In what form is the contract on transfer of land use rights in Vietnam made? Instructions on the supervision of the settlement of a land purchase and sale case by handwritten paper?
In what form is the contract on transfer of land use rights in Vietnam made?
Pursuant to Article 502 of the 2015 Civil Code of Vietnam stipulating as follows:
Forms and procedures for performing contract of land use rights
1. Contracts relating to land use rights must be made in writing in the form consistent with the provisions of this Code, the law on land and other provisions of relevant laws.
2. The performance of the contract for the land use rights must follow the procedures prescribed by the law of the land and other provisions of relevant laws.
At the same time, Clause 3, Article 167 of the 2013 Land Law of Vietnam also stipulates as follows:
The right to exchange, transfer, lease, sublease, inherit, donate, mortgage land use rights and contribute land use rights as capital
…
3. The notarization and certification of contracts and documents on the exercise of the rights of land users shall be conducted as follows:
a/ Contracts on transfer, donation, mortgage or contribution of land use rights as capital or the rights to use land and land-attached assets must be notarized or certified, except the case of real estate business prescribed at Point b of this Clause;
Thus, the contract on transfer of land use rights must be made in writing.
In case a contract is signed by only two parties and is not notarized, the contract must ensure that both parties are voluntary and the signing must be before July 1, 2004 (the effective date of the 2003 Land Law of Vietnam) for each case to apply Resolution No. 02/2004/NQ-HDTP dated August 10, 2004 of the City Council of the Supreme People's Court accordingly.
If the contract is authenticated, it must follow the procedures specified in Decree No. 23/2015/ND-CP dated February 16, 2015 of the Government on issuance of copies from master registers, certification of true copies from originals, authentication of signatures and contracts.
In what form is the contract on transfer of land use rights in Vietnam made? Instructions on the supervision of the settlement of a land purchase and sale case by handwritten paper? (Image from the Internet)
How does the Procuracy guide the supervision of the settlement of a land purchase and sale case by handwritten paper?
Recently, the Supreme People's Procuratorate promulgated Guidelines No. 13/HD-VKSTC in 2023 on basic contents in supervising the settlement of civil cases, disputes over contracts for transferring land use rights and contracts for donating land use rights.
In particular, Guidelines No. 13/HD-VKSTC in 2023 provides guidance on supervising the case of land purchase and sale by handwritten paper, specifically as follows:
- In case the transfer conditions are met but the transfer is only made in handwritten paper and has not been notarized or authenticated according to regulations, Article 129 of the 2015 Civil Code of Vietnam on civil transactions invalidated due to failure to comply with regulations on form and point a, clause 3, Article 167 of the 2013 Land Law of Vietnam.
Normally, a contract on transfer of land use rights that does not comply with the regulations on notarization and authentication will be void.
However, Clause 2, Article 129 of the 2015 Civil Code of Vietnam stipulates that if the form of a civil transaction, required to be established in writing, violates against regulations on notarizing or authorization, but a party or the parties has/have fulfill at least two third of the obligations in the transaction, a court, at his/her/their request(s), shall issue a decision on recognition of the validity of such transaction. In this case, the parties need not perform the notarizing or authorization.
In Article 82 of Decree No. 43/2014/ND-CP stipulating the registration and grant of certificates of land use rights in case land use rights have been transferred but the procedures for transfer of such rights have not yet been carried out, specifically as follows:
- The current user of land acquired from transfer or inheritance or donation of land use rights before January 1, 2008, which has not yet been granted a certificate but does not fall into the case specified in Clause 2 of this Article.
- The current user of land acquired from transfer or inheritance or donation of land use rights before July 1, 2014, and such person has only a certificate of the land use rights transferor or a contract or paper on land use rights transfer.
How does the Procuracy guide the supervision of land purchase and sale contracts?
According to Guidelines No. 13/HD-VKSTC in 2023, the Procuracy guides the supervision of land purchase and sale contracts that violate the following forms:
The recognition or invalidation of the land use right transfer transaction when violating the conditions on the form of the contract is based on the following documents:
- Transactions occurring before July 1, 2004 shall be based on Resolution No. 02/2004/NQ-HDTP;
- Transactions occurring before January 1, 2017, shall apply Article 134 of the 2005 Civil Code of Vietnam, the Court shall decide to force the parties to comply with regulations on the form of the transaction within a time limit, beyond that time limit. If not, the transaction shall be declared invalid;
- Transactions occurring from January 1, 2017, shall apply Article 129 of the 2015 Civil Code of Vietnam as the basis for settlement;
- In case the land has not been issued with a land use right certificate and when the transaction is only written by hand, it is a violation in both form and content. In this case, if the transaction occurred before July 1, 2004, the provisions of Resolution No. 02/2004/NQ-HDTP shall be applied to consider whether it is invalid, specifically:
+ For a contract signed before July 1, 2004 that has not yet been granted a certificate of land use right by a competent authority, but has one of the documents on land use rights specified in Clauses 1 and 2 of this Article. 1, 2 and 5, Article 50 of the 2003 Land Law, if there is a dispute, if it is only from July 1, 2004 that a court is requested to settle the dispute, it is not considered that the contract is void due to a violation of this condition.
+ For a contract on transfer of land use rights which at the time of signing has not been granted a certificate of land use right by a competent authority and in case the contract does not comply with regulations on form, but has then been granted a certificate of land use right by the competent People's Committee or one of the papers specified in Clauses 1, 2 and 5, Article 50 of the 2003 Land Law that there is a dispute and it is only from July 1, 2004 that a court is requested to settle it, it is not considered that the contract is void due to a violation of this condition.
+ For a contract on transfer of land use rights that has not yet been granted a land use right certificate by a competent authority and the contract does not comply with the regulations on form, if, after performing the transfer contract, the transferee has planted perennial trees, built a permanent house and has not been administratively handled by a competent state agency according to the State's regulations on handling of administrative violations in the field of land, if the transferor does not object, the court shall recognize the contract.
If the transferee only builds a house on a part of the land, the Court shall recognize the part of the contract on the transfer of the right to use the land with houses and cancel the contract for the remaining land area, force the transferee to return that part of the land to the transferor, unless the return does not guarantee the use purposes for both parties to the contract, and at the same time force the parties to pay each other for the difference.
- For transactions occurring after July 1, 2004, this transaction must be determined to be invalid and the legal consequences of the invalid contract must be resolved. Depending on the transaction time, the provisions of Article 137 of the 2015 Civil Code of Vietnam or Article 131 of the 2015 Civil Code of Vietnam shall be applied.
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