Currently, it is very common for Vietnamese citizens to marry a husband/wife with foreign nationality. One of the top concerns for couples whose spouse is a foreigner is co-ownership of a house in Vietnam.
1. Foreign ownership of houses in Vietnam
Article 159 of the Law on housing stipulates entities, and foreign individuals that are allowed to own houses in Vietnam, including:
- Foreign entities who invest in project-based housing construction in Vietnam as prescribed in this Law and corresponding regulations of law;
- Foreign-invested enterprises, branches, representative offices of foreign enterprises, foreign-invested funds and branches of foreign banks operating in Vietnam (hereinafter referred to as foreign organization);
- Foreign individuals who are allowed to enter Vietnam.
Accordingly, foreign individuals may own houses in Vietnam in the following forms:
- Invest in project-based housing construction in Vietnam as prescribed in this Law and corresponding regulations of law;
- Buy, rent and purchase, receive, or inherit commercial housing including apartments and separate houses in the project for housing construction, except for areas under management relating to national defense and security as prescribed in regulations of the Government.
Specifically, the areas where foreign organizations and individuals that are allowed to own houses are guided by Article 75 of Decree No. 99/2015/ND-CP as follows:
- Foreign entities may only own houses (including apartments and detached houses) of commercial housing construction projects, except for those in areas having national defense and security requirements prescribed by Vietnam’s regulations of law.
- The Ministry of National Defense and the Ministry of Public Security have the responsibility to specify the areas having national defense and security requirements in each province and send a written notification to the People’s Committee of the province as the basis for directing the provincial Department of Construction to compile a list of commercial housing construction projects whose houses must not be owned by foreign entities.
Thus, foreigners are only allowed to own houses (including apartments and separate houses) in the project on investment and construction of commercial housing, except for defense and security areas according to Vietnamese law and cannot buy a house in Vietnam in their name.
2. Foreigners named on the Certificate of Land Use Rights, ownership of houses and assets attached to land, with Vietnamese spouses
A husband is a foreigner who marries a Vietnamese citizen, according to the law on marriage and family, property formed during period of marriage is considered common property. Therefore, in order to buy a house in Vietnam, in addition to meeting the conditions of Vietnamese people buying houses in Vietnam, they must also meet the conditions that foreigners are allowed to buy and own houses in Vietnam. However, a foreign husband who is not eligible to own a separate house (except for separate houses in the project on investment and construction of commercial housing), is not allowed to have his name on the certificate of land use rights, ownership of houses and properties attached to land.
Article 33 of the Law on Marriage and Family stipulates the common property of husband and wife as follows:
“1. Common property of husband and wife includes property created by a spouse, incomes generated from labor, production and business activities, yields and profits arising from separate property and other lawful incomes in the marriage period; except the case prescribed in Clause 1, Article 40 of this Law; property jointly inherited by or given to both, and other property agreed upon by husband and wife as common property.
The land-use rights obtained by a spouse after marriage shall be common property of husband and wife, unless they are separately inherited by, or given to a spouse or are obtained through transactions made with separate property.
2. Common property of husband and wife shall be under integrated common ownership and used to meet family needs and perform common obligations of husband and wife.
3. When exists no ground to prove that property in dispute between husband and wife is his/her separate property, such property shall be regarded as common property”.
From the above-mentioned legal bases, it can be concluded that a couple in which one is a foreigner are jointly owned and named on the Certificate of Land Use Rights, ownership of houses and properties attached to land when the following conditions are fully satisfied:
- A wife/husband is a foreigner who is eligible to own a house specified in Clause 1, Article 159 of the Law on Housing 2014;
- Houses in areas where foreign organizations and individuals are entitled to own ownership according to the provisions of Article 75 of Decree No. 99/2015/ND-CP;
- Houses are property formed during marriage period, generated by husband and wife from income arising from labor, production and business activities, yields, separate property and other lawful income during the marriage period.
In addition to the above conditions, the joint acceptance of houses transfer by husband and wife, including one being a foreigner, must satisfy the form specified in Clause 2, Article 76 of Decree 99/2015/ND-CP:
- Buying, renting to buy houses from (i) investors in housing construction projects, (ii) foreign organizations and individuals; or
- Accepting inheritance or donation of houses from households, individuals and organizations.
Although the state has provided a legal frame for foreigners to be able to name on the land use right certificate together with Vietnamese spouses. But in practice, the transfer of houses of the above subjects is not simple during the registration process. The reason is that the competent authorities have not yet determined which areas and areas do not allow foreign organizations and individuals to own houses. Therefore, foreign individuals receiving a house transfer in the above case should consider it before proceeding with the transfer procedures.
Disclaimer: This article is for general information only and is not a substitute for legal advice. Apolat Legal is a Vietnamese law firm with experience and capacity to advise on matters related to Real Estate. Please click here to learn more about our services and contact our lawyers in Vietnam for advice via email firstname.lastname@example.org.