My parents transferred the house they were living in to my brother, the gift contract was notarized. When they gave the house, they set a condition that it could not be sold but used for worship, only verbally, with the neighbors witnessing. After that, my brother sold the house to someone else and the buyer was given a certificate.
I want to ask, is my brother's house sale valid? Can the house donation contract and the sale contract be canceled? What should my parents have done before the donation?
Reader Phan Cuong asked Thanh Nien .
Consulting attorney
According to lawyer Le Van Hoan (Ho Chi Minh City Bar Association), in Article 122 The Housing Law stipulates that housing donation contracts must be notarized and authenticated. The effective date of the contract is the date of notarization and authentication of the contract.
According to Article 462 of the Civil Code, the conditional donation of property is as follows:
First, the donor may require the donee to perform one or more obligations before or after the donation. The conditions of the donation must not violate the prohibitions of law or be contrary to social ethics.
Second, in cases where obligations must be performed before the donation, if the donee has fulfilled the obligations but the donor does not deliver the property, the donor must pay the obligations that the donee has performed.
Third, in case the donee fails to perform the obligation after the donation, the donor has the right to reclaim the property and request compensation for damages.
A donation contract must be notarized or authenticated to be valid.
In addition, according to Article 122 of the Housing Law, Article 462 of the Civil Code and Precedent No. 14 of 2017 of the Supreme People's Court, it is mandatory that when your parents give the house to their children with the condition that it is used for worship and cannot be sold, it must be recorded in a gift contract, notarized and certified. Or your parents and brother can make a separate commitment document on the conditions for giving the house, at the time before or at the time of signing the notarization and certification of the contract.
Based on the above regulations, the gift of the house with the condition "to be used as a place of worship, not to be sold" is only verbal, without any written or other documents showing that your parents and brother have agreed on the conditions of the gift, which is legal. Therefore, when there is a dispute, there is no evidence to prove it.
According to the Housing Law and the Land Law, the contract for sale/transfer of houses and land must be notarized, authenticated and effective at the time of registration of the transfer of ownership of the house and land user.
Thus, the home buyer has been granted a certificate, so the real estate sale contract between your brother and the buyer has come into effect.
"The law will protect the legal rights of home buyers because this sale is legal and fair. Therefore, even if your parents sue in court, requesting to cancel the gift contract and the sale contract, it will be difficult for the court to accept," lawyer Hoan analyzed.
According to lawyer Hoan, if parents want to give their children real estate, but do not allow transactions such as: buying and selling, mortgaging, donating, contributing capital, or guaranteeing, this content must be stated in a gift contract, notarized or certified to be valid.
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