Vietnam: Shall the land purchase contract be invalid when the seller dies? Is it required to notarize the land purchase contract?
What are the conditions for transferring land use rights in Vietnam?
According to the provisions of Clause 1, Article 188 of the 2013 Land Law, land users may transfer land use rights when fully meeting the following conditions:
Conditions for the exercise of the rights to exchange, transfer, lease, sublease, inherit, donate or mortgage land use rights; to contribute land use rights as capital
1. Land users may exercise the rights to exchange, transfer, lease, sublease, inherit, donate or mortgage land use rights and contribute land use rights as capital when meeting the following conditions:
a/ Having the certificate, except the case prescribed in Clause 3, Article 186 and the case of receiving inheritance prescribed in Clause 1, Article 168 of this Law;
b/ The land is dispute-free;
c/ The land use rights are not distrained to secure judgment enforcement;
d/ Within the land use term.
2. In addition to the conditions specified in Clause 1 of this Article, when exercising the rights to exchange, transfer, lease, sublease, inherit, donate or mortgage land use rights and contribute land use rights as capital, land users must also be eligible under Articles 189, 190, 191, 192, 193 and 194 of this Law.
3. The exchange, transfer, lease, sublease, inheritance, donation or mortgage of land use rights or contribution of land use rights as capital must be registered with the land registration agency and will take effect from the time of registration in the cadastral book.
Shall the land purchase contract in Vietnam be invalid when the seller dies?
According to the information provided by you, it can be temporarily divided into two cases as follows:
- The first case: The transfer of the land use right between your uncle and the buyer has been made in writing, notarized and authenticated in accordance with Clause 3, Article 167 of the Land Law 2013. Specifically, the notarization and certification of contracts and documents on the exercise of the rights of land users shall be conducted as follows:
"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;
b/ Contracts on lease or sublease of land use rights or the rights to use land and land-attached assets, a contract on exchange of agricultural land use rights, a contract on transfer of land use rights or the rights to use land and land-attached assets in which one party or all parties involved in the transaction is/are a real estate business organization or organizations must be notarized or certified at the request of the parties;
c/ The documents on inheritance of land use rights or the rights to use land and land-attached assets must be notarized or certified under the civil law;
d/ The notarization shall be conducted at notarization-practicing organizations and the certification shall be conducted at commune-level People’s Committees."
In addition, Clause 1, Article 5 of the Law on Notarization 2014 also stipulates:
" Legal validity of notarized documents
1. A notarized document is valid from the date a notary signs and appends the seal of his/her notarial practice organization to it.
2. A notarized contract or transaction is binding on related parties; in case an obliged party fails to perform its/his/her obligations, the other party may request a court to settle the case in accordance with law, unless otherwise agreed upon by related parties.
3. Notarized contracts and transactions may be used as evidence; details and circumstances of notarized contracts or transactions are not required to be proven, unless such contracts or transactions are declared to be invalid by courts.
4. Notarized translations are valid for use as their translated papers or documents."
In this case, although your uncle has died, the contract on transfer of land use right is valid at the time of notarization, the buyer can still bring a notarized contract when carrying out the procedures for changing the name on the land use right certificate at the competent authority.
- The second case: The transfer of the land use right between your uncle and the buyer has not been made in writing, notarized and authenticated in accordance with the Law on Land or the signed contract has no legal validity. This case is handled as follows:
The buyer can present evidence to prove that there is a transfer agreement between them and your uncle; At the same time, if they have paid part or all of the agreed amount to your uncle, they can make an application to the Court to recognize the validity of the land use right transfer transaction.
After being recognized by the Court for the validity of the land use right transfer transaction, the buyer can carry out the procedures for changing the name on the land use right certificate.
In case there is a land dispute between the buyer and your uncle's heirs, parties have the right to initiate a lawsuit to the competent Court for consideration and settlement.
Is it required to notarize the land purchase contract in Vietnam?
According to Clause 3, Article 167 of the 2013 Land Law stipulating:
"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;
b/ Contracts on lease or sublease of land use rights or the rights to use land and land-attached assets, a contract on exchange of agricultural land use rights, a contract on transfer of land use rights or the rights to use land and land-attached assets in which one party or all parties involved in the transaction is/are a real estate business organization or organizations must be notarized or certified at the request of the parties;
c/ The documents on inheritance of land use rights or the rights to use land and land-attached assets must be notarized or certified under the civil law;
d/ The notarization shall be conducted at notarization-practicing organizations and the certification shall be conducted at commune-level People’s Committees."
Accordingly, the contract on the transfer of real estate must be notarized or authenticated. Otherwise, it will not take effect, except for the case specified in Clause 2, Article 129 of the Civil Code 2015:
"2. 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."
Thus, according to the above provisions, contracts on the transfer of real estate must be notarized or authenticated to ensure that there is no dispute.
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