Is the land use right transfer contract recognized when the signature of the spouse is missing in Vietnam?

Article 35 of the Law on Marriage and Family 2014 regulates the possession, use and disposition of common property as follows:

1. The possession, use and disposition of common property shall be agreed upon by husband and wife.

2. The disposition of common property must be agreed in writing by husband and wife in the following cases:

a) Real estate;

b) The movable property which must be registered by law for ownership;

…

For the transfer of land use rights as common property, it is necessary to have the agreement of the husband and wife, we can see this through the fact that both husband and wife will sign the land use right transfer contract. Having the full signature of the husband and wife as proof to show that both husband and wife know and have witnessed this sale. Many entities when transferring and receiving land use rights did not pay attention to this, leading to the risk of the transfer transaction being invalidated.

So, in all cases, the land use right transfer contract without a person's signature will be void or not?

The above content is summarized in the judgment 34/2018/DS-PT dated August 29, 2018 on the dispute over the land use right transfer contract.

Ms. Vo Thi Bich K – Plaintiff presented:

In 1999, Ms. Vo Thi Bich K and her husband named Nguyen Quy T1 ( Mrs. K-Plaintiff ) received the transfer of Mr. and Mrs. Chamalea T, Mrs. Katr Thi H ( Mr. and Mr. T- Defendant ) 1,400m2 land priced 1,500,000 VND. In 2003, Mrs. K and her husband continued to receive the transfer of 78m2 of land from Mr. T and his wife for 3,000,000 VND and built two more tobacco drying ovens.

When performing the land use right transfer contract on December 30, 1999 as well as on April 5, 2003, Mr. T was the person who directly wrote the land transfer paper and signed it; Mrs. H1 did not sign the transfer paper but received the money with Mr. T and did not object to the land transfer.

She filed a lawsuit to ask the Court to settle the dispute to force Mr. T and his wife to continue to perform the contract of transferring the right to use 1,482m2 of land.

Mr. Chamalea T – Defendant presented:

Mr. T believes that the land transfer papers dated December 30, 1999 and April 5, 2003 were written by Mr. T1 to Mr. T; The transfer papers are not signed by Mr. T's wife. Mr. T said that only Mr. T1 and his wife leased the land, so they did not agree to continue to perform the contract of transferring land use rights; Forcing Mrs. K and her husband to dismantle the tobacco kilns to return the land to him and his wife.

Ms. H1 explained that only Mr. T1 and his wife leased land to build a cigarette drying oven for a lease of 5 years, but did not transfer the land, because the land transfer paper did not have Mrs. H1's signature.

The main content of the opinions of the two sides:

+ The plaintiff requests to continue performing the land use right transfer contract.

+ Defendant disagrees because he only intends to lease rather than transfer land use rights because there is no signature of his wife, requesting cancellation of the contract of land use right transfer.

The court decided:

+ Recognition of the land use right transfer contract made on December 30, 1999 and April 5, 2003 between Mrs. Vo Thi Bich K - Mr. Nguyen Quy T1 and Mr and Mrs. Chamalea T - Katr Thi H1.

Although the transfer contract between the parties is not notarized and there is no written agreement between the husband and wife, the Court still recognizes this transfer contract for the following reasons:

+ Point b.3, subsection 2.3, section 2, part II Resolution No. 02/2004/NQ-HDTP dated August 10, 2004 of the Council of Judges of the Supreme People's Court

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, have built a permanent house... and the transferor has not objected to and has not been handled by a competent state agency for administrative violations according to the State's regulations on handling administrative violations in the field of land, the Court recognizes the contract.

Sections a4 and a6, subsection 2.3, section 2 of the Resolution provide for issues related to land use right certificates and notarization and authentication of transfer contracts. Here, although the transferred land has not been granted a certificate of land use right by the competent authority, Mrs. K and her husband have built certain works, and at the same time, the transferor does not have any objections, which are important grounds for the court to recognize the transfer contract.

+ Precedent 04/2016/AL on the dispute over the land use right transfer contract

In the above case, although the wife knew about the transfer of land use rights, but because there was no written agreement in accordance with the law, there was still enough basis to request the Court to declare a contract on the transfer of land use rights is void. It is thanks to Precedent No. 04/2016/AL that the land use right transfer contract is still valid in case there is no written agreement between the husband and wife but the spouse has agreed or knew about the assignment but did not express an objection.

In case the house and land are common property of husband and wife but only one person signs the contract to transfer that house and land to another person, the other person does not sign in the contract; if there are sufficient grounds to determine that the transferor has received the full amount of money as agreed, the person who did not sign the contract knows and jointly uses the money from the house and land transfer; the transferee has received and managed and used such land and land publicly; If a person who does not sign the contract knows that but has no objections, it must be determined that he or she agrees to the transfer of the house and land.

This as well as a lesson for both sellers and buyers in transactions related to real estate. On the buyer's side, it should be noted that when buying land, it must consider whether there is an agreement between the husband and wife when transferring such property or not, the purchase of land is the common property of the husband and wife without the consent or a person without knowing about the other person's purchase or sale, the transaction may be voided. Similarly, when the seller transfers property that is real estate that is the common property of the husband and wife, the consent of both is required, this should be expressed in a written agreement signature on the transfer contract or at least both must know and agree to it.