Date: 05 March 2021
Writer: Thao Bui
Land use right (“LUR”) is a special and valuable property. If husband and wife have a common LUR, can he/she self-transfer it to another? And can such transaction be canceled when it was notarized? By this post, BLawyers Vietnam would like to give you an overview of regulations on this matter.
1. Dispose of common property of husband and wife
According to Law on Marriage and Family 2014, a spouse cannot dispose of common property. In case the common property is LUR, if LUR certificate only write the name of a spouse, any transactions related to this property shall be carried out in accordance with regulations on representation between husband and wife. It means a spouse must be authorized to enter transaction by the other party. Thus, husband or wife only can dispose of the common LUR if he/she meets the following conditions:
- Having written agreement on dispose of common property; or
- Being authorized by the other party.
When a spouse disposes of the common LUR without the other spouse’s written consent or authorization, such transaction may be invalid. The other spouse has the right to request the Court to declare the transaction invalid and settle legal consequences.
2. Cancelation of a notarized LUR transfer contract
Pursuant to Law on Land 2013, LUR transfer transactions only take effect when being notarized. However, in case where there is evidence, a party has the right to request the Court to declare the notarized document invalid. If a spouse disposes of the common LUR without the other spouse’s written consent or authorization is one of cases that notarized document may be invalid.
To execute the lawful rights, the spouse with violated interest must submit a petition and documents, evidences to a Court. The petition must ensure the required contents of the law, including:
- Date of making the petition;
- Name of the Court that is competent to handle the petition;
- Name, address; phone number, fax number, e-mail address (if any) of the petitioner;
- Specific issues requested for resolution by the court; reasons, purposes and bases of the request for Court resolution of such civil matters;
- Names and addresses of persons who are related to the resolution of such civil matters (if any);
- Other information that are deemed by the petitioner to be necessary for the resolution of his/her petition; and
- Signature or fingerprints for individuals, or signature and seal of lawful representatives for organizations.
In conclusion, a spouse only can dispose common LUR when having agreement or authorization of the other spouse. If a transaction is made without these conditions, it may be invalid. Notarized documents for this transaction can also be invalidated by the Court. Thus, before dispose any common property, spouses should prepare carefully to avoid risks.
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