Is the land use right transfer contract not eligible to be recognized in Vietnam?

Specifically, in the appellate civil judgment No. 218/2020/DS-PT dated August 25, 2020 on the dispute over the land use right transfer contract, the request for cancellation of the land use right certificate and the lawsuit for property rights. product has the following content:

“On March 9, 1997, Mr. D and Mrs. H bought land from Mr. B and Mrs. M with an area of ​​2,000m2, plot number 69, map sheet 41, located in hamlet D, commune T for 2,400,000 VND, both parties made handwritten papers, after receiving the land, he paid all the money to Mrs. M and Mr. B and used the land stably, built houses and planted trees on the land since 1998. Mrs. M and Mr. B's land is in the process of granting a land use right certificate, so it has not been transferred to his wife's name and promised that when there is a certificate of land use right, they will carry out the procedures for transferring land use rights according to regulations

After that, he repeatedly asked Mrs. M and Mr. B to change her name, but it took longer. In 2017, he just discovered that the land he was living on had been transferred to Ms. Pham Ngoc D, so he filed a lawsuit asking the Court to recognize the contract of transferring land use rights between him and Mr. B, Ms. M on 9/3/1997; request the Court to cancel the land use right transfer contract between Mr. B and Ms. M."

The People's Court of Binh Duong province has decided: To recognize the land use right transfer contract between Mr. D, Ms. H and Mr. B, Ms. M, established on March 9, 1997.

There are many cases where the parties accept to make a handwritten paper or make a contract to transfer the land use right but it is not notarized or authenticated even though the seller has not been granted a certificate of land use right. This carries many risks that the contract may be voided due to a violation of the law. According to the provisions of Article 30 of the Land Law 1993, the land user can only exercise the right to transfer the land use right when having the certificate of land use right (currently prescribed in Article 188 of the 2013 Land Law.)The fact that Mr. B and Mrs. M do not have a certificate of land use right but have made a handwritten paper to transfer the land use right to Mr. D and Mrs. H's husband and wife, which is not in accordance with the law. The two parties making a handwritten paper that has not yet been made into a document certified by the State notarization or certified by a competent People's Committee is contrary to the form of the contract for the transfer of land use rights as prescribed by the Civil Code and the Land Law of Vietnam.

In this situation, after handing over money and receiving land, Mr. D planted perennial trees and built a permanent house; Mr. B and Mrs. M knew but did not comment, did not prevent, did not notify the local government, Mr. D's house construction was not sanctioned by the local government for administrative violations in the field of land management. Therefore, the parties have tacitly agreed to the sale and purchase agreement and there are no conflicts or disputes related to this transfer contract. Although the above contract violates the conditions for the transfer of land use rights, at Point b3 Subsection 2.3 Section 2 of Resolution No. 02/2004/NQ-HDTP dated August 10, 2004 of the Council of Judges of the People's Court The Supreme has the following provisions:

“For a land use right transfer contract that violates the conditions guided at Points a.4 and Point a.6, subsection 2.3, Section 2, if, after performing the transfer contract, the transferee has planted perennial trees, built a permanent house... and the transferor neither objected nor was administratively handled by a competent state agency according to the State's regulations on the handling of administrative violations in the field of land, the Court recognizes 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, forcing the transferee to hand over the land. return the land to the assignor, unless the return does not guarantee the use purpose for both parties to the contract,

Therefore, according to the provisions of Resolution 02, this transfer contract is recognized as legal. This is an exception so that the contract is not invalidated when violating the 02 conditions of the land use right transfer contract.

The transfer of land use rights is common and potentially risky for people who lack legal knowledge. In conclusion, in order to ensure legitimate rights and interests, people need to carefully study the transfer conditions, transfer acceptance conditions, and form of transfer contract before participating in transactions related to land use rights to avoid future risks.