1. What is real estate transfer? What is receiving the transfer of real estate?

According to Clause 10, Article 3 of the Land Law 2013, “real estate transfer” refers to one of the forms of transferring land use rights from one individual to another. Receiving the transfer of real estate must meet specific conditions and regulations on subjects, land types, and transfer quotas according to the provisions.

2. Conditions for overseas Vietnamese to receive real estate transfers in Vietnam

According to Clause 1, Article 8 of the Housing Law 2014 and Clause 2, Article 5 of Decree 99/2015/ND-CP, overseas Vietnamese must present the following documents to receive housing transfers in Vietnam: :

• In case of holding a Vietnamese passport: it must be valid and have an entry verification stamp from the Vietnamese immigration authority;
• In case of holding a foreign passport: it must be valid with an entry verification stamp of the Vietnamese immigration authority and accompanied by documents proving Vietnamese nationality or documents confirming Vietnamese origin issued by the Department of Justice in provinces and cities, Vietnamese representative agencies abroad, agencies managing Vietnamese people abroad or other documents as prescribed by Vietnamese law;
• Possessing full civil capacity to conduct housing transactions.

3. The specificity of real estate transfer

a. The subjects and the types of real estate transfer

Overseas Vietnamese are divided into 2 different groups, including:

• Overseas Vietnamese residing abroad: Those who retain their Vietnamese nationality, are currently residing and living permanently abroad;
• Vietnamese origin residing abroad: Those who no longer hold Vietnamese nationality but their parents and ancestors were Vietnamese citizens.

Each subject has different rights in land use and real estate ownership in Vietnam. Accordingly, overseas Vietnamese can fully exercise all rights and obligations related to land, similar to domestic individuals as stated in Clause 3, Article 4 of the Land Law 2024, including receiving land use rights transfers. In constract, Vietnamese origin residing abroad who are permitted to enter Vietnam, they are entitled to own houses attached to land use rights in Vietnam, and have the right to use land due to receiving land use rights transfers in housing development projects.

b. Land use plans

According to legal provisions, in cases where the land use plans has been announced but there is no annual land use master plans at the district level, land users can still exercise their rights, including transfer and donation.

However, in cases where there is an annual land use master plans of the district level, the land user is allowed to continue to exercise the rights of the land user but is prohibited from constructing new houses, buildings, or planting perennial trees. Therefore, if the transferee receives land that falls under a district-level land use plan, the transferee may suffer great damage and loss in this transaction.

4. Lawyer's experience in consulting overseas Vietnamese to receive real estate transfers

a. Lawyers advise on the conditions for overseas Vietnamese to receive real estate transfers

Vietnamese law in general and land law in particular are specific, constantly changing and adjusting to suit each locality. Therefore, updating and mastering the legal regulations on receiving land use rights transfers for residents and especially for overseas Vietnamese is extremely important. Lawyers, possessing a deep and clear understanding of land law regulations, related legal fields, along with extensive experience in consulting on conditions for overseas Vietnamese to receive real estate transfers. From there, overseas Vietnamese will prepare the first legal step when wishing to receive real estate transfers in Vietnam, minimizing legal risks that may occur during the implementation process.

b. Lawyers advise on procedures for overseas Vietnamese to receive real estate transfers

When overseas Vietnamese receive real estate transfers, they must carry out complex legal procedures, requiring a deep understanding of legal regulations and implementation procedures. Therefore, having a firm grasp of information about the  real estate transfers process not only helps overseas Vietnamese to easily facilitate the transaction but also ensures their rights. Lawyers fully advise overseas Vietnamese on the implementation procedures and the documents that need to be prepared specifically and clearly, ensuring legal conditions.

Regarding the documents, the lawyer advises overseas Vietnamese to prepare for real estate transfer as follow:

• Valid Vietnamese passport with a stamp from the Vietnam immigration authority;
• Or the foreign passport must be valid, has the stamp from the Vietnamese immigration authority and be accompanied by documents proving Vietnamese nationality or documents confirming Vietnamese origin issued by the Department of Justice of provinces and municipal cities, Vietnamese representative agencies abroad, or agencies managing Vietnamese people abroad, or other documents as prescribed by Vietnamese law.

Implementation steps:

• Step 1: Preparing necessary documents.
• Step 2: Lawyers provide advice on determining the type of house that can be owned.
• Step 3: Lawyers consult and verify the legal documents of the property.
• Step 4: Signing deposit contract (if any).
• Step 5: Signing the contract for overseas Vietnamese to receive real estate transfer at the notary office.
• Step 6: Submitting the name change application to the Land Registration Office and paying any applicable taxes and fees.

c. Lawyers advise on checking the legality of land use rights transferred by overseas Vietnamese

Real estate transfer is one of the transactions that occurs frequently and also contains countless risks and uncertainties. Especially for overseas Vietnamese, those who have not lived and stayed in Vietnam for a long time and will not be fully awareof fluctuations in the real estate market as well as able to verify the legal conditions of the real estate they want to transfer. Therefore, a lawyer who advises on legality checks can assist overseas Vietnamese in reviewing and verify the legality of the real estate, ensuring the rights and interests of overseas Vietnamese in the transaction.

5. Lawyer's experience in carrying out procedures for overseas Vietnamese to receive real estate transfers

a. Lawyers draft documents and files for overseas Vietnamese to receive real estate transfers

• Drafting real estate transfer contracts that ensure all necessary information, rights, and benefits for overseas Vietnamese;
• Drafting agreements and commitments related to overseas Vietnamese upon receiving real estate transfers;
• Drafting documents for transferring ownership and issuing certificates to overseas Vietnamese upon receiving real estate transfers;
• Drafting other documents and texts as required.

b. Lawyers participate in negotiations during the process of overseas Vietnamese receiving real estate transfers

• Overseas Vietnamese need legal support in the negotiation process regarding issues related to receiving real estate transfers due to:
• Providing the necessary legal opinions to secure the transaction;
• Understanding and having experience in real estate transactions in Vietnam;
• Creating peace of mind during the transaction process…

c. Lawyers represent carry out necessary administrative and legal procedures when overseas Vietnamese receive real estate transfer

• Representing the submission of application for land use rights change registration and name change at the land registration office;
• Representing overseas Vietnamese in verifying documents to meet the conditions for receiving real estate transfers;
• Representing to perform other procedures upon request…

6.  Some related questions

a. What are the costs and taxes when overseas Vietnamese receive real estate transfers?

The fees associated with transferring the name on the Certificate of Land Use Rights and assets attached to land (commonly known as pink book, red book) include registration fee, file appraisal fee, and fee for issuing a new book (if any).

(1) Application appraisal fee:

As prescribed by the People's Councils of provinces and cities: Circular 85/2019/TT-BTC stipulates that the fee for appraisal of documents when transferring real estate ownership is under the authority of the Provincial People's Council (province, centrally-run city), so that costs may vary between provinces and cities.

(2) Fee for new issuance of Pink Book, Red Book (if there is a need to renew)

When transferring the ownership of real estate, if the transferee or donee requests and is granted a new Pink Book or Red Book, they will have to pay this fee.

Fee: under 100,000 VND/time/paper.

(3) Registration fee level

According to Article 5 of Decree 140/2016/ND-CP, the registration fee when transferring the Certificate of Ownership is calculated according to each specific case:

Case 1: If the house and land price in the contract exceeds the price regulated by the Provincial People's Committee, it is calculated as follows:

Registration fee payable = 0.5% x selling price of the property stated in the contract

Case 2: The price of the house and land in the land use rights transfer contract or house sale and purchase contract is equal to or lower than the price issued by the Provincial People's Committee.

Registration fee = 0.5% x (Area x Price per square meter from the land price list)

b. Where to find a lawyer to advise overseas Vietnamese on real estate transfers?

Phong & Partners law firm is proud to be a prestigious and professional law firm. Phong & Partners provides comprehensive legal services in various fields, especially focusing on consulting and implementing procedures related to land and housing. In particular, the lawyers at Phong & Partners have extensive experience, and knowledge, with language skills that facilitate effective communication with overseas Vietnamese and foreigners.

c. What should overseas Vietnamese who want to receive real estate transfers in Vietnam pay attention to?

• Verifying the information of the transferor to clarify whether the real estate is the joint-property of a married couple or multiple individuals.
• Verifying whether the land has a Certificate, as this is one of the four conditions required to transfer land use rights according to the provisions of the Land Law, so receiving a transfer requires a land use rights certificate.
• Verifying whether the real estate is within the planned area to avoid damage and loss in transfer transactions.
• Establishing a deposit contract during the transfer transaction to prevent disputes when the deposit recipient "removes the land" to not continue the transfer.
• Establishing the contract for the transfer of real estate rights must be done in writing and must be notarized and certified. If this transfer contract is not notarized by the parties according to the law, when a dispute arises, the contract may be invalid.