Pursuant to the 2015 Civil Code and Point a, Clause 1, Article 45 of the 2024 Land Law, if you want to transfer land use rights to another person, the land must have a Certificate and that Certificate must be in your name. However, there are still cases where the name has not been transferred/no need to be transferred but the transfer is allowed even though the Certificate is in someone else's name, specifically:
1. Receive mortgage of land use rights
Clause 1, Article 317 of the 2015 Civil Code stipulates: Property mortgage is when one party (hereinafter referred to as the mortgagor) uses property owned by him/her to secure the performance of an obligation and does not transfer the property to the other party (hereinafter referred to as the mortgagee).
When mortgaging land use rights (land only), house ownership rights and other assets attached to land (land and other assets attached to land - usually houses), the mortgagor will hand over the Certificate to the mortgagee in case the parties have an agreement on that.
* The mortgagee has the right to dispose of the mortgaged property.
Article 299 of the 2015 Civil Code stipulates that the mortgagee has the right to dispose of the secured property in the following cases:
- When the secured obligation is due, the mortgagor fails to perform or improperly performs the obligation.
- The mortgagor must perform the secured obligation before the due date due to breach of obligation under the agreement or as prescribed by law.
- Other cases agreed by the parties or prescribed by law.
* Method of handling mortgaged assets is land use rights
Clause 1, Article 303 of the 2015 Civil Code stipulates that the mortgagor and the mortgagee have the right to agree on one of the following methods of handling mortgaged property:
- Auction of land use rights.
- The secured party sells the property itself.
- The mortgagee accepts the mortgaged property in lieu of the performance of the mortgagor's obligations.
- Other methods.
In case the parties do not have an agreement on the method of handling mortgaged property according to the above provisions, the property will be auctioned.
Thus, if the mortgaged property is subject to one of the above cases, the mortgagee has the right to transfer, auction, etc., even if the Certificate is in the name of the mortgagor.
Note: Individuals are entitled to receive a mortgage if they meet the conditions.
2. All heirs are foreigners
Point a, Clause 3, Article 44 of the 2024 Land Law stipulates: In case all heirs are foreigners or Vietnamese people residing abroad but are not eligible to buy houses attached to land use rights in Vietnam, they cannot have their names on the Certificate but have the right to transfer or donate.
In other words, when transferring or donating in this case, the Certificate is still in the name of the inheritor, not in your name.
In addition to the above two cases, there are also cases where land use rights have been transferred before July 1, 2014; in this case, there is no need to transfer the name as usual, but only need to submit a request directly to the land registration agency to have the Certificate in your name, then transfer it to another person.
