The contract on the donation of property definition under provisions of the civil laws means an agreement between parties whereby the giver delivers its property and transfers its ownership rights to the recipient without requiring compensation and the recipient agrees to accept the donation[1].
The contract on the donation of land use rights is the type of most common contract on the donation of property and often arises many disputes. Disputes related to contracts on the donation of land use rights often arise from whether or not donation conditions and compliance with the donation conditions between the parties and conditions for the contract on the donation of land use rights to take effect are extremely important issues that the parties need to comply with.
In this article, Phuoc & Partners mentions outstanding disputes of contract on the donation land use rights that often occur in Court related to the above issues:
- Disputes over the contract on the donation of conditional land use rights
In terms of disputes over the contract on the donation of conditional land use rights, one of the important issues that the parties should pay attention to is the concept of the donation conditions and the performance of the conditions of the recipient. The giver may require the recipient to perform one or more obligations prior to or after the giving of the donation. In case the recipient has fulfilled his/her obligations prior to the donation and the giver has not delivered the property, the giver must pay the obligation that the recipient has performed. Besides, in the event that an obligation is required to be performed after the donation but the recipient fails to perform it, the giver has the right to reclaim the property and claim compensation for damage.[2]
The parties in the donation contract often have a kinship relationship, so only a general agreement leads to conflicts in the process of performing the contract. There is a case the contract on the donation of land use rights does not contain conditions for donation, but other relevant documents such as commitments and power of attorney for registration of changes in land use rights show that the parties have agreed on the conditions for donation.
Thus, when considering the condition of donation and the performance of the condition of the donation, the Court not only bases on the conditions agreed upon in the donation contract but also considers the documents related to this transaction to ensure full recognition of the will of the parties.
- Disputes over the contract for the donation of land use rights without conditions
Regarding the transaction of donating land use rights without conditions, it can be understood that in this case, the giver does not require the recipient to fulfil any conditions to receive a donation for land use rights. However, after signing a contract for the donation of land use rights without conditions and notarising and certificating in accordance with the law, the giver requests the recipient to fulfil the conditions not agreed upon in the contract.
- Disputes related to the validity of the contract on the donation of land use rights
The form of a civil transaction is the effective condition of a civil transaction in case where the law provides. Therefore, the form of the contract for the donation of land use rights is an essential factor that must always be considered when resolving disputes over the contract for the donation of land use rights.
Pursuant to Article 167.3 (a) of the Law on Land 2013, contracts for the donation of land use rights and property attached to land must be notarized or authenticated.
For transactions related to land use rights, land registration is mandatory for land users[3] and the contract for a donation of real estate takes effect from the time of registration[4] at the Land Registration Office where the real estate is located.
From the issues analysed above, it can be seen that, in the process of settling disputes over the contract on the donation of land use rights at the Court, in addition to the conditions for carrying out transactions related to land use rights, the parties should note the following contents: Firstly, the donation conditions are clearly and specifically specified in the contract on the donation of land use rights are not contrary to law and social ethics; Secondly, there should be witnesses when entering into the contract for the donation of land use rights and determine the conditions of giving are nursing and worshipping the giver; Thirdly, ensure that the compulsory validity condition of a contract for a donation of land use rights is notarised, authenticated and registered land use rights in accordance with the law.
In addition, when a dispute arises, the parties must go through the procedures for conciliation of land disputes at the commune-level People’s Committees where the dispute arises before requesting the Court to settle the dispute[5].
Above is an overview of disputes over the contract on the donation of land use rights and notes when disputing in Court. If you have difficulty in finding a Law Firm to advise and support in legal aspects related to participating in court litigation, please contact us: Phuoc and Partners is a professional law firm established in Vietnam and currently has 100 members working in three offices in Ho Chi Minh City, Hanoi and Da Nang. Phuoc & Partners is also rated as one of the leading consulting firms specialising in legal that has leading practice areas in the legal market such as Labour and Employment, Taxation, Mergers and Acquisitions, and Litigation. We are confident to be one of the Law Firms providing the best legal services to clients.
[1] Article 457 Civil Code 2015.
[2] Article 462.3 Civil Code 2015.
[3] Article 95.1 Land Law 2013.
[4] Article 459 Civil Code 2015.
[5] Article 202.2 Land Law 2013.
