Is it mandatory to notarize a house as a gift in Vietnam? Can social housing be sublet in Vietnam?

Is it mandatory to notarize a house as a gift in Vietnam?

I see people often go to notary offices or to the Commission to notarize and certify contracts for housing gifting. So let me ask, in case of gifting a house, is the contract of house gifting required to be notarized or certified? If so, what are the cases? If not, which cases do not?

Reply:

According to the provisions of the law, the house owner can conduct transactions about the house under his/her lawful ownership through the forms of house purchase, sale, lease, lease-purchase, or contract transfer, buy and sell commercial housing, donate, exchange, inherit, mortgage, contribute capital, lend, stay and authorize housing management.

Therefore, the legal house owner being an individual with full civil act capacity is entitled to dispose of his/her residential property in the form of donation in accordance with the provisions of law.

When performing an increase transaction for a house, the parties to the transaction must agree to make a contract for the donation of the house.

Accordingly, a house donation contract shall be agreed upon by the parties and must be made in writing, including the main contents specified in Article 121 of the Law on Housing 2014.

According to current regulations, housing donation contracts must be notarized and certified according to the provisions of law. However, not all cases of housing donation have to be notarized or certified the contract. There are a number of specific cases in which a house donation is not required to be notarized or certified.

According to the provisions of Article 122 of the Law on Housing 2014, notarization and authentication of agreements and effective date of housing agreements

1. Regarding agreements on housing sale, giving, exchange, capital contribution, mortgage, or transfer of agreement on commercial housing sale, it is required to notarize or authenticate the agreement, except for cases prescribed in Clause 2 of this Article.

Regarding any agreement prescribed in this Clause, the effective date of the agreement shall be the date on which the agreement is notarized or authenticated.

2. Regarding transactions in giving houses of gratitude; sale or lease purchase of state-owned housing; sale or lease purchase of social housing, housing serving the relocation; contributed housing which one entity of contracting parties is an organization; housing lease, lending, permission for stay, or authorization of housing management, it is not required to notarize or authenticate the agreement, unless contracting parties wish to notarize or authenticate the agreement.

Regarding any agreement prescribed in this Clause, the effective date of the agreement shall be agreed by contracting parties; if the contracting parties do not agree, the effective date of agreement shall be the date on which the agreement is signed.

3. The documents on housing inheritance must be notarized or authenticated as prescribed in law on civil.

4. The notarization of housing agreement must be carried out at a notary; the authentication of housing agreement must be carried out at the People’s Committee of the commune where the house is located.

Can social housing be sublet in Vietnam?

Can social housing be sublet? My name is Kieu, 22 years old, and I am a student eligible for social housing. I know a friend, so I was invited to stay, so I want to ask if I can sublet social housing?

Reply:

Pursuant to Article 62 of the Law on Housing 2015 stipulates rules for social housing lease, lease purchase or sale as follows:

1. The social housing lease, lease purchase or sale must comply with regulations of this Law, each entity prescribed in Clause 1 Article 50 of this Law may not rent, rent and buy, or buy more than one social house concurrently; the students of public ethnic boarding schools shall be exempted from housing rents and service charges during their duration of study.

2. The term of a social housing lease agreement is at least 05 years; the minimum term for lease purchase payment for social housing is 05 years from the date on which the lease purchase agreement is signed.

3. The lessee under an agreement on social housing lease or lease purchase may not sell, sublet, or lend that house during the term of the agreement; if he/she no longer wishes to rent, or rent and buy that house, the agreement shall be terminated and that house shall be returned.

4. The buyer under the agreement on social housing lease purchase or sale may not resell the house within at least 05 years, from the date on which the total amount is paid off, except for the management unit of that social housing or entities entitled to buy that social housing if the management unit does not buy the house at the selling price of the same social housing in the same location, at the same time. Income from this transaction is exempted from personal income tax.

5. After 05 years from the date on which the total housing amount is paid off and the Certificate is granted, the buyer may resell their house according to market mechanism provided that they have paid land levies as prescribed in regulations of the Government and income tax as prescribed in law on taxation as required; if they resell to the entities entitled to buy social housing as prescribed of this Law, the maximum selling price must equal the selling price of the same social housing in the same location, the same selling time and that housing is exempted from personal income tax.

If the buyer or the lessee who is subject to the relocation may resell the house(s) according to market mechanism after they have paid off the total amount and have granted the Certificate provided that they have paid land levies as prescribed in regulations of the Government and income tax as prescribed in law on taxation as required.

6. Any transactions in social housing lease, lease purchase, or sale do not comply with regulations of this Law, the agreement on housing lease, lease purchase, or sale shall be invalidated and the lessee or the buyer must return the house to the agency in charge of social housing; if they do not return the house, the People’s Committee of the province where the house is located shall enforce the withdrawal of that house.

The housing rents or prices shall comply with regulations of law on civil; the lease purchase prices of social housing shall comply with Article 135 of this Law.

Thus, according to current regulations compared to the case you mentioned, when you no longer need to use social housing, you must terminate the lease contract and return the social housing in Vietnam.

In case you sublet, your lease contract is invalid and you will have to hand over the house to the social housing management unit, if not, the People's Committee of the province where the house is located will be forced to return home in Vietnam.

Does the lessor have right to withdraw the house when the lessee is late in payment in Vietnam? 

I have a tenant with a 1-year contract with monthly payments, but it has been more than 2 months since the lessee has refused to pay the rent. Can I get my house back with the above violation of the lessee? Ask for help!

Reply:

Pursuant to Article 132 of the Law on Housing 2014 stipulates that the lessor is entitled to terminate unilaterally the lease agreement and withdraw the house in one of following cases:

a) The lessor lease out the state-owned houses or social houses ultra vires and not satisfying requirements as prescribed in this Law;

b) The lessee has not paid the rent for 3 months or more without reasonable explanation;

c) The lessee uses the house for improper purposes as agreed in the agreement;

d) The lessee expands, renovates, or demolishes the house under lease agreement without the consent of the homeowner;

dd) The lessee exchanges, lends, sublets the house under lease agreement without consent of the lessor;

e) The lessee still creates disorder or breaches hygiene an environment conditions causing negative effects on activities of the neighborhood although he/she is warned for the third time by the lessor or the chief of neighborhood, the chief of village;

g) Cases prescribed in Clause 2 Article 129 of this Law.

On the other hand, Clause 1, Article 30 of the Law on Real Estate Business 2014 stipulates that the lessor may unilaterally terminate performance of building lease agreement if the lessee commits the following acts:

a) Fail to pay the rent after 3 months from the deadline as specialized in the agreement without approval of the lessor;

b) Use the building for the improper purpose;

c) Intentionally cause serious damage to the leased building;

d) Repair, renovate, upgrade, exchange or sublet the building without any agreement or the lessor’s agreement in writing.

Note: The party unilaterally terminating the performance of the house lease contract must notify the other party at least 30 days in advance, unless otherwise agreed by the parties; if they violate the provisions of this Clause and cause damage, they must pay compensation in accordance with law in Vietnam.

According to the information you provided in Vietnam, the lessee has not paid the rent for more than 2 months now, so you can now notify the lessee of the termination of the lease agreement. If after 30 days from the date of notice if the lessee still does not pay, you are entitled to terminate the lease agreement.

Best regards!