Real Estate

 

Brunei Darussalam 

 

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     1. Land  Information System Project

The LIS Project has the following long term objectives;

1. To rationalize data capture and maintenance of land related data
2. To standardized the common access keys to land data
3. The establishment of a core Land Information System (LIS)
   

With the five year plan (1991-1995), short term objectives were outlined;

1. To look into the user requirement analysis of Land Information System within the three related departments in the Ministry of Development. This is followed by data flows and data sizing of the various applications. The user hardware requirements for the section of each department are also studied taking into account existing staff availability.
2. To develop a five year plan (Phase I, II and III) for computerizing Land Information System for the three departments, taking into account of the existing computers in each department concerned, with the possibility of integrating them with the new systems and expanding them to other departments, if needed.
        The project involves upgrading the old computer machine, implementation of the pilot project, replacement and upgrading of Land Registration System for Land Department and the installation of hardware and software for Town and Country Planning Department.

With the above objectives, it is aimed to meet its goal  to establish a comprehensive Land Information System that will provide;

• Cadastral information e.g computerized survey cadastral  and topographical/mapping database
• Land Registration information e.g a computerized index to land titles and ownership
• Infrastructure information – e.g utilities
• Environmental  info- e.g master plan index and land use data
       By 1997, the whole network of Survey, Land and Town and Country Department has been completed, which is link to the Ministry of Development. The launching of LIS was conducted on the 1^st of July 1997, where all related agencies are able to retrieve the necessary information.

     2. National LIS Steering Committee

      The formation of LIS Steering Committee help to monitor, plan and to make every effort to improve the cooperation between the relevant government agencies focusing those under the Ministry of Development; namely Public Works Department, Electrical, Housing Development, Land, Town and Country Planning and other public services departments. Activities of the committee involve;

• study on the development towards the integration of all land related data
• preventing time wasting duplication of work
• accuracy of land related data
• improving communication between group users
• improving the security of land related data eg storage and user mode access
  This committee also prepare and look into the guideline for data custodianship and accessibility of digital data.
  

Other committees that can contribute towards standardisation of digital data;

1. Standardisation of geographical names- there is a requirement for geographical names and their codes to be standardized. Survey Department is the lead agency for collecting geographical names.
2. Standardisation of road names and codes – efforts is made by the Public Works Department to standardize the road names and codes
3. Spatial Data Infrastructure Development
        In house digitizing work began in 1986,  most existing maps and plans are converted into digital form and stored into the topographical/mapping database. As a national mapping agency Brunei Survey Department has been developing its digital cadastral, geodetic and mapping database. With the availability of funding, through the 6^th National Development Plan enables the 
   

Department to carry out a project on Digitisation of Maps and Plans; mainly from

1. Topographical and Cadastral
2. Utilities
3. Housing Development plans
         The digital database is now the basis for the applications of LIS in the long run as well for the monitoring, planning and implementation of projects and decision making policies. An on going effort is the integration of the cadastral and mapping digital data. A project to produce the BR2.5 series maps is part of an effort to integrate these digital data. Further development is still needed, in particular, to form digital data structure for use of GIS applications.
         An important aspect concurrently use the LIS and the digitising projects, is the standardization of its metadata, through the creation of terms of reference which is then later converted to data dictionary that house all the reference codes for each data captured. The objective is to rationalise its feature coding system. This list of feature codes, however, is by no means exhaustive and thus subject to further revision and expansion by the Department. The feature codes will at least allow manipulating, displaying, and analyzing its digital data. The data dictionary will also enable the conversion of the existing digital data coded using the old terms of reference without any loss of information.

Survey Department have joined other programs related to SDI development;

• Global Map/Global Spatial Data Infrastructure (GSDI) ESRI Grant Award
• International Steering Committee for Global Mapping
       Both the Global Map and GSDI programs will help our Department to develop towards global geographic datasets with verified quality and consistent specifications.

1. Institutional Strengthening
   Research and Development Committee of the Survey Department is also preparing a guideline and proposal for the charging policy, copyright and licensing arrangements. With the certification of ISO 9000 in 1997, data quality is important in the management procedures and the users community can rely better on our spatial data.

1. Future Development
        Information Communication Technology (ICT) is considered to be one of the growth area in the current  8^th National Development Plan. Part of the plan includes Survey Department’s project which is related to our initiative towards the development of spatial data infrastructure, is the replacement and upgrading of analogue Photogrammetric and  Mapping / GIS hardware and software systems. This will contribute the department to face more challenges ahead.
         The data that have been collected over the years and the continuous human resource development continue to be important assets, at the same time the upgrading of existing system is required in order to continue providing efficient reliable data and services. Cooperation and Department from various related government agencies are much needed in order to ensure its success. The challenges is to make the Department to be a world class geomatic service provide whereby GIS/LIS infrastructure is readily available by means of e-commerce.

 

Republic of the Union of Myanmar

 

Golden “Land”: Protecting investments in Myanmar from disputes

Foreign legal consultants John Lichtfield and KyawZinHtet report that Myanmar is fast emerging as a destination for foreign companies. Issues remain, however, over land ownership. Global law looks at how foreign businesses can obtain land rights.

As Southeast Asia has blossomed into a region attractive for investment, coveted land resources have become scarcer and disputes over land more common. Even with its vast size, Myanmar is no exception to this rule, as the nation struggles with effective land registration and titling issues. In 2012/13, Myanmar's economy grew by 6.3 per cent but land disputes remain a legal issue that developers are having to contend with. There is a huge farming community that have settled on this land for decades, land that foreign businesses will need to build infrastructure and establish operations.

While each nation in the region has its own unique and often historic obstacles to investment in land, Myanmar in particular suffers from the effects of past nationalization of land ownership and a tradition of mixed customary and common law practices with regards to land rights. Although issues within the “Golden Land” have yet to garner the same outside attention as land disputes in other Southeast Asian nations, property rights and ownership are a growing concern for Myanmar citizens, the Union Government and foreign investors alike.

Disputes between farmers and the government

In rural areas, disputes typically emerge between farmers and the government over the classification of farmland, the rights to cultivate land indefinitely and the permanence of the land use rights granted. For investors, this can play out either as a challenge from the government or another interested third party of rights granted to the investor by way of sub-lease, or alternatively, in the form of a citizen protest over otherwise legitimate grants of land from the government to investors. In urban Myanmar, rights disputes are more likely to occur where there is contested ownership over a single parcel of land, or when a local party fails to abide by the rules or limitations of a land grant from the government.

Investors seeking absolute certainty regarding land rights in Myanmar may find it difficult to navigate this labyrinth of seemingly opaque and complex procedures. For example, registration for the rights associated with the land is haphazard in the cities and practically non-existent in many rural areas. In many cases, land has changed hands on an informal basis, with the original or registered owners of property either having died in the interim or moved on from their listed addresses. Despite these difficulties, investors can find some comfort in their dealings by understanding the basics of land rights in Myanmar and following certain best practices. While almost no due diligence in Myanmar can be said to be fool-proof, understanding the basic laws relating to land and taking certain precautions can help develop the confidence necessary to pursue investment in otherwise uncertain conditions.

Land rights generally

There is no overarching land or property law in Myanmar that governs the ownership, use and transfer of immovable property. The general legal framework concerning immovable property in Myanmar today is contained in:

(a) The Constitution of the Republic of Union of Myanmar (2008).

(b) Transfer of Property Act (1882).

(c) Registration Act (1908).

(d) Transfer of Immovable Property Restriction Law (1987).

(e) The Farm Land Law (2012).

(f) The Management of Cultivable, Fallow and Waste Land Law (2012).

(g) Myanmar Foreign Investment Law (2012) and Notification 39/2011 on the Right to Utilize Land.

(h) Land Acquisition Act (1894).
Additional acts and regulations, such as the Forest Law and the Environmental Protection Law, can have an ancillary effect on the use of land, even if they do not directly regulate the ownership, use and/or transfer of land.

In general, all land in Myanmar is theoretically held by government bodies. While there are sporadic cases of genuine private land ownership, these are rare and represent the exception rather than the rule. Locals with rights to land typically hold land use grants or land leases from a government body, usually for terms of 30, 60 or 90 years. The concepts of lease and grant are often conflated and it is not uncommon to see sub-lease arrangements or assignments referred to as “sales” even if actual title or ultimate ownership of a property remains with the government.

Laws regulating the use of land by foreigners set up a number of restrictions on the ability of foreigners or foreign entities to hold, transfer and/or use land. Of particular importance to foreign investors is the Transfer of Immovable Property Restriction Law (1987) (the “TIPRL (1987)”), which forbids the transfer of immovable property to and from foreigners (including companies with any foreign investment). Furthermore, the TIPRL (1987) restricts foreign investors and individuals from entering into leases extending beyond one year. This affects all manner of immovable property from residential leases to leases involving commercial projects, essentially limiting foreigners and foreign invested entities to a single year lease term. The only present exception to this otherwise onerous restriction is found in Myanmar’s Foreign Investment Law (the “MFIL (2012)”).

Obtaining a permit

Officially passed in November 2012, the MFIL (2012) allows foreign investors to apply for an investment permit (the “MIC Permit”) with the Myanmar Investment Commission (the “MIC”), which, among other benefits, will allow the foreign investor to lease or use land in Myanmar for extended periods beyond what is otherwise allowed under the TIPRL (1987). Pursuant to any MIC Permit application, a potential foreign investor is required to submit to the MIC a draft lease for review. Should the MIC approve of the proposed investment project, the MIC will also generally approve of the submitted lease of immovable property or land for a term of up to 50 years.

The exact period granted may be modified depending on the size and needs of the investment project, but generally, major investment projects seek up to the full 50 year term. Upon the expiry of the initial period, the MIC may then grant two extension periods of up to 10 years each. The MIC may, with the prior approval of the Myanmar Government, provide for an even longer lease term if it is in the interest of the economic development of less-developed and inaccessible regions of Myanmar.

As a foreign investor in Myanmar, it is critical to understand the difference between rights authorized under an MIC Permit and rights actually granted to a local partner pursuant to a land grant from the government. The MIC Permit authorizes a foreign invested company to lease land for up to 50 years, plus the two additional ten year renewal terms; however, should the foreign invested company enter into a lease for land that is subject to an initial grant that ends prior to 50 years, the land will revert to the government upon termination of the initial grant regardless of the MIC Permit’s authorization. Therefore when considering land for investment purposes, it is crucial to determine not just the
suitability of the land for the investment proposed, but also the capacity of the lessor to obtain an extension of their land grant to take full advantage of the MIC Permit’s extended lease period.

Going forward in 2014, there is a general expectation by Myanmar real estate observers that a new Condominium Law will be passed that will offer an additional exception to the TIPRL (1987) single year lease restriction. Although only circulated in an unapproved draft form, the proposed Condominium Law foresees a regulatory regime where appropriately registered land development projects may be allowed to provide ownership and long term leases of condominium units to foreign investors. Certain registration restrictions and local ownership quotas are in the present draft version of the Condominium Law; however, even with these complications, passage of the Condominium Law would represent major progress for land regulation in Myanmar and could result in major changes to the market landscape.

How investors can protect themselves

Foreign investors entering into Myanmar should take precautions when preparing to secure land for investment. One rule, above all others, is to know your local partners. Often, land is provided as in-kind contribution (generally through a long-term lease in the case of MIC approved joint ventures) by a local party, and it is left to the foreign party to ensure that the land is legitimately held and authorized for the its intended use. While the temptation to rush into the market may be high, it is critical to take time to meet with and carefully evaluate potential local partners, and to ask questions about their background and the assets they will be investing in any project. Before signing on the dotted line, it is advisable to engage competent legal counsel to review any lease or other documents related to land to ensure that the land is indeed available and suitable for the investment project contemplated.

Because of the lack of effective central land registration, the performance of due diligence on land in Myanmar typically relies entirely on the documentation provided by the local party contributing the land. The most common documents provided for review tend to be leases or grants, either from a third party to the local party, or more ideally, from a government entity to a local party. Ensuring an accurate chain of title is critical and leases that have been sublet or assigned through multiple transfers can be difficult to verify. Other documents that are useful, though not always immediately available, are the land map and land history setting out the exact parameters of the property in question, as well as its registration history, and other documentation of registration noting where a property has been properly registered with the Registrar of Deeds and Assurances.

While registration of land grants and leases extending beyond one year are required by law, this requirement is frequently ignored, foregone with an eye to avoiding stamp duties or simply misunderstood by local parties. Even when the laws are complied with, there exist structural weaknesses in the system including the extended period in which land transfers may be registered. Transferees have up to four months after completion of lease or grant to register the transfer, thus, if registration does not occur until the four-month deadline, a less than scrupulous landholder could in the interim arrange for the sale or lease of the land to an otherwise unsuspecting third party. Even if the latter lessee should successfully register the property first, a lessee having a legitimate lease entered into prior to the latter lessee’s lease may register at any time up until the four month deadline and take claim to the property. 

While the scenario wherein multiple parties are engaged simultaneously by a lessor to lease a single property is relatively uncommon, is it not that rare for land registration to be incomplete or missing. As mentioned above, tax avoidance and ignorance of the law are common causes for improper or missing registration. As a result, a land lessor’s documents and assistance in working with the Myanmar authorities are critical to establishing the suitability of land for investment; in absence of any truly effective regulatory regime, it is these documents that will hold the key to determining the provenance and suitability of land for investment.

Exisitng investment opportunities

Myanmar simultaneously boasts exciting investment opportunities and a challenging, and at times, inscrutable environment for doing business. Investors considering major projects that require significant land use would be wise to move carefully into the market and avoid making hasty arrangements with unfamiliar partners. Mistakes made early on in the process can have significant and sometimes costly consequences down the road once significant time and money have been invested. Ensuring a good relationship with local partners and any local authorities with oversight of the relevant investor sector is critical.

Almost equally important is engaging experienced counsel, whether legal or general business consultancy, with a firm grasp on the laws and on-the-ground realities of doing business in Myanmar. It is easy to take for granted matters such as continuous electrical and water supply that would be certainties in more developed regions, but are just now being brought online in this developing market. The more established consultancies can help a foreign investor manage these basic complications that might otherwise go unnoticed until they have metastasized into unmanageable problems. An ounce of prevention is worth a pound of cure, and nowhere is this clichéd axiom truer than in the obtaining suitable land for investment in a turbulent, emerging market. 

http://www.globallegalpost.com/blogs/global-view/golden-land-protecting-investments-in-myanmar-from-disputes-95192130/

 

Kingdom of Cambodia

1.   Regulatory Framework for the Land System in Cambodia

Land Law was first promulgated in 1992 and was amended in August 2001 (2001 Land Law).  The 2001 Amendment to the Land Law especially aims to determine the regime of ownership for immovable properties in Cambodia for the purpose of guaranteeing the rights of ownership and other rights related to immovable properties. It also intends to establish a modern system of land registration that guarantees the rights of people to own land.

Land Law appointed the Ministry of Land Management, Urban Planning and Construction (MLMUPC) to be responsible for issuing titles related to the immovable properties and managing the cadastral administration of immovable properties belonging to the State.

During the civil war era, the Cambodian land system had been damaged severely and many of the land ownership titles and plots register had been lost. There are still many disputes over land ownership in Cambodia and, therefore, it is very vital for investors to verify the land ownership of landowner before they go into contract regarding land use, lease or sharing proportional interest of land ownership through Cambodian companies.

Many provisions of Land Law have been modified or deleted by Civil Code which came into effect on 20 December 2011 following the implementation of Law on the Implementation of Civil Code. It became very vital for the investors to refer the provisions of Civil Code regarding the sale, purchase, transfer of ownership, land lease right, and/or setting of mortgage on land.

 

2.Component of a land

Civil Code stipulates that things attached to land or comprising a part thereof, particularly buildings or structures immovably constructed on land, etc. are components of the land unless they are severed from the land, and may not, except as otherwise provided by law, be the subject of rights separate from those applicable to the land . However, as exceptional rule, it also stipulates that where the holder of a right [to occupy or use] a land of another has constructed buildings or structures, etc. on the land in the course of exercising such right, those constructed, etc. shall not become components of the land. The same shall apply to those things that are attached on the land for a purpose of temporary nature and these buildings and other structures built on land by a right-holder, etc. shall be deemed components of the right [to occupy or use] the land of another .

 

3.   Ownership

It is prohibited for any foreigner, either a natural person or legal entity, to own land. The Constitution stipulates that “All persons, individually or collectively, shall have the right to ownership. Only Khmer legal entities and citizens of Khmer nationality shall have the right to own land ”.  The 2001 Land Law also says that only natural or legal entities of Khmer nationality have the right to ownership of land in Cambodia and a foreigner who falsifies national identity to become an owner of land in Cambodia shall be punished . In this regard, the legal entities of Cambodian nationality mean the companies of which 51% or more of share are owned by Cambodians or Cambodian companies.

            Furthermore, the 2001 Land Law states that “No person may be deprived of his ownership, unless it is in the public interest”. An ownership deprivation shall be carried out in accordance with the forms and procedures provided by the law and regulations and after fair just compensation in advance” .

            The major provisions of 2001 Land Law regarding immovable properties ownership, which may be of the keen interest to prospective investors, are as follows:

・  Any regime of ownership of immovable property prior to 1979 shall not be recognized .

・  Any entering into possession of properties in the public and private property of the State, through any means, that occurs after this Law comes into effect, is null and void.

・  Possession of immovable property, which was recognized since 1989, may constitute a right in rem over immovable property and may lead to the acquisition of ownership by the holder of the property.

・  Any person who, for no less than five years prior to the promulgation of the Law, enjoyed peaceful, uncontested possession of immovable property that can lawfully be privately possessed, has the right to request a definitive title of ownership.

・  After the Law comes into force, any new occupant without title to an immovable property shall be considered as an illegal occupant.

・  In order to transform into ownership of immovable property, the possession shall be unambiguous, non-violent, notorious to the public, continuous and in good faith .

・  While waiting for the possession to be transformed into full ownership, possession in compliance with the Law constitutes a right in rem over the immovable property. The title is evidence of possession but is not in itself a title of ownership and is not indisputable. The titles of possession shall only constitute definitive and indisputable title of ownership of the property in the absence of any dispute as to the ownership of the property at the time of the land register is created. In case of a disputed claim, the determination of the lawful possessor of the property shall be based on the additional investigation of all relevant evidence. A title of possession to a property is one kind of evidence but is not in itself determinative . 

The Civil Code stipulates the positive prescription of land ownership as .

・  A person can acquire ownership of immovable property through peaceful and open possession of the immovable property for a period of 20 years with the intention of ownership.

・  Ownership of immovable property can be acquired after 10 years if the peaceful and open possession of the immovable property is commenced in good faith and without negligence.

It also introduced the concept of co-ownership. Co-ownership is defined as ownership of a single thing by multiple persons. Each owner’s interest is limited to their own share. Indivisible joint ownership occurs when there is a partition, such as a wall, moat or hedge distinguishing ownership of adjacent land or buildings and both parties jointly own the partition. While the joint owners have a shared duty, limited to their own share, to preserve, maintain and repair the jointly owned partition they also share a right of use. Various provisions relating to the possessory rights are also provided in Article 227 to Article 243.

 

4. Acquisition of ownership over immovable properties

Ownership over an immovable may be acquired not only via contract, inheritance or other causes set forth in this Section IV but also based on the provisions set forth in Clause 4, Chapter2, Book Three of Civil Code, other provisions of Civil Code and other laws.

 

5. Effect of Real Rights Existing Prior to the Date of Application of Civil Code

A long-term lease, usufruct, right of use, right of residence, or easement arisen from an agreement based on Land Law 2001 before its amendment according to Article 80 (Amendments on certain provisions of Land Law 2001) of this law shall be deemed as perpetual lease, usufruct, right of use, right of residence, or easement based on the Civil Code from the Date of Application. In this case, duration of existence of these rights shall be calculated from the date that such rights were created based on the Land Law 2001.

 

6. Land leases

The term of a perpetual lease may not exceed 50 years. If a perpetual lease is established with a term exceeding 50 years, it shall be shortened to 50 years. A perpetual lease may be renewed; provided that the renewed term may not exceed 50 years counting from the date of renewal.

If the perpetual lessee fails to pay the stipulated rental for three years, the perpetual lessor may cancel the perpetual lease.

Perpetual leases may be assigned with or without consideration, or otherwise disposed. The perpetual lessee may sublease the subject of the perpetual lease and may be inherited.

Upon termination of a perpetual lease, the perpetual lessor cannot demand that the perpetual lessee restore the immovable to its original condition unless the perpetual lessee has destroyed the immovable or fundamentally changed its nature. Upon termination of a perpetual lease, the lessor shall acquire the ownership over any improvements and any structures installed on the immovable by the perpetual lessee without having to pay compensation to the perpetual lessee.

With regard to long-term lease created prior to the Date of Application relied upon the Land Law 2001, when the remaining period of such a lease exceeds 50 years on the Date of Application of Civil Code, such right shall remain in existence during the stipulated period of the agreement although there is a provision (Term of perpetual lease) of the Civil Code. Nevertheless, a long-term lease with a remaining period of more than 99 years, existence of such a right shall be deemed to remain at 99 years from the Date of Application .

If the right of use or right of residence, which is created based on Land Law 2001, is registered according to provision of paragraph 3 of Article 120 of Land Law 2001 such provision shall govern the registration with the reference to provision of the same law even though Article 277 (Requirements for perfection of rights of use and rights of residence) of the Civil Code stipulates that it cannot be held up against third parties unless the holder of a right of use or right of residence actually uses his/her right, and even the holder of a right of use or right of residence does not use or profit as the matter of fact, this right can be asserted against third parties.

 

7. Mortgage

Nature of hypothec: A hypothee shall have the right to receive the performance of his/her claim prior to other obligee out of the immovable properties that the obligor or a third party provided to secure the obligation without transferring possession. A perpetual lease or usufruct may also be made the object of a hypothec.

Asserting hypothec: A hypothee may not assert the hypothec against a third party who is not the hypothecator unless the instrument creating a hypothec is notarized and registered in the land registry.

Scope of effect of hypothec: [The effect of] a hypothec shall extend to all things that are attached to and form part of the land comprising the object of the hypothec when the hypothec is created, including buildings residing thereon. It also extends to things that attach to the land after the hypothec is created.

Effect of hypothec on land over building owned by third party: Where based on a perpetual lease, usufruct or leasehold a third party owns a building on the land comprising the object of the hypothec [when the hypothec is created], [the effect of] the hypothec does not extend to the building.

Order of priority of hypothecs: Where multiple hypothecs have been created on an immovable in order to secure multiple debts, the order of their priority shall be based on the order of their registration.

 

8.Land Concessions

A land concession is a legal right established by a legal document issued under the discretion of the competent authority, given to any natural person or legal entity or group of persons to occupy a land and to exercise thereon the rights set forth by this law.

In Cambodia, there three types of concessions: Social Concessions, Economic Concessions and Use, Development or Exploitation Concessions. In case of Social Concessions, beneficiaries can build residential constructions and/or cultivate State lands for their subsistence. In Economic Concessions, the beneficiaries can clear land for industrial or agricultural exploitation. Use, Development or Exploitation Concessions include mining concessions, port concessions, airport concessions, industrial development concessions, fishing concessions but they are not regulated by the 2001 Land Law .For Use, Development or Exploitation Concessions, Law on Concession was promulgated on October 19, 2007.

Land concessions may only create rights for the time fixed by the concession contract and can never result from a de factor occupation of the land. The land concession must be based on a specific legal document, issued prior to the occupation of the land by such competent authority as the State or a public territorial collectives or a public institution that is the owner of the land on which the concession is being granted. The concession must be registered with the MLMUPC .

Land concession is revocable through government decision when its legal requirements are not complied with .Land concessions areas shall not be more than 10,000 hectares and the maximum duration is limited to .

 

9. Economic Land Concession (ELC)

Regulatory Framework for ELC“Sub-Decree (RGC) No. 146 ANK/BK on Economic Land Concessions (SD-ELC)” was issued on December 27, 2005 to determine the criteria, procedures, mechanisms and institutional arrangements for initiating and granting new economic land concessions, for monitoring the performance of all economic land concession contracts, and for reviewing economic land concessions entered into prior to the effective date of this sub decree for compliance with the Land Law of 2001.

 

Purposes for ELC

Economic land concessions may be granted to achieve the following purposes (SD-ELC Article 3)

- To develop intensive agricultural and industrial-agricultural activities that requires a high rate and appropriate level of initial capital investment.

- To achieve a specific set of agreements from the investor for developing the land in an appropriate and perpetual manner based on a land use plan for the area.

- To increase employment in rural areas within a framework of intensification and diversification of livelihood opportunities and within a framework of natural resource management based on appropriate ecological system,

- To encourage small as well as large investments in economic land concession projects, and

- To generate state revenues or the provincial or communal revenues through economic land use fees, taxation and related services charges.

 

Conditions for Granting ELC
           An economic land concession may be granted only on a land that meets all of the following five criteria (SD-ELC Article 4).

a.    The land has been registered and classified as state private land in accordance with the Sub decree on State Land Management and the Sub decree on Procedures for Establishing Cadastral Maps and Land Register or the Sub decree on Sporadic Registration.

b.   Land use plan for the land has been adopted by the Provincial-Municipal State Land Management Committee and the land use is consistent with the plan.

c.    Environmental and social impact assessments have been completed with respect to the land use and development plan for economic land concession projects.

d.   Land that has solutions for resettlement issues, in accordance with the existing legal framework and procedures. The Contracting Authority shall ensure that there will not be involuntary resettlement by lawful land holders and that access to private land shall be respected.

e.    Land for which there have been public consultations, with regard to economic land concession projects or proposals, with territorial authorities and residents of the locality.

Evaluating Economic Land Concession proposals shall be based on the following criteria (SD-ELC Article 5):

- Increase in agricultural and industrial-agricultural production by using modern technology;

- Creation of increasing employment;

- Promotion of living standards of the people;

- Perpetual environmental protection and natural resources management;

- Avoidance or minimizing of adverse social impacts;

- Any linkages and mutual support between social land concessions and economic land concessions;

- Processing of raw agricultural materials, to be specified in the concession contract.

 

 Mechanism for Administration and Implementation Of ELC

The economic land concession mechanism shall be the following (SD-ELC Article 28).

-     Contracting Authority

-     Technical Secretariat

-     Provincial/Municipal State Land Management Committee

-     District/Khan State Land Working Group

-     Commune-Sangkat Councils

           The Minister of Agriculture, Forestry and Fisheries is authorized and responsible for granting economic land concessions with a total investment value of more than 10,000,000 (ten million) Riels or more; or a total concession land area of 1,000 (one thousand) hectares or more. 

Mortgage and Transfer of Right over ELC“Sub-Decree #114 (RGC) ANKr.BK on the Mortgage and Transfer of the Rights over a Long -Term Lease or an Economic Land Concession” was issued on August 29, 2007 to determine principles and terms and conditions for granting rights to investors to put up as security and transfer of rights over a long-term lease or an economic land concession.
          Only immovable property registered in the Master Land Register can be subject of a concession
          The land concession shall be mentioned on the land title certificate at the MLMUPC and the MLMUPC shall issue a “Certificate of Economic Land Concession” .
          The concessionaire shall have the right to mortgage or transfer his/her right over the land concession as well as the buildings and/or other immovable properties that he/she has constructed on the land except as otherwise specified in the economic land concession agreement or as restricted by law.
          In all cases, the creditor cannot become owner and has no right to claim ownership of the immovable property rented by or conceded to his debtor who has used his right over the concession as security. The creditor shall not have the rights to claim the right to dispose of the immovable property possessed through a concession by his/her debtor
          The certificates of economic land concession shall clearly specify the category of immovable property, its size, location, the identity of the owner of the land, the identity of the concessionaire as well as the duration of the concession .

 

10.The Cadastral Committee

The Cadastral Committee was established under 2001 Land Law in order to settle the dispute over unregistered land and to recognize officially the legal ownership.

Article 47 of the 2001 Land Law stipulates the Cadastral Committee shall make decisions on disputes over an immovable property between possessors so that the Committee’s decision shall be deemed final. Ownership of immovable property shall be guaranteed by the State and, for this purpose, the Cadastral Administration under the supervision of the MLMUPC shall have the competence to identify properties, establish cadastral index maps, issue ownership titles, register lands and inform all persons as to the status of a parcel of land in relation to its nature, size, owner and any relevant encumbrances over such parcel (Land Law Article 226).

 

11.Limitations on Land Use

“Law on Land Use Planning, Urbanization and Construction” of 1994 regulates land use nationwide in Cambodia. In reality, this Law and various land use plans are very much general so that the investors must check carefully the actual zoning rules before they proceed with the investment projects.

 

Republic of Indonesia

 

According to Article 41 of Law Number 5 of 1960 on the Basic Principles of Land (“Land Law”), Right of Use means right to use and collect the production over State Land or land which is owned by private parties.

As stipulated in Article 42 of Land Law, Right of Use can be granted to:
* Indonesian citizens;
* foreigners domiciled in Indonesia;
* Indonesian companies established based on Indonesian law and domiciled in Indonesia; and
* foreign companies having its representative office in Indonesia.

Further, as stipulated in Government Regulation Number 40 of 1996 on Right of Cultivation, Right to Build, and Right of Use Over Land (“Government Regulation 40”), Right of Use can be granted over a land with land status of:
* state land;
* land under Right of Management (hak pengelolaan);
* land under Right of Ownership (hak milik).
          Property ownership by foreigners is specifically stipulated in Government