Abstract: The institution of superficies, originating from Roman law, is a significant property right that allows for the separation of ownership of structures on the land from the right to use the land itself. This article analyzes the core values of this institution in Roman law, including its establishment mechanisms, in rem protective measures (possessing the nature of real rights), and provisions for its termination. Based on this analysis, the article draws a comparison with the corresponding regulations in Vietnam's Civil Code 2015 and land law, highlighting limitations in the reception process such as the lack of a theoretical framework for real rights (iura in re), the absence of specific protective mechanisms, and the inconsistency among legal documents. Consequently, the article proposes specific recommendations to improve Vietnamese law on superficies, aiming to fully leverage the value of this institution in real estate transactions and infrastructure investment.
Keywords: Superficies, Roman Law, Civil Law
In the context of Viet Nam’s ongoing civil and land law reforms, completing the legal instruments to unlock real estate resources has become an urgent requirement. One of the important innovations recognized in the Civil Code 2015 is the legal institution of superficies. However, in practice, the application of this institution still faces many shortcomings and does not yet meet expectations in facilitating complex real estate transactions (such as project transfers and land-use rights leasing), implementing infrastructure investment projects, or ensuring transparency in the registration of property rights on Certificates of Land Use Rights and Ownership of Assets Attached to Land.
Against this practical backdrop, this article adopts an approach of “tracing back to the roots” in Roman Law - the origin of superficies, which features a well-structured and flexible legal framework. By analyzing the foundational values and operational mechanisms of superficies in Roman Law, the article systematically compares and evaluates the current provisions of Viet Nam’s legislation. From this, the study not only identifies gaps and limitations but also proposes fundamental solutions aimed at improving the legal framework, thereby making superficies a truly effective instrument for the development of Viet Nam’s real estate market and economy.
In Roman Law, superficies was a right that allowed a person to enjoy the right to construct and own a building on a piece of land belonging to another, usually in exchange for a periodic payment called solarium.[1] The most common case of superficies was the construction of buildings on land owned by someone else. The famous Roman jurist Gaius[2] defined in a passage of the Digest[3]: “The buildings called aedes superficiariae are those constructed on leased land, the ownership of which, according to both civil law and natural law, belongs to the landowner.” Similarly, the great orator and jurist Cicero[4] used a comparable term, superficies aedium (meaning buildings on the surface) to refer to such structures.[5] Essentially, it is a property right that can be inherited and transferred, allowing long-term enjoyment of a building on another person’s land.
This legal institution emerged from the practices of ancient Rome.[6] The state and cities often owned public land but did not build on it directly. Instead, they leased it to individuals for long-term or indefinite periods to construct shops and houses. Initially, this relationship was viewed merely as a lease contract; the lessee had no real right over the building itself but only a personal right against the landowner. This meant they were protected only against violations by the landowner, not by third parties.
Recognizing the vulnerability of lessees, Roman jurists intervened to provide them with better protection. Gradually, the rights of the lessee were “realized” through stronger legal instruments, transforming superficies from a mere contractual relationship into an independent property right enforceable against everyone.[7] This change aimed to safeguard the legitimate rights and interests of holders of superficies, specifically: “If a person leased land, they could sue under the lease contract; if they purchased the right to use, they could sue under the sale contract against the landowner. Should the landowner interfere with their interests, they could be sued for damages corresponding to the plaintiff’s loss. When their rights were infringed by a third party, the landowner would be required to compensate and transfer their right to sue to the affected party”.[8]
Furthermore, the most common basis for the emergence of superficies was through a contract with the landowner, specifically allowing another person to build on the land via donation, exchange, or long-term lease (Digest 43.18.1.1, Ulpianus libro 70 ad ed). In addition, superficies could also arise from a sale contract, where the landowner sells a building without transferring ownership of the land. The praetor could recognize this as a true superficies, because not all lessees were entitled to it if the period of use extended over time. Another way to establish superficies was through the landowner’s will (Digest 30.86.4, Iulianus libro 34 digestorum) or through a court judgment (adjudicatio in judicum divisorium). Whether long-term possession could establish ownership rights was still a debated issue concerning superficies (Digest 6.2.12.3, Paulus libro 19 ad edictum; Digest 41.3.26, Ulpianus libro 29 ad Sabinum).
The content of superficies in Roman Law reflects a delicate balance between the interests of the holder of superficies and the landowner. Rather than merely being a simple lessee, the holder of superficies was granted by law significant powers, almost equivalent to an owner with respect to the building, clearly reflecting the real property nature of this legal institution.
The rights of the holder of superficies could apply to the entirety or only a portion of it (e.g., an apartment[9]). The content of the right was set out in Roman Law as follows:
First, the holder of superficies enjoys comprehensive and independent rights of possession, use, and enjoyment of the building. The holder has the right to use the land surface for construction or exploitation according to agreements with the landowner. The building or structure on the land constructed by the holder of superficies could be used for residential purposes, business, or leasing (Digest 43.18.2, Gaius libro 25 ad ed. Provinc). This right allows the holder of superficies to maximize the economic value of the land while providing incentives for investment in infrastructure. For example, a holder of superficies could build rental houses on public land and earn profits from them, while the buildings still belong to the state. Similarly, during the Roman period, many holders of superficies constructed multi-story buildings on leased land to rent out to the populace. This not only generated profit for them but also addressed housing needs for urban residents, particularly in the context of population growth at that time.
Second, the holder of superficies has flexible rights to dispose of their superficies. Superficies was recognized as an intangible property, a valuable part of the holder’s estate. Therefore, they could freely exercise acts of disposition. They could transfer their superficies during their lifetime through transactions such as sale or gift (Digest 43.18.1.7, Ulpianus libro 70 ad ed). More importantly, this right did not terminate upon the death of the holder but could be inherited, either through a will or by law (Digest 43.18.1.7, Ulpianus libro 70 ad ed; Digest 33.39.5.1, Ulpianus, liber 21 ad Sabinum). The proprietary character of superficies was further demonstrated by its use as security for civil obligations. The jurist Ulpianus[10] affirmed that the holder of superficies had full rights to use the building and related servitudes, and could use their superficies as collateral or to establish new servitude rights (Digest 43.18.6-7, Ulpianus libro 70 ad edictum). Similarly, the jurist Paulus[11] emphasized that pledging superficies was an effective legal instrument to secure financial obligations, allowing creditors to foreclose on the superficies (rather than the land itself) to recover debts (Digest13.7.16.2, Paulus libro 29 ad edictum).
Third, the holder of superficies was comprehensively protected by law, allowing them to defend against any infringement, whether committed by the landowner or any third party. The holder of superficies could rely on legal remedies if their superficies was violated, including: Interdict for the protection of superficies, similar to the interdict for possession (Digest 43.1.1.pr.1, Ulpianus libro 67 ad ed); Action in rem, allowing the holder of superficies to seek protection of their rights against interference by the landowner or third parties (Digest 43.18.1.4 (Ulpianus, On the Edict, Book LXX)); Interdict against violence or unlawful dispossession, preventing others from illegally seizing the superficies (Digest 43.1.5.pr.1, Paulus libro 13 ad Sabinum).
Alongside these extensive powers, Roman law also imposed clear obligations on the holder of superficies to protect the legitimate interests of the landowner and to ensure the sustainability of the property. These obligations established a strict, balanced, and equitable legal framework.
The foremost obligation of the holder of superficies was a financial obligation. Where agreed between the parties, the holder of superficies was required to pay a periodical ground rent known as solarium (Digest 43.8.2.17, Ulpianus libro 68 ad ed; Codex Justinianus 11.59.1). This was considered the core obligation arising from the contractual nature of the superficies at its origin. Failure or delay in fulfilling this obligation could lead to serious legal consequences. According to several jurists, if the holder of superficies failed to pay the solarium for a certain period (for instance, two years), the landowner had the right to bring an action to terminate the superficies. In addition, the holder of superficies was responsible for all taxes and public burdens related to the structure, such as vectigal (tax) (Digest 18.5.9.pr, Scaevola libro quarto digestorum) and pensio (rent) (Digest 6.1.73.1, Ulpianus libro 17 ad edictum).
Second, the holder of superficies had to use the land surface in accordance with the agreed purpose. Any alteration of use - for example, converting a residential building into a commercial one without authorization - was regarded as a breach of contract and could give rise to legal sanctions.
Third, the holder had a duty to maintain and preserve the structure. The holder of superficies was not only entitled to the benefits derived from the building but also bore the responsibility to keep it in good condition. Jurist Gaius stated that if the structure was damaged or destroyed due to the negligence of the holder, that person was liable for repair or compensation for the resulting damage. This obligation ensured that the property’s value would not be diminished due to the negligence of the person directly using and exploiting it (Digest 43.18.2, Gaius libro 25 ad edictum provincial).
Finally, the holder of superficies was obliged to respect the rights of the landowner. Although enjoying powers almost equivalent to ownership over the structure, the holder of superficies was always required to recognize that such rights were exercised upon land belonging to another person. Accordingly, the exercise of the superficies must not prejudice the lawful rights and interests of the landowner. Ulpianus explicitly stated that the holder of superficies was not permitted to take any action that would interfere with the landowner’s rights of ownership or diminish the value of the land (Digest 43.18.2, Gaius libro 25 ad edictum provincial). Serious violations of these obligations - along with the expiration of the agreed term or the total destruction of the structure beyond recovery - constituted legal grounds for the termination of the superficies, restoring the property to its original state under the landowner’s control.
As previously noted in the discussion of the rights of the holder of superficies, it is evident that the Roman legal system provided a robust mechanism to protect such holders against external interference with the exercise of their rights. The evolution of superficies in Roman law serves as a classic example of the system’s flexibility and sophistication - transforming what was initially an obligatio (personal right) into a fully developed ius in re (real right). Accordingly, the mechanism for protecting superficies was established as follows:
Initially, the rights of the holder were protected solely within the contractual framework. In case of violation, the holder could only bring an action against the landowner based on the lease agreement - a mechanism that proved ineffective against interference from third parties. Recognizing this weakness, the Praetors introduced innovative measures to enhance the protection of holders of superficies.
The first major turning point was the issuance of a special interdict, namely the Interdictum de Superficiebus (Digest 43.1.1.pr.1, Ulpianus libro 67 ad edictum). This was a special procedural remedy that allowed the holder of superficies to demand the immediate cessation of any act of interference or disturbance with the use of their building - regardless of whether such interference originated from the landowner or from any third party. This measure effectively conferred upon superficies an initial opposable effect (erga omnes), directly protecting the holder’s possession without requiring the intervention of the landowner.
To address more decisively cases in which the holder of superficies was unlawfully dispossessed of the structure, the Roman Praetors devised a powerful legal instrument - the “useful real action” (actio in rem utilis) (Digest 43.18.1.4 (Ulpianus, On the Edict, Book LXX)). The creation of this "actio in rem utilis" was not merely a technical innovation, but a reflection of the Praetors’ pragmatic and flexible legal reasoning. Rather than being constrained by rigid procedural formalism, they prioritized the effective protection of legitimate interests. This illustrates a core value that contemporary Vietnamese law could meaningfully adopt: the law should not stop at defining rights; it must also provide effective mechanisms for their realization.
In addition, the right of superficies may be terminated in the same manner as any other real right. Accordingly, the destruction of the land, the merger of property (confusio), etc.; as well as relinquishment or surrender, invalidation due to breach, and expiration by prescription, appear to be common methods. However, there is controversy over whether the landowner may revoke this right if the holder of the superficies fails to pay land rent for two years (Digest 19.2.54, Paulus libro 5 responsorum).
It can be observed that Roman law established a legal institution of superficies that was not only commercially flexible but also firmly protected by property-based mechanisms. This comprehensive model is not merely a historical legacy but also a classical frame of reference. From this perspective, when compared with the current legal system of Viet Nam, one can fully assess both the progress that has been made and the existing legal gaps that remain to be filled.
The promulgation of the Civil Code 2015 marked a significant milestone, as it officially codified the legal institution of superficies (Articles 267–273), recognizing it as one of the “other rights over property.” This development laid the legal foundation for distinguishing between rights over space (above and below the ground) and land use rights - a concept long established in Roman law.
Article 268 of the Civil Code 2015 provides that: “The right of superficies shall be established by agreement, by will, or in accordance with other provisions of law”. This provision establishes three fundamental legal mechanisms through which the right of superficies may arise in civil transactions, reflecting a selective reception of classical principles of private law.
First, regarding the contractual mechanism. This is the most common and significant basis for the establishment of the right of superficies, reflecting the principles of freedom of will and freedom of contract. This mechanism allows the parties (land users and investors) to proactively structure their respective rights and obligations in order to optimize economic benefits. However, the generality of this provision also gives rise to several legal uncertainties. Current legislation does not specify the required form of an agreement establishing the right of superficies (for instance, whether it must be executed in writing and notarized or certified). Although Article 269 of the Civil Code 2015 requires registration for the right to be effective erga omnes (i.e. enforceable against third parties), the validity and binding effect of the original agreement between the parties prior to registration remain unclear, which may lead to disputes.
Second, regarding the testamentary mechanism. Allowing the right of superficies to be established by will introduces a flexible instrument for property disposition. It enables the testator to separate land use rights from rights to exploit space above or below the surface, thereby allocating them to different heirs. This serves as an effective tool for estate planning, particularly in cases involving complex or composite assets.
Third, regarding “other provisions of law". This is an open, residual clause that permits specialized laws to establish the right of superficies in specific circumstances in the future (for example, through decisions of competent state authorities in urban development or public infrastructure projects). While this approach enhances the flexibility of the legal system, the current absence of detailed regulations renders this legal basis largely inapplicable in practice.
Overall, the legal bases for the establishment of the right of superficies as provided in Article 268 of the Civil Code 2015 are reasonable and consistent with international practice. However, the success of this legal institution depends not only on how the right is established but also on its substantive content and the mechanisms ensuring its protection once established. In practice, Viet Nam’s ongoing urban development has given rise to complex challenges - such as the construction and utilization of underground spaces for parking lots beneath public parks, elevated commercial complexes spanning traffic routes, and metro infrastructure projects. The absence of a clear legal framework governing the right of superficies has created significant barriers, causing uncertainty for both investors and regulatory authorities in the processes of licensing, registration, and transaction of these types of assets.
Although the inclusion of the relevant provisions in the Civil Code 2015 represents a notable legal advancement and lays the groundwork for the application of the right of superficies, these are merely the initial outlines of a more comprehensive legal framework. A closer examination - especially when compared with the well-developed structure of Roman law - reveals that the reception of this institution in Viet Nam remains limited by inherent shortcomings, preventing it from realizing its full potential in practice.
First, regarding the content of the right: Article 271 of the Civil Code 2015 provides a relatively comprehensive framework for the right of superficies, encompassing the right to exploit and use space, the ownership of assets created on the surface, and the powers of disposition such as transfer, lease, inheritance, and mortgage.
This provision forms the core of the legal institution, officially codifying the legal separation between ownership of the construction and land use rights. The recognition that the holder of a superficies right has ownership over assets they create represents a groundbreaking development, resolving a long-standing obstacle arising from the traditional principle superficies solo cedit (“what is built upon the land belongs to the landowner”). Moreover, the attribution of full proprietary characteristics to the right of superficies - including its transferability - transforms it from a mere entitlement into a tradable asset in civil circulation, capable of serving as collateral for credit transactions. This constitutes a crucial legal foundation for mobilizing capital in large-scale infrastructure investment projects.
Second, regarding the protection mechanism: this is the most critical shortcoming in the current legal structure of the right of superficies in Viet Nam. The Civil Code 2015 does not establish any specialized procedural mechanism to safeguard this right. Consequently, when the right of superficies is infringed upon, the right-holder can only rely on the general protective remedies under Section 2, Chapter X of the Civil Code 2015 - most typically, the right to reclaim property under Article 166.
The application of general protective mechanisms is neither sufficient nor effective. First, there is a mismatch in the protected object. The right to reclaim property (Article 166 of the Civil Code 2015) was primarily designed to safeguard ownership over tangible property that has been unlawfully possessed. Meanwhile, infringements upon the right of superficies do not necessarily take the form of unlawful appropriation of a construction. They may be far more sophisticated - for instance, obstructing construction activities, restricting access, or conducting operations on adjacent land that undermine the stability of underground or aerial spaces. For such infringements, an action for the recovery of property is clearly not an appropriate remedy. Second, there is a lack of procedural efficiency. Ordinary civil litigation is often time-consuming and costly, failing to meet the urgent protection needs inherent in investment and construction activities. In stark contrast, Roman law offered an expedited and specialized mechanism - namely, the Interdictum de superficiebus, a summary injunction issued by the Praetor to immediately halt any interference. Vietnamese law, however, lacks any comparable instrument. Delays in resolving such disputes can lead to massive economic losses, project suspension, and even insolvency.
The absence of a specialized and effective protection mechanism has substantially undermined the value and legal certainty of the right of superficies, rendering it a high-risk proprietary right in the eyes of investors and financial institutions.
Article 272 of the Civil Code 2015 enumerates the grounds for termination of the right of superficies, including: expiration of the term; unification of the holder of the right and the land user in one person; renunciation of the right by the holder; or revocation of the land use right to which the right of superficies is attached under the Land Law.
These grounds are, in principle, logical and broadly cover common circumstances. However, Article 272 reveals a particularly serious legal gap: the law’s silence on the legal consequences where the construction on the surface is destroyed or demolished while the term of the right of superficies remains in force.
This silence gives rise to a high degree of legal uncertainty. From the perspective of the land user, it can be argued that the physical object to which the right of superficies was attached (the construction) no longer exists; therefore, the right of superficies should automatically terminate. This reasoning is based on the general principle that a right to a thing ceases when the thing itself is destroyed. Conversely, from the perspective of the investor (the holder of the right of superficies), it can be argued that the object of the right is not the specific construction, but rather the right to exploit the space above or below the land within a certain period. Hence, the destruction of the construction does not extinguish the right to exploit that space, and the holder should be entitled to rebuild the structure.[12]
The consequences of this legal uncertainty are profound. It creates destructive risks for long-term investment projects. No investor or credit institution would be willing to pour capital into a 50-year project if the entire investment could be wiped out by a force majeure event (such as fire or natural disaster) and there is no clear legal entitlement to rebuild. This gap stands in stark contrast to developed legal systems (such as the German Erbbaurechtsgesetz – Law on Heritable Building Rights), where the law explicitly provides that the right of superficies does not terminate upon destruction of the construction, and the holder retains the right to reconstruct. This constitutes a fundamental weakness that must be urgently remedied for the legal institution of superficies to operate effectively in practice.
Several factors, including historical, legal, economic, and perceptual, have contributed to the limited reception of the right of superficies in Vietnam.
First, the influence of the socialist legal system, exemplified by the regime of state ownership of land.[13] For a long period, Vietnam’s legal system was heavily influenced by the Soviet model, where state ownership of land was emphasized, and private rights over land (including complex rights such as the right of superficies) were neither encouraged nor developed. Land-related thinking primarily focused on the “land use right” as a unified right granted or leased by the State. This fundamental difference not only creates technical challenges in applying the right of superficies but also reveals a clash in legal thinking. While Roman law built the right of superficies on the foundation of private land ownership, creating a “limited real right” over a “full ownership right,” Vietnam attempts to establish a limited real right on top of a “land use right” that is already a constrained right. This renders the property nature of the right of superficies less distinct and more dependent on administrative relations with the State.
Second, legislative mindset factors. Lawmakers appear to have adopted a cautious approach, prioritizing simplicity in the initial stage. The formal introduction of the legal institution of superficies - a complex concept inherited from the civil law tradition - into the Civil Code 2015 was itself a groundbreaking step. Faced with a new concept, legislators may have chosen to present only the core provisions initially, allowing the legal system and society time to absorb and familiarize themselves, while leaving detailed technical issues for later refinement, once preliminary practical experience had been gained.
Third, there is a lack of a clear theoretical framework for real rights. Although the Civil Code 2015 possesses a structure and content that are clearer and more logical than those of the Civil Codes 1995 and 2005, fundamentally transforming its appearance, the influence of the doctrine distinguishing real rights from obligations is reflected in the logical and theoretically generalized structure of the Civil Code 2015. This also provides the basis for explaining the rationality and greater structural alignment of Part Two of the Civil Code 2015 with certain modern civil codes globally[14]. However, the Civil Code 2015 only defines superficies as an “other property right” without establishing a comprehensive theoretical system of real rights with specific principles such as the right of pursuit or the right of priority. This renders the real rights nature of superficies unclear and difficult to apply consistently.
Nevertheless, this “step-by-step” approach has inadvertently created an incomplete legal institution, lacking vitality in practice. A property right, even if recognized by law, will have its value substantially limited if it lacks a specific and effective protection mechanism, as well as a clear registration and transaction procedure. The silence of the law on important issues, such as the consequences when the constructed object is destroyed or the procedural framework for resolving disputes, creates a highly uncertain legal environment and high risks for investors. Consequently, instead of becoming a dynamic legal instrument that promotes complex investment projects, the legal institution of superficies in Viet Nam remains largely theoretical. This not only diminishes the practical value of the legislative reform itself but also shifts the burden of interpreting and filling legal “gaps” onto adjudicatory bodies, creating a risk of inconsistent application of the law.
From the analysis of the core limitations regarding the theoretical framework, enforcement mechanisms, and the lack of coherence in Vietnamese law, it is evident that the need to improve the legal framework is extremely urgent. For superficies to not merely exist on paper but to genuinely become an effective legal instrument, as exemplified by Roman Law, comprehensive, specific, and feasible solutions are required, structured around three main directions: perfecting the theoretical foundation, strengthening enforcement mechanisms, and ensuring coherence in application.
The theory of real rights is not a novel concept in global legal scholarship but has deep roots in Roman Law. In the sixth century, the Corpus Juris Civilis promulgated under Emperor Justinian was structured based on the fundamental distinction between real rights (rights in rem) and personal rights (rights in personam).[15] Many countries following the Continental European (Civil Law) tradition have continued to use and develop this concept in their modern Civil Codes; for instance, the German Civil Code provides general provisions on real rights in Part One and on personal rights in Part Two[16].
In Viet Nam, although the Civil Code 2015 was designed based on the theories of real rights and personal rights, it does not employ this legal terminology directly; nevertheless, its influence remains quite evident. Previously, under the framework of the earlier Civil Codes, security for the performance of obligations was primarily regarded as a personal obligation relationship. However, practical application of the law has shown that security measures also possess characteristics of real rights.[17] The Vietnamese lawmakers’ gradual “incorporation” of the theory of real rights, particularly in the field of secured transactions, has contributed to a clearer and more systematic distinction of security measures.[18]
Therefore, the first step in establishing a comprehensive legal framework on superficies is to institutionalize the theory of real rights in order to provide a solid foundation for superficies. At present, the Civil Code 2015 lacks a unified theoretical framework, resulting in the obscurity of the essence of superficies and difficulties in applying specific principles of real rights. Hence, the core recommendation is to establish a separate chapter on “Real Rights” in the Civil Code. This chapter should clearly define the concept of real rights as “the rights of a subject exercised directly and immediately over an asset, effective against all persons,” while also codifying core principles such as absoluteness, the right of pursuit, and priority rights. This would formally recognize superficies as a limited real right, creating a common “rule of the game” and enhancing predictability and legal certainty across the entire property transaction system. Essentially, real rights are a concept of Latin law, used to denote rights that can be exercised directly and immediately over a thing.[19] A real rights relationship is primarily formed from two elements: the subject of the right (human) and the object of the right (thing), and it “operates without the involvement of another subject, particularly without the cooperation or assistance of another subject.”[20] This creates a fundamental distinction from personal rights, which are established between two subjects and can only be effectively exercised on the basis of active cooperation between them.[21]
Next, it is necessary to strengthen the mechanism for the protection and enforcement of superficies in a specific and effective manner. Existing protective measures remain general and lack sufficient responsiveness. Therefore, it is necessary to supplement specific provisions on protective measures. First, a clause should be added to the Civil Code providing for the “analogous application” of protective measures for ownership to superficies (similar to the German legal model), thereby establishing a solid legal basis for actions to reclaim property or request the cessation of obstructive acts.
Specifically, legislators may amend the Code as follows: Insert a provision into the Civil Code, for example, in Article 273, stating: “The provisions on the protection of ownership in Articles 163 to 170 of this Code shall also be analogously applied to protect superficies and other rights in rem.” This creates a direct legal basis for filing actions to reclaim property or request the cessation of obstruction, in a manner similar to the German legal model (Article 1065 BGB). Alternatively, Article 272 of the Civil Code may be amended in this direction: Amend Article 272 (Termination of Superficies) by adding a new paragraph: “3. The destruction of property in the form of constructions on land, water, or underground shall not terminate the superficies, except where the parties have agreed otherwise. The holder of the superficies shall have the right to reconstruct the property within the scope and duration of the right.” This provision, inspired by Article 13 of the German Long-Term Building Rights Act (ErbbauRG), would eliminate the greatest legal risk and maximally protect the rights of investors.
More importantly, a chapter on “Provisional Emergency Measures for the Protection of Other Rights in Rem” should be added to the Civil Procedure Code. Under this chapter, competent courts would be authorized to issue decisions applying provisional emergency measures within 48 hours from the receipt of the petition, compelling the violator to cease obstructive acts (similar to the Interdictum in Roman law) without waiting for the commencement of a trial.
In addition, it is necessary to ensure consistency and clarity in the application of law. The lack of connection between the Civil Code and the Land Law remains the greatest barrier. “On-paper assets” are assets considered as “nominally existing but lacking reality” (i.e., reflected only in name on official documents but in fact lacking the characteristics of a tangible asset). The process by which the registration transforms superficies into a tangible asset must be clarified.
It can be observed that the lack of consistency between the Civil Code and the Land Law, as well as the absence of detailed guiding documents, creates significant difficulties in the practical registration and transaction of superficies. Therefore, an urgent recommendation is to issue an inter-ministerial guiding document on the registration of superficies. The Ministry of Agriculture and Environment, together with the Ministry of Justice, should provide detailed regulations regarding the procedures, dossiers, and methods for recording superficies as an independent asset on the Certificate of Land Use Rights, Ownership of Housing, and Other Assets Attached to Land. Specifically, the registration procedure should clearly specify the process and required documents for the establishment, modification, and termination of superficies at the Land Registration Office. The method of recording on the Certificate should include a separate section dedicated to “Superficies,” containing information such as: the holder, scope (area, depth/height), duration, and any restrictions (if applicable). Why must this be detailed through an inter-ministerial circular? Because this issue lies at the intersection of two legal domains managed by different ministries. The Civil Code (under the Ministry of Justice) regulates the substance of rights, while the Land Law (under the Ministry of Agriculture and Environment) regulates administrative procedures related to land and assets attached to land. If only one ministry issues a document, it will not provide sufficient legal basis and cannot ensure consistency. An inter-ministerial circular is the most appropriate legal instrument to “bridge” these two systems. This measure will enable superficies to become a legally “tangible” asset. These elements allow superficies to be recognized as a “tangible” asset that can be safely transacted, consistent with the nature of rights in rem. This is crucial, as currently a bank cannot safely accept a superficies right as collateral because it is not reflected on the Certificate.
The guiding document should specify clearly, for example, that on page 3 or page 4 of the Certificate, an additional section “Other Registered Rights in Rem” shall be added, containing: “Superficies: (a) Right-holder: ABC Company; (b) Scope: the entire underground space from -10m to -25m below ground level; (c) Duration: until 31/12/2070; (d) Source: Contract with the land user No....”. Only in this manner can the superficies right truly become a tradable asset. Furthermore, when issued, the inter-ministerial circular should provide guidance on handling conflicts between rights. For example, if a superficies right (to construct an underground parking lot) has been registered, would the land user later be permitted to register an easement right (for placing underground pipelines) within the same space? The principle of “first registration prevails” needs to be explicitly clarified.
In addition, the central role of agreement in establishing and exercising superficies rights must be clarified and affirmed. The Civil Code provides only framework provisions. Each project involving a superficies right has its own specific characteristics. An underground parking project has entirely different requirements from an above-ground shopping center or a cable car line. Granting maximum freedom of contract to the parties (inheriting the Roman law principle of legibus) is the most effective way for the law to adapt to the diversity of practical situations. Accordingly, it is necessary to supplement the legal provisions providing detailed guidance on Article 268 of the Civil Code, emphasizing the principle of contractual freedom. Following the flexible spirit of the “according to law” basis in Roman law, these legal provisions should affirm that parties have full discretion to agree on detailed contents that do not violate the law, such as methods of fulfilling financial obligations (solarium), allocation of responsibilities for maintenance of works, or conditions for early termination of the right. Legal recognition and maximal protection of contractual freedom will allow parties to “tailor” the superficies right to the specific needs of each project, thereby minimizing dispute risks and creating a flexible legal environment attractive to investors. Finally, to eliminate the greatest legal risk for investors, Article 272 of the Civil Code should be amended to confirm that the destruction of a construction does not terminate the superficies right, and that the right-holder is entitled to reconstruct the work.
It can be seen that the synchronized implementation of the above solutions will not only address the current limitations but also create a solid, transparent, and effective legal framework, enabling the institution of superficies to be fully operational and to contribute positively to the socio-economic development of Viet Nam.
The institution of superficies under Roman Law is a valuable legal heritage with timeless significance, serving as a flexible legal mechanism that ensures the separation between ownership of constructions and land use rights, while also providing effective property-based protection tools. Comparisons with its reception in Germany and France demonstrate that the establishment of a comprehensive and coherent theoretical framework for property rights, coupled with a specialized protection mechanism, is decisive for superficies to become an effective instrument in practice. In Viet Nam, although the Civil Code 2015 marked a milestone by codifying this institution, limitations in the theoretical framework, protection mechanisms, lack of harmonization with land law, and ambiguities regarding termination of rights have prevented superficies from realizing its full potential. To address these issues, it is necessary to further develop property law theory within Viet Nam’s civil law, establish specific protection mechanisms, ensure compatibility with land legislation, and introduce clear provisions on termination of rights. Only then can superficies truly become a dynamic legal tool, facilitating the mobilization of land resources, promoting real estate transactions, and providing a solid foundation for sustainable socio-economic development.
REFERENCES
1. French Civil Code 1804.
2. German Civil Code 1896 (Bürgerliches Gesetzbuch - BGB).
3. Constitution of the Socialist Republic of Viet Nam 2013.
4. German Law on Heritable Building Rights 1919 (ErbbauRG).
5.Civil Code 2015, Law No. 91/2015/QH13.
6.Land Law 2024, Law No. 31/2024/QH15.
7. Cicero. Ad Atticum (Shackleton Bailey, D. R. (Trans.). (1999). Cicero: Letters to Atticus. Harvard University Press).
8. Gaius. (around 161 SCN). Institutes. (De Zulueta, F. (Trans.). (1946). The Institutes of Gaius. Oxford University Press).
9. Justinian I. (533 SCN). The Digest of Justinian. (Mommsen, T, Krueger, P, & Watson, A. (Eds. & Trans.). (1985). The Digest of Justinian. University of Pennsylvania Press).
10. Ho Quang Huy, “Security Rights – Theoretical Issues Arising in the Process of Civil Law Reform in Viet Nam” (2011), Research & Exchange, Electronic Portal of the Ministry of Justice, accessed at [https://www.moj.gov.vn/qt/tintuc/Pages/nghien-cuu-trao-doi.aspx?ItemID=1472.]
11.Le Dang Khoa, Concept of Real Rights and Regulations on Real Rights in Vietnamese Civil Law (2017), Democracy and Law Journal. [https://danchuphapluat.vn/khai-niem-vat-quyen-va-quy-dinh-ve-vat-quyen-trong-phap-luat-dan-su-viet-nam.html.]
12. Ngo Thu Trang, “Rights in Property – Assessing the Degree of Access to Real Rights Theory and Arising Issues” (2018), Research & Exchange, Electronic Portal of the Ministry of Justice, accessed at [https://moj.gov.vn/qt/tintuc/Pages/nghien-cuu-trao-doi.aspx?ItemID=2333.]
13. Ngo Thu Trang, Theory of Security Real Rights and Issues in Completing Vietnamese Law (2018), Electronic Portal of the Ministry of Justice, accessed from [https://www.moj.gov.vn/qt/tintuc/Pages/nghien-cuu-trao-doi.aspx?ItemID=2326.]
14. Nguyen Ngoc Dien, “Benefits of Establishing the Institution of Real Rights for Completing the Legal System on Property” (2011), Civil Law Legal Information, accessed at [https://phapluatdansu.edu.vn/2011/02/11/13/58/l%E1%BB%A3i-ch-c%E1%BB%A7a-vi%E1%BB%87c-xy-d%E1%BB%B1ng-ch%E1%BA%BF-d%E1%BB%8Bnh-v%E1%BA%ADt-quy%E1%BB%81n-d%E1%BB%91i-v%E1%BB%9Bi-vi%E1%BB%87c-hon-thi%E1%BB%87n-h%E1%BB%87-th/.]
15. Niegolewski, V. M. Commentatio “De Iure Superficiario”. Typis Krügerianis (1845).
16. Smith, W. A Dictionary of Greek and Roman Antiquities. John Murray, (1875) accessed from [https://penelope.uchicago.edu/Thayer/E/Roman/Texts/secondary/SMIGRA*/Superficies.html.]
17. Smith, W., Wayte, W., & Marindin, G. E. (Eds.). (1890). A Dictionary of Greek and Roman Antiquities. accessed from [https://www.perseus.tufts.edu/hopper/text?doc=Perseus:text:1999.04.0063:entry=superficies-cn.]
18. Terré, F & Théry, P. (1992). Droit civil - Les biens. Dalloz.
19. Vu Thi Ngoc Dung, Completing the Legal Regulations on Superficies Rights. Democracy and Law Journal, (2022), accessed from [https://danchuphapluat.vn/hoan-thien-quy-dinh-phap-luat-ve-quyen-be-mt.html].
* Ho Chi Minh City University of Law, email: btram.lh.hs47b2@gmail.com, Phone: 0779439618, approval date 28/10/2025
** Ho Chi Minh City University of Law,, email: huyn23703@gmail.com, Phone: 0357436082
[1] William Smith, A Dictionary of Greek and Roman Antiquities, John Murray, London, (1875) https://penelope.uchicago.edu/Thayer/E/Roman/Texts/secondary/SMIGRA*/Superficies.html. Accessed date 14/2/2025.
[2] Gaius (c. 130–180 CE), a highly influential Roman jurist. His works, especially the legal textbook "Institutes", are among the most important sources for studying classical Roman law.
[3] Digest (Latin: Digesta or Pandectae in Greek), a vast compilation of excerpts from the works of classical Roman jurists, compiled and promulgated in 533 CE under the order of Eastern Roman Emperor Justinian I. It forms the largest and most important part of the Corpus Juris Civilis (Body of Civil Law).
[4] Marcus Tullius Cicero (106–43 BCE), a Roman politician, lawyer, scholar, and orator. His writings provide valuable insights into Roman legal and social life.
[5] Cicero, Epistulae ad Atticum, 4.2. [https://anastrophe.uchicago.edu/cgi-bin/perseus/citequery3.pl?dbname=LatinAugust21&getid=1&query=Cic.%20Att.%204.2.] Accessed 14/2/2025
[6] The prevalence of superficies rights in Rome is often attributed to the development of multiple Roman cities, such as Roma (Rome), Mediolanum (Milan), Nikomedeia (Izmit), Constantinopolis (Istanbul), Ravenna, Pompeii, and Herculaneum. As a general principle, the state refused to transfer land ownership to individuals but did not oppose allowing them to build on public land (locus publicus). A notable example is the allocation of the Aventine Hill to the plebs according to Lex Icilia de Aventino (456 BCE) (Livius, III, 31).
[7] That is, in cases where the holder of a superficies right is granted land by the landowner for an indefinite period or a long term, they may exercise the rights permitted by law over the surface of the land granted.
[8] Digest 43.18.1.1 (Ulpianus, On the Edict, Book LXX).
[9] Digest 43.17.3.7, Ulpianus libro 69 ad edictum.
[10] Domitius Ulpianus (khoảng 170–223 SCN), an eminent Roman jurist whose works constitute about one-third of the Digest.
[11] Julius Paulus Prudentissimus (late 2nd–early 3rd century CE), one of the most influential Roman jurists, alongside Ulpianus.
[12] Vladislaus Mauricius Niegolewski (1845), ibid., p. 64.
[13] Article 53 of the Constitution of the Socialist Republic of Viet Nam 2013; Article 12 of the Law on Land 2024; Article 197 of the Civil Code 2015.
[14] Ngo Thu Trang, “Rights in Property – Assessing the Degree of Access to Real Rights Theory and Arising Issues” (2018), Research & Exchange, Electronic Portal of the Ministry of Justice. Accessed at [https://moj.gov.vn/qt/tintuc/Pages/nghien-cuu-trao-doi.aspx?ItemID=2333.] (Accessed 20/5/2025).
[15] Ngo Thu Trang, “Theory of Security Real Rights and Issues in Completing Vietnamese Law” (2018), Research & Exchange, Electronic Portal of the Ministry of Justice. Accessed at [https://www.moj.gov.vn/qt/tintuc/Pages/nghien-cuu-trao-doi.aspx?ItemID=2326.] (Accessed 20/5/2025).
[16] German Civil Code 1896.
[17] Ho Quang Huy, “Security Rights – Theoretical Issues Arising in the Process of Civil Law Reform in Viet Nam” (2011), Research & Exchange, Electronic Portal of the Ministry of Justice. Accessed at [https://www.moj.gov.vn/qt/tintuc/Pages/nghien-cuu-trao-doi.aspx?ItemID=1472.] (Accessed 20/5/2025).
[18] Ngo Thu Trang, “Theory of Security Real Rights and Issues in Completing Vietnamese Law” (2018), Research & Exchange, Electronic Portal of the Ministry of Justice. Accessed at [https://www.moj.gov.vn/qt/tintuc/Pages/nghien-cuu-trao-doi.aspx?ItemID=2326.] (Accessed 20/5/2025).
[19] F. Terré & Ph. Théry, Civil Law – Property, Dalloz, Paris, 1992, p. 30. Cited in Ngo Thu Trang, “Theory of Security Real Rights and Issues in Completing Vietnamese Law” (2018), Research & Exchange, Electronic Portal of the Ministry of Justice. Accessed at [https://www.moj.gov.vn/qt/tintuc/Pages/nghien-cuu-trao-doi.aspx?ItemID=2326.] (Accessed 20/5/2025).
[20] Ngo Thu Trang, “Theory of Security Real Rights and Issues in Completing Vietnamese Law” (2018), Research & Exchange, Electronic Portal of the Ministry of Justice. Accessed at [https://www.moj.gov.vn/qt/tintuc/Pages/nghien-cuu-trao-doi.aspx?ItemID=2326.] (Accessed 20/5/2025).
[21] Nguyen Ngoc Dien, “Benefits of Establishing the Institution of Real Rights for Completing the Legal System on Property” (2011), Civil Law Legal Information. Accessed at,[https://phapluatdansu.edu.vn/2011/02/11/13/58/l%E1%BB%A3i-ch-c%E1%BB%A7a-vi%E1%BB%87c-xy-d%E1%BB%B1ng-ch%E1%BA%BF-d%E1%BB%8Bnh-v%E1%BA%ADt-quy%E1%BB%81n-d%E1%BB%91i-v%E1%BB%9Bi-vi%E1%BB%87c-hon-thi%E1%BB%87n-h%E1%BB%87-th/.] (Truy cập ngày 20/5/2025).
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