Landlord breaches deposit contract, how to get money back?

I bought a plot of land worth 5 billion VND, and deposited 200 million VND. Both parties agreed to choose a date to go to the notary and pay the purchase price there. However, we made two appointments to go to the notary, but the seller always made excuses to not come. I think they are wasting each other's time. Because they violated the deposit contract, I wanted to get my deposit back, but they refused to return it.

So what should I do to get my money back? Can I invite a bailiff to come and make a record if they continue to not come on time next time, so that I have grounds to get my money back?

Reader Ho Thuy.

Expert Answers

Mr. Nguyen Tien Phap, Head of Saigon Bailiff Office, advises:

According to Article 328 of the Civil Code: "If the deposit recipient refuses to enter into or perform the contract, he/she must return the deposit to the depositor and an amount of money equivalent to the value of the deposit, unless otherwise agreed."

According to the information you provided, the landowner has violated the deposit contract between the parties. Therefore, in this case, you have the right to request the landowner to return the 200 million deposit and also fine the landowner an amount according to the deposit contract. If the deposit contract does not specify the penalty rate, you can fine the deposit equal to the exact deposit amount of 200 million.

Chủ nhà đất vi phạm hợp đồng đặt cọc, làm thế nào để lấy lại tiền? - Ảnh 1. — According to Mr. Nguyen Tien Phap, if the landowner violates the contract, the buyer has the right to invite a bailiff to witness the drawing up of a record.

"It is important that you establish evidence that the landlord violated the deposit contract. Because if you request a penalty immediately, they may say the opposite, that the parties have not agreed on a place to notarize the contract, or that you have not notified them to invite them to the notary, or that they went to the notary but you were not present," said Mr. Phap.

Therefore, to have evidence that the landlord has violated the deposit contract, or at least to prove that you have not violated the contract, you have the right to invite a bailiff to witness the drawing up of a record (Article 36 of Decree 08/2020 of the Government).

Accordingly, you need to perform the following 2 steps:

Step 1: You send a notice to the landowner about the time and place to sign the notarized contract .

The content is that the landowner has "failed" to notarize twice and this is the last invitation to notarize. If the landowner does not appear and sign the transfer contract, it is considered as refusing to sign the transfer contract, the deposit received will be refunded and a deposit penalty will be imposed. In the notice letter, you need to clearly state the time and place of notarization and request to bring all documents.

If the deposit contract has an agreement on the form of notice between the parties being in writing and at the parties' addresses, you must comply with the agreement.

During the process of texting, calling, and sending notices, the bailiff will accompany you and witness the making of a record. Whether the landowner accepts or refuses or avoids receiving the notice, your goodwill actions mentioned above, along with the record made by the bailiff, are still enough to prove that you have fulfilled your obligation to deliver the notice and are ready to transact.

Step 2: Go to the notary according to the announced content .

When going to the notary, you must bring your identification, relevant documents and money to pay the landowner when signing the transfer contract. In addition, you also need to text or call the landowner to inform them that you are present at the notary organization and request that the landowner be present to sign the transfer contract.

If the landowner is present and cooperates in signing the transfer contract, the parties have completed the transaction. Conversely, if the landowner is not present or is present but does not sign the contract or does not receive payment as agreed, it means that they have violated the deposit contract.

The entire incident will be witnessed by a bailiff and a record will be made. This is evidence proving that the landowner has violated the deposit contract. From there, you have the right to request the landowner to refund the deposit and pay a penalty as agreed. If the landowner does not comply, you can use the record to file a lawsuit in court.

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