Divorce is the termination of the husband and wife relationship according to an effective court judgment or decision. From the time of termination of the marital relationship, the husband and wife will no longer have any relationship with each other, unless the issues of children and property have not been resolved. So about the matter “Buying land after divorce under Vietnam law” Let’s find out with LSX in the article below.
Legal grounds
- Law on Marriage and Family 2014
- Land Law 2014
Buying land after divorce under Vietnam law
According to Clause 1, Article 57 of the Law on Marriage and Family 2014, the marriage relationship terminates from the date on which the court’s divorce judgment or decision takes legal effect.
Therefore, since the Court’s divorce judgment or decision takes legal effect, the marriage relationship has ended. After the termination of the marital relationship, transactions related to the use of personal property will not be related to the ex-spouse.
According to Article 33 of the Law on Marriage and Family 2014, the common property of husband and wife includes property created by husband and wife, income from labor, production and business activities, yields and profits arising from separate property and other lawful income during the marriage, except for the case specified in Clause 1, Article 40 of this Law; property that husband and wife inherit jointly or are given as a gift and other property agreed upon by husband and wife is common property.
Land use rights acquired by husband and wife after marriage are the common property of husband and wife, except for cases where the spouses are separately inherited, given separately or acquired through transactions with separate property.
In case there are no grounds to prove that the property in dispute between husband and wife is the separate property of each party, such property shall be considered as common property.
Article 213. Joint ownership of husband and wife
1. Common property of husband and wife is divisible common property.
2. Husband and wife jointly create and develop common property; have equal rights to possess, use and dispose of common property.
3. Husband and wife agree or authorize each other to possess, use and dispose of common property.
4. Common property of husband and wife may be divided by agreement or by decision of the Court.
5. In case the husband and wife choose the property regime as agreed upon in accordance with the law on marriage and family, the common property of the husband and wife shall be applied according to this property regime.
Accordingly, since the establishment of property ownership, you have co-owned husband and wife, so when transferring, you must have similar documents proving this common ownership to provide enough transfer documents. In case, you are divorced as described above, you can provide the judgment or divorce decision to have a basis for making a transfer contract.
Conditions for transferring land use rights
According to Clause 1, Article 188 of the 2013 Land Law, land users have the right to transfer land when fully meeting the following 04 conditions:
Condition 1: Having a Certificate, except for the following 02 cases:
Case 1: According to Clause 3, Article 186 of the 2013 Land Law.
– An inheritor whose property is a land use right but is a foreigner or an overseas Vietnamese who is not subject to the purchase of houses associated with land use rights shall not be granted a certificate but may the right to transfer the inherited land to another person.
Case 2: According to Clause 1, Article 168 of the Land Law 2013.
– In case of conversion of agricultural land use rights, the land users may transfer the land after the decision on land allocation or land lease is issued;
– In case of inheriting land use rights, the land user may exercise the right to transfer when the conditions for granting the certificate are met (not yet granted but only required to be eligible for the certificate).
Condition 2: Land is not disputed
Condition 3: The land use right is not distrained to secure judgment enforcement
Condition 4: Within the land use term
This is the general procedure applied to the case of transfer of land use rights (procedure to transfer the certificate).
– The transfer of land use rights must be registered at the land registration agency and takes effect from the time of registration in the cadastral book (According to Clause 3, Article 188 of the Land Law 2013).
Accordingly, when buying and selling land, it is necessary to carry out the procedures for transferring the name (procedure for registration of land changes), if not carrying out the procedures for transferring the name, legally the land use right has not been transferred to the buyer ( prone to disputes).
– The procedure for buying and selling land takes place according to the following steps: Deposit (this step alone is not required), notarization of the transfer contract, transfer the name of the certificate.
Property division is land use right after divorce
According to the Court’s divorce decision, the common property of the two parties is mutually agreed upon, so the husband and wife need to make a written agreement on the division of land use rights and assets attached to the land, then carry out the procedures. Notarize this agreement.
According to the provisions at point dd, Clause 2, Article 17 of Circular 23/2014/TT-BTNMT stipulating the certificates of land use rights, ownership of houses and other land-attached assets, an agreement on division of The husband and wife’s land use rights and land-attached assets must register for land changes and be granted a certificate of land use rights and ownership of houses and other land-attached assets.
Thus, after making a notarized written agreement on division of land use rights and assets attached to land, you are obliged to register land changes and carry out procedures for re-issuance of the certificate of land use rights. land in the name of two people into one person.
Procedures for transferring real estate after divorce
In case the Court divides the property as land use right to one spouse, it means that there is a change in the land user according to the Court’s judgment. Therefore, according to the provisions at point k, clause 4, Article 95 of the 2013 Land Law, it is necessary to carry out procedures for registration of land changes to transfer the name of the Certificate.
According to Circular 24/2014/TT-BTNMT, the procedures for name transfer are as follows:
* Place of application: District-level branch land registration office where the house is located
* Profile include:
– Application for registration of changes in land and land-attached assets, made according to form No. 09/DK issued together with Circular 24/2014/TT-BTNMT
– The original of the issued Certificate
– Judgment of the Court
– Her ID card, household registration (certified copy)
* Processing time: 10 working days.
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Frequently asked questions
– Personal income tax: Tax payable equal to 2% of the transfer value.
– Registration fee: The registration fee must be equal to 0.5% of the transfer value.
Fees for assessment of documents (collection rate is decided by the Provincial People’s Council).
In addition, in case of transferring a part of the land plot, additional measurement fees must be paid when splitting the plot.
According to Clause 1, Article 82 of Decree No. 43/2014/ND-CP (amended and supplemented by Clause 54, Article 2 of Decree No. 01/2017/ND-CP), there are 02 cases where people buy and sell land with handwritten paper. granting a certificate of land use right for the first time without having to carry out procedures for transferring land use rights:
Case 1: Receiving the transfer before January 1, 2008;
Case 2: Received the transfer from January 1, 2008 to before July 1, 2014 and have papers on land use rights as prescribed in Article 100 of the Land Law 2013.
Accordingly, dossier-receiving agencies may not require the transferee to submit contracts and documents on land use right transfer as prescribed.
Procedures for issuance of certificates upon transfer by handwritten papers shall be carried out in accordance with the procedures for first-time issuance of certificates.
Real estate without a book can still be transferred in one of the following cases:
In case of inheriting land use rights, land users may exercise their rights upon obtaining a Certificate or meeting all conditions for issuance of a Certificate of land use rights and ownership of houses and other land-attached assets. (Clause 1, Article 168 of the Land Law 2013).
In case all recipients of land use rights and ownership of houses and other land-attached assets are foreigners or overseas Vietnamese who are not eligible to buy attached houses. With regard to residential land use rights in Vietnam, the heirs may not be granted a certificate of land use rights, ownership of houses and other land-attached assets, but may transfer or be given land use rights. inheritance” (Clause 3, Article 186 of the Land Law 2013).
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