When parents pass away and leave land use rights to their children, but the children have not yet completed the procedures for registering the change in land use rights (i.e., transferring the land title into their names), the disposition of such land may give rise to various legal issues.
Under the current land and civil laws, the children may not directly enter into a land use rights transfer agreement with a third party before completing the inheritance procedures and registering the change in land use rights.
1. Applicable Legal Grounds
- The 2015 Civil Code: Provides for inheritance rights, the time when an inheritance is opened, and the division of estates (Articles 609 to 660).
- The 2024 Land Law: Provides for the conditions for exercising the rights of land users (Article 45) and procedures for registration of changes in land and land-attached assets (Article 133).
- The 2014 Law on Notarization: Provides for the notarization of agreements on the division of inherited estates, declarations of inheritance, and agreements on the transfer of land use rights.
2. Why Can the Land Not Be Transferred Immediately?
The Statutory Conditions for Transferring Land Use Rights Have Not Yet Been Satisfied
Pursuant to Article 45 of the 2024 Land Law, a land user may exercise the right to transfer land use rights only when all of the following conditions are satisfied:
- The land user holds a Certificate of Land Use Rights and Ownership of Land-Attached Assets (the “Red Book” or “Pink Book”), except in cases where specific provisions on inheritance apply;
- The land is not subject to any dispute, or any dispute concerning the land has been resolved by a competent state authority;
- The land use rights are not subject to distraint or other measures for the enforcement of a judgment or decision;
- The land remains within its prescribed term of use; and
- The land is not subject to provisional emergency measures.
Although, upon the opening of an inheritance (i.e., upon the death of the parents), the property rights and obligations of the deceased are transferred to the heirs pursuant to Article 614 of the 2015 Civil Code, from the perspective of state land administration, the parents remain the persons named on the Certificate.
The law provides that the transfer of land use rights takes legal effect from the time the relevant change is registered in the Land Register pursuant to Clause 3, Article 133 of the 2024 Land Law. Therefore, the children have not yet been legally recognized as the lawful land users entitled to act as transferors in a land use rights transfer transaction.
The Notary and Land Registration Authorities May Refuse the Transaction
- Notary: The notary may refuse to notarize the land use rights transfer agreement because the person signing the transfer agreement is not the person named on the Certificate and has not provided legal documents evidencing the lawful right to dispose of the inherited estate.
- Land Registration Authority: The land registration authority may reject the application for registration of changes if the application does not establish the lawful transfer of the inherited land use rights from the deceased parents to the heirs.
3. Procedures for Completing the Legal Formalities to Transfer the Land Use Rights
To lawfully transfer land inherited from parents, the heirs should complete the following procedures in sequence:
Step 1: Declaration or Division of the Inherited Estate
All persons falling within the first class of heirs under Article 651 of the 2015 Civil Code, including the biological parents, adoptive parents, biological children and adopted children of the deceased, should appear before a notarial practice organization to carry out the inheritance procedures.
- Required documents generally include:
- Death certificate(s) of the deceased parent(s);
- Original Certificate of Land Use Rights and Ownership of Land-Attached Assets;
- Documents evidencing the family relationship between the deceased and the heirs, such as birth certificates, identity cards/citizen identity cards, or certificates of residence/residential information;
- A valid will, if the inheritance is distributed according to a will.
The notarial practice organization will arrange for a public notice of the inheritance to be posted at the commune-level People’s Committee of the locality where the land is located for a period of 15 days.
Upon expiry of the posting period, provided that no dispute arises, the notary will notarize either an Agreement on Division of the Inherited Estate or a Declaration of Inheritance.
Note: If the children agree that one of them will undertake the sale of the land, the other heirs may execute a written refusal to accept the inheritance, or gift or authorize the transfer of their entire inherited interests to that person in the notarized document, as applicable.
Step 2: Registration of Changes in Land Use Rights (Registration of Inheritance)
The application should be submitted to the One-Stop-Shop Division or the Land Registration Office/Branch of the Land Registration Office having jurisdiction over the land.
- Required documents generally include:
- Application for registration of changes in land and land-attached assets;
- Original Certificate;
- Notarized agreement on division of the inherited estate or declaration of inheritance;
- Identification documents of the heir(s);
- Documents declaring financial obligations, including personal income tax and registration fee. In the case of land inherited by children from their parents, both of these amounts are exempt in accordance with applicable law.
After processing the application, the land registration authority will record the inheritance information on the additional page of the Certificate or issue a new Certificate in the name(s) of the heir(s).
Step 3: Execution of the Land Use Rights Transfer Agreement with the Purchaser
After the inheritance has been duly registered and the heir(s) have been recorded as the land users on the Certificate or its additional page, the heir(s) may proceed to:
- Execute the Land Use Rights Transfer Agreement before a notarial practice organization;
- Submit the application for registration of the transfer into the purchaser’s name to the Land Registration Office;
- Fulfil the applicable financial obligations and receive the updated Certificate reflecting the purchaser’s land use rights.
4. Can the Land Be Transferred by a Private Handwritten Agreement?
In practice, some heirs may attempt to sell inherited land before completing the inheritance procedures by entering into a private handwritten agreement, obtaining a bailiff’s written record (vi bằng), or accepting a deposit from the prospective purchaser.
| Risk | Legal Consequence |
|---|---|
| Invalidity of the transaction | The transaction may be declared invalid due to violation of a statutory prohibition and/or failure to comply with the legally prescribed form under Articles 122 and 129 of the 2015 Civil Code. In such case, the court may declare the transaction invalid and require the parties to return to each other what they have received. |
| Disputes among co-heirs | If one heir unilaterally sells the land without the consent of the other heirs, the other heirs may initiate legal proceedings to request division of the inherited estate and cancellation of the unauthorized transaction. |
| Damages and deposit penalties | If the seller is unable to lawfully hand over the land or complete the transfer of the land use rights to the purchaser, the seller may face liability for contractual damages and/or a deposit penalty, depending on the terms of the relevant agreement. |
The failure to register the inherited land use rights in the heirs’ names constitutes a significant legal obstacle to a lawful transfer of the land. The safest approach is to complete the inheritance division procedures and registration of changes in land use rights before entering into the transfer transaction, thereby minimizing the risk of family disputes and the transaction being declared invalid.
CONTACT LEGAL CONSULTANT:
TLA Law is a leading law firm with a team of highly experienced lawyers specializing in criminal, civil, corporate, marriage and family law, and more. We are committed to providing comprehensive legal support and answering all your legal questions. If you have any further questions, please do not hesitate to contact us.
1. Lawyer Vu Thi Phuong Thanh, Ha Noi Bar Association
Email: vtpthanh@tlalaw.vn
2. Lawyer Tran My Le, Ha Noi Bar Association
Email: tmle@tlalaw.vn
Nguyen Thuy Duong