Parents in Vietnam have the right to transfer or donate land use rights to their children. However, Vietnamese law does not permit it in certain cases. So, what are the cases where parents are not allowed to transfer or donate the land use rights to their children?
Article table of contents
Vietnam: Cases where parents are not allowed to transfer or donate the land use rights to their children (Illustrative image)
According to the current land law, parents in Vietnam are not allowed to transfer or donate the land use rights to their children in the following three cases:
Firstly, when they are not eligible to transfer the land use rights in Vietnam:
Naturally, if parents do not meet the legal requirements, they may not 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 or donate land use rights if they meet the following requirements:
- Have a Certificate of land use rights, except for the following cases:
+ Case specified in clause 3, Article 186 of the Land Law 2013: If all the heirs of land use rights and ownership of houses and other land-attached assets are foreigners or overseas Vietnamese who are ineligible to own houses in Vietnam, the heirs shall not be granted the certificate of land use rights and ownership of houses and other land-attached assets but may transfer or donate the inherited land use rights.
+ Case specified in clause 1, Article 168 of the Land Law 2013:
Land users may exercise the rights to transfer, lease, sublease, donate and mortgage land use rights and to contribute land use rights as capital upon receipt of a certificate. In case of exchanging agricultural land use rights, land users may exercise their rights upon receipt of a decision on land allocation or land lease. In case of inheritance of land use rights, land users may exercise their rights upon receipt of a certificate or when they are eligible to be granted a certificate.
- The land is dispute-free;
- The land use rights are not distrained to secure judgment enforcement;
- Within the land use term.
If any of the requirements in clause 1, Article 188 of the Land Law 2013 are not met, parents are not allowed to transfer or donate the land use rights to their children.
Secondly, when the child does not directly engage in agricultural production in Vietnam:
According to Clause 3, Article 191 of the Land Law 2013:
3. Households and individuals not directly engaged in agricultural production may not receive the transfer or donation of paddy 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 donation of paddy 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 or donation of paddy land use rights. Under Article 3 of Circular 33/2017/TT-BTNMT:
3. Bases for verification of a household engaged directly in agricultural production:
a) The household is using agricultural land allocated or leased out by the State or has his/her land use rights certified by the State; acquired through conversion, transfer, inheritance or donation or contribution of capital in the form of land use rights; is using agricultural land which is yet to be certified by the State;
b) At least one member of the household does not receive regular salaries; is retired, stops working due to working capacity loss or terminates his/her employment and receives social benefits;
c) The household has a regular income from agricultural production on the area of land which the household is using as specified in Point a of this Clause even when the household does not have a regular income due to natural disasters, environmental disasters, conflagration or epidemics;
d) In the case of allocation of agricultural land to a household as prescribed in Article 54 of the Land Law or registration of acquisition of the household's rights to use land meant for rice cultivation, Point b of this Clause shall apply.
Thirdly, when the household or individual does not live in the protection forests or special-use forests:
According to Clause 4, Article 191, and Article 192 of the Land Law 2013: Households and individuals may not receive the transfer or donation of residential land use rights and agricultural land use rights with regard to the land located in the areas of protection forests, strictly protected zones and ecological rehabilitation zones in special-use forests if they do not live in such protection forests or special-use forests.
The above are the cases where parents are not allowed to transfer the land use rights to their children. However, cases where households or individuals do not directly engage in agricultural production and do not live in protection forests or special-use forests will only affect the transfer and donation of land use rights; inheritance of land use rights is still applicable in these two cases.
Legal basis:
Ngoc Tai
