Is it possible to reclaim land when transferring land but has not yet been transferred name on the certificate of land use rights, houses and other land-related assets ownership in Vietnam?

Is it possible to reclaim land when transferring land but has not yet been transferred name on the certificate of land use rights, houses and other land-related assets ownership in Vietnam?

Hello. I have signed to transfer the land use right to another person but have not yet transferred the name of the certificate. So will I lose my land? Thank you!!

Reply:

Currently, the law provides for the specific order and procedures for transferring land use rights as follows:

1/ Conditions for transferring land use rights

According to the provisions of the Land Law 2013:

1. Land users may exercise the rights to exchange, transfer, lease, sublease, inherit, donate or mortgage land use rights and contribute land use rights as capital when meeting the following conditions:

a/ Having the certificate, except the case prescribed in Clause 3, Article 186 and the case of receiving inheritance prescribed in Clause 1, Article 168 of this Law;

b/ The land is dispute-free;

c/ The land use rights are not distrained to secure judgment enforcement;

d/ Within the land use term.

2. In addition to the conditions specified in Clause 1 of this Article, when exercising the rights to exchange, transfer, lease, sublease, inherit, donate or mortgage land use rights and contribute land use rights as capital, land users must also be eligible under Articles 189, 190, 191, 192, 193 and 194 of this Law.

3. The exchange, transfer, lease, sublease, inheritance, donation or mortgage of land use rights or contribution of land use rights as capital must be registered with the land registration agency and will take effect from the time of registration in the cadastral book.

Thus, when wanting to transfer the land use right, the user must have a certificate of land use right, no dispute, no distraint to secure judgment enforcement, within the land use term and must satisfy the following conditions: meet other specific conditions for each case.

2/ Form of transfer of land use right

Clause 3, Article 167 of the 2013 Land Law stipulates:

3. The notarization and certification of contracts and documents on the exercise of the rights of land users shall be conducted as follows:

a/ Contracts on transfer, donation, mortgage or contribution of land use rights as capital or the rights to use land and land-attached assets must be notarized or certified, except the case of real estate business prescribed at Point b of this Clause;

b/ Contracts on lease or sublease of land use rights or the rights to use land and land-attached assets, a contract on exchange of agricultural land use rights, a contract on transfer of land use rights or the rights to use land and land-attached assets in which one party or all parties involved in the transaction is/are a real estate business organization or organizations must be notarized or certified at the request of the parties;

c/ The documents on inheritance of land use rights or the rights to use land and land-attached assets must be notarized or certified under the civil law;

d/ The notarization shall be conducted at notarization-practicing organizations and the certification shall be conducted at commune-level People’s Committees.

According to this Article, when transferring land use rights, the parties must make a notarized transfer contract at the otarization-practicing organization in Vietnam.

3/ Order of execution

Step 1: The transferor and the transferee go to the notary office in the province where the land is located to request the notarization of the land use right transfer contract.

When you go, the documents you need to prepare:

- Request form for contract notarization (according to form);

- Certificate of land use rights

- A copy of the identity card, household registration book of the parties, in case the buyer is married, there is a certificate of marriage registration, otherwise, a certificate of marital status is required.

- Other relevant documents

Step 2: Declare financial obligations (at the People's Committee of the district where the land is located). Records include:

- Registration fee declaration (02 originals);

- Personal income tax declaration (02 originals);

- Notarized sales contract;

- Certificate of land use rights, ownership of houses and land-attached assets (01 certified copy of a competent authority)

- ID card + household registration book of the parties (01 certified copy of the competent authority)

- Within 10 days, after receiving the notice, the taxpayer shall pay the money into the state budget.

Step 3: Carry out the procedures for transferring the name (at the land use right registration office under the Department of Natural Resources and Environment in the locality where the land is located). Records include:

- An application for registration of fluctuations (signed by the seller); In case there is an agreement in the contract that the purchaser will carry out administrative procedures, the purchaser may sign on behalf.

- Transfer contract (02 notarized copies)

- Certificate of land use right

- Certificate of payment to the state budget (original)

- Copy of identity card + household registration book of the transferee.

- Time limit: 10 working days from the date of receipt of complete and valid dossiers

Step 4: Complete financial obligations as prescribed and receive the red book.

Taxes and fees payable include:

- Registration fee: (transferee pays)

Land payment = Land area x Land price x Fees

House payment = House area x Housing level x Fees

+ Land area in m2

+ Land price according to the price list

+ 0.5% fee

- Personal income tax: 2% of the transfer value (the transferor pays)

- Other fees: contract notarization fee, land measurement fee,...

Thus, based on the provisions of law in Vietnam, in your case, although you have signed the land use right transfer paper but have not carried out procedures for name transfer, the transfer of land use rights is not effective enough. In principle, the land is still under your ownership.

If you are having a dispute or have a problem with the buyer, you can negotiate with them or ask the court to cancel the contract on transferring the above land use rights to protect your rights and interests. Legally, you need to base on the contents signed on the land use right transfer contract, if any party causes damage, it is obliged to compensate in Vietnam.

Is it possible to transfer land allocated land without land use levy by the State in Vietnam?

I have a question and want to ask you to answer. Specifically, let me ask: Is it possible to transfer land allocated land without land use levy by the State in Vietnam? Hope to get a response soon. Sincerely thank!

Reply:

Regarding this issue, Clause 2, Article 173 of the Land Law 2013 provides as follows:

2. Organizations to which the land is allocated by the State without land use levy may not exchange, transfer, donate, lease land use rights; mortgage, contribute land use rights as capital, and are not entitled to compensation upon land expropriation by the State.

Thus, according to this regulation in Vietnam, land allocated by the State without land use levy is not allowed to be transferred.

To be more specific about this issue, we also provide you with more information about the cases where the State shall allocate land without land use levy in the following cases:

1. Households and individuals directly engaged in agriculture, forestry, aquaculture or salt production to whom agricultural land is allocated within the quotas prescribed in Article 129 of this Law;

2. Persons who use land for protection forests, special-use forests or production forests which are natural forests, for office construction, for national defense or security purpose, for non­commercial public use, for cemeteries and graveyards which fall outside the cases prescribed in Clause 4, Article 55 of this Law;

3. Public non-business organizations that are not self-financed and use land for office construction.

4. Organizations that use land for construction of resettlement houses under the State’s projects.

5. Communities using agricultural land; religious institutions using non-agricultural land as prescribed in Clause 1, Article 159 of this Law.

What are cases in which households and individuals may transfer or donate land use rights under certain conditions in Vietnam? 

I have been allocated land by the State for a few years, but it is very difficult due to lack of capital and farming techniques. Now I plan to transfer this land to people in another locality, but the officials won't let me because this area belongs to the protection forest. So, can I transfer the land for some money to change another career?

Reply:

Article 192 of the 2013 Land Law provides:

1. Households and individuals living in the strictly protected zones or ecological rehabilitation zones in special-use forests and are not able to move out of these areas may only transfer or donate the rights to use residential land or forest land in combination with agricultural, forestry and aquaculture production purposes to households and individuals living in these areas.

2. Households and individuals that are allocated residential land or agricultural land in protection forests by the State may only transfer or donate the rights to use residential or agricultural land to households and individuals living in these areas.

3. Households and individuals of ethnic minorities using allocated land under the support policies of the State may transfer or donate land use rights after 10 years from the date of issuance of the decisions on land allocation in accordance with the Government’s regulations.

Thus, you only have the right to transfer the land use right of residential land, forest land in combination with agricultural, forestry and aquaculture production to households and individuals living in that rehabilitation zones or protection forests, without have right to transfer to other local people in Vietnam.

Best regards!