Is it okay to buy land but only note that it has been transferred?
1. Is it okay to buy land but only note that it has been transferred?
Buying and selling land according to the law is called transferring land use rights. Accordingly, the seller will transfer its land use rights to the buyer according to the provisions of law. The reason the law stipulates that this transaction is called transfer and not sale is because land is owned by the entire people, the State only manages and represents it, no one has the right to own the land. but only the right to use. Therefore, the nature of this transaction will be the transfer of usage rights from one subject to another. The term sale and purchase is used to have a short, convenient name in transactions between parties.
Land sales will be carried out according to the following steps:
Step 1: Both parties will go to the notary office to draw up a land use rights transfer contract and have it notarized.
Step 2: declare financial obligations and prepare documents for name transfer at the Land Registration Office
Step 3: Complete the declaration of name transfer documents: in this step there will be a change registration application (signed by the seller). In case there is an agreement in the contract for the buyer to carry out administrative procedures, the buyer can sign instead.
Step 4: The parties perform their financial obligations as agreed, according to regulations and receive the red book.
In this case, the question is when the land buyer only receives the old certificate when buying land and on the paper there is a note in the section on changes after granting the land use right certificate that the land has been transferred. Does this case affect the rights and obligations of the buyer?
According to regulations, the issuance of a new Land Use Rights Certificate in the name of the transferee is carried out in one of the following two cases:
– On page 4 of the Certificate of Land Use Rights, there is no blank line to confirm transfer information.
– The transferee needs to issue a new Certificate.
Thus, when transferring the name of the red book, the buyer can completely request a new land use right certificate. When declaring information in the Application for registration of changes in land and assets attached to land (Form No. 09/DK), the applicant will check one of the following two boxes: Box 1 "need to issue a new Certificate ” or box 2 “There is no need for a new Certificate”. If the transferee wants to be issued a new Certificate, he must check box 1.
Pursuant to Clause 1, Article 3 of Circular 23/2014/TT-BTNMT, the Certificate consists of one sheet with 04 pages, printed with lotus pink bronze drum pattern on the background and an additional page with a white background; Each page has dimensions of 190mm x 265mm, in which pages 3 and 4 of the Certificate are used to record volatile information such as transfers, gifts, etc.
Note: The content confirming transfer information will have a red seal from the Land Registration Office, and the Land Registration Office Branch confirms according to the authority decided by the Provincial People's Committee. Thus, it can be confirmed to buy land but the Red Book is still in the name of the previous owner and only notes that it has been transferred, it does not affect the rights of the parties at all, the rights and obligations between the parties are still the same as when granted. With a new red book, the buyer does not lose or have their rights limited according to the provisions of law (still has full rights to transfer, donate, inherit, mortgage, and contribute capital if eligible).
2. Conditions for buying and selling land:
– For the transferor:
Article 188 of the Land Law 2013 stipulates that the conditions for transferring land use rights are that land users can transfer land use rights when the following conditions are met:
+ Land with a Certificate of Use Rights;
+ Land is not in dispute;
+ Land use rights are not distrained to ensure judgment enforcement;
+ The land is still within its land use term.
In addition to the conditions prescribed above, when converting land users must also meet the conditions in specific cases prescribed by law such as: Conditions for receiving transfer of agricultural land use rights to carry out the conversion. investment projects in non-agricultural production and business; Conditions for transferring land use rights in implementing investment projects for construction and housing business; investment projects to build infrastructure for transfer or lease.
– For the transferee:
The transferee will have to meet the conditions on the subject receiving the transfer, based on Article 191 of the 2013 Land Law, which stipulates that the subjects not allowed to receive the transfer include:
+ Organizations, households, individuals, communities, religious establishments, Vietnamese residing abroad or foreign-invested enterprises are not allowed to receive land transfers in cases where the law does not allow transfer.
+ Economic organizations will not be allowed to transfer the use rights of rice cultivation 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 planning and plans. land use plan approved by a competent state agency;
+ Households and individuals who do not directly engage in agricultural production are not allowed to receive transfer of rice land use rights;
+ Households and individuals are not allowed to transfer the right to use residential land or agricultural land in protection forest areas, in strictly protected zones, or in ecological restoration zones of special-use forests, if they do not produce living in that protective forest or special-use forest area.
Thus, if it does not fall into the cases specified above, it is possible to proceed with the transfer of land use rights.
3. Rights and obligations of land buyers and sellers:
The 2014 Real Estate Business Law clearly stipulates the rights and obligations of parties when participating in land buying and selling. Accordingly, the transferor has the right to request the transferee to pay according to the time and method agreed in the contract; Use land to receive land according to the agreed term in the contract; Compensate for damages caused by the transferee's fault; Do not hand over land without receiving full payment, unless the parties agree otherwise; Other rights as agreed in the contract. At the same time, the transferor must also have the obligation to: Provide complete and truthful information about land use rights and be responsible for the information they provide; Transfer land to the transferee of land use rights in sufficient area, location and land condition as agreed in the contract; Carry out land registration procedures according to the provisions of land law and hand over the Certificate of land use rights, ownership of houses and other assets attached to land to the transferee, unless the transferee transfer with a written request to self-certify procedures; Compensate for damage caused by your fault; fulfill financial obligations to the State according to the provisions of law; and other obligations in the contract.
The transferee also has corresponding rights and obligations; the seller's obligations are also the buyer's rights. The buyer has the right to request the transferor to provide complete and truthful information about the transferred land use rights; carry out procedures and deliver Certificates of land use rights, ownership of houses and other assets attached to land; Allocate land in sufficient area, location and land condition as agreed in the contract; Compensate for damages caused by the transferor's fault; Have land use rights from the time of receiving land handover from the transferor; and other rights as agreed in the contract. And just like the seller, the buyer also has corresponding obligations: Pay money to the transferor of land use rights according to the time and method agreed in the contract; ensure the rights of third parties to the transferred land; Compensate for damages caused by your fault; Fulfill financial obligations to the State according to the provisions of law; and other obligations as agreed in the contract.
Clearly defining the rights and obligations between the parties in the epidemic is to ensure that the transfer process takes place according to the correct procedure, ensuring the rights of the parties.
4. Documents for land purchase and sale:
– Documents for notarization of land purchase and sale contracts include the following documents:
+ Certificate of land use rights;
+ Citizen identification of the parties;
+ Other documents: for example, in case of authorization, there must be an authorization contract; or in case the buyer and seller are husband and wife, a marriage registration certificate is required;
+ Notarization request form is usually prepared by the buyer according to the form of the notary practice organization, unless otherwise agreed;
+ Land purchase and sale contracts can be drafted by the parties themselves in advance or they can be drafted by a notary office.
– Red book name transfer application includes the following documents:
+ Application for registration of changes in land and assets attached to land according to the form;
+ Original issued Certificate of land use rights;
+ Notarized land use rights transfer contract;
+ Household registration book, identity card or identity card.
5. Procedures for buying and selling land:
Step 1: The parties sign the land purchase contract and have the contract notarized.
At this step, the parties can agree on a deposit
Step 2: Proceed with the name transfer procedure
+ According to the law, the transfer of land use rights must be registered at the land registration agency, which means that name transfer procedures must be carried out (if the transfer of name is not done, then legally the right to use land has not yet been transferred to the buyer) and the effective date is from the time of registration in the cadastral book.
+ Land users submit documents at the Land Use Rights Registration Office under the Department of Natural Resources and Environment.
+ Households, individuals, and communities can submit applications at the commune-level People's Committee if needed.
+ Within a maximum of 03 days, the agency receiving and processing the dossier must notify and guide the applicant to supplement and complete the dossier according to regulations.
Step 3. Resolve the request
– The land use rights registration office sends cadastral information to the tax authority to determine and notify the collection of financial obligations in cases where financial obligations must be fulfilled according to regulations.
Note to buyers: When receiving notice of financial obligations such as: Land use fee, personal income tax, registration fee..., pay the amount as notified at the tax office and receipt. Keep it and send it back to the land use rights registration office.
Step 4. Return results
+ The competent authority shall carry out procedures to transfer the name of the land use rights certificate within no more than 10 days from the date of receipt of valid documents. For mountainous communes, islands, remote areas, and areas with difficult or extremely difficult socio-economic conditions, the implementation time will be increased by 10 days.
+ Competent authority notifies and returns results.
Legal documents used in the article:
– Land Law 2013;
– Circular 23/2014/TT-BTNMT regulates certificates of land use rights, ownership of houses and other assets attached to land.