For a number of different reasons, many people ask someone else to put their names on the pink and red books (land use right certificates). Currently, the most common is the case of overseas Vietnamese, also known as Viet Kieu, asking relatives and friends in Vietnam to buy and put their names on the Land Use Right Certificate. The question is whether asking someone else to put their name on the property is secure or not, and will have to face any specific risks.

Overseas Vietnamese, foreigners under Vietnamese Law.

• Overseas Vietnamese, Pursuant to Clause 3, Article 3 of the Law on Citizenship 2008: “Vietnamese people residing abroad are Vietnamese citizens and residents of Vietnamese origin, to live permanently abroad”
• Foreigners according to the provisions of law in Article 3 of the Law on entry, exit, and transit of foreigners residing in Vietnam are: “holders of papers identifying foreign nationality and stateless persons who enter Vietnam, exit, transit or reside in Vietnam”.

Regulations on real estate ownership of overseas Vietnamese and foreigners in Vietnam

• Ownership of real estate of overseas Vietnamese

Compared with other subjects, individuals who are overseas Vietnamese (Vietnamese people residing abroad) when wanting to own real estate in Vietnam will have certain limitations.

Pursuant to Article 7 of the 2014 Housing Law, overseas Vietnamese are one of three subjects entitled to own houses in Vietnam. However, there will be limitations for this audience. In order to be recognized as a house owner, overseas Vietnamese must have lawful houses through the following forms: purchase; receive gifts for housing; exchange; accept the inheritance of the household’s house; receiving transfer of residential land use rights in commercial housing construction investment projects are allowed to sell land plots to organize house construction by themselves according to regulations.

However, overseas Vietnamese must have papers proving that they are the subject of real estate ownership as prescribed in Clause 2, Article 5 of Decree 99/2015/ND-CP: “Vietnamese passports must still be valid for use and have the entry verification stamp of the Vietnamese exit and entry management agency on that passport. – In case of holding a foreign passport, it must still be valid, stamped with the entry verification stamp of the entry and exit management agency of Vietnam on that passport and enclosed with papers proving the remaining Vietnamese nationality or papers. certification of being of Vietnamese origin, issued by the Department of Justice of the province or city directly under the Central Government, the management agency for overseas Vietnamese, the overseas Vietnamese representative agency, or other documents as prescribed by law. Vietnam law”

• Ownership of real estate in Vietnam for foreigners

Pursuant to Article 5 of the 2013 Land Law on land users: “Article 5. Land users A land user is allocated or leased land by the State, recognizes land use rights, or receives land use right transfer. according to the provisions of this Law, including:

1. Domestic organizations including state agencies, units of the people’s armed forces, political organizations, socio-political organizations, economic organizations, and political organizations socio-professional management, social organizations, socio-professional organizations, public non-business organizations and other organizations as prescribed by civil law (hereinafter collectively referred to as organizations);

2. Domestic households and individuals (hereinafter collectively referred to as households and individuals);

3. Residential community includes the Vietnamese community living in the same village, village, hamlet, hamlet, hamlet, phum, squirrel, residential group and similar residential area with the same customs or habits or having common family line;

4. Religious establishments include pagodas, churches, chapels, holy houses, sanctuaries, Buddhist recitation halls, monasteries, religious training schools, headquarters of religious organizations and other religious establishments. ;

5. Foreign organizations with diplomatic functions include diplomatic missions, consular offices and other foreign representative offices with diplomatic functions recognized by the Vietnamese Government; representative office of an organization of the United Nations, an intergovernmental agency or organization, a representative office of an intergovernmental organization;

6. Vietnamese residing abroad in accordance with the law on nationality;

7. Foreign-invested enterprises include enterprises with 100% foreign investment capital, joint-venture enterprises, and Vietnamese enterprises in which foreign investors purchase shares, merge or repurchase according to the provisions of law. investment law”.

According to the above regulations, foreigners who are not eligible for land use rights are entitled to land use rights, land allocation, land lease by the State, recognition of land use rights or transfer of land use rights.

At the same time, with land use rights, foreigners will not be able to register in the Land Use Right Certificate Book according to the provisions of Clause 3, Article 168 of the 2013 Land Law. If the owner of houses and other land-attached assets is a foreigner, this person may not be granted a certificate of land use right but may transfer or donate the inherited land use right in the following cases: “a) Transfer of land use rights: The heir may be named as the transferor in the land use right transfer contract; b) Donating land use rights: The donor must be the State or a residential community to build works for the common interests of the community, donate a gratitude house attached to the land and in accordance with the law. housing law. In which, the foreigner is entitled to be the donor in the contract or written commitment to donate. c) The land use right has not been transferred or donated: The foreigner shall submit the application for inheritance at the land registration agency to update it in the cadastral book.”

Risks and risk reduction plans when overseas Vietnamese and foreigners ask someone else to own real estate in their name:

• Risks when asking someone else to own real estate in the name of:

The law does not recognize asking someone else to name the household on the Certificate, but only recognizes the land use right for the person named on the Certificate of land use right. Therefore, overseas Vietnamese or foreigners asking others to buy for them and put their names on real estate in Vietnam will face a lot of risks from a legal perspective.

– The person named on the land use right certificate intends to appropriate the property, not to return the real estate to the actual owner.

This problem in fact happens a lot, when it is in the name of the household, they may not have this intention, however, that land, after many years of high value, now because of greed, the person in the name will be having an intention to appropriate, refusing to change the name, or from the very beginning they intend to take over the property of the person in the name of the household, denying the transaction in the name and causing a dispute.

There are two cases: one is fraud to appropriate property, the other is abuse of trust to appropriate property

+ Fraud to appropriate property:

Pursuant to Article 174 of the Penal Code amended and supplemented in 2017 on the crime of fraud to appropriate property: “1. Those who, by fraudulent tricks, appropriate other people’s property valued between VND 2,000,000 and under VND 50,000,000 or under VND 2,000,000 but fall into one of the following circumstances, shall be subject to non-custodial reform. kept for up to 3 years or sentenced to between 6 months and 3 years of imprisonment: a) They have been administratively sanctioned for the act of appropriating property but continue to commit them;

If it is determined from the outset that the person being asked to act in the name of the household has committed fraudulent acts, tricks to make the trustee trust and hand over the land use right certificate in the name of the household, then this is an act ” fraudulent appropriation of assets”. However, provided that the person asking for the name of the household must have evidence, have a contract to sign the household’s name on the land use right certificate, to prove that he is the actual owner of the real estate, then he can sue. land again.

+ Abuse of trust to appropriate property:

Similar to “fraud to appropriate property”, in order to sue the person in the name of the land use right certificate for the act of “abusing trust to appropriate property”, it is necessary to have enough evidence to prove yourself. is the actual owner of the property. Pursuant to Article 175 of the 2017 revised and supplemented Penal Code stipulates: “1. Those who commit one of the following acts to appropriate other people’s property valued from VND 4,000,000 to under VND 50,000,000 or under VND 4,000,000 but have been administratively sanctioned for acts of appropriating property or has been convicted for this crime or for one of the offenses specified in Articles 168, 169, 170, 171, 172, 173, 174 and 290 of this Code, has not yet been expunged, but still commits a crime. offenders or property is the main means of livelihood of the victim and their family, the offenders shall be sentenced to non-custodial reform for up to 03 years or a prison term of between 06 months and 03 years: a) Borrowing, borrowing or renting property of another person or receives another person’s property in the form of a contract and then uses fraudulent tricks or flees to appropriate that property, or on time to return the property, despite having conditions and capabilities, but intentionally does not pay; b) Borrowing, borrowing, renting property of another person or receiving another person’s property in the form of a contract and using such property for illegal purposes, leading to the inability to return the property.”

– When the person whose name is on the land use right certificate dies

Pursuant to Article 612 of the 2015 Civil Code on “Legacy”, “Legacy includes the separate property of the deceased, the part of the deceased’s property in the common property with others”. So at this time, the real estate that the person is asked to name on his/her behalf will become this person’s estate. If the deceased leaves a will, the estate will be divided according to the will (Article 624 Civil Code 2015). If the deceased does not leave a will or the will is not legal, the inheritance will be divided according to the law (Article 649 of the Civil Code 2015), so this is also a risk when asking others to stand still on their land.

– When the state recovers land

The State will recover land in certain cases, specifically: “1. The State shall decide to recover land in the following cases: a) Recover land for national defense and security purposes; socio-economic development for national and public interests; b) Land recovery due to violations of the law on land; c) Land recovery due to termination of land use in accordance with law, voluntary return of land, risk of endangering human life.”

The State will compensate people in some eligible cases, however, the person receiving compensation will be the person named on the Land Use Right Certificate, not the actual land owner, so this It is also a big risk in asking someone else to name the property on their behalf.

– The person named on the certificate of land use right gets divorced

This is also a case that happens a lot in reality, if this divorce If you are asked by the spouse of the holder of the Land Use Right Certificate to divide the common property because this property arises during the marriage, it is very difficult and complicated to return it to the owner. complicated, complicated administrative procedures, consuming a lot of time and money to resolve disputes, in the worst case, the real owner of the real estate that is asked to act in the name of the household will lose his or her property. . According to the “principle of settling property of husband and wife upon divorce” in Article 59 of the Law on Marriage and Family 2014 stipulates: “2. Common property of husband and wife is divided in half”; “3. The husband and wife’s common property shall be divided in kind, if it cannot be divided in kind, it shall be divided according to its value; Any party that receives a portion of the property in kind with a value greater than that to which it is entitled, must pay the other party the difference. If the naming of the real estate household occurs when the person being asked to name the household is in a marital relationship with another person, then this is the common property of the couple from a legal perspective. If the marriage cannot agree on the property, the property must be divided. So the actual owner of real estate has to face the problem of property loss.

These are some of the outstanding risks that Viet Kieu will face when asking someone else to name their household on the Land Use Right Certificate. So what to do to avoid these risks?

Avoid the risks when asking someone else to own real estate in your name

Faced with the risks of having someone else name it on the Land Use Right Certificate, it is best for foreigners and overseas Vietnamese not to ask anyone to name their household on the Land Use Right Certificate. In case of unwillingness to ask someone to engrave in his name, the following necessary actions are required to protect his/her interests:

It is necessary to clearly agree, if the person asked in the name of the household does not return the property, the lawsuit will be taken to the Court. At that time, Viet Kieu need to prove that they are the real owner of the property. Therefore, it is necessary to agree on the return of land use rights from the beginning, to avoid disputes later.

If there is evidence to prove the agreement on behalf of the parties between the parties (for example, a written agreement), the court may request the Court to declare that the request in the name of the household is an invalid civil transaction when violating the law. violate the prohibition of the law.

It is possible to claim property when asking someone else to name it on behalf of the family when a dispute occurs, but it will take a lot of time, effort, money, and affection for both sides. Currently, in fact, this situation happens a lot, typically “Case No. 02/2016/AL was approved by the Council of Judges of the Supreme People’s Court on April 6, 2016 and published according to the provisions of the Law No. Decision No. 220/QD-CA dated April 6, 2016 of the Chief Justice of the Supreme People’s Court on the dispute over the ownership of money for the transfer of land use rights in the case that overseas Vietnamese rely on another person in the name of the transferee.”. When a dispute occurs, according to the above precedent, the Court will not decide that the person named on the land use right certificate must return the whole to the actual owner of the land, but the Court will consider From the perspective of efforts in preserving, preserving, embellishing to increase the value of the land of the person who owns the real estate, to divide it to the person in the name of the household, a portion corresponding to that person’s efforts to ensure the rights of the owner. interests of the parties. Therefore, it is best not to ask someone to sign the land use right certificate in the name of the land when buying land. In case you have to, but even if you are a relative, there must be clear and specific agreements (in writing), making commitments, keeping invoices to be able to prove that you are a relative. The real owner of that property, when so, if there is a dispute of interest, it will be guaranteed to the fullest extent.

Above are the sharing on the issue of “Risks when overseas Vietnamese/foreigners ask others to own real estate in their name”

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