I. The concept of "Encroached land"
– There is no concept regulating the concept of “encroached land”. However, the act of encroaching and appropriating land is regulated in Article 3 of Decree 102/2014/ND-CP on administrative sanctioning of violations in the field of land as follows:
“1. Land encroachment is the act of a land user moving a landmark or plot boundary to expand the land area.
2. Land appropriation is the use of land without permission from a competent state agency or the use of land allocated or leased by the State but at the end of the allocation or lease term the land is not extended by the State. use without returning the land or use land without carrying out procedures for land allocation or land lease according to the provisions of land law.”
Thus, the concept of encroached land can be understood as land that belongs to the legal use rights of an individual or organization but is illegally used by others through land encroachment or land appropriation.
II. Basis for reclaiming encroached land
– According to Clause 1, Article 170 of the 2013 Land Law: “Use land for the right purpose, within the boundaries of the land plot,…”, land users have the obligation to use land within the boundaries of the land plot. The act of encroaching and appropriating land is considered an act of violating the boundaries of a land plot, violating the legal land use rights of other individuals. Pursuant to Clause 1, Article 12 of the 2013 Land Law, regulations on prohibited acts in land use:
“1. Encroaching, occupying, and destroying land.”
– Thus, the act of encroaching on land is considered a prohibited act and must not be carried out. Committing acts of encroachment or appropriation of land may be subject to administrative sanctions with fines ranging from 1,000,000 VND to 10,000,000 VND depending on the type of land and the act of encroachment or occupation based on Article 10 of Decree 102/2014/ ND-CP.
– In addition, according to the above legal basis, the person who encroaches on land must return the encroached or occupied land and restore the land to its original condition.
III. Measures to reclaim encroached land
– According to Clause 24, Article 3 of the 2013 Land Law, “Land dispute is a dispute about the rights and obligations of land users between two or more parties in land relations.” From this definition, it can be seen that reclaiming encroached or occupied land is considered as a land dispute over use rights.
– There are many measures to reclaim encroached or occupied land, however, the first measure that must be applied when resolving a land dispute is conciliation based on Article 202 of the 2013 Land Law:
“2. If the disputing parties cannot reconcile a land dispute, they should send an application to the commune-level People’s Committee where the disputed land is located for conciliation.
3. The Chairman of the Commune People’s Committee is responsible for organizing conciliation of land disputes in his/her locality; During the implementation process, it is necessary to coordinate with the commune-level Vietnam Fatherland Front Committee and member organizations of the Front and other social organizations. Procedures for conciliation of land disputes at the Commune-level People’s Committee are carried out within no more than 45 days from the date of receipt of the request to resolve the land dispute.”
– If conciliation fails (when one or both parties do not agree or do not implement the conciliation results), the party whose land is encroached or occupied can sue in court according to the provisions of Article 26 of the 2015 Code of Civil Procedure:
“Article 26. Civil disputes fall under the Court’s jurisdiction
2. Disputes over ownership and other rights to property.
– Thus, when a land dispute occurs related to encroachment or land appropriation, the person whose legitimate rights and interests are violated can conciliate and initiate a lawsuit to court to request the invader. The offender stops the illegal act and restores the land to its original state.
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