Lawyer Huynh Phan Quoc, Head of the South Da Nang Branch of Phong & Partners Law Firm, responds:

For various reasons, including relocation, overseas employment, flooding, authorization to manage property, or real estate transactions, many homeowners and land users entrust their Certificates and property management to relatives or friends. This may result in another person withholding the Certificate and making demands. Entrusting a Certificate to another person carries significant risks and may obstruct the owner’s or land user’s exercise of lawful rights and obligations. How, then, can the Certificate be recovered in accordance with the law?

First, regarding the act of withholding the Certificate

Article 3.21 of the 2024 Land Law provides: “A Certificate of land use rights and ownership of assets attached to land is a legal document by which the State certifies the lawful land use rights and ownership of assets attached to land of the person holding such rights. Assets attached to land eligible for certification include houses and construction works attached to land as prescribed by law. Certificates of land use rights, house ownership, and ownership of other assets attached to land issued under relevant laws have the same legal validity as Certificates issued under this Law.” Accordingly, the Certificate is a legal document confirming lawful land use rights and ownership of assets attached to land and identifying the lawful holder of those rights.

Under Article 42.1(c), Article 42.2 and Article 43 of the 2024 Law on Notarization, as well as Articles 26 and 27 of the 2024 Land Law, notarization, administrative procedures, and the exercise of land users’ rights, including exchange, transfer, lease, sublease, inheritance, donation, mortgage, capital contribution, receipt of a transfer, or receipt of a donation, require the Certificate for examination, verification, recordkeeping, registration of changes, and transfer of rights. In other words, without the Certificate, a land user cannot exercise these rights.

In Mr. A.’s case, Ms. B.’s refusal to return the Certificate prevents him from exercising his rights as the property owner and land user. Her conduct obstructs the use and ownership of the property and the exercise of land-use rights, which is prohibited under Clause 10, Article 11 of the 2024 Land Law.

Second, requesting the Court to order the holder to cease the obstruction and return the Certificate

1. The first issue is whether the Certificate constitutes property or a valuable paper.

Article 105 of the 2015 Civil Code provides: “1. Property comprises objects, money, valuable papers, and property rights. 2. Property includes immovable and movable property, which may be existing or future property.” This may lead some people to assume that the Certificate is a valuable paper. However, Clause 8, Article 6 of the 2010 Law on the State Bank of Vietnam defines: “Valuable papers are evidence certifying a debt repayment obligation between the issuer and the holder for a specified term, subject to interest payments and other conditions.” Clause 21, Article 3 of the 2024 Land Law further states that the Certificate is a legal document through which the State certifies lawful land use rights and ownership of assets attached to land. Therefore, the Certificate is neither property nor a valuable paper; it is a legal document certifying land use rights and ownership of houses and other assets attached to land.

2. Will the Court accept a claim seeking the return of a Certificate unlawfully withheld by another person?

Article 164 of the Civil Code 2015 provides measures for protecting ownership and other property rights as follows: “An owner or a holder of other property rights has the right to request a Court or another competent state authority to order an infringer to return the property, cease unlawful acts obstructing the exercise of ownership or other property rights, and compensate for damages...” Thus, under existing laws, where another person infringes or obstructs the exercise of rights over property, the owner may request protection from the Court or another competent authority. However, given that a Certificate is considered neither property nor a valuable paper, does the person named in the Certificate still have the right to request protection from the Court? This matter is explicitly clarified in Section IV.2 of Official Dispatch No. 02/TANDTC-PC dated August 2, 2021, issued by the Supreme People’s Court regarding legal and judicial guidance: “If a claim is submitted requesting the Court to order a person withholding a Certificate to return it and cease obstructing the exercise of the land user's rights, the People’s Court shall accept and resolve the case in accordance with Clause 2, Article 26 of the Civil Procedure Code.”

Based on the above legal grounds and analysis, although the Certificate is neither property nor a valuable paper, its unlawful retention affects and obstructs the certified holder’s exercise of rights. Therefore, Mr. H.’s father may file a lawsuit requesting the Court to order Ms. B. to cease the obstruction and return the Certificate.