At present, land sale and purchase contracts must be notarized and certified to take effect in Vietnam. However, in reality, there still exist land sale and purchase transactions conducted with handwritten documents. So, do these transactions generate legal value?
Article table of contents
Is the purchase and sale of land in a handwritten contract considered legally valid in Vietnam? (Internet image)
1. What is understood by handwritten land sale/purchase?
Handwritten land sale is not a legal term stipulated in the law but is an activity carried out in practice by citizens. Although the law does not stipulate or explain what handwritten land sales are, it can be understood from practice that a handwritten land sale is a contract that is not notarized or authenticated.
2. Mandatory formalities for the Land Sale/Purchase Contract in Vietnam
According to Clause 3, Article 167 of the Land Law 2013, contracts for transferring, gifting, mortgaging, or capital contribution with land use rights, land use rights, and assets attached to land must be notarized or authenticated, except in cases:
- Contracts for leasing, sub-leasing land use rights, land use rights and assets attached to the land, contracts for converting agricultural land use rights;- Contracts for transferring land use rights, land use rights, and assets attached to the land where one or all parties participating in the transaction are real estate business organizations.
The notarization is done at notarial practice organizations, and the authentication is done by the People's Committee at the commune level.
Additionally, according to Clause 2, Article 117 of the Civil Code 2015, the form of a civil transaction is a condition for the validity of a civil transaction if the law has stipulations.
According to Clause 2, Article 119 of the Civil Code 2015, if the law requires a civil transaction to be expressed in writing with notarization, authentication, or registration, it must comply with those regulations.
At the same time, in cases where civil transactions are invalid due to non-compliance with the form are stipulated in Article 129 of the Civil Code 2015.
A land sale contract is a form of civil transaction, hence based on the above regulations, one can assert: notarization, authentication is a mandatory condition for the validity of the land transfer contract (commonly known as the land sale contract). Thus, at present, handwritten land sale contracts that are not notarized or authenticated according to regulations do not take effect.
3. Is the purchase and sale of land in a handwritten contract considered legally valid in Vietnam?
As known, since the Land Law 2013 came into effect (July 1, 2014), a land sale contract must be notarized or authenticated. However, to resolve the consequences of previous handwritten land sale transactions, Clause 1, Article 82 of Decree 43/2014/ND-CP, amended and supplemented by Clause 54, Article 2 of Decree 01/2017/ND-CP, provides guidance as follows:
- Handwritten land sale before January 1, 2008:
In cases of using land by receiving transfer, gifting land use rights before January 1, 2008, and not yet granted land use right certificate, the land user conducts procedures for land registration and issuance of Land Use Right Certificate, ownership of housing and other assets attached to land for the first time according to the Land Law 2013 and the regulations in Decree 43/2014/ND-CP without having to carry out land use right transfer procedures.
Note: The agency receiving the dossier must not require the submission of the contract or documents transferring land use rights according to the law.
- Handwritten land sale from January 1, 2008, to before July 1, 2014:
In cases of using land by receiving transfer, gifting land use rights from January 1, 2008, to before July 1, 2014, and having documents on land use rights stipulated in Article 100 of the Land Law 2013 and Article 18 of Decree 43/2014/ND-CP, the land user also conducts land registration procedures to be issued a Land Use Right Certificate without having to carry out land use right transfer procedures. The agency receiving the dossier must not require the submission of the contract or documents transferring land use rights according to the law.
=> Before July 1, 2014, handwritten land sale still had legal value. This can be seen from the fact that when carrying out land registration procedures to be issued a Land Use Right Certificate, the agency receiving the dossier must not require the submission of the contract or documents transferring land use rights.
- Handwritten land sale from July 1, 2014, to present:
The basic principle of civil law is to respect the agreement of the parties. Therefore, based on this principle, civil law has stipulated exceptions for civil transactions that do not comply with the formalities as follows:
Civil transactions established in writing but violating mandatory notarization or authentication regulations wherein one or all parties have performed at least two-thirds of the obligations in the transaction, upon the request of one or all parties, the court may recognize the validity of the transaction. In this case, the parties do not have to carry out notarization, authentication.
Thus, in this case, handwritten land sale contracts can still take effect without notarization, authentication.
Conclusion: Currently, handwritten land sale is no longer permitted; such transactions must comply with the effective conditions of contracts in general and the form conditions particularly if stipulated by law. However, stemming from the nature of civil transactions to respect the voluntary intention of the parties, upon the request of one or all parties, the law still recognizes the validity of handwritten land sales if at least two-thirds of the obligations in the contract have been performed.
Thuy Tram
