Note to avoid risks when donating real estate in Vietnam

Typically in the judgment 180/2018/DS-PT dated July 20, 2018 on the request to declare a notarized document invalid, according to which:

“ Mrs. Th and Mr. S, are the owners of the house at 53B, DD district, Hanoi. The grandparents live with their son H and grandson Tr. Around April 2016, Mr. H told her and her husband to sign the document of the Notary Office to let Mr. H live in the same house. Because of trust, she and her husband signed and pointed to the contract, she did not know that it was signed to give a house to her son.

In June 2016, Mr. H transferred the above property to his wife, Mr. Tran Hong Ha and Ms. Nguyen Phuong Loan, and Ms. Th had to temporarily stay at Mrs. Nguyen Thi Viet T's house (her daughter). Ms. Th asked the Court to cancel the signed contract for gifting the land use right because her husband was deceived by her son, Mr. H, to sign the contract.

The Court has declared: It is not acceptable to cancel the contract of donation for the land use right because:

+ At the time of notarization, those present all determined that Mr. Sanh and Mrs. Thanh were awake and alert, not deceived or forced.

+ Before performing the notarization, the Notary Public has explained the rights, obligations and legal consequences of transactions between the parties after signing the contract. The parties have re-read and voluntarily signed and pointed to the contract in front of the Notary and witnesses.

+ Considering the process and procedures for notarization of the above-mentioned house and land donation contracts are carried out in accordance with the provisions of law.

Therefore, it can be seen that when legally giving the house and land, even if the recipient later sells the house, even if the parents are kicked out of the house, it is still very difficult to get the donated property back.

Compared with the provisions in Articles 459 and 462  of the Civil Code 2015 of Vietnam

Article 459. Gifts of immoveable property

1. A gift of immoveable property must be recorded in writing and notarized or certified, and must be registered if the law on immoveable property requires registration of ownership.

2. A contract for a gift of immoveable property shall take effect from the time of registration. In the case of immoveable property for which no registration of ownership rights is required, the gift contract shall take effect from the time when the property is delivered.

Article 462. Conditional gifts of property

1. A giver may require a recipient to perform one or several civil obligations prior to or after the giving of a gift. The conditions for giving a gift must not contravene the law or social morals.

2. Where a recipient performs an obligation required to be performed as a condition to the giving of a gift and the giver fails to deliver the gift, the giver must pay for the obligation already performed by the recipient.

3. Where a recipient fails to perform an obligation required to be performed after the giving of a gift, the giver may reclaim the gift and demand compensation for damage.

However, if it is a donation contract with conditions, the giver must comply with that condition and if not, the giver has the right to reclaim the house and land and demand compensation for damage including when the real estate has registered the name of the donor.

In conclusion, in order to avoid risks when donating real estate, the donor needs to specify in the donation contract the conditions that the donor requires the giver to perform before as well as after the contract is signed. The conditions may be that the descendants must have the obligation to take care of their grandparents and parents when they are old, or the children and grandchildren must not be able to transfer land or have the obligation to worship their ancestors...

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