According to the provisions of Point d, Clause 3, Article 167 of the 2013 Land Law, regulations on notarization and authentication of contracts of transfer, donation, mortgage, and capital contribution with land use rights, land use rights and assets Property attached to land must be notarized or authenticated.
“ Article 167. Right to exchange, transfer, lease, sublease, inherit, donate, mortgage or contribute land use rights as capital.
3. The notarization and authentication of contracts and documents on the exercise of rights of land users shall be performed as follows:
a) Contracts on transfer, donation, mortgage or capital contribution with land use rights, land use rights and land-attached assets must be notarized or authenticated , except for the case of real estate business. at point b of this clause;
b) Contracts for lease or sublease of land use rights, land use rights and land-attached assets, contracts for conversion of agricultural land use rights; a notarized contract for the transfer of land use rights, land use rights and assets attached to land, assets attached to land, which one party or the parties to the transaction is a real estate business organization. or authenticate at the request of the parties;
c) Documents on inheritance of land use rights, land use rights and land-attached assets, notarized or authenticated according to the provisions of civil law;
d) The notarization shall be carried out at notarial practice organizations, the authentication shall be carried out at the commune-level People's Committees ."
Thus, the contract of transfer, donation, mortgage, capital contribution with land use rights, land use rights and land-attached assets must be notarized or authenticated .
From the above provisions, there are many opinions that all transactions related to real estate must be notarized or authenticated, except for the case specified at Point b, Clause 3, Article 167 of the 2013 Land Law on a If the parties involved in the transaction are real estate business organizations, it will only be notarized or authenticated at the request of the parties.
However, at present, in fact, a transaction of an auctioned asset sale and purchase contract being real estate is not necessary to be notarized or authenticated for a number of reasons as follows:
Firstly, the provision of Article 167 of the 2013 Land Law that regulates the right to convert, transfer, lease, sublease, inherit, donate, mortgage or contribute land use rights as capital is nowhere to be found when Transactions in contracts for the sale of auctioned assets being real estate must be notarized or authenticated.
Second, for example, a property that is distrained real estate is put up for sale by auction as prescribed in point a, clause 1, Article 101 of the Law on Civil Judgment Execution 2008, the execution of the auction. distrained property prices are enforceable according to effective court judgments or decisions. Thus, right from the appearance of this property to the time it was put up for auction, it was strictly controlled by many competent state agencies and made decisions.
When putting assets being real estate for sale in the form of asset auction, the order and procedures must be carried out in accordance with the provisions of the Law on Property Auction 2016 to ensure independence, honesty, publicity, transparent, fair and objective; Protecting the rights and legitimate interests of persons whose assets auction, the auction participants, the auction winner, who bought the property auction, held property auctions, auctioneers ... prescribed in Article 6 of the Law on Property Auction 2016.
The law on asset auction has prescribed the order and procedures for public asset auction through a number of procedures such as signing an auction organization contract; Promulgating auction regulations; List the asset auction; Public announcement... the new eligibility to organize an auction is to improve the publicity and objectivity to present a civil transaction that ensures no deception.
In order to have a cost auction result, it is necessary to go through the regulations on the order and procedures to ensure that the law is correct, then proceed to the conclusion of the contract for the sale and purchase of that property. The conclusion of a contract for the sale and purchase of real estate through an organization with functions operating in the field of auctioneer practice has been fully implemented in accordance with the order and procedures. , is transparent and is the supervision and witness of a third party in entering into a contract of sale and purchase of auctioned assets is legal, then the notarization or authentication of the auctioned asset sale and purchase contract for the auctioned asset purchase and sale contract must be carried out by the third party. property is non-essential real estate.
The nature of real estate transactions must be through notarization or authentication laws to prevent the transaction from being deceived, coerced, etc., against the law. Therefore, the legislator has issued a regulation that when real estate transactions must be performed by a third party who has full civil act capacity and, moreover, has sufficient knowledge and qualifications to be a notary. certify the authenticity and legitimacy of such contract or civil transaction.
