Hello Lawyer, I have some questions that I would like to consult a lawyer. My grandmother is now old and weak, no longer lucid. Before that, she wrote a land donation letter for me, but I don’t know if the handwritten land donation paper has legal value. So, I want to ask if the handwritten land donation paper is valid? Looking forward to a response from you, thank you Lawyer.
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Legal grounds
- Land Law 2013
- Decree 43/2014/ND-CP
What is handwritten land donation?
Donation of a land use right is an agreement between the parties whereby the donor of the land use right gives the donor without giving rise to payment obligations through the contract of donation of land use rights.
Handwritten paper for land donation is understood as a contract of donation of land use rights that is not notarized or authenticated.
Is handwritten paper for land donation valuable?
According to the latest regulations in Article 167 of the 2013 Land Law, it is clear that the handwritten donation contract must be notarized and authenticated as follows:
“3. The notarization and authentication of contracts and documents for the exercise of rights of land users shall be carried out as follows:
a) Contracts on transfer, donation, mortgage or capital contribution with land use rights, land use rights and land-attached assets must be notarized or authenticated, except for the case of real estate business. at point b of this clause;”
Thus, the donation of your land must be made in writing, certified or notarized in accordance with the provisions of law, to take effect.
Cases for giving land by handwritten paper with legal effect
In fact, there are many plots of land that were left by grandparents to their children in the form of handwriting; making it difficult for future owners to make a red book or sell that land. Therefore, the State has prescribed a number of cases for land with handwritten paper to remain legally valid as follows:
That parcel of land has not been granted a certificate
This content is specified in Clause 1, Article 82 of Decree No. 43/2014/ND-CP (amended and supplemented by Clause 54, Article 2 of Decree 01/2017/ND-CP) stipulating procedures for registration and issuance of licenses. certification in case the land use right has been transferred but the procedures for right transfer have not been carried out as follows:
Carry out procedures for land registration, grant of certificates of land use rights and ownership of houses and other land-attached assets for the first time according to regulations without having to carry out procedures for transferring land use rights.
The application-receiving agency may not require the land use right transferee to submit the contract or document on transfer of the land use right.
If the donated land is used before January 1, 2008, it will still be valid even if there is no land use right document; at the same time, the donation contract is not required to be authenticated or notarized. But if using donated land from January 1, 2008 to before July 1, 2014, the land use right document must be provided according to Article 100 of the 2013 Land Law. for land has no effect.
For the land plot that has been granted a certificate
According to the provisions of Clause 2, Article 82 of Decree No. 43/2014/ND-CP, if the land user received as a gift before July 1, 2014 but the receiver only has a certificate or contract on donation from the other party, donate; then carry out procedures for registration of land use rights, ownership of houses and land-attached assets without carrying out procedures for transferring land use rights.
The content must be in the handwritten form for land donation
In order to ensure the content, as well as more convenient for proving the right of donation to take effect in the future, the handwritten paper for land donation must ensure the following contents:
Specify the information of the donor, including: Full name, date of birth, ID card number/Citizen identification card number, issuing unit, permanent residence, etc.
Specify the information of the recipient, including: Full name, date of birth, ID number / Citizen identification card, permanent residence …
Specify information about the property given or donated: Type, location, area, properties on land, information about the certificate of land use right.
Determination of tax obligations and related fees
Specify methods for resolving conflicts and disputes
Specify the time of handing over, giving or donating land to the recipient
Commitment of the parties to give/donate, given/given is completely voluntary
Both parties need to sign and clearly write their names, then go to the State administrative agency for notarization to ensure the legality of the land donation paper.
Procedures for donation of land use rights according to regulations
Donating land with handwritten paper sometimes makes it difficult for the owner later to transfer it to another person or get a red book. Therefore, the donation is in accordance with the procedures and regulations of the State. The specific process is as follows:
Step 1: Prepare documents
Documents to be prepared under Clause 3, Article 167, Law 2013 are as follows:
Original certificate of land use right
House and land registration fee declaration
Notarized copy of National Identity Card
Notarized copy of household registration book
Minutes of measuring the land plot certified by the neighboring households
Step 2: Go to the land registration office where the donated land is available to submit the application.
Step 3: The land registration office receives and processes the application
The land registration office will check the file if it is eligible to exercise the rights as prescribed, then carry out the following tasks:
Send cadastral information to the Tax Authority to determine and notify financial obligations in accordance with regulations
Confirm the content of changes in the issued Certificate in accordance with regulations of the Ministry of Natural Resources and Environment.
Adjust and update changes in cadastral records, land database
Step 4: Give the Certificate to the land user
Procedures for notarization and certification of handwritten donation of land
About the documents that need to be prepared
Written request for certification of contracts and documents according to the form prescribed by law.
Copy of Identity Card or Passport; copy of documents proving the authority of the representative (if the representative);
A copy of the certificate of land use right issued in accordance with the provisions of the 1987 Land Law, the 1993 Land Law, the 2003 Land Law; a copy of the certificate of house ownership and residential land use right issued in accordance with the Government’s Decree No. 60/CP of July 5, 1994; a copy of the certificate of house ownership and residential land use right issued in accordance with the law on housing (hereinafter referred to as the Certificate of land use right);
Within the time limit specified in Article 184 of the Government’s Decree No. 181/2004/ND-CP dated October 29, 2004 on the implementation of the Land Law, if the current land user has not obtained a Certificate of Land Rights, If using land, there must be a copy of one of the papers on land use rights specified in Clauses 1, 2 and 5, Article 50 of the Land Law; in case the land user’s name is in the land register or cadastral book, a written certification (copy) of the People’s Committee of the commune, ward or township where the land is located must be obtained;
Contract for donation of land use rights;
A copy of the certificate of house ownership issued in accordance with the law on housing, the certificate of ownership of construction works issued in accordance with the provisions of Decree No. 95/2005/ND-CP dated 15 July 2005 of the Government for the case of having property attached to land that the owner of such property sells, leases, inherits, donates, mortgages or contributes as capital to.
About the order of execution
The requester for authentication shall submit 01 set of documents requesting authentication at the “One-stop shop” transaction section of the commune-level People’s Committee and present the original copy of the submitted document for comparison.
Judicial and civil status officers of communes, wards and townships shall record in the book of authentication of contracts and transactions and submit them to the chairperson or vice chairperson of the People’s Committee of the commune, ward or township to sign and authenticate contracts and documents. copy of real estate in case the application for authentication is valid. If it is not possible to authenticate on the day of receiving the dossier, the judicial officer – civil status of the commune, ward or township shall record it in the contract or transaction authentication book and write an appointment slip (according to the Form) and hand it to the requester for authentication. .
If the dossier is invalid or when processing the request for authentication, it is found that the person having the real estate is not eligible to exercise the rights of the person having the immovable property as prescribed by law, the civil status officer of the commune , wards or townships shall return the dossiers and clearly notify the reasons in writing to the authentication requesters.
About the execution time
Is done within a working day, if the application for authentication is submitted after three (03) o’clock in the afternoon, the authentication shall be done within the next working day at the latest; In case the contract or document contains complicated details, the time limit for authentication shall not exceed three (03) working days from the date of receipt of a complete and valid dossier (Time for providing information about the land plot of the Registrar’s Office). land use rights are not included in the authentication period).
Please see more
- Regulations on public land planning in Vietnam
- Sequence of recovering encroached land in Vietnam
- Leasing production forest land according to Vietnam law
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Frequently asked questions
Pursuant to Article 37, Decree 43/2014/ND-CP (amended and supplemented in Clause 23, Article 2, Decree 01/2017/ND-CP) according to which state agencies are competent in receiving , consider and issue red books, including the following agencies:
For localities where land registration offices have been established, the Department of Natural Resources and Environment is the agency competent to issue land use right certificates in case of new, renewed or re-issued certificates.
For localities that have not yet established land registration offices, the Department of Natural Resources and Environment shall issue certificates for the land of organizations, overseas Vietnamese…
Buying and selling real estate by handwritten paper means that the parties sign a land sale and purchase contract in handwritten paper without notarization or authentication of the contents of the contract.
According to the provisions of law, the form of a contract for the transfer of land use rights must be made in writing, notarized and authenticated.
Therefore, handwritten paper without notarization has no legal value. The purchase and sale of real estate by handwritten paper has no legal value, but in some cases the law still recognizes this form.
According to the provisions of Clause 2, Article 129 of the Civil Code 2015:
“A civil transaction has been established without notarization but one party or parties has performed at least two-thirds of the obligations in the transaction, the court shall issue a decision to recognize the validity of that transaction. In this case, the parties do not have to perform the notarization and authentication.”
Thus, if the land purchase and sale contract has not been notarized/certified, but one or both parties have performed 2/3 of the obligations in the contract, it will still be recognized.
In order for the unnotarized real estate sale and purchase contract to be recognized as legally valid, the buyer or the seller or both parties can request the Court to issue a decision to recognize the validity of the contract and the parties are not required to perform the contract. do notarization.
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