Question: Hi Lawyer, my wife and I have a house and want only one person named in the red book, is it legal to do so? Thank you lawyer!

Answer:

Thank you for sending a question to Khoa Tin Law Firm, about this issue, we would like to answer as follows.

1. What is Red Book?

Red book is a certificate of land use right, is a form of book issued by the Ministry of Natural Resources and Environment to record land use rights, including: residential land, agricultural land, forest land, traffic land, non-commercial land agriculture … when granted residential land and houses on the land, the residential part will be recorded as Assets attached to the land.

According to Article 3 of the 2013 Land Law, “The certificate of land use rights and ownership of houses and other land-attached assets is a legal document for the State to certify the land use rights and ownership of houses, other lawful land-attached assets of persons with land use rights, house ownership rights and ownership of other land-attached assets.”

2. Who can be on the red book?

According to the provisions of Clause 1, Article 33 Law on Marriage and Family 2014 , the land use right acquired by husband and wife after marriage is the common property of husband and wife, except where the husband and wife inherit separately. personally gifted or acquired through a transaction with private property.

Thus, if a red book is issued during the marriage of a husband and wife, then, in order to determine land use rights and land-attached assets as common property or separate property of the husband and wife, they must depend on them. origin of this asset class.

From the above provisions, three general cases can be identified as follows:

1. Land use rights and land-attached assets are donated to husband or wife separately and inherited separately.
2. Land use rights and land-attached assets are formed from the separate property of spouses.
3. Land use rights and assets attached to land are formed in addition to the 2 listed cases and during the marriage period.

For cases 1 and 2, land use rights and land-attached assets are determined to be separate property of the spouses, so it is obvious that the spouses have their names on the red book. will not have the right to use the right to use land property and land-attached assets.

For case 3, this is the case of establishing common property of husband and wife during marriage. Therefore, both husband and wife have rights to common property, namely land use rights, house ownership, and land-attached assets recorded in the red book. Both husband and wife have the right to possess, use and dispose of land use rights which are common property of husband and wife. To perform transactions related to land use rights, it is necessary to have the consent of both husband and wife in writing. (Clause 2, Article 35 of the Law on Marriage and Family 2014).

Thus, it can be seen that when land is the common property of husband and wife, the full names of both husband and wife must be recorded on the red book. However, the law allows the parties to come to an agreement on their own names on the red book. Specifically:

Article 47 of the Law on Marriage and Family 2014 provides for an agreement to establish the property regime of the husband and wife: “In case the two married parties choose the agreed property regime, this agreement must be made. before marriage, in the form of a notarized or authenticated document. The property regime of husband and wife as agreed upon is established from the date of marriage registration.

Besides, Article 38 of this Law also stipulates the Divortion of common property during marriage  as follows:

“1. During the marriage period, husband and wife have the right to agree on the division of part or all of the common property, except for the case specified in Article 42 of this Law; If they cannot reach an agreement, they have the right to request the Court to settle.

2. Agreement on division of common property must be made in writing. This document is notarized at the request of the husband and wife or as prescribed by law.

3. At the request of husband and wife, the court shall settle the division of common property of husband and wife according to the provisions of Article 59 of this Law.”

Therefore, when husband and wife want to agree on a person whose name is on the red book, such agreement must be made in writing and notarized according to the provisions of law, such as for movable property that must be registered for ownership. real estate, land use rights, house ownership and other assets attached to land. As for other types of property, notarization is not required, but only because of an agreement between you and your wife or at the request of a party who wants to notarize this document on division of common property.

Above is Khoa Tin‘s advice on “Between husband and wife, can only one person have their name on the red book?”.

In case customers have unclear problems or need to discuss further, please call us immediately at 0983.533.005  for a free consultation.

Best regards./.