Complicated real estate file status
In early December 2023, the Department of Natural Resources and Environment of Ho Chi Minh City is requesting the People's Committees of districts, Thu Duc City, the Ho Chi Minh City Land Registration Office and its affiliated branches to handle records of arbitrary changes in land use purposes, arbitrary subdivision of plots, and handwritten transfer of rights.
According to the report of the Department of Natural Resources and Environment of Ho Chi Minh City, in Ho Chi Minh City, there are cases of households and individuals using agricultural land, having been granted a Certificate of Land Use Rights by the District People's Committee, and during the use, there have been changes such as: households separating to live separately; inheriting, being given, transferring part of the land area...
To solve this practical need, land users have arbitrarily divided plots, transferred part of the land plot by hand (without making a contract to transfer land use rights and assets attached to the land as prescribed), arbitrarily changed the land use purpose (built houses, works on agricultural land...).
Because the land law over many periods has not had timely and complete regulations, the transferee in these cases has not been granted a Certificate of land use rights, house ownership rights and other assets attached to the land (certificate).
The above existing problem lasted until the regulation in Clause 2, Article 82 of Decree No. 43/2014/ND-CP allowed the settlement of cases of receiving transfer, inheritance, and gift by handwritten documents before July 1, 2014.
However, because it was an arbitrary division of land to transfer rights, most of the transferred land area was not in accordance with the regulations of the Provincial People's Committee.
Mr. Nguyen Toan Thang, Director of the Department of Natural Resources and Environment of Ho Chi Minh City, assessed: “There are currently no specific statistics because there has not been any organization to declare and register. However, according to our records, these cases are mainly concentrated in suburban areas, especially in districts with rapid urbanization such as Binh Chanh, Hoc Mon, Binh Tan, etc.”
To have a relatively accurate figure, the Department of Natural Resources and Environment of Ho Chi Minh City needs to conduct a declaration and survey throughout the city with close coordination between districts, Thu Duc City, wards, communes as well as people who are "owning" real estate in that situation.
People must clearly see their responsibilities and rights to cooperate in transparent declaration to have specific and accurate numbers.
To issue certificates for real estate bought and sold by hand, Ho Chi Minh City needs to consider issues such as the time of purchase and sale; handling of land and construction violations (fines, forced demolition or registration, forced return of illegal profits, etc.); reviewing planning, ensuring compliance with regulations on land division limits and infrastructure, etc. to determine each specific case that is eligible.
At the same time, because the purchase and sale of handwritten documents is not confirmed by the competent authority, the verification of the authenticity of the time of purchase and sale is baseless and can easily be exploited to violate regulations. If not strictly implemented, it can easily lead to "circumvention of the law" and land plot division without ensuring the limit.
“Therefore, the issuance of certificates for these cases according to legal regulations must be considered and administrative violations in the land sector must be handled. The issuance of certificates for each case must also be based on planning, land use plans, land division conditions, and infrastructure to decide. These are issues under the authority of the People's Committee of the district,” Mr. Thang affirmed.
Legal issues to be clarified
Lawyer Quach Thanh Luc, Director of LSX Law Firm LLC, said that currently, real estate transactions between individuals using handwritten documents without notarization or certification are relatively common.
The reason why the two parties established such a transaction was because they did not understand the legal regulations, because the land did not have a land use right certificate, because they trusted each other, because they did not want to make the transaction public, to avoid paying taxes...
The law stipulates that the transfer of real estate must have a notarized and certified contract. Land laws over the periods have consistently stipulated that the contract for the transfer of land use rights must be notarized by a notary public or certified by the People's Committee of the commune, ward or town where the land is located.
Lawyer Luc pointed out that real estate transactions by handwritten documents do not comply with formal regulations and cannot transfer the user's name on the documents proving the right to use, so they are not recognized by law.
The buyer is not legally identified as the owner or legal user of the real estate.
If the buyer is not recognized as the legal land user, they are not allowed to convert, transfer, inherit, or mortgage the land. In case the state reclaims the land, the responsibility of determining the land user will still belong to the seller.
If there is a dispute between the two parties over the amount of compensation or site clearance, this amount will be deposited into the bank's temporary account until there is a judgment or decision to resolve the dispute between the two parties.
Disputes between the seller and the buyer will arise if no agreement or reconciliation is reached, then one of the two must file a lawsuit in the court where the real estate is located to resolve the matter.
Currently, the situation of real estate without certificates is still relatively common. Although real estate transactions without certificates will face great risks, many people still do it because the greater the risk, the higher the profit potential.
"In this case, to ensure the buyer's rights, it is advisable to draw up a handwritten Sales Contract with a deposit clause stating: When the land and house are granted a land use right certificate, the seller is responsible for carrying out legal transfer procedures to the buyer, otherwise, they will be fined double the amount received. With this clause, it will ensure that the possibility of disputes is minimized or if disputes arise, the buyer's rights are also guaranteed according to the law," said lawyer Luc.
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