Cases where the red book cannot be transferred in 2023, know or you will lose

Conditions for transferring red book

Article 188 of the 2013 Land Law stipulates the conditions for exercising the rights to convert, transfer, lease, sublease, inherit, donate, mortgage land use rights; and contribute capital using land use rights as follows:

"Article 188. Conditions for exercising the rights to convert, transfer, lease, sublease, inherit, donate, mortgage land use rights; contribute capital using land use rights

1. Land users are entitled to exercise the rights to convert, transfer, lease, sublease, inherit, donate, mortgage land use rights; and contribute capital using land use rights when the following conditions are met:

a) Have a Certificate, except for the case specified in Clause 3, Article 186 and the case of inheritance specified in Clause 1, Article 168 of this Law;

b) Land has no disputes;

c) Land use rights are not subject to seizure to ensure enforcement of judgment;

d) During the land use period.

2. In addition to the conditions specified in Clause 1 of this Article, when exercising the rights to convert, transfer, lease, sublease, inherit, donate land use rights; mortgage land use rights, and contribute capital using land use rights, land users must also satisfy the conditions specified in Articles 189, 190, 191, 192, 193 and 194 of this Law.

3. The conversion, transfer, lease, sublease, inheritance, donation, mortgage of land use rights, and capital contribution using land use rights must be registered with the land registration agency and take effect from the time of registration in the land registry."

Cases where red book transfer is not allowed

Based on the above conditions for transferring the red book, land in the following cases will not be allowed to be transferred:

- Land is in dispute and has not yet had a final court decision;

- Land is being seized to ensure execution of judgment;

- Land has expired.

In addition, if the land user (seller or donor) meets the conditions prescribed in Article 188 of the 2013 Land Law, but the buyer or recipient is not allowed to buy or receive land use rights as a gift, the red book cannot be transferred. In other words, these are cases where the transfer of ownership is prohibited.

According to Article 191 of the 2013 Land Law, there are 4 cases in which land use rights cannot be received, transferred or donated.

1. Organizations, households, individuals, residential communities, religious establishments, Vietnamese people residing abroad, and foreign-invested enterprises are not allowed to receive transfers or donations of land use rights in cases where the law does not permit the transfer or donation of land use rights.

2. Economic organizations are not allowed to receive transfers of the right to use rice-growing land, protective forest land, or special-use forest land from households or individuals, except in cases where the land use purpose is changed according to the land use planning and plan approved by a competent state agency.

3. Households and individuals not directly involved in agricultural production are not allowed to receive transfers or gifts of land use rights for rice cultivation.

4. Households and individuals are not allowed to receive transfers or gifts of land use rights for residential land or agricultural land in protective forests, strictly protected zones, or ecological restoration zones in special-use forests if they do not live in such protective forests or special-use forests.

Thus, if the buyer or the recipient of the land use right is in one of the above 4 cases, the transfer of the Red Book is not allowed even if the seller or donor is qualified.

In addition, Article 192 of the 2013 Land Law also stipulates cases where households and individuals transfer or donate land use rights with the following conditions:

- Households and individuals living in the strictly protected zones and ecological restoration zones of special-use forests but are not yet able to move out of those zones:

The right to use residential land and forest land combined with agricultural, forestry and aquaculture production may only be transferred or donated to households and individuals living in that subdivision.

- Households and individuals who are allocated residential land or agricultural land in protective forest areas by the State must:

The right to use residential land and agricultural land may only be transferred or donated to households and individuals living in that protected forest area.

- Households and individuals who are ethnic minorities using land allocated by the State under the State's support policy:

Land use rights can be transferred or donated after 10 years from the date of land allocation decision according to Government regulations.

Red book transfer fee

Pursuant to Circular 111/2013/TT-BTC and Decree 140/2016/ND-CP; Circular 85/2019/TT-TBC, when transferring or donating real estate, the parties are obliged to pay personal income tax, registration fees and file appraisal fees as prescribed.

In which, personal income tax payable = 2% x transfer price. Registration fee = 0.5% x transfer price. The fee for document appraisal is regulated by the Provincial People's Committee, so the collection rate varies between provinces and cities.

Minh Hoa (t/h)

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