My parents gifted me a house for ancestral worship; can I sell it?

My parents transferred ownership of the house we were living in to my older brother through a notarized gift contract. When gifting the house, they stipulated that it could not be sold but used for ancestral worship, a condition only stated verbally and witnessed by neighbors. Later, my brother sold the house to someone else, and the buyer was issued a certificate of ownership.

I would like to ask, is my brother's house sale valid? Can the gift contract and the sale contract be canceled? What should my parents have done before gifting the house?

Reader Phan Cuong sent a question to Thanh Nien newspaper .

Legal advice

According to lawyer Le Van Hoan (Ho Chi Minh City Bar Association), Article 122 The Housing Law stipulates that contracts for the donation of housing must be notarized and authenticated. The effective date of the contract is the date of notarization and authentication.

Furthermore, Article 462 of the Civil Code stipulates the following regarding conditional gifts of property:

Firstly, the donor may require the recipient to fulfill one or more obligations before or after the gift. The conditions of the gift must not violate legal prohibitions or be contrary to social morality.

Secondly, in cases where an obligation must be fulfilled before the gift is given, if the donee has fulfilled the obligation but the donor fails to deliver the property, the donor must compensate the donee for the obligation that has been fulfilled.

Thirdly, if an obligation must be fulfilled after a gift is given and the recipient fails to do so, the donor has the right to reclaim the property and claim compensation for damages.

A gift contract must be notarized or authenticated to be valid.

Furthermore, according to Article 122 of the Housing Law, Article 462 of the Civil Code, and Case Law No. 14 of 2017 of the Supreme People's Court, your parents are required to include this condition in the gift contract, which must be notarized and authenticated, when gifting the house to their child on the condition that it be used for ancestral worship and not sold. Alternatively, your parents and brother can create a separate written commitment regarding the conditions of the gift, either before or at the time of signing the notarized and authenticated contract.

Based on the above regulations, the gift of the house with the condition that it "be used as a place of worship and not to be sold," made verbally without any written document showing that your parents and brother agreed on the gift conditions, is not legally valid. Therefore, in the event of a dispute, there will be no evidence to prove it.

According to the Housing Law and the Land Law, contracts for the purchase/transfer of houses and land must be notarized and authenticated, and must be effective at the time of registration of the ownership of the house and the land user.

Therefore, since the buyer has been issued a certificate of ownership, the house and land sale contract between your brother and the buyer has become effective.

"The law will protect the legitimate rights of the home buyer because this transaction is legal and in good faith. Therefore, even if your parents sue in court, requesting the annulment of the gift contract and the sales contract, it will be difficult for the court to accept their request," lawyer Hoan analyzed.

According to lawyer Hoan, if parents want to gift land to their children but prohibit transactions such as buying, selling, mortgaging, gifting, contributing capital, or guaranteeing, this must be stated in the gift contract and notarized or certified to be valid.

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