Written by: Phuong Nguyen
Nowadays, as a culture of South Asia countries, parents in Vietnam often give their properties (being earned in whole life) to their children and those properties are houses, lands or other real estates. However, a few persons who received their parents’ properties suddenly changed their attitude after legally getting ownership right over those properties and no longer take care of their parents or let them live on their properties. An increment of cases children mistreating parents have been happened. From legal respective, how does the law of Vietnam protect parents’ right on giving property to children and under what mechanism? By this article, BLawyers Vietnam would have some notes on regimes of Vietnam law for protecting parents’ rights after giving properties to their children.
There are 02 ways to protect parents’ rights in case of giving properties to their children as legally recognized, including giving properties under a conditional contract or giving the usufruct right to their children.
Giving properties under a conditional giving contract
According to Civil Code 2015, parents can give properties to their children under a giving contract where properties are handed over and ownerships are transferred from parents to their children. That contract should be made in written and if its objective is a real estate, the relevant parties must notarize such contract at a notary office and then conduct a registration for transferring ownership of property. A giving contract shall take effect from the time of transferring the ownership (for properties needed to be registered with ownership) or from handing over the properties (for other cases).
It is noted that Civil Code 2015 allowing parents to have a conditional property giving contract, parents so could request the child who receives the property to perform one or more obligations before or after property handling/ transferring unless these conditions violate the prohibition of law and are not contrary to societal morality. A condition which may be given as after receiving properties is the child shall take care of their parents and worship after the death of parents or let the parents continue living in the given property, or the child be restricted to transfer properties for a certain period of time, or others conditions as their demand. If children violate these conditions, parents have the right to take action to reclaim the given properties and claim for damages.
In addition, conditions for giving properties still are in effect after the transfer completed, which give parents an “alive right” to claim back the given properties also claim for damage although the ownership is belonged to children, if the giving contract is violated. When a dispute arisen, parents can request a competent court to protect their rights. A typical example of this matter is recorded in Cassation Decision No. 02/2011/DS-GDT dated 17 January 2011 of the Civil Court of the Supreme People’s Court on the case “Requesting cancellation of land use right transfer contract” in Dien Bien Province, Vietnam. In which, a father giving land to his son by a contract and the attached conditions such as giving him the right to continue to living on this land and taking care of him and his parents, but such obligations were not performed. In the final decision, the Court recognized the conditions set out by the father in the conditional giving contract and issued a judgment in favor of the father. This Cassation Decision is selected and approved to as Precedent case No.14/2014/AL according to the Decision No. 299/QD-CA dated 28 December 2017 of Chief Judge of the Supreme People’s Court.
Recording the right to use a property for children (usufruct right)
Another way to protect the parents’ rights when giving properties to children is recording the right to use a property for children without transferring its ownership right. According to Civil Code 2015, usufruct right is a right allowing a person to use and enjoy yields or income of a property belonged to the ownership of other persons in a certain period. The term of the usufruct right is agreed by relevant parties or prescribed by Vietnam’s laws but up to the end of the first usufruct right holder. The two remarkable points of this right are: (i) not transferring the ownership, parents is still the owners and have full rights to their property; and (ii) children who receive this right will exercise almost rights of an owner, except to disposition of property.
There are 02 points that parents should note about the usufruct rights as follows:
Firstly, usufruct right could be terminated.
The cases of termination of such right:
(i) the period of the usufruct right is expired;
(ii) the parties have a termination agreement;
(iii) the usufruct holder becomes the owner of the properties subject to usufruct;
(iv) the usufruct holder waives or fails to exercise usufruct within the law-prescribed time limit;
(v) the subject properties of the usufruct right is no longer existed; or
(vi) as judgments of courts (in case the usufruct holder seriously violates his obligations, the owner may request a court to deprive of the usufruct right).
Secondly, the regulations regarding usufruct right are not very clear
There has been no specific guidance about the implementation of this right. So, several questions are raised such as how an usufruct right is recognized and in what procedure.
Also, Civil Code 2015 allowed usufruct right holder can lease the right. However, how to do this has not been yet clarified contents.