(Dan Tri) - There are 5 cases where the transferor can take back the land use rights and return the money to the transferee without violating the law.
Land sale (transfer) by handwritten document is a transaction of transferring land use rights but the contract is not notarized or certified according to the law. Previously, this form of transaction was still relatively popular. For various reasons, the transferor wants to take back the land use rights and return the money to the transferee.
To be effective, this civil transaction needs to be agreed upon with the transferee or a request to the Court to declare it invalid.
Pursuant to the 2015 Civil Code and the 2024 Land Law, there are the following cases where land purchased and sold can be reclaimed by handwritten documents.
Transactions after August 1
Clause 3, Article 27 of the 2024 Land Law stipulates that contracts for transfer, donation, mortgage, and capital contribution using land use rights, land use rights, and assets attached to land must be notarized or certified, except for the case specified in Point b of this Clause.
Accordingly, only in cases where one or more transferors are real estate business organizations are not required to notarize or authenticate.
Therefore, the transfer of land use rights by handwritten document is only valid if the transfer takes place before August 1. In case the transaction is by handwritten document after August 1, it is not legally valid.
Not eligible for transfer
For the party transferring land use rights, Clause 1, Article 45 of the 2024 Land Law stipulates that organizations, households and individuals are entitled to transfer land use rights when meeting the following conditions:
- Have a certificate of land use rights, house ownership rights and other assets attached to land, except in the following cases: Inheritance of land use rights, conversion of agricultural land when consolidating land, exchanging plots, donating land use rights to the State, residential communities; Foreign-invested economic organizations receiving real estate project transfers in accordance with the provisions of law on real estate business;
- Individual households that have not been granted a red book but are eligible for a red book are allowed to transfer land use rights, lease, sublease land use rights, and contribute capital using land use rights to carry out projects.
- Land has no dispute or the dispute has been resolved by a competent state agency, a court judgment or decision, an arbitration decision or award that has come into legal effect;
- Land use rights are not subject to seizure or other measures to ensure enforcement of judgments according to the provisions of the law on civil judgment enforcement;
- During the land use period;
- Land use rights are not subject to temporary emergency measures as prescribed by law.
Thus, if only one of the above conditions is met, one has the right to request the Court to declare the transfer invalid (most commonly land without a certificate).
The transferee must not be in a case where the transfer is not allowed. For example, an individual who does not directly produce agriculture is not allowed to receive the transfer of rice-growing land.
Land use rights certificate sample (Photo: IT).
Without the consent of the members
After the 2024 Land Law was promulgated and took effect from August 1, issues related to land use right certificates (red books) have been of interest to many people. One of the changes in this law is that red books issued to households will no longer be recognized.
Clause 4, Article 256 of the 2024 Land Law clearly states that the certificate of land use rights, house ownership rights and other assets attached to land issued to household representatives before August 1, if members sharing land use rights of the household have a need, will be issued a new certificate and fully record the names of members sharing land use rights.
The determination of members sharing the right to use land of a household to register their names on the land use right certificate is agreed upon by these members and they are responsible before the law.
In fact, it is quite common for a person in a household (formerly the head of the household) to arbitrarily transfer land to another person without the written consent notarized or certified as prescribed by the other household members using the land.
Clause 5, Article 14 of Circular 02/2015 of the Ministry of Natural Resources and Environment stipulates that the person whose name is on the certificate or the authorized person according to the provisions of civil law may only sign contracts or transaction documents on land use rights and ownership of assets attached to land when the members of the household using the land have agreed in writing and such document has been notarized or authenticated according to the provisions of law.
Accordingly, if there is no written consent of members sharing land use rights notarized or certified to transfer household land to another person, the other member has the right to take back his land use rights.
Arbitrary transfer of common property of husband and wife
According to Clause 2, Article 35 of the 2014 Law on Marriage and Family, the transfer of real estate that is the common property of husband and wife must have written consent. In case the husband and wife transfer without permission, the other party has the right to request the Court to declare the transaction invalid.
Contract not notarized or authenticated
The 2024 Land Law stipulates that real estate transfer contracts must be notarized or certified. That is, if the contract is not notarized or certified according to the provisions of law, the transfer is invalid, except for Clause 2, Article 129 of the 2015 Civil Code.
That is, there is only a right to reclaim if one party or parties have not performed at least two-thirds of the obligations in the transaction. In case the land is eligible for transfer and the transferee has paid at least two-thirds of the agreed amount, there is no need to request the Court to declare the land invalid due to a violation of form to reclaim the land.
Source: https://dantri.com.vn/bat-dong-san/5-truong-hop-co-quyen-doi-lai-dat-da-ban-bang-giay-viet-tay-20241122101100722.htm
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