Conditions for transferring ownership of a land title.
Article 188 of the 2013 Land Law stipulates the conditions for exercising the rights to convert, transfer, lease, sublease, inherit, give as a gift, mortgage land use rights; and contribute capital with land use rights as follows:
Article 188. Conditions for exercising the rights to convert, transfer, lease, sublease, inherit, give as a gift, mortgage land use rights; contribute capital with land use rights.
1. Land users may exercise the rights to convert, transfer, lease, sublease, inherit, donate, and mortgage land use rights; and contribute land use rights as capital when the following conditions are met:
a) Having a Certificate, except in the cases stipulated in Clause 3 of Article 186 and the cases of inheritance stipulated in Clause 1 of Article 168 of this Law;
b) The land is not subject to any disputes;
c) Land use rights are not subject to seizure to secure the enforcement of a judgment;
d) During the land use period.
2. In addition to the conditions stipulated in Clause 1 of this Article, land users, when exercising the rights to convert, transfer, lease, sublease, inherit, or donate land use rights; the right to mortgage land use rights, or contribute capital using land use rights, must also meet the conditions stipulated in Articles 189, 190, 191, 192, 193, and 194 of this Law.
3. The conversion, transfer, lease, sublease, inheritance, donation, mortgage of land use rights, and capital contribution using land use rights must be registered with the land registration agency and shall be effective from the time of registration in the land register.
Cases where land title transfer is not permitted
Based on the above conditions for transferring land ownership, land falling under the following categories will not be permitted to be transferred:
- The land is currently under dispute and no final court decision has been made yet;
- The land is currently under seizure to ensure the enforcement of a judgment;
- The land use rights have expired.
Furthermore, if the land user (seller or donor) meets the eligibility requirements stipulated in Article 188 of the 2013 Land Law, but the buyer or recipient of the gift is ineligible to purchase or receive the land use rights, then the land title cannot be transferred. In other words, these are cases where the transfer of ownership is prohibited.
According to Article 191 of the 2013 Land Law, there are four cases in which the right to use land cannot be received, transferred, or gifted.
1. Organizations, households, individuals, residential communities, religious establishments, Vietnamese people residing abroad, and foreign-invested enterprises are not allowed to receive the transfer or donation of land use rights in cases where the law prohibits the transfer or donation of land use rights.
2. Economic organizations are not permitted to acquire the right to use rice land, protective forest land, or special-use forest land from households or individuals, except in cases where the land use purpose is changed according to the land use plan approved by the competent state agency.
3. Households and individuals who do not directly engage in agricultural production are not permitted to receive transfers or gifts of land use rights for rice cultivation.
4. Households and individuals are not permitted to receive transfers or gifts of land use rights for residential or agricultural land in protection forests, strictly protected zones, or ecological restoration zones within special-use forests, unless they reside in those protection forests or special-use forests.
Therefore, if the buyer or recipient of the land use rights falls into one of the four cases above, they are not allowed to transfer the land title even if the seller or donor meets all the conditions.
Furthermore, Article 192 of the 2013 Land Law also stipulates the following conditions regarding the transfer or donation of land use rights by households and individuals:
- For households and individuals living interspersed within strictly protected zones and ecological restoration zones of special-use forests, but who do not yet have the conditions to move out of those zones:
The right to use residential land, forest land combined with agricultural production, forestry, and aquaculture may only be transferred or gifted to households and individuals residing within that sub-zone.
- For households and individuals to whom the State has allocated residential land or agricultural land within protected forest areas:
The right to use residential land and agricultural land may only be transferred or gifted to households and individuals residing within that protected forest area.
- For households and individuals belonging to ethnic minorities who use land allocated by the State under the State's support policies:
The right to use land may be transferred or gifted after 10 years from the date of the land allocation decision as stipulated by the Government .
Costs of transferring land ownership
Based on Circular 111/2013/TT-BTC and Decree 140/2016/ND-CP; Circular 85/2019/TT-TBC, when transferring or gifting land and houses, the parties are obligated to pay personal income tax, registration fees, and document appraisal fees as prescribed.
In this case, the personal income tax payable = 2% x transfer price. The registration fee = 0.5% x transfer price. The document appraisal fee is determined by the Provincial People's Committee, so the amount varies between provinces and cities.
Minh Hoa (compiled)
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