What are procedures for transferring land use rights from parents to their children?

My parents are still alive, both want to transfer the land use rights and land-attached assets to me but my siblings have not agreed. Could my parents transferring it to me and what are the procedures?

FDVN’s Opinion

Thank you for trusting and sending us your questions, for your question, we have some advice as follows:

Firstly: Determining who has the right to transfer land use rights

First of all, it is necessary to clarify that land use rights are owned by your parents or the household. You can verify this information on the land use right certificate (the part of land users), because this information is not clear, FDVN will divide into two cases:

- Case No. 01: Your Parents own the land use rights

In this case, your Parents have the right to decide to donate or transfer the land use right to you without the consent of your sibling.

- Case No. 02: The household owns the land use rights

In Clause 29, Article 3 of the Law on Land 2013 stipulates: “Land-using household means those who share a marital, family or foster relationship as prescribed by the marriage and family law, are living together and have joint land-use rights at the time of being allocated land or leased land, or having land use rights recognized by the State; or acquiring land-use rights.”

In case the house and land are issued to a household, this house and land are defined as the common property of the household, so the persons named in the householder at the time the land use right certificate is granted have equal rights to sell or donate this land use right. Therefore, if only parents agree to transfer the rights to you without the consent of your siblings, it is not in accordance with the law and it is not eligible for transferring or donation.

In this case, giving family members' opinion should be done as follows:

Clause 1, Article 64 of Decree 43/2014 / ND-CP detailing a number of articles of the Law on Land 2013 stipulates: “Contracts and transaction documents on land use rights and ownership of land-attached assets of households shall be signed by the persons named in the certificates or authorized in accordance with the civil law.”

To guide this provision, Clause 5 Article 14 of Circular 02/2015 / TT-BTNMT regulates: “Any person who has his/her name on the certificates or is authorized as prescribed in Clause 1, Article of the Decree No. 43/2014/NĐ-CP shall be permitted to perform signing the contract, written transaction for land use rights, ownership of land-linked properties only if all members of the household using the land agree in writing and such agreement must be authenticated or certified as true copy according to the law provisions.”

Besides, Article 212 of the 2015 Civil Code stipulates: “The possession, use and disposal of multiple ownership property by family members shall be conducted as mutually agreed. With respect to disposal of an immovable property, a movable property required registration, or a property is the primary income of the family, the agreement between all family members being adults with full legal capacity is required, unless otherwise prescribed by law.”

Thus, to transfer the land use right owns by the household, it must be agreed upon by members who are full 18 years old. Persons whose names on the land use right certificates are only allowed to sign transactions if they have been approved by all members in writing and such documents have been notarized or authenticated in accordance with the law.

Secondly, General conditions for the transfer of land use rights

To perform this activity, real estate also needs to meet the following general conditions:

Land use rights: It is stipulated in Article 188 of the Law on Land 2013:

“Article 188. Conditions for the exercise of the rights to exchange, transfer, lease, sublease, inherit, donate or mortgage land use rights; to contribute land use rights as capital

1. Land users may exercise the rights to exchange, transfer, lease, sublease, inherit, donate or mortgage land use rights and contribute land use rights as capital when meeting the following conditions:

a/ Having the certificate, except the case prescribed in Clause 3, Article 186 and the case of receiving inheritance prescribed in Clause 1, Article 168 of this Law;

b/ The land is dispute-free;

c/ The land use rights are not distrained to secure judgment enforcement;

d/ Within the land use term.”

Regarding ownership of houses and other land-attached assets: Clause 1, Article 118 of the Law on Housing 2015 stipulates:

“Article 118. Requirements applied to houses entered into transactions

1. Any house regarding transactions in housing sale, lease purchase, gifting, mortgage, or capital contribution shall meet the requirements below

a) There is the Certificate as prescribed, except for cases prescribed in Clause 2 of this Article;

b) There is no dispute, complaint, or proceedings for homeownership; the term of homeownership has not expired if the house is under a term contract on housing;

c) The house is not distrained;

d) There is no decision on land revocation, notification of housing clearance or demolishment issued by the competent agency.”

Thirdly, Procedures for transferring the land use rights

To transfer land use rights, It could be done in two forms:  transfer and donation. You can do both as follow:

Step 1: Make a notarized or authenticated transfer contract or donation contract of land use rights.

According to Clause 3, Article 167 of the Law on Land 2013: “Contracts on transfer, donation, mortgage or contribution of land use rights as capital or the rights to use land and land-attached assets must be notarized or certified, except the case of real estate business prescribed at Point b of this Clause;”

Therefore, to ensure the validity of the contract, the two parties shall notarize or authenticate a transfer contract or donation contract of land use rights. You can do notarization at a notary public organization within the province or centrally city where the real estate is located.

Step 2: Register the land use rights.

Pursuant to Clause 3, Article 188 of Law on Land 2013: “The exchange, transfer, lease, sublease, inheritance, donation or mortgage of land use rights or contribution of land use rights as capital must be registered with the land registration agency and will take effect from the time of registration in the cadastral book.”

Therefore, to make sure the transfer or donation to take effect and avoid risks for both parties, you need to register the lands use rights. The registration to change names of land user is done at the land registration office, the registration dossier is specified in Clause 2, Article 7 of Circular 33/2017 / TT-BTNMT amending and supplementing Clause 2, Article 9. Circular 24/2014 / TT-BTNMT regulations on cadastral records as follows:

“Application for transfer of agricultural land use rights which are not in the case of "regrouping the land"; transfer, lease, subletting, inheritance, donation, capital contribution by land use right, ownership of property on land; transfer of land use rights, ownership of property on land of either wife or husband to land use rights, ownership of property on land of both wife and husband shall include:

a) Application for registration of changes in land and property on land using Form No. 09 / ĐK

b) A contract, document of transfer, lease, subletting, inheritance, donation of land use right, ownership of property on land; …

c) An original of the granted Certificate

d) A written approval of the competent State agencies for economic organizations who receive transfer, capital contributions and lease of agricultural land use right to carry out investment projects;

dd) A written consent of the land users which shows that the owner of property on land may transfer, donate, lease or contribute capital to the property on land in case of transfer, donation, lease, capital contribution of property on land of which owners are not users.”

In your case, the application for changing the name of the land user includes:

- Application for registration of changes in land and property on land using Form No. 09 / ĐK;

- Transfer contract or donation contract of land use rights.

- Certificate of land use rights;

- Identity card, marriage certificate, householder of both parties

This is FDVN Law Firm's legal opinions regarding the request of the client base on studying legal regulations. Hopefully, FDVN's advice will be helpful to you.

Ha Thi Hien

FDVN Law Firm

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