Does a land purchase contract in Vietnam need to be signed by both husband and wife?

NguyenThiThuTrang August 9, 2022

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The marriage event gave rise to the legal relationship between husband and wife. The content of the legal relationship between husband and wife includes obligations and rights regarding personal identity and obligations on property. The principle of equal progress is reflected in the property obligations between husband and wife, including property on land. Therefore, many people wonder when transferring real estate, in which case it is necessary to have both husband and wife’s signature. Does a land purchase contract in Vietnam need to be signed by both husband and wife? The following article by Lawyer X will help you answer.

Legal grounds

The latest law on marriage and family 2021
Civil Code 2015

Does a land purchase contract in Vietnam need to be signed by both husband and wife?

In case house and land are the joint property of husband and wife

Under Article 213 of the 2015 Civil Code, the common ownership of husband and wife is as follows:

“1. The common property of husband and wife is the divisible common property.

Husband and wife together create and develop common property; have equal rights to possess, use and dispose of common property.

Husband and wife agree or authorize each other to possess, use and dispose of common property.

The common property of husband and wife may be divided by agreement or by decision of the Court.

In case the husband and wife choose the property regime as agreed upon by the law on marriage and family, the common property of the husband and wife shall be applied according to this property regime.”

Regarding the general principle of husband and wife’s property regime, husband and wife are equal in rights and obligations in the creation, possession, use, and disposition of common property; does not distinguish between labor in the family and labor with income.

According to the provisions of Clause 1, Article 34 of the Law on Marriage and Family 2014, on registration of ownership and use rights for common property:

“In the case of property under common ownership of husband and wife, which is required by law to be registered for ownership and use rights, the certificate of ownership or certificate of use right must include the names of both husband and wife. unless otherwise agreed by husband and wife”.

Therefore, because this is determined to be the common property of husband and wife, it is in the right of disposal of both people. Therefore, if there is no other agreement, in normal cases when you want to sell a house or land that is a common property of husband and wife, it is necessary to have the consent and signatures of both people, except in the case of one of the spouses. The authorized party authorizes the other to sign on behalf of the sale and purchase contract.

In case house and land are the separate property of husband and wife

Article 44 of the Law on Marriage and Family 2014 stipulates Possession, use, and disposition of separate property:

“1. Husband and wife have the right to possess, use and dispose of their property; whether or not to import the separate property into common property.

2. In cases where a spouse cannot manage their energy and does not authorize another person to manage it, the other party has the right to manage such property. Asset management must ensure the interests of property owners.

3. Each person’s separate property obligations shall be paid from his/her property.

4. In cases where a husband and wife have separate property and the yields and income from that separate property are the family’s sole source of livelihood, the disposition of this property must be agreed upon by the husband or wife.”

This case ensures that it is a property owned only by the husband, not incorporated by the husband into the common property, all income from the land is not the only source of livelihood for the family at that time. land use right transfer contracts have legal effect and are protected by law. Therefore, if this land is the private property of one of the two parties, when this person sells it, the consent of the other person is not required.

Therefore, if it is a joint property of husband and wife, the husband cannot sell the land on his own but must have the consent of the couple. Only when the land is someone’s private property can that person be sold without the consent of the other person.

Cases where real estate is a husband and wife’s common property

Clause 1, Article 33 of the Law on Marriage and Family 2014 provides:

“1. A common property of husband and wife includes property created by husband and wife, income from labor, production and business activities, yields, profits arising from separate property, and other lawful incomes during a period. 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 obtained through transactions with separate property.

Based on the above provisions and guidance in Article 9, Article 10 of Decree 126/2014/ND-CP, the following cases where house and land are the common property of husband and wife, specifically:

* Land use right is the common property of husband and wife in one of the following cases:

– Land use rights that husband and wife have during their marriage through the following forms:

+ Firstly, land allocated by the State: Allocating land without collection of land use levy or allocating land with collection of land use levy, but the land use levy payable when assigned by the State is common property.

+ Land leased by the State: If the land rent is paid annually or once for the entire lease period, it is common property, and the new land use right is common property.

+ Land received transfer (the money paid to the transferor is a common property).

+ Lastly, land is inherited together, donated together.

– Land use right is separate property but husband and wife agree to be common property.

– The right to use land is obtained by yield and income arising from the separate property of the husband and wife.

*A house is a common property of husband and wife in one of the following cases:

– Housing is purchased with the husband and wife’s money (or in other words, the money to buy a house is a common property).

– Houses are donated to the common, shared inheritance.

– House is separate property but husband and wife agree to be common property.

– Housing is obtained by yield, income arising from the separate property of husband and wife.

Note:

– In case there are no grounds to prove that the house or land that the husband and wife are in dispute are the separate property of each party, such house and land shall be considered as common property.

– House and land transferred (for land) or purchased (for a house) with the wife’s salary or husband’s salary during the marriage period are still common property (even though house and land can only be purchased with salary). husband’s salary or wife’s salary).

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Frequently asked questions

Rights to husband and wife’s separate property?

The possession, use, and disposition of private property are prescribed in Article 44 of the Law on Marriage and Family as follows:
– Husband and wife have the right to possess, use and dispose of their property; whether or not to import the separate property into common property.
– In case the spouse cannot manage their property and does not authorize another person to manage it, the other party has the right to manage such property. Asset management must ensure the interests of property owners.

How does the wife authorize the sale of land to her husband?

Article 562 of the Civil Code defines an authorization contract as follows:
An authorization contract is an agreement between the parties, whereby the authorized party is obliged to perform work on behalf of the authorizing party, the authorizing party only has to pay remuneration if so agreed or provided for by law.
Accordingly, when the wife wants to authorize her husband to carry out the procedures for buying and selling houses and land on her behalf, it is necessary to carry out the authorization procedure. This authorization is made at the notary’s office.

What are the conditions for transferring land use rights?

The 2013 Land Law stipulates:
“1. Land users may exercise the rights to exchange, transfer, lease, sublease, inherit, donate or mortgage land use rights; contribute capital with land use rights when the following conditions are met:
a) Having 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) Undisputed land;
c) The land use right is not distrained to secure judgment enforcement;
d) During the land use term.
2. In addition to the conditions specified in Clause 1 of this Article, when exercising the rights to exchange, transfer, lease, sublease, inherit or donate land use rights; the right to mortgage land use rights or contribute capital with land use rights must also fully satisfy the conditions prescribed in Articles 189, 190, 191, 192, 193 and 194 of this Law.
3. The exchange, transfer, lease, sublease, inheritance, donation, mortgage of land use rights, and capital contribution with land use rights must be registered at the land registration agency and take effect. from the time of registration in the cadastral book.”