In many cases, for various reasons, property owners can not exercise their rights to the property themselves. So, the property owner may have to ask someone else to act on his/her behalf (authorization). However, many people do not have an insight into the regulations of the law regarding authorization. In particular cases, they do not know if they can authorize another person to sell property such as land or not. Therefore, in this article LSX legal firm will answer a question: “Can a wife authorize her husband to sell land in Vietnam?”
Legal grounds
- Civil Code 2015
- Law on Marriage and Family 2014
Authorize to sell land
Authorization to sell land means to assign another person to help you carry out the land transfer transaction through an authorization contract. Article 562 of the 2015 Civil Code stipulates:
“Article 562. Authorization contracts
Authorization contract means an agreement between parties whereby an attorney has the obligation to perform an act in the name of a principal. The principal shall only be required to pay remuneration if so agreed or so provided by law.”
Thus, with a land sale authorization contract, the content of the contract must clearly state the clause that the authorizer allows the authorized person to sign the land transfer contract on his/her behalf.
Rights of the authorizing party and the authorized party
The authorizing party (land owner) has the rights specified in Article 568, Civil Code 2015. Specifically:
- Firstly, require the attorney to report fully on the performance of the authorized act.
- Secondly, require the attorney to return any property and benefits derived from the performance of the authorized act unless otherwise agreed.
- Thirdly, compensate for damage caused by a breach of any of the obligations provided in Article 565 of this Code.
The authorized party has the rights specified in Article 566, Civil Code 2015. Specifically:
- Firstly, require the principal to provide the information, documentation, and facilities necessary for the performance of the authorized act.
- Secondly, receive remuneration and be reimbursed for reasonable expenses incurred in the performance of the authorized act.
Obligations of the authorizing party and the authorized party
The obligations of the authorizing party include:
- Provide the information, documentation, and facilities necessary for the attorney to perform the authorized act.
- Be liable for undertakings given by the attorney within the scope of the authorization.
- Reimburse the attorney for reasonable expenses incurred by the attorney in the performance of the authorized act and pay any agreed remuneration to the attorney.
The obligations of the authorized party according to Article 565 of the Civil Code 2015:
- Firstly, perform the act in accordance with the authorization and inform the principal of such performance.
- Secondly, notify any third parties involved in the performance of the authorized act of the duration and scope of the authorization and of any amendments of or additions to such scope.
- Thirdly, take care of and preserve documents and facilities provided for the performance of the authorized act.
- Fourthly, keep all information confidential that the attorney comes to know during the performance of the authorized act.
- Also, return to the principal any property received and benefits derived during the performance of the authorized act as agreed or as provided by law.
- Lastly, compensate for damage caused by a breach of any of the obligations provided in this Article.
Can a wife authorize her husband to sell land?
Land belongs to the private property of the husband or wife
When the wife wants to sell the land in her name (which belongs to the wife’s private property). However, because of reasons, she wants to authorize her husband to carry out legal procedures on her behalf to sell the land. The wife has authorized her husband to carry out the land purchase and sale activities on her behalf through the authorization contract between the husband and wife.
In terms of the subjects of the authorization contract: the authorizing party (the wife); and the authorized party (the husband). Accordingly, the husband will act on behalf of and for the sake of his wife’s interests to exercise and perform the transactions specified in the authorization contract. As the case above is a personal authorization. The conditions for the authorized person to legally authorized: a person with full civil act capacity.
At the same time, according to the provisions of Article 194 of the Civil Code 2015 on the right to dispose of the owner: “Owners shall have the right to sell, exchange, give, loan, bequeath, renounce or ownership rights, right to use, destruct or implement other forms of disposal in conformity with the law on property.”
Besides, Article 195 provides for the right to dispose of non-owners: “A non-owner of property shall only have the right to dispose of the property pursuant to authorization from the owner or in accordance with provisions of the law.”
Thus, the husband here is not the property owner. He only has the right to dispose of the property as authorized by the owner (the wife). The authorized person must perform the authorized contents and must not perform beyond the scope of authorization.
In this case, the wife can completely authorize her husband to exercise the rights within the scope of the wife’s authorization.
Land belongs to the common property of husband and wife
Article 33 of the Law on Marriage and Family 2014:
“1. Common property of husband and wife includes property created by a spouse, incomes generated from labor, production and business activities, yields and profits arising from separate property and other lawful incomes in the marriage period; except the case prescribed in Clause 1, Article 40 of this Law; property jointly inherited by or given to both, and other property agreed upon by husband and wife as common property.
The land use rights obtained by a spouse after marriage shall be common property of husband and wife, unless they are separately inherited by, or given to a spouse or are obtained through transactions made with separate property.
- Common property of husband and wife shall be under integrated common ownership and used to meet family needs and perform common obligations of husband and wife.
- When exists no ground to prove that a property in dispute between husband and wife is his/her separate property, such property shall be regarded as common property.”
According to the above provisions, the land use rights that husband and wife have after marriage belong to the common property of husband and wife. Only when a spouse is separately inherited, given as a gift, or acquired through a transaction with separate property, will the land use rights be considered the private property of the spouses.
Article 35. Possession, use and disposition of common property
Article 35 of the Law on Marriage and Family 2014 provides for the disposition of marital property as follows:
“1. The possession, use, and disposition of common property shall be agreed by husband and wife.
- The disposition of the following common property shall be agreed in writing by husband and wife:
a/ Real estate;
b/ Movable assets which are required by law to be registered for ownership;
c/ Assets which are the major income-generating source for the family.”
So, when a husband and wife want to transfer land use rights and assets attached to the land, they must reach an agreement with each other. Therefore, the wife must make a power of attorney to authorize her husband to sell the land.
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Related questions
When husband and wife reach agreement on either spouse’s use of common property for business activities, this spouse has the right to make transactions related to that common property on his/her own.
Authorization contract means an agreement between parties whereby an attorney has the obligation to perform an act in the name of a principal. The principal shall only be required to pay remuneration if so agreed or so provided by law.
The duration of the authorization shall be as agreed by the parties or as provided by law. If there is no agreement and the duration is not provided by law, the authorization contract shall be effective for one year from the date on which the authorization is made.
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