In Vietnam, is it possible to reclaim the donated land from the grandfather to his grandchildren?

Property donation contract is an agreement between parties whereby the donor hands over his/her property and transfers ownership rights to the donor without asking for compensation, the donor agrees to receive, prescribed in Article 457 of the 2015 Civil Code of Vietnam  (Article 465 of the 2005 Civil Code ).

In the judgment 01/2018/DS-ST dated January 23, 2018 of the People's Court of Pho Yen town, Thai Nguyen province on the dispute over the lawsuit requesting the cancellation of the contract of donation of land use rights. Specifically:

On August 23, 2010, Mr. Nguyen Van T and his wife Nguyen Thi N made a will, leaving all the land and assets on the land included in the land use right certificate No. G 369137 for grandson is Nguyen Van M. On January 5, 2012, Ms. Vu Thi P, who is his daughter-in-law, the wife of his son, Mr. Nguyen Van L (died in 1995), asked him to give his will to the People's Committee of Nam Tien Commune to carry out procedures to transfer the land use right certificate from his name to the name of his grandson, Nguyen Van M (son of Ms. P). After giving the will, the land use right certificate and related documents to Ms. P, he was brought to the People's Committee of Nam Tien Commune by Ms. P to make a contract to donate property and residential land.

Mr. T proposed to cancel the entire transfer contract for land use rights and land-attached assets dated January 5, 2012 between him and Ms. Vu Thi P, requesting to cancel the land use right certificate in Ms. P's name, return parcel of land No. 315, map sheet No. 52-I, an area of ​​1,245m2 for him.

The People's Court of Pho Yen town said that the donated property was determined to belong to Mr. T and Mrs. N. Moreover, there is no basis to believe that Ms. N signed a contract to transfer the land use right. to Ms. P and transferring a part of the property which is residential land, garden land and grade 4 house on the land to Ms. P is also against Mrs. N's will. In addition, on the land besides the grade 4 house, there are additional works are also not shown in the contract, and at the same time, neighboring households with land and adjacent houses are also not allowed to sign the border. Therefore, the contract to donate land use rights between Mr. T and Ms. P violated both the form and content of the contract and has no basis for acceptance. Declare the donation contract invalid, cancel the land use right certificate issued to Ms. P.

In this case, this donation contract is invalid because Mrs. N - Mr. T's wife has not signed the contract even though she agreed to give it in her will. This land is the common property of Mr. T and Mrs. N, Mr. T has established and performed a transaction in contravention of the regulations on representation between husband and wife, so this transaction is invalid (Clause 2, Article 26 of the Law on Marriage and Family 2014 of Vietnam).

In conclusion, when establishing a contract for the donated property, especially land use rights, it is necessary to pay attention to whether the donated property is jointly owned by husband and wife. In addition, attention should be paid to the form of the contract for the donation of land use rights (Article 502 of the Civil Code 2015) so that the contract is not declared invalid and does not affect the interests of the parties.

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