Parents have the right to transfer or gift land use rights to their children; however, in certain cases, the law does not permit it. So, what are those cases?
Article table of contents
Cases where parents are not allowed to transfer the Red Book title to their children (Illustrative image)
According to the current land law, parents are not allowed to transfer, gift the land use rights to their children in the following three cases:
First, when they are not eligible to transfer the land use rights:
Naturally, if parents do not meet the legal conditions, they are not allowed to transfer the land use rights to their children. According to clause 1, Article 188 of the Land Law 2013, land users are allowed to transfer, gift land use rights if they meet the following conditions:
- Have a Certificate of land use rights, except:
- Case specified in clause 3, Article 186 of the Land Law 2013: If all heirs of the land use rights, house ownership, and other assets attached to the land are foreigners or overseas Vietnamese who are not eligible to buy houses with attached homestead land rights in Vietnam, the heirs will not be granted a Certificate of land use rights, house ownership, and other assets attached to the land but are allowed to transfer or be gifted the inherited land use rights.- Case specified in clause 1, Article 168 of the Land Law 2013: Land users are allowed to transfer, lease, sublease, gift, mortgage, contribute as capital the land use rights once they have the land use rights certificate. For the case of transferring agricultural land use rights, land users may transfer the rights after the land allocation or lease decision; in the case of inheritance of land use rights, land users may exercise their rights once they have the certificate or are eligible to be granted the land use rights certificate, house ownership and other assets attached to the land.
- The land does not have any disputes;
- Land use rights are not being seized to ensure enforcement of judgments;
- Within the land use period.
If any of the conditions in clause 1, Article 188 of the Land Law 2013 are not met, parents are not allowed to transfer, gift the land use rights to their children.
Second, when the child does not directly engage in agricultural production:
According to clause 3, Article 191 of the Land Law 2013:
3. Households and individuals who do not directly engage in agricultural production are not allowed to receive transfers, receive gifts of rice cultivation land use rights.
According to this provision, if the child is not directly engaged in agricultural production, he/she will not be allowed to receive the transfer or gift of rice cultivation land use rights from others, including parents.
Whether a household or individual directly engages in agricultural production will be determined by the competent authority when they register to receive the transfer, receive the gift of rice cultivation land use rights. As per Article 3 of Circular 33/2017/TT-BTNMT:
3. Basis for determining households directly engaged in agricultural production:
a) Currently using agricultural land allocated, leased, or recognized by the state; received through conversion, transfer, inheritance, gift, or contributed as capital using land use rights; using agricultural land that has not been recognized by the state;
b) Having at least one member who is not regularly salaried; retired, incapacitated, or unemployed person receiving social assistance;
c) Having regular income from agricultural production on the land specified in point a of this clause, even if there is no regular income due to natural disasters, environmental calamities, fires, epidemics;
d) In the case of allocating agricultural land to households under Article 54 of the Land Law or registering to receive transfer or receive gift of rice cultivation land use rights, only point b of this clause shall apply.
Third, when the household or individual does not live in the protected forest, special-use forest area:
According to clause 4, Article 191 and Article 192 of the Land Law 2013: Households and individuals are not allowed to receive transfers, receive gifts of homestead land, agricultural land in the protected forest area, in the strictly protected section, the ecological restoration section of the special-use forest, if they do not live in the protected forest, special-use forest area.
The above are the cases where the law stipulates that parents are not allowed to transfer the red book title to their children. However, in cases where households or individuals do not directly engage in agricultural production and do not live in protected forest, special-use forest areas, this will only affect the transfer and gifting of land use rights; inheritance of land use rights is still applicable in these two cases.
Legal basis:
Ngoc Tai
