Date: 30 March 2013
Writer: Yen Le
Transferring a land lot to different people is illegal but this situation still happens frequently in Vietnam. In fact, State authorities could resolve as follows: (1) proceeding a criminal case if there is ground proving that the transferor has appropriation, deception methods and deliberate in appropriation against transferees; or (2) settling civil petition request if the transferor has owned the land use right (“LUR”). This article will provide some necessary information to protect the right of transferees in civil relations.
1. Does the transferee have the right to file a lawsuit in Court for a refund?
If the transferor transfers the land lot to multiple transferees illegally, the transferee shall be based on one or more of the following factors to proceed a civil case in Court:
- The civil transaction due to non-compliance with form
- The contract of transfer of LUR is not established in writing comply with regulations of law;
- The performance of the contract for the LUR does not comply with the procedures prescribed by the law of the land and other provisions of relevant laws; or
- The contract of transfer of LUR is not notarized or certified.
- The civil transaction due to ineligible for transfer of LUR
- The LURC is not available;
- The LUR is distrained to secure judgment enforcement;
- The land is in dispute; or
- The land is out of use term.
- The civil transactions due to deception
Deception in the transfer of LUR means an intentional act of the transferor or a third person for the purpose of misleading the transferee as to the subject, the nature of the entity or contents of the transfer of LUR which has caused the transferee to enter such transaction.
2. Procedures for settling cases at Courts
2.1. Time-limit for lawsuits
Time limit for initiating legal action to request a court to resolve a dispute relating to a contract is 03 years from the date on which the party entitled to request knows or should know that their lawful rights and interests are infringed.
2.2. Jurisdiction of a Court
Disputes over a real estate must be settled by a Court where such real estate is located.
2.3. Orders and procedures for initiating a first instance lawsuit at a Court
Phrase 1: Institution and acceptance of the case
- The Chief Justices of Courts shall assign one Judge to review the petitions within 03 working days from the day on which the petitions are received;
- The Judges shall review the petitions and make decision to carry out the acceptance procedures if the cases are satisfied for resolution;
- The litigators come to Courts for carrying out procedures to advance the Court fees.
The time limit for trial preparation is not exceeding 2 months.
Phrase 2: Mediation and trial preparation procedure
- The Judge shall hold meetings for checking the handover of, access to and disclosure of evidences and mediating between involved parties;
- If the mediation is unsuccessful, the judge shall issue a decision to bring the case to trial.
Phrase 3: First-instance court session
2.4. Petition dossier
The plaintiff needs to prepare at least the following documents: Petition form and evidence proving the ground for proceeding a lawsuit case and violated rights and interests of the plaintiff.
3. How to avoid the situation of transferring a land lot to multiple transferees in a land use right transfer case?
There are some common signs of the situation of transferring a land parcel to multiple transferees as follows:
- Deposit by handwritten contract for multiple transferees;
- No notarization, certification of the contract of LUR transfer;
- The land is under mortgage at a bank;
- Transfer of LUR under a Bailiff office;
- None of land use rights certificate; and
- Unclear legal documents for the LUR.
In summary, the transfer of LUR is a complex transaction and to protect rights and interests, the transferee should seek for advice from experts in this field to mitigate the risk of disputes.
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