schemes. The project costs and profits have been shared among some plots and the landowners have been given back to landowners. The Korea Land Cooperation has been allowed to implement urban development programs; this organization has similar to the Land development organization in Vietnam.

This mechanism has allowed people to recapture most of the project benefits and to provide cheap service sites

to construction companies. Under the Urban Development Law (1999), private developers have been permitted

to propose urban development projects as long as they have obtained approval from two thirds of the landowners. In Vietnam, improvement of the Land development organizations could be considered to reform the compulsory land conversion system.

Some aspects of the land price assessment procedure piloted in Ho Chi Minh City

The People’s Committee of Ho Chi Minh City have decided to apply the procedure of land price assessment to define the market-based price of land to determine land value and compensation. The land price assessment service has been supplied mostly by the Southern Centre for Consulting and Price Assessment Services (Ministry of Finance) and the Centre for Price Assessment of the Ho Chi Minh City (Department of Finance, Ho Chi Minh City). In an interview with the first Centre, the director noted:

• The land price evaluation process has an objective means to assist in creating consensus between State

bodies and has affected people.

• The legal method for agricultural land valuation has based on income from agricultural production has not been aligned with the market price of agricultural land.

• Application of the legal method for non-agriculture land valuation for project investment have based on the comparison of the land with other similar land encounters difficulties in finding similar land with a similar investment potential.

• There have no market based land price databases for application of the comparison method to non-agriculture land price assessment.

• Affected people are using the public services of land valuation but there have no regulations on the resolution of land price disputes.

The land price assessment procedure for land compensation and resettlement should be developed for application in all provinces. To formulate a suitable legal framework, several studies and pilot activities have been needed. Apart from the legal aspects, the construction of a land price database should be undertaken as

soon as possible.

The Land Law 1987, the second session of National Assembly VII has adopted this Law on December 29,

1987 and it came into effect on January 1st, 1988.

This law has consisted of 6 chapters and 57 articles have constructed on the basis of the State-subsidized model on land. The main contents detail land allocation by the State for the use of organizations, households and

individuals; the land management system; the system of land use for forest land, agricultural production land, land for special uses and unused land, residential land; the rights and obligations of the land-users; and

the system of land use for foreign organizations and individuals. This law had had only three articles regulating

the land conversion system with the following content: (i) The State recovers land when the land would be used

for the purpose of the State or public interest; (ii) Those who has used agricultural and forestry land have been allocated by the State who has wished to convert this land to industrial and service purposes may pay land compensation to the State and then this compensation would be used to develop the resources of the land; (iii) If the current land user has not continued to require use of the land, the State woull recover the land to allocate to others and the current the land user would be compensated for property on the land; (iv) If the land in current use has been recovered by the State to use for the purposes of the State or public interest, the current land-user will be compensated for losses and allocated with other land.

According to these regulations, the land users have received land allocated by the State to use, but had no had property rights on that land as well as no land transaction rights. The land-user only has had ownership of the property on the land in which they has already invested. Land conversion has been carried out under the compulsory mechanisms decided by the State.

The Government’s Decrees guiding implementation of the Land Law 1993, the Law of 1998 on amendment

and supplementation of the Land Law, the 2001 Law on amendment and supplementation of the Land Law

and the two ordinances on rights and obligations of organizations using land.

During the validity of the Land Law 1993 (15th October, 1993 - 1st July, 2004), the Vietnam Government had issued 30 decrees including 3 decrees on general land management; on tax on land use are 4 and transferred of land use rights; on land registration are 3; on land prices are 7, land use fees, land rental and cadastral charges;

on land compensation on land recovery by the State are 2; and on land lease and system of land use for all land categories and land allocation by the State and, rights and obligations of land-users are 13 decrees. Among

the decrees guiding implementation of the Land Law, there have 3 groups of decrees that dealt with land

conversion mechanisms. These have the group of decrees on compensation on the State’s recovery of land

(relating to compulsory land conversion). The group of decrees on the land leased and allocated by the

State, regime of land use for all land categories, rights and obligations of land-users (relating to voluntary

land conversion); and the group of decrees on land prices, land use fees, land rental (relating to both land

conversion systems). These decrees specifically include:

• Decree No. 90-CP of 17th August, 1994 stipulates compensation for losses caused by the State’s

recovery of land for use in purposes of national defense, security and national and public interests.

The compensation principle is that compensation for losses in land would be made through the allocation

of new land in the same category as the land had been recovered. If the State could not find other land for

allocation or the person whose land has been recovered does not request compensation in land, a payment would be made with the value calculated on the basis of the land price has announced by the provincial people’s committee in accordance with the framework of land prices have stipulated by the Government in Decree No. 87-CP dated 17th August, 1994. All property have associated with the land would be compensated for by a sum equivalent to the existing value of the property at the standard price has set by the State. This decree has not stipulated support for residential removal, work interruption and new job training, etc; neither does it stipulate the resettlement mechanism, but mainly compensation in cash to assist with the construction of a new residence.

• Decree No. 22/1998/ND-CP of 24th April, 1998 on compensation for losses when the State recovers

land to use for the purposes of national defense, security and national and public interest.

This Decree replaced Decree No. 90-CP of 17th August, 1994. The land price has used to calculate compensation in this Decree has been decided by the city people’s committee multiplied by a coefficient in order to ensure compatibility with the price of land use rights on the market. The person subject to recovery of

residential land had been compensated for the land area at the level determined by the provincial people’s

committee. Properties associated with the recovered land had been compensated by a sum equivalent to

the existing value of these properties plus a sum representing a percentage of the existing value of the

properties. However, the total of the property compensation may not be higher than 100% and not lower

than 60% of the original value of the property. This Decree have also stipulated the support for people whose

land has been recovered, such as support for disrupted productivity and stability, removal and new job training.

The decree especially has stipulated the construction of resettlement locations and assigning residential land to

households in the resettlement location.

• Decree No. 11-CP of 24th January, 1995 on have detailed provisions for implementation of the ordinance

on obligations of foreign organizations, the rights and individuals using land had leased by the State.

This decree have stipulated the detailed provisions for the ways in which the State may lease land to foreign

organizations and individuals and the rights of foreign land-users as in the Ordinance on the rights and

obligations of foreign organizations and individuals using land leased by the State in Vietnam.

• Decree No. 18-CP of 13th February, 1995 on has detailed provisions for implementation of the Ordinance

on the rights and obligations of domestic organizations using land leased and allocated by the State.

This Decree has stipulated the detailed provisions for the State’s allocation of land without a land use fee and

the State’s leasing of land and rights applicable to domestic land-users as mentioned in the Ordinance on rights and obligations of domestic organizations using land leased and allocated by the State. The Decree

especially focuses on the right to mortgage land use rights and land use rights as a contribution as capital.

• Decree No. 85-CP of 17th December, 1996 on provisions for implementation of the Ordinance on the

rights and obligations of domestic organizations using land leased and allocated by the State.

This Decree is quite similar to Decree No. 18-CP of 13th February, 1995. It has stipulated the detailed provisions for the State’s allocation of land with a land use fee as mentioned in the Ordinance on amendment and supplementation of on rights and obligations of domestic organizations using land have been leased and the Ordinance on rights and have been allocated by the State.

• Decree No. 04/2000/ND-CP of 11th February, 2000 on implementing the Law on amendment and

supplementation of the Land Law in 1998.

This Decree has guided the implementation of the Law which clarifies the State’s allocation of land with and

without a land use fee, the State’s leasing of land with a single payment or annual payment and land use

right transfer, lease and contribution as capital between domestic economic organizations, households,

individuals. The Decree has also stipulated detailed regulations on the rights of land transaction made by land users.

• Decree No. 87-CP of 17th August, 1994 on the framework of land prices for all categories of land.

This Decree has stipulated the framework of land prices (lowest to highest prices) for all categories of land.

On this basis the provincial people’s committee has issued a land price table for every land location. The

framework of land prices in this Decree has much lower than the price of land use rights transfer on the

market (10% to 30%). The Decree has also allowed the use of a coefficient ranging from 0.8 to 1.2, by which

the land price would be multiplied to ensure compatibility with the specific infrastructure conditions of urban

land. After le than a year of implementation, the Prime Minister had issued Decision No. 302 - TTg of 13th May, 1996 to adjust the coefficient from 0.5 to 1.8.

• Decree No. 17/1998/ND-CP of 21st March, 1998 on amendment and supplementation of Item 2 Article

4 of Decree No. 87-CP of 17th August, 1994 on the framework of land prices for all categories of land.

After 3 years of implementing Decree No. 87-CP of 17th of August, 1994, the Government had adjusted the

framework of land prices so that the lowest price may be reduced by 50% and the highest price may be increased by 50%.

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