The answer is not clear. Under Article 119.2 of the Civil Code 2015, in case the law requires a civil transaction to be made in writing and having notarized, the parties to the transaction must comply with such requirement. In the context of transactions involving land, Article 167.3 of the Land Law 2013 expressly requires agreement on transferring land use right to be notarized or certified, except for the case provided under Article 167.3(b) where at least one party to such agreement is an entity doing real estate business.
However, Article 167.3 of the Land Law 2013 does not make clear whether the agreement on transfer of sole land-attached asset requires a notarization. Article 167.3(b) only provides that a contract for transfer of land-attached asset to which one party or both parties are entity(ies) doing real estate business will be notarized at the parties’ request. It is not clear if the wording of Article 167.3(b) can be interpreted that if neither party to the contract is an entity doing real estate business, then the contract must be notarized.
On the other hand, one may rely on Article 119.2 of the Civil Code 2015 to take a view that the notarization of contract will only mandatory if the law expressly requires so. Accordingly, the notarization of contract for transfer of land-attached asset between the non-real estate business parties should also be optional.
However, in practice, it appears that the authorities usually require contracts for transfer of land-attached assets involving non-real estate business parties to be notarized. Therefore, in such case, the parties should prudently notarize their contract when entering into a transfer of land-attached asset.
That said, agreements for transfer of land attached assets, which have not been notarized but has been completed, should not be invalidated just because of the lack of notarisation. This is because under Article 129.2 of the Civil Code 2015, in case a civil transaction established in writing is in breach of compulsory provisions on notarization, and one or more parties have performed at least two-thirds of the obligations in the transaction, the court shall, at the request of one or more parties, issue a decision to recognize the validity of such transaction. In this case, the parties are not required to carry out notarization.
This post is written by Nguyen Hoang Duong and edited by Nguyen Quang Vu.