Conditions for Transferring Land Use Rights: Is it Permissible to Authorize Another Person to Sign the Transfer Contract?
What are the conditions for transferring land use rights?
According to the provisions of Clause 1 Article 188 of the 2013 Land Law regarding the conditions for exercising the rights to exchange, transfer, lease, sublease, inherit, give as a gift, mortgage land use rights; and contribute land use rights as capital, the land user may transfer land use rights when the following conditions are met:
- Having a Certificate, except for the cases specified in Clause 3 Article 186 of the 2013 Land Law and the case of inheritance specified in Clause 1 Article 168 of the 2013 Land Law;
- The land is not in dispute;
- The land use rights are not seized to ensure the enforcement of judgments;
- Within the land use term.
In addition to the above conditions, when exercising the right to transfer land use rights, the land user must also meet the conditions prescribed by the 2013 Land Law.
The transfer of land use rights must be registered at the land registration office and is effective from the time of registration in the cadastral book.
What are the conditions for transferring land use rights? Can one authorize another person to sign the land use rights transfer contract?
Can one authorize another person to sign the land use rights transfer contract?
According to Clause 1 Article 64 of Decree 43/2014/ND-CP, the regulation is as follows:
Contracts and transaction documents regarding land use rights and ownership of property attached to the land of a household must be signed by the person named on the Certificate or the person authorized according to civil law regulations.
Additionally, according to Article 562 of the 2015 Civil Code regarding authorization contracts, it is regulated as follows:
Authorization contract
An authorization contract is an agreement between parties whereby the authorized party is obliged to perform work on behalf of the authorizing party, and the authorizing party must pay remuneration if agreed upon or required by law.
An authorization contract is an agreement between parties whereby the authorized party is obliged to perform work on behalf of the authorizing party, and the authorizing party must pay remuneration if agreed upon or required by law.
The sale of land through an authorization contract means that a person acts on behalf of the land user to transfer the land. The scope of authorization is regulated according to the agreement content in the authorization contract.
According to Clause 1 Article 64 of Decree 43/2014/ND-CP regarding contracts and transaction documents concerning land use rights and ownership of property attached to the land, it is regulated as follows:
Contracts and transaction documents regarding land use rights and ownership of property attached to land
1. Contracts and transaction documents regarding land use rights and ownership of property attached to land of a household must be signed by the person named on the Certificate or the person authorized according to civil law regulations.
2. Contracts and transaction documents regarding land use rights and ownership of property attached to land of a group of land users or a group of property owners attached to land must be signed by all members of the group or have a written authorization according to civil law regulations, except in cases where apartment owners together use a common parcel within an apartment building.
The person named on the Certificate or the person authorized according to civil law regulations may sign contracts and transaction documents regarding land use rights and ownership of property attached to land when written consent from all household members using the land has been obtained, and said written consent has been notarized or authenticated as prescribed by law.
Does a land use rights transfer contract need to be notarized?
According to Article 167 of the 2013 Land Law, the provision is as follows:
The right to exchange, transfer, lease, sublease, inherit, give as a gift, mortgage, contribute capital with land use rights
1. Land users may exercise the rights to exchange, transfer, lease, sublease, inherit, give as a gift, mortgage, and contribute capital with land use rights according to the provisions of this Law.
2. A group of land users sharing land use rights must have the following rights and obligations:
a) A group of land users consisting of households or individuals shall have the rights and obligations as households or individuals prescribed by this Law.
In case the group of land users includes economic organizations, they shall have the rights and obligations as economic organizations prescribed by this Law;
b) In the case where the land use rights of a group of land users can be divided among the members of the group, if each member of the group wishes to exercise their rights over their share of the land use rights, they must follow the procedures for land parcel separation as prescribed, apply for a Certificate of land use rights, ownership of houses and other properties attached to the land, and shall have the rights and obligations of land users as prescribed by this Law.
In the case where the land use rights of a group of land users cannot be divided, they shall authorize a representative to exercise the rights and obligations of the group of land users.
3. The notarization and authentication of contracts and transaction documents concerning the rights of land users shall be carried out as follows:
a) Contracts for the transfer, donation, mortgage, and contribution of capital with land use rights; land use rights and properties attached to the land must be notarized or authenticated, except in the case of real estate business as prescribed in point b of this clause;
b) Contracts for the lease, sublease of land use rights; land use rights and properties attached to the land, contracts for the exchange of agricultural land use rights; and contracts for the transfer of land use rights, land use rights and properties attached to the land, and properties attached to the land where one or both parties are real estate enterprises shall be notarized or authenticated at the request of the parties involved;
c) Documents on the inheritance of land use rights, land use rights and properties attached to the land shall be notarized or authenticated according to civil law regulations;
d) The notarization shall be carried out at notary practice organizations, and the authentication shall be carried out at the commune-level People's Committee.
A land use rights transfer contract, if one or both parties are real estate business organizations, is not required to be notarized or authenticated.
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