Certificates of land use right granted to households, can the head of household make a will to divide in Vietnam?

Typically in the judgment 19/2019/DS-PT dated April 10, 2019 on the request to declare the will invalid, according to which:

“Household Tran Thi Lu is a cooperative member household. In 1993, the State assigned the right to use 3,907.3m2 of land at plot number 80, map sheet No. 40 located in town T. At the time of land use right assignment, Tran Thi Lu's household consisted of 5 people: Tran Thi Lu, Tang H, Tang Thi To, Tang Quoc Tu and Tang Thi My N.

On April 16, 2008, Ms. Tran Thi Lu made a will, taking the common property of 3,907m2 land use rights, dividing it among eight children and grandchildren, including Tang Thi Nh; Tang Thi D; Tang Thi Chu; Tang Thi Ng; Tang Thi C; Tang Hong S; Tang Thi M and Tang Long Ch.

Mr. Tang H said that Ms. Lu's arbitrarily taking the common property to distribute to the above people was an infringement on the legitimate rights and interests of members of Ms. Lu's household. It was illegal to wish Ms. Lu, so he requested that the will be declared null and void."

The Court observed:

The land plot at plot number 80 above is jointly owned by members of Lu's household. The fact that Mr. Lu made a will to self-determine all the land allocated to his household for his 08 descendants without notifying and obtaining the consent of the co-owners for the above land plot was not in accordance with the law. Article 216 of the 2005 Civil Code on rights to jointly owned properties. Therefore, the will of Mrs. Tran Thi Lu made on April 16, 2008 was certified by the People's Committee of T town as not in accordance with the provisions of Article 667 of the 2005 Civil Code. However, Mr. Lu still has the right to dispose of the property under his/her ownership (the right to use residential land and the right to use land for planting perennial crops are balanced and assigned rights with the household). Therefore, the Court declared the above will partially invalid.

According to the provisions of Article 108 of the 2005 Civil Code, the common property of the household as well as the disposition of common property is prescribed as follows:

Article 108. Common property of households

The common property of a family household shall comprise land use rights, the forest and/or planted forest use rights of the family household, the property contributed or jointly created by household members or presented as a common gift, or jointly inherited and other property which the members agree to be the common property of the household.

Article 109. Possession, use and disposition of common household property

1. Family household members shall possess and use the common property of their households by mode of agreement.

2. The disposal of property being means of production, common property of great value of family households must be agreed upon by members aged full fifteen years or older; for other common property, the disposal thereof must be agreed upon by the majority of members aged full fifteen years or older.

Contents of property under common ownership as prescribed in the 2005 Civil Code of Vietnam are as follows:

Article 216. Joint ownership under section

1. Shared ownership by part is joint ownership in which the ownership share of each owner is determined for the common property.

2. Each share owner has the rights and obligations to the property under common ownership in proportion to his or her share of ownership rights, unless otherwise agreed.

In conclusion, the head of the household or a member of the household has absolutely no right to decide on the entire land use right granted to the household but must be agreed upon by all members who are full fifteen years of age or older. Even so, each member of the household still has the right to decide on his or her share of the land use right when it is jointly granted to the household by the state.

Please Login to be able to download