Judgement no. 202/2017/DS-PT dated july 20, 2017 on dispute over claim for division of common property, cancellation of certificate of housing ownership and residential land use right and cancellation of gift deed for real estate

SUPERIOR PEOPLE’S COURT IN HANOI

JUDGEMENT NO. 202/2017/DS-PT DATED JULY 20, 2017 ON DISPUTE OVER CLAIM FOR DIVISION OF COMMON PROPERTY, CANCELLATION OF CERTIFICATE OF HOUSING OWNERSHIP AND RESIDENTIAL LAND USE RIGHT AND CANCELLATION OF GIFT DEED FOR REAL ESTATE

On July 20, 2017, at the office of the Superior People’s Court in Hanoi, the appellate trial was conducted to hear the civil case No. 05/2017/TLPT-DS dated January 17, 2017 on “Dispute over claim for division of common property, cancellation of certificate of housing ownership and residential land use right and cancellation of gift deed for real estate” according to the appeal filed by the respondent and person with relevant rights and obligations against the First Instance Civil Judgment No. 18/2016/DS-ST dated September 29, 2016 of People’s Court of Hanoi City.

Pursuant to the Decision to Hear the Case under Appellate Trial No. 2142/2017/QDST-PT dated July 5, 2017. Parties concerned:

1. Plaintiff:

1.1. Mrs. Tran Thi O, born in 1949;

Current address: No. 211, LD Street, BD Ward, LB District, Hanoi City.

1.2. Mr. Tran Van V (aka Tran Viet V) born in 1959;

Address: 225 ORSKIRS RD WIGAN Kingdom of England;

Current address: No. 211, LD Street, BD Ward, LB District, Hanoi City.

2. Respondent:  Mrs. Tran Thi Tan T, born in 1946;

Current address: No. 14C KN Street, TN Ward, HBT District, Hanoi City, absent due to sickness;

- Authorized representative cum protector of rights and legitimate interests of Mrs. T is the Lawyer Doan Van T2, PD Partnership Law Firm affiliated to Bar Association of Hanoi City; present.

3. Persons with related interests and obligations:

3.1. Mr. Tran Van Th (aka Tran Van H) born in 1957, place of residence: 38 Moxon way Ashton in Makerfield Wigan Wn4 8sw UK- United of Kingdom.

Address in Vietnam: No. 7, Street 4, Group 1, PB Ward, District 9, Ho Chi Minh City; present.

Protectors of legitimate rights and interests of Mr. Th: Lawyer Le Dinh U - and Lawyer Duong QH - DBV Lawyer Office; they both are members of Bar Association of Hanoi City; both present.

3.2. Mr. Le Sy Q, born in 1945 (Mrs. Tran Thi O’s husband).

Current address: No. 211, LD Street, BD Ward, LB District, Hanoi City; present.

3.3. Mr. Vu Khac Tr born in 1939 (Mrs. Tran Thi Tan T’s husband)

Current address: No. 14C KN Street, TN Ward, HBT District, Hanoi City; absent with request for trial in absentia.

3.4. Mrs. Le Thi Th2 born in 1976 (Mr. Tran Van V’s wife), current address:  PT Commune, TO District, Hanoi City; absent.

3.5. The People’s Committee of Hanoi City, authorized representative: Mr. Tran Ngoc T3.

Position: Manager Deputy of Office of Land Statistics Registration affiliated to the Department of Natural Resources and Environment of Hanoi City; absent.

3.6. The People’s Committee of HK, Hanoi City, authorized representative Mr. Le Do Ph. Position: Manager of Natural Resources and Environment Office, HK District, Hanoi City; absent.

3.7. Public Notary Office No. I of Hanoi. Legal representative: Mr. Bui Ngoc T6, Position: Manager Deputy; absent.

Head office: No. 310 BT Street, LDH Ward, HBT District, Hanoi City, absent.

3.8. NT Private Notary Office; legal representative: Mr. Nguyen Thanh T7, Position: Manager Deputy; absent.

Head office: 90A LTK, CN Ward, HK District, Hanoi City.

3.9. Mr. Nguyen Tuan M, born in 1973;

3.10. Mrs. Nguyen Thi Huong G, born in 1974, co-address: 32 DL, YT Commune, GL District, Hanoi City; both absent.

THE CASE

Representation of Mrs. Tran Thi O and Mr. Tran Van V in the lawsuit petition dated April 2, 2014 and additional lawsuit petition dated September 20, 2015 and subsequent depositions:

Mrs. O and Mr. Viet parents have 7 children, including 4 sons and 3 daughters. Mrs. T is the eldest child. At the end of 1979, the father and sons (including Mr. Th - aka  H, Mr. Viet - aka V) evacuated to live abroad, and the mother and 3 daughters (including Mrs. T and Mrs. O) stayed in Vietnam. At the end of 1985, the mother reunited the family in Kingdom of England. The mother died in 1986, the father died in 1992, they both died in Kingdom of England.

At the end of 1991, once when returning to Vietnam with the father and sons, knowing that Mrs. O and her husband was going to purchase land of Quang Ba of Tay Ho District to live, Mr. Viet asked to make a contribution with Mrs. O to purchase land, and Mrs. O and her husband agreed to let him purchase a half of the piece of land since 1990.

At the end of 1992, Mr. Viet and Mr. Th from UK called to ask Mrs. O and her husband to purchase a piece of land in Quang Ba on their behalf (joint purchase), Mrs. O accepted and purchased a piece of land 428m2 with separate path for 112 taels of gold, Mr. Th gave Mrs. O USD 30,000 equivalent to 60 taels of gold. Mr. Viet did not have money to send to Mrs. O, so Mrs. O sold a half of piece of land 180m2 that they jointly had purchased with Mr. Viet before for 54 taels of gold, and Mrs. O lent Mr. Viet the remaining sum of money to pay the contribution proportion of Mr. Viet.

In 1993, Mr. Viet and Mr. Th did not want the piece of land in Quang Ba anymore and purchased a real estate in the city to live, so they asked Mrs. O and her husband to sell that piece of land in Quang Ba to find a house in the city. Until March 1993, Mrs. O found and purchased the house and land No. 15B Tong Dan and Mrs. O sold the piece of land in Quang Ba of Mr. Viet and Mr. Th before to Mr. Nguyen Cam Tu for 192.6 taels of gold, and then use this gold to buy the house and land at 15B Tong Dan.

Because Mr. Viet and Mr. Th both have British nationality, they do not have right to own real estate in Vietnam as prescribed by law at that time. Therefore, Mr. Viet and Mr. Th asked Mrs. O and Mrs. T who are their sister to have their names jointly included in the certificate of ownership of the house 15B Tong Dan, Trang Tien Ward, HK District, Hanoi City.

In the house purchase agreement No. 15B Tong Dan between Mrs. O and Mrs. T as the purchaser and the family of Mr. Le Huy Sich as the seller signed on March 10, 1993 in the Public Notary Office No. 1 of Hanoi City, Mrs. O and Mrs. T are joint owners of the said house.

After completing the purchase paperwork, the married couple Mrs. O and Mr. Le Sy Q changed household register and moved to the house 15B Tong Dan to live there.

To secure the ownership of Mr. Viet and Mr. Th, on March 1, 1994, Mrs. O, Mrs. T and Mr. Viet and Mr. Th made a loan agreement at the Public Notary Office No. 1 in Hanoi City, stating that the borrower are Mrs. O, Mr. Le Sy Q (Mrs. O’s husband), Mrs. T, Mr. Vu Khac Tr (Mrs. T’s husband) and the lender are Mr. Viet and Mr. Tiep, the borrowed sum is 1.4 billion dong because the value of the house 15B Tong Dan was equivalent to 1.4 billion in 1994 (192.6 taels of gold).

In early 1995, citing a reason that transferring ownership of the entire house 15B Tong Dan to Mrs. T solely would enable her to conveniently apply for a construction permit, leasing and earning yields from the house, Mr. Th urged Mr. Viet to request Mrs. O to make a deed of gift for Mrs. T.

On August 19,  1995, Mrs. O and Mrs. T came to Public Notary Office No. 1 of Hanoi City to make a deed of gift for a half of the house 15B Tong Dan without any condition accompanied. In order to ensure the ownership of Mr. Viet and Mr. Th and reassure them, on April 12, 2009, at Public Notary Office No. 3 of Hanoi City, Mrs. T and Mr. Tr (her husband) make a will to leave Mrs. O and Mr. Th the house and land at 15B Tong Dan when Mr. Tr and Mrs. T pass away.

In 1997, Mr. Viet and Mr. Th kept sending money to Vietnam, 50% each, to pay the cost incurred in permit application and construction of the house 15B Tong Dan. Total sum that Mr. Viet contributed for construction consists of USD 8,000 borrowed from Mrs. Nguyen Thi Huong. He authorized Mr. Nguyen Van Ngoc to receive that sum of money to advance the construction.

Thereafter, Mr. Viet kept sending to Vietnam USD 30,000. In two times, he sent total 35,000 English pound to build the house 15B Tong Dan.  Total cost incurred in construction of the house 15B Tong Dan in 1997 was VND 1,400,000,000. In 2003, as the house 15B Tong Dan was renovated and upgraded to two more floors, Mr. Viet kept sending a sum of VND 200,000,000.

Since the house was built, gaining consent of Mr. Viet and Mr. Th, Mrs. T have concluded house leases on their behalf, and have collected the rents in person. From 1999 to 2009, Mrs. T has concluded many house leases. From April 4, 2009 to July 2012, Mrs. T concluded a house lease with Mr. Hung who lives in 13 Nguyen Thuong Hien Street to run a restaurant for the rent of VND 60,000,000 per month. Total house rents that Mrs. T received is VND 2,340,000,000, so the sum that Mrs. T must pay to Mr. Viet is a half of it, equivalent to VND 1,170,000. But in fact, Mrs. T just paid Mr. Viet VND 360,000,000, there is still VND 810,000,000 unpaid.

In 2011, it would seem that Mrs. T avoid paying the rents fairly, Mr. Viet asked Mrs. T to return him a half of the house but Mrs. T refused. Mrs. T and Mr. Th also have intention to take possession of the jointly-purchased real estate.

In 2013, when Mrs. T was given a sum of money from Mr. Th, Mrs. T completed the paperwork to give Mr. Th the whole real estate 15B Tong Dan as a gift and transfer the right to use the house and land to Mr. Th at the Office of Natural Resources and Environment of HK District. After knowing this fact, Mrs. O and Mr. Viet requested the specialized agencies in writing to prevent the transfer of above house and land to Mr. Th.

Mrs. O and Mr. Viet hereby file a lawsuit, requesting the Court to:

Cancel the “Gift deed of house” dated August 19, 1995 between Mrs. O and Mrs.T made at the Public Notary Office No. 1 of Hanoi City because such gift deed of house between Mrs. O and Mrs. T in only a way for Mrs. T to apply for construction and lease the house on behalf of Mr. Viet and Mr. Th;

- Cancel the certificate of housing ownership and residential land use right issued by the People’s Committee of Hanoi City to Mrs. Tran Thi Tan T on November 21, 2000 regarding the house and land at 15B Tong Dan;

- Cancel the “Gift deed for right to use land and property on land” No. 1528.2012/TCQSDD dated November 14, 2012 at the NT Private Notary Office certifying that Mrs. T gave Mr. Th the house and land at 15B Tong Dan as a gift;

- Cancel the certificate of housing ownership and residential land use right issued by the People’s Committee of HK District to Mr. Tran Van Th on December 3, 2013 regarding the house and land at 15B Tong Dan.

Mrs. O, Mr. V request division of house and land 15B Tong Dan in kind, after the division, Mrs. O will voluntarily return right to own and use the part of house and land to Mr. V  because it belongs to him.

Representation of Mrs. Tran Thi Tan T’s authorized representative Mr. Doan Van T2:

Mrs. O and Mr. V have no valid grounds for requesting People’s Court of Hanoi City to cancel the certificate of housing ownership and residential land use right issued by the People’s Committee of Hanoi City to Mrs. T on November 21, 2000 regarding the house and land 15B Tong Dan Street, Hanoi.

Because Mrs. O and Mr. Le Sy Q (her husband) and Mrs. T, on August 19,  1995, came to Public Notary Office No. 1 of Hanoi City to make a deed of gift for a half of the house 15B Tong Dan without any condition accompanied.

According to the dossier, the “Gift deed for house” (a part of the house 15B Tong Dan, Hanoi) was signed by Mrs. O and her husband to give Mrs. T as a gift at the Public Notary Office No. 1 of Hanoi City confirmed by the notary Tran Ngoc Nga. Pursuant to Article 465, Article 467 of the Civil Code, a deed of gift is an agreement between parties. The gift deed for real estate takes effect from the date of registration. After receiving the real estate, Mrs. T paid the registration fee and completed the transfer paperwork and was issued the certificate of land use right and property on land in the name of Mrs. T on November 21, 2000 as per the law.

Therefore, Mrs. T is the only legal owner of the house and land at 15B Tong Dan, Hanoi. So, the request of Mrs. O and Mr. V to divide Mrs. O 50% of the house and land at 15B Tong Dan in kind is not well-grounded because the house and land at 15B Tong Dan, Hanoi is the common property of Mrs. O and Mrs. T. However, the deed of gift paperwork between the married couple Mrs. O and Mrs. T was completed, so this real estate belongs to Mrs. T’s legal ownership.

On November 14, 2012, at the NT Private Notary Office, Mrs. T signed a separate gift deed for land use right and property on land at 15B Tong Dan Street, Trang Tien Ward, HK District, Hanoi City to give it to Mr. Tran Van Th, then Mr. Th fully paid relevant tax liabilities, fees and charges as per the law and on December 3, 2013, the People’s Committee of HK District, Hanoi City issued Mr. Th a certificate of land use right and property on land as the sole legal owner of the house and land at 15B Tong Dan, Trang Tien Ward, HK District, Hanoi City.

In the lawsuit petition, Mrs. O also states that on April 12, 2018, at the Public Notary Office No. 3 of Hanoi City, Mrs. T and her husband Mr. Tr made a will to leave the whole real estate at 15B Tong Dan to Mr. V and Mr. Th after they pass away. However, as prescribed by law, Mrs. T and Mr. Tr are entitled to modify, add, replace or cancel the will anytime. Therefore, Mrs. O and Mr. V's claim for Mr. V’s interests according to the will dated April 12, 2008 have no valid grounds. Alternatively, pursuant to Article 688 of the Civil Code, a joint will made by the married couple takes effect from the date on which the last person dies or the married couple both die. However, at present, Mrs. T and Mr. Tr are both alive.

In addition, Mrs. O and Mr. V also refer to the loan agreement between Mr. V and Mr. Th as the lender and Mrs. O, Mr. Le Sy Q, Mrs. T, Mr. Tr as the borrower dated March 1, 1994 at the Public Notary Office No. 1 of Hanoi City. However, this loan agreement does not relate to the claim for cancellation of deed of gift which has been settled by People’s Court of Hanoi City. Mrs. O must file another lawsuit regarding this loan agreement.

From January 2104, Mr. Th have lent out the house and land at 15B Tong Dan to Mrs. Nguyen Thi Huong G, born in 1974, living at 32 DL, YT Commune, GL District, Hanoi City to run a restaurant, whenever Mr. Th wants to take it back, Mrs. G must return it without requiring anything else.

He requires to reject the lawsuit petition of Mrs. O and Mr. V requesting cancellation of the deed of gift dated August 19, 1995 at the Public Notary Office No. 1 as above, reject the additional lawsuit petition requesting cancellation of certificate of housing ownership and residential land use right issued by the People’s Committee of Hanoi City to Mrs. T dated November 21, 2000 regarding the house and land at 15B Tong Dan, Hanoi City and reject the additional lawsuit petition requesting division of 50% of the house and land at 15B Tong Dan to Mrs. O in kind.

Representation of Mr. Pham Tuan Anh as authorized representative of Mr. Tran Van Th (aka Tran Van H):

Mrs. O and Mr. V's claim for cancellation of the gift deed for the house and land 15B Tong Dan and cancellation of certificate of housing ownership and residential land use right issued by the People’s Committee of Hanoi City to Mrs. T on November 21, 2000 regarding the house and land 15B Tong Dan, Hanoi has no valid grounds, because on August 19, 1995, Mrs. O and Mr. Q (her husband) and Mrs. T made a gift deed for a half of the house 15B Tong Dan at the Public Notary Office No. 1 without any condition accompanied. The deed of gift is an agreement between parties and takes effect from the date of registration. After receiving the property, Mrs. T completed the transfer paperwork and was issued with the certificate of land use right and property on land by the People’s Committee of Hanoi City in her name on November 21, 2000. Therefore, Mrs. t is the only legal owner of the house and land at 15B Tong Dan, Hanoi.

So, the request of Mrs. O and Mr. V to divide Mrs. O 50% of the house and land at 15B Tong Dan in kind is not well-grounded because it belongs to Mrs. T’s legal ownership.

On November 14, 2012, at NT Private Notary Office, Mrs. T signed a separate gift deed for land use right and property on land at 15B Tong Dan to Mr. Th, then Mr. Th fully paid tax liabilities as per the law and on December 3, 2013, the People’s Committee of HK District issued the certificate of land use right and property on land to Mr. Th, so Mr. Th is the sole legal owner of the house and land at 15B Tong Dan.

Mrs. O also states that Mrs. T and Mr. Vu Khac Tr (her husband) make a will to leave the whole real estate 15B Tong Dan to Mr. V and Mr. Th after they pass away. However, Mrs. T and Mr. Tr are entitled to modify, add, replace or cancel the will anytime. Therefore, Mrs. O and Mr. V's claim for Mr. V’s interests according to the will dated April 12, 2008 have no valid grounds because the will has no legal effect as they are both alive.

Mrs. O and Mr. V also refer to the loan agreement between Mr. V and Mr. Th as the lender and Mrs. O, Mr. Le Sy Q, Mrs. T, Mr. Tr as the borrower dated March 1, 1994 at the Public Notary Office No. 1 of Hanoi City. However, this loan agreement does not relate to this case. Mrs. O must file another lawsuit regarding this loan agreement.

Mr. Tuan Anh requires to reject the lawsuit petition of Mrs. O and Mr. Van requesting cancellation of the deed of gift dated August 19, 1995 at the Public Notary Office No. 1 as above, reject the additional lawsuit petition requesting cancellation of certificate of housing ownership and residential land use right issued by the People’s Committee of Hanoi City to Mrs. T dated November 21, 2000 regarding the house and land at 15B Tong Dan, Hanoi City and reject the additional lawsuit petition requesting division of 50% of the house and land at 15B Tong Dan to Mrs. O in kind.

Representation of Mr. Le Sy Q (Mrs. Tran Thi O’s husband):

In 1991, Mr. V and his children returned to Vietnam from UK to visit the family, Mr. V knew that we purchased 360m2 residential land in Quang Ba for 22 taels of gold, Mr. V asked us to let him jointly purchase a half of such piece of land and we agreed. Mr. V paid us USD 6,000 equivalent to 13 taels of gold at that time. On Tet holiday of 1992, my father-in-law and Mr. V’s family and Mr. Th’s family returned to Vietnam. After the Tet holiday, Mr. V and Mr. Th called us to ask us purchase a residential piece of land in Quang Ba to build a house in Vietnam as place of worship for grandparents and parents and a dwelling to stay when they return to visit hometown.

We found and purchased 482m2 land of Mr. Ngo Van Bao’s family in Quang Ba for 112 taels of gold. This piece of land was thereafter in the names of Mrs. O and Mrs. T. A few months later, Mr. V and Mr. Th called us again to ask them to sell such piece of land to buy a house in the city. Then such piece of land was sold to the married couple Mr. Nguyen Cam Tu and Mrs. Kieu Do Thuy Ha who live at 14 Ngo Quyen Street, HK District for 192.6 taels of gold. The gained sum was used to buy the house and land at 15B Tong Dan of Mr. Le Huy Sich’s family equivalent to VND 1.4 billion. I hereby declare that the piece of land in Quang Ba and the house and land at 15B Tong Dan were purchased by myself on behalf of Mr. V and Mr. Th. The sum paid for the real estate was spent by them, I did not contribute any sum of money. In March 1994, Mr. V and Mr. Th returned to Vietnam to visit family. To prevent a possible appropriation, Mr. V and Mr. Th asked us and Mrs. T and her husband to make a loan agreement of VND 1.4 billion. In August 1995, Mr. V asked my wife to transfer her house ownership to Mrs. T. As deeming that the house does not belong to her, she signed the deed of gift at the Public Notary Office No. 1 of Hanoi City to Mrs. T. Since then, Mrs. T and Mr. Th have not given my wife any sum of money. Early sensing Mr. Th and Mrs. T's intent to appropriate the real estate, I kept me away from the transaction and did not participate in.

Representation of Mr. Vu Khac Tr (Mrs. Tran Thi Tan T’s husband):

Mrs. O and Mr. Le Sy Q (her husband) and Mrs. T, on August 19,  1995, came to Public Notary Office No. 1 of Hanoi City to make a deed of gift for a half of the house 15B Tong Dan without any condition accompanied. The deed of gift specifies that the transferor is Mrs. O and the transferee is Mrs. Tran Thi Tan T (my wife), so I have nothing to do with this property.

On April 12, 2008, my wife and I came to the Public Notary Office No. 3 of Hanoi City to make a will, this will was written by hand, bearing signatures and fingerprints of my wife and me. However, as prescribed by law, we are entitled to modify, add, replace and cancel the will. On the other hand, because we are still alive, the will has not taken legal effect. Therefore, Mrs. O and Mr. V’s request for division of 50% the house and land at 15B Tong Dan to Mrs. O in kind has no valid grounds.

In addition, on April 27, 2012, at the Private Notary Office A1, I made a document committing that the house and land at 15B Tong Dan was private property of my wife (Tran Thi Tan T), so my wife is on a discretionary basis to deal with her private property.

Mrs. O and Mr. V also refer to the loan agreement between Mr. V and Mr. Th as the lender and Mrs. O, Mr. Le Sy Q, Mrs. T, Mr. Tr as the borrower dated March 1, 1994 at the Public Notary Office No. 1 of Hanoi City. However, this loan agreement does not relate to this case. Mrs. O must file another lawsuit regarding this loan agreement.

As a person with relevant interests and duties, I request for trial in my absence because I am more than 70 years of age and in poor health condition.

Representation of Mrs. Le Thi Th2 (Mr. Tran Van V’s wife):

In fact, the house and land at 15B Tong Dan was jointly purchased by my husband (Mr. Tran Van V) and his brother Mr. Th in March 1993, 50% each. The joint purchase was made in the witness of our relatives, I totally agree with my husband’s statement.

Unanimous representation of Mr. Nguyen Tuan M and Mrs. Nguyen Thi Huong G who are custodians of the house and land in dispute.

My wife and I were asked by Mr. Th, the legal owner of the house and land at 15B Tong Dan to take care of the house since January 2014. While acting as custodians, we have run a restaurant, we have hired employees and paid salaries by themselves, and spent our own money to buy furniture for the restaurant. Currently, we open the restaurant in the day light and close it at night without anyone staying there. As from the time when we have taken care of the house, we do not contribute any sum of money to build or repair it.

Now it has been in dispute, we do not know Mrs. O and Mrs. T, we only know that Mr. Th is the legal owner of the house 15B Tong Dan and we have acted as its custodians. Whenever Mr. Th requests or upon effect date of the Judgment requesting us to move our property to another place and return it, we voluntarily move out without any query. Apart from the business, we also have other works, so we have no time to participate in legal proceedings at the Court. Therefore, we request for trial in our absence.

Representation of Public Notary Office No. 1 of Hanoi City.

On March 10, 2012, Mr. Le Huy Sich, Mrs. O, Mrs. T made a purchase agreement of house 15 Tong Dan and on March 1, 1994, at the Public Notary Office No. 1, they made a loan agreement in which Mrs. O, Mr. Le Sy Q, Mrs. T, Mr. Vu Khac Tr borrow Mr. V and Th VND 1,3000,000. On August 19, 1995, Mrs. O made a deed of gift to give Mrs. T a half of the house 15B Tong Dan. After verifying notarization procedures as per the law and the Law on Notarization, the Public Notary Office No. 1 followed notarization procedures as per the law.

In terms of request for participation in legal proceedings with the position of the person with relevant interests and duties in the case: Public Notary Office No. 1 agreed to participate in legal proceedings as the person with relevant interests and duties. However, the Public Notary Office No. 1 furnished People’s Court of Hanoi City with copies of all the relevant documents, it requests for trial in its absence and requests the People’s Court of Hanoi City settle the case as per the law.

Representation of representative of NT Private Notary Office:

On November 14, 2012, NT Private Notary Office notarized the Contract No. 1528.2012/TCQSDD confirming that Mrs. T gives Mr. Th the house and land 15B Tong Dan, Trang Tien Ward, HK District as a gift.  After verifying notarization procedures as per the law and the Law on Notarization, NT Private Notary Office followed notarization procedures as per the law. In terms of request for participation in legal proceedings with the position of the person with relevant interests and duties in the case: NT Public Notary Office agreed to participate in legal proceedings as the person with relevant interests and duties. However, Nguyen Tu Private Notary Office furnished People’s Court of Hanoi City with copies of all the documents relevant to the notarized contract No. 1528.2012/TCQSDD dated November 14, 2012, it requests for trial in its absence and requests the People’s Court of Hanoi City settle the case as per the law.

Representation of authorized representative of the People’s Committee of Hanoi City Mr. Tran Ngoc T3:On November 20, 2015, the People’s Committee of Hanoi City issued a written authorization No. 8301/UBND-TNMT to authorize me to provide the People’s Court of Hanoi City with opinions of the People’s Committee of Hanoi City concerning the issuance of the certificate of housing ownership and residential land use right dated November 21, 2000 to Mrs. Tran Thi Tan T at the house 15B Tong Dan, HK District as follows:

The issuance dossier of certificate of housing ownership and residential land use right at 15B Tong Dan, HK District to Mrs. T was made in accordance with the Law on Land 1993, Decree 60/CP dated July 5, 1994 of the Government on housing ownership in urban areas, Decision No. 69/1999/QD-UB of the People’s Committee of Hanoi City dated August 18, 1999 on amendments to application for registration of housing and residential land, issuance of certificate of housing ownership and residential land use right in Hanoi City and relevant documents. Regarding other matters property dispute relevant to the certificate of housing ownership and residential land use right issued to Mrs. T, the People’s Committee of Hanoi City requests the Court to settle as per the law. Due to busy work, we request for trial in our absence.

Representation of authorized representative of the People’s Committee of HK District:

On September 28, 2016, the People’s Committee of HK District issued a written authorization No. 1335/QD-UBND to authorize me to provide the People’s Court of Hanoi City with opinions of the People’s Committee of Hanoi City concerning the issuance of the certificate of housing ownership and residential land use right dated December 3, 2013 to Mr. Th at the house 15B Tong Dan, HK District as follows:  The transfer of certificate of housing ownership and residential land use right at 15B Tong Dan, HK District to Mr. Th was carried out in accordance with the Law on Land and relevant documents. Regarding other matters property dispute relevant to the certificate of housing ownership and residential land use right issued to Mrs. Tran Thi Tan T, the People’s Committee of Hanoi City requests the Court to settle as per the law. Due to busy work, I request for trial in our absence.

- According to the record of property valuation dated September 17, 2015, the Property Valuation Council valued the land use right and property on land as follows:  The value of facilities on land is VND 4,482,548,361. The value of the land use right is VND 240,000,000 per m2. The area of land in fact is 143.8m2 and the house has 6 floors.

At the record of reconciliation dated August 18, 2015, the litigants all confirmed that the current conditions of facilities on land do not change compared to the record of appraisal dated September 1, 2015 and value of land use right and property on land does not fluctuate compared to the record of property valuation dated September 17, 2015, so the litigants reach a consensus on upholding the valuation result, not request further appraisal and revaluation as to the property in dispute.

In the First Instance Civil Judgment No.18/2016/DSST dated September 29, 2016, the People’s Court of Hanoi City judged:

Pursuant to Article 26, Clause 3 Article 35, Article 37 and Article 38 of the Civil Procedure Code 2015;

Pursuant to Article 163, Article 164, Clause 2 Article 169, Article 255, Article 256, Article 259 and Clause 3 Article 275 of the Civil Code 2005;

Pursuant to Article 1 of the Law No. 34/2009/QH12 dated June 18, 2009 of the National Assembly on amendments to Article 12 of the Law on Housing and Article 121 of the Law on Land, Articles 243, 245 of the Civil Procedure Code;

Pursuant to Point c Article 26 of Circular No. 19/2016/TT-BXD dated June 30, 2016 of the Ministry of Construction;

Pursuant to Clause 7 Article 27 and Point e Article 2 Part I the List of Court Fees and Charges - Ordinance on Court Fees and Charges.

Judges:

1. Accept the lawsuit petition of Mrs. Tran Thi O, Mr. Tran Van V (aka Tran Viet V) regarding “Dispute over house and land” at 15B Tong Dan, HK District, Hanoi City against Mrs. Tran Thi Tan T and Mr. Tran Van H (aka Tran Van Th).

Determine that total the sum of money to purchase the house and land at 15B Tong Dan, HK District, Hanoi City was spent by Mr. Tran Van V and Mr. Tran Van Th (aka Tran Van Th), the sum paid by each person was equivalent to a half of the above real estate.

1.1 The house and land at 15B Tong Dan, HK District, Hanoi City is divided into 2 parts:

- Part 1 includes: Outside the property on the 1st floor is adjacent to Tong Dan street; the area on the left hand side from the entrance area is 54.7m2 and total construction area of 2nd floor, 3rd floor, 4th floor, 5 th floor, 6 th floor outside the land area is 71.9m2;

- Part 2 includes: Outside the property on the 1st floor is adjacent to Tong Dan street; the area on the right hand side from the entrance area is 17.2m2 (making a path into the inner land area) and total construction area of 2nd floor, 3rd floor, 4th floor, 5 th floor, 6 th floor inside the land area is 71.9m2.

1.2 Divide Mr. Tran Van V (aka Tran Viet V) the entire right to own and use the house and land at 15B Tong Dan outside, the part 1 consists of the following:

- Area at the 1st floor:

+ The outside area, on the left side from the entrance is 54.7m2 with: the side adjacent to Tong Dan Street is 3.83m, on the side adjacent to Alley 15 Tong Dan Street is 12.65m, the side adjacent to the inside 2nd area is 4.12m and the other side is 13.67m. Total value of land use right is 54,7m2 x VND 240,000,000/m2 x 0.7 = VND 9,189,600,000 and the construction value is 54.7m2 x VND 8,450,000/m2 x 70% = VND 323,550,500;

+ Total construction value of 2nd floor is 41.5m2; of 3rd floor is 53.1m2; of 4th floor is 53.1m2; of 5th floor is 53.1m2; of 6th floor is 53.1m2 on the land area of 71.9m2. Total value of land use right is 71.9m2 x VND 240,000,000/m2 x 0.3 = VND 5,176,800,000 and construction value is 253.9m2 x VND 8,450,000/m2 x 70% = VND 1,501,818,500;

Total value of the house and land divided to Mr. Tran Van V (aka Tran Viet V) that he has full right to own and use is VND 16,191,769,000.

1.3. Mr. Tran Van Th (aka Tran Van H) is divided the remaining part of the house and land, the part 2 inside includes specific areas as follows:

- Area at the 1st floor:

+ Area of the house outside, on the right side from the entrance is 17.2m2 (as the path into the house inside) with: the side adjacent to Tong Dan Street is 1.43m, the side adjacent to the first area is 13.67, the side adjacent to the second area inside is 1.43m and the other side has dimensions of 7.47m; 1.31m and 4.86m and the height is limited from the floor up to the 2nd floor ceiling.

Total value of land use right is 17.2m2 x VND 240,000,000/m2 x 0.7 = VND 2,889,600,000 and the construction value is 17.2m2 x VND 8,450,000/m2 x 70% = VND 101,738,000. Total value is VND 2,991,338,000 (the value of this area is not required to be compensated as it is used as the path into the area inside).

+ Total construction value of 1st floor is 71.9m2; of 2nd floor is 71.9m2; of 3th floor is 71.9m2; of 4th floor is 71.9m2; of 5th floor is 71.9m2; of 6th floor is 71.9m2 on the land area of 71.9m2. Total value of land use right is 71.9m2 x VND 240,000,000/m2 = VND 17,256,000,000 and construction value is 431.4m2 x VND 8,450,000/m2 x 70% = VND 2,551,731,000. Total value is VND 19,807,731,000.

Total value of the house and land divided to Mr. Tran Van Th (aka Tran Van H) that he has full right to own and use it is VND 22,799,069,000.

1.4. The difference of value divided between Mr. H and Mr. V that they share to each other is VND 19,807,731,000 - VND 16,191,769,000 = VND 3,615,962,000.

Mr. H shall pay the difference to Mr. V: VND 3,625,962,000 : 2 = VND 1,807,981,000 (One billion, eight hundred seven million, nine hundred eighty one thousand dong).

They are responsible for building a wall separating the divided areas, renovating and repairing them to ensure their private life and use, without prejudice to the overall architecture of the house. The wall separating the divided areas is located at the border between the divided areas.

Mrs. Tran Van V and Mr. Tran Van Th have responsibility for completing paperwork to establish their ownership of the house and land according to the Judgment and as per the law. (a house and land division diagram enclosed with the Judgment).

2. Cancel notarized deeds of gift, certificates of housing ownership and residential land use right at 15B Tong Dan - Hanoi, in specific:

- Cancel the notarized deed of gift (of a part of the house 15B Tong Dan - Hanoi) between Mrs. Tran Thi, Mr. Le Sy Q as the transferor and Mrs. Tran Thi Tan T as the transferee made by the Public Notary Office No. 1 of Hanoi City on August 19, 1995;

- Cancel the “Certificate of housing ownership and residential land use right” at 15B Tong Dan Street, Trang Tien Ward, HK District, Hanoi City issued by the People’s Committee of Hanoi City to Mrs. Tran Thi Tan T on November 21, 2000;

- Cancel the notarized gift deed for land use right and property on land No. 1528.2012/TCQSDD (at 15B Tong Dan Street, Trang Tien Ward, HK District, Hanoi City) between Mrs. Tran Thi Tan T as the transferor and Mr. Tran Van Th as the transferee made by NT Private Notary Office on November 14, 2012;

- Cancel the “Certificate of housing ownership and residential land use right and property on land” at 15B Tong Dan Street, Trang Tien Ward, HK District, Hanoi City issued by the People’s Committee of Hanoi City to Mr. Tran Van Th on December 3, 2013.

3. Recognize the voluntariness of Mr. Nguyen Tuan M and Mrs. Nguyen Thi Huong G as the tenants who have no contribution to the house and land at 15B Tong Dan to return the leased house upon the request of the owner or the Judgment without any query.

4. Regarding contribution of Mrs. O and Mrs. T:

- Mrs. Tran Thi O and Mr. Tran Van will reach an agreement by their own concerning contribution of Mrs. O during the construction and management of the house 15B Tong Dan, Hanoi City and do not request the Court to settle;

- The contribution of Mrs. Tran Thi Tan T shall be paid by Mr. Tran Van H, because Mrs. T and Mr. H are those who leased out the house and kept the earned rents and have the same interests and do no request the Court to settle; The owners and custodians of the house do not have any dispute and request the Court to judge their contribution in construction and management. Therefore, the Trial Panel disregards this matter. The right of Mrs. Tran Thi O to sue against Mr. Tran Van V and the right of Mrs. Tran Thi Tan T to sue against Mr. Tran Van H in another civil lawsuit are reserved as per the law.

Reject other requests of the litigants.

In addition, the Court of First Instance decided the court fee and announced the right to appeal of the litigants.

On October 10, 2016, Mrs. Tran Thi Tan T as the respondent appealed the entire Judgment, requesting the Appellate Court not to accept the lawsuit petition of Mrs. O and Mr. V.

On October 17, 2015, Mr. Tran Van Th (aka H) as the relevant rights and obligations appealed the entire Judgment, requesting the Appellate Court not to accept the lawsuit petition of Mrs. O and Mr. V.

At the appellate court hearing, Mr. Tuan as the representative and protect of rights and legitimate interests of Mrs. T states as follows (in brief):  Firstly, the Court of First Instance committed an error when accepting the lawsuit petition of the petitioner. Initially, the petitioner requests the cancellation of the deed of gift, then makes an additional lawsuit petition requesting the cancellation of certificate of land use right that the People’s Committee of HK District issued to Mr. H. Mrs. T is no longer the owner of the house at 15B Tong Dan, so it is wrong to consider her as the respondent. It is also improper that the Court of First Instance divide Mr. Th and Mr. V the house at 15B Tong Dan 50% each. The Court of First Instance has committed factual and procedural error.

The Court of First Instance did not bring Mrs. Mai Ha into the legal proceedings to determine how the land in Quang Ba was purchased. Moreover, Mrs. O admitted that she received money given by Mrs. Do Kim Phuong. The Court of First Instance also did not bring Mrs. Phuong into legal proceedings and took Mrs. Phuong’s statement to clarify this matter. Mr. V admitted that in 1990, he brought money back to Vietnam to buy real estate, the Court of First Instance only settled the case based on his depositions without clarifying what Mr. V did that time, how much he earned and whether he paid taxes incurred. At the today’s court hearing, Mr. V cannot prove his income in 1990s. In addition, witnesses who are Mr. Nguyen Ngoc Cuong, Mr. Vo Duc Vinh, Mrs. Nguyen Thi Ninh, Mr. Tran Q Phu only hear that Mr. H and Mr. V purchased the house but not witnessed in person the purchase. So, their depositions sound less believable. Meanwhile, at the appellate court hearing, Mr. Nguyen Dinh V confessed the entire fact. Total sum of money to build the house at 15B Tong Dan was wholly spent by Mr. H, Mr. V did not spend any sum of money to build the house. Moreover, at the today’s court hearing, Mr. V also admits that he borrowed Mrs. Huong USD 8,000 to make a contribution to the house purchase. The Court’s failure not to bring Mrs. Huong into legal proceedings to clarify this matter is a material inadequacy. As an irreparable inadequacy, the Court of Appeal deems it necessary to quash the First Instance Judgment. Request the Trial Panel to quash the First Instance Judgment and refer  the case file to the Court of First Instance retry under general procedures.

The Lawyer Ha protects the rights and legitimate interests for Mr. H as follows:  The Court of First Instance committed material procedural and factual errors, in specific: committing material violation against the Law on Notarization when declaring cancellation of the deed of gift made on August 19, 1995 between Mrs. T and Mrs. O notarized by Public Notary Office No. 1; and the gift deed for land use right and property on land made on November 14, 2012 between Mrs. T and Mr. H notarized by Nguyen Tu Private Notary Office. Pursuant to Clause 2, Article 6 of the Law on Notarization 2006: A notarized document shall be valid as evidence; and the circumstances and facts in a notarized document shall not be required to be proved, except where the Court declares [the notarized document] to be null and void”. The gift deed for house and gift deed for land use right were notarized and have not been declared null and void by any court. The First Instance Judgment does not specify these two notarized gift deeds are null and void or declare they are null and void.

The Court of First Instance declared acceptance to the request for cancellation of the gift deed between Mrs. T and Mrs. O when the prescriptive period for lawsuit against this transaction expired:  The gift deed for house between Mrs. T and Mrs. O was made on August 19, 1995. The prescriptive period for lawsuit against this transaction shall be governed by the Civil Code 1995. However, as stated in the lawsuit petition dated April 2, 2014 and the additional lawsuit petition dated September 20, 2015 of Mrs. O and Mr. V, the petitioner requests cancellation of this gift deed for house between Mrs. T and Mrs. O as claiming that this transaction is null and void due to deception. Pursuant to Clause 1, Article 145, the Civil Code 1995, the prescriptive period for declaration of null and void civil transaction due to deception is 1 year. Pursuant to Clause 1, Article 136, the Civil Code 2005, the prescriptive period for declaration of null and void civil transaction due to deception is 2 year, following the date of transaction.

Accordingly, if the petitioner wishes to file a lawsuit declaring the gift deed for house null and void, it should have been made no later than August 19, 1991. After this date, the petition loses the right to file the lawsuit. But in fact, on April 2, 2014, that is 16 years after the prescriptive period, Mrs. O and Mr. V took legal proceedings to court. The First Instance Judgment does not specify that the request for cancellation of the deed of gift is acceptable regardless of expiry due to plausible grounds. Accordingly, pursuant to the said articles of the Civil Code 1995 and 2005, the First Instance Judgment's acceptance to the petitioner’s lawsuit petition has no valid grounds.

The Court of First Instance evaluated items of evidence inadequately and partially: The First Instance Judgment asserts that Mr. H and Mr. V made an equal contribution to buy the house 15B Tong Dan and declare division of Mr. Th and Mr. V 50% each. There is no document in the case file specifying that Mr. Th and Mr. V contributed equal sum of money to buy the house 15B Tong Dan. The Court of First Instance has not clarified this matter. Otherwise, considering the income of Mr. V at that time, it was impossible for Mr. V to have so much money to jointly buy the house with Mr. Th.

From above analysis, it is patently obvious that the First Instance Judgment have many errors. This Judgment does not ensure the accuracy and adequacy of legal basis of a judgment on behalf of the state. Errors committed in the First Instance Judgment are irreparable in the appellate court hearing. Pursuant to the Civil Procedure Code, the First Instance Judgment must be quashed to retry to ensure the adequacy, accuracy and impartiality. Request the Trial Panel to quash the First Instance Judgment and refer  the case file to the Court of First Instance retry the case.

Arguments of lawyer Ung: I agree with opinions just represented by lawyer Ha. The Court of First Instance wrongly determined the positions of procedural participants, so it committed material procedural errors. Although witnesses only know some information but not know clearly the case, the Court of First Instance settled the case based on their depositions. Therefore, it is not proper that the Court of First Instance determines the legal property of Mr. H as common property of Mr. H and V and divides each person a half of the property. The Court of First Instance committed material procedural and factual errors. So request the Trial Panel to quash the First Instance Judgment to retry the case under first instance procedure.

At the today’s court hearing, the Procurator of Superior People’s Procuracy in Hanoi evaluates that the Judge has complied with regulations of the Civil Procedure Code during the process of settlement of the case since the acceptance. At the appellate court hearing, the Trial Panel adheres to laws and regulations of the Civil Procedure Code. The procedural participants who are petitioner, respondent and persons with relevant rights and obligations have adhered to Articles 58, 59, 60, 61 and 209 of the Civil Procedure Code.

With reference to the case: Deeming that the house and land 15B Tong Dan, Trang Tien Ward, HK District was purchased by Mrs. O and Mrs. T from Mr. Le Huy Sich according to the “house purchase agreement” dated March 10, 1993. However, on March 1, 1994, at the Public Notary Office No. 1, Mrs. O, Mr. Le Sy Q (Mrs. O’s husband), Mrs. T, Mr. Vu Khac Tr (Mrs. T’s husband) as the borrower and Mr. V and Mr. Th (Mrs. O and Mr. T’s brothers) as the lender concluded a “loan agreement” with the content “Mr. Th and Mr. V agree to lend 4 people of us (borrower) VND 1,300,000,000 (one billion three hundred million dong), the sum in this agreement is equivalent to the sum to buy the house and land at 15B Tong Dan. “If either or both people die(s), their children will inherit the property mentioned in this agreement (Mr. Th’s children will inherit 50% and Mr. V’s children will inherit 50%)…” and “…any further purchase and/or transfer of the entire or part of the house 15B Tong Dan shall be subject to a consensus of all brothers and sisters”.

The witnesses in this case Mr. Nguyen Ngoc Cuong, Mr. Vo Duc Vinh, Mrs. Nguyen Thi Ninh, Mr. Trang Quang Phu all confirm that the house and land was originally and jointly purchased by Mr. V and Mr. Th with equal contribution and they asked Mrs. O and Mrs. T to put the house ownership under their names and take care and do business on behalf of Mr. V and Mr. Th (case file p. 128 to 133). In addition, to ensure the actual house ownership of Mrs. V and Mr. H, on April 12, 2008, at the Public Notary Office No.3, the married couple Mrs. T and Mr. Vu Khac Tr made a will specifying that: “we hereby decide to leave our brother Mr. Th, date of birth April 11, 1957 and Mr. Tran Van V, date of birth May 5, 1959, this is the first and the last will of our will regarding the right to use the land and own property on land mentioned above…”. Therefore, there are sufficient grounds for determining that the house and land at 15B Tong Dan was jointly paid by Mr. V and Mr. Th with equal contribution; Mrs. O and Mrs. T only put the house ownership under their names on behalf of Mr. V and Mr. Th.

On August 19, 1995, at the Public Notary Office No. 1, Mrs. O and Mr. Le Sy Q as the transferor and Mrs. T as the transferee made a “gift deed for house” at 15B Tong Dan. Before carrying out the notarization procedure, the case file consists of an ”application for transfer of ownership of the house" dated July 20, 1995 submitted to Department of Land and Housing with the content “Mrs. O gives a half of the house and wholly transfers the house ownership to Mrs. T" without any condition accompanied. In the Explanation sent to the Police No. 7 Thien Quang, Hanoi, Mr. Van states “In 1995, after Mrs. O applied for withdrawal of her name from the house ownership, we applied for reconstruction of the house 15B Tong Dan” (case file p. 44); according to the deposition of Mr. Le Sy Q (Mrs. O’s husband)”, in August 1995, Mr. V and Mr. H returned to Vietnam and asked my wife to put the house ownership under the name of Mrs. T only”. Accordingly, although Mr. V and Mr. Th both know and agree the transfer of house ownership from Mrs. O to Mrs. T as analyzed above, Mrs. O and Mrs. T are only those whose names are put under the house ownership on the behalf of Mr. V and Mr. H. Therefore, the Court of First Instance’s announcement of cancellation of the notarized gift deed for house between Mrs. O, Mr. Q and Mrs. T made by Public Notary Office No. 1 of Hanoi City on August 19, 1995 has valid grounds. Because the above notarized “gift deed for house” has no legal value, the Court has valid grounds to declare cancellation of certificate of housing ownership and residential land use right issued by the People’s Committee of Hanoi City to Mrs. T on November 21, 2000; cancellation of the notarized “gift deed for land use right and property on land” No. 1528.2012/TCQSDD between Mrs. T as the transferor and Mr. Th as the transferee made by NT Private Notary Office on November 14; cancellation of “certificate of rights to use land, ownership of land and property on land” issued by the People’s Committee of HK District to Mr. Th on December 3, 2013.

The Court of First Instance has valid grounds for determining that total sum of money to buy the house and land 15B Tong Dan, HK District, Hanoi City was spent by Mr. V and Mr. H; they made equal contribution. In 1993, because Mr. V and Mr. H stayed abroad and took British nationality, they have no right to own residential land in Vietnam, under Vietnam's law, they asked Mrs. O and Mrs. T to put the house ownership under their names.

However, pursuant to Articles 159, 150, 161, Clause 4 Article 182 of the Law on Housing 2014, Mr. H and Mr. V are entitled to buy house and land in Vietnam. Therefore, it is proper that the Court of First Instance divide two equal parts of the house at 15B Tong Dan, , HK District, Hanoi City to Mr. H and Mr. V.

According to the above bases, request the Appellate Trial Panel, referring to Clause 1 Article 308 of the Civil Procedure Code, not to accept the appeal of the respondent Mrs. T and person with relevant rights and obligations Mr. Th. Uphold other decisions of the First Instance Judgment.

Upon investigation of the case file and at today’s appellate court hearing, after listening to representation of the petitioner, respondent’s authorized representative, person with relevant rights and obligations, arguments and opinions of representative of the People’s Procuracy;

JUDGEMENT OF THE COURT

At today’s court hearing, after being asked if the petitioner Mrs. Tran Thi O and Mr. Tran Van V may reach an agreement with the respondent Mrs. T and Mr. Th, they confirm that they cannot do it. The Trial Panel keeps settling the case as per the law.

 [1] In terms of court procedures:

Considering depositions made by the litigants and arguments of lawyers and representative of the People’s Procuracy as stated and documents in the case file, the Appellate Trial Panel determines some issues as follows:

-Firstly, the positions of litigants were wrongly determined: in the lawsuit petition and additional lawsuit petition, Mrs. O and Mr. V both assert that the sum of money to buy the house at 15B Tong Dan, Trang Tien Ward, HK District, Hanoi City belongs to Mr. Th and Mr. V. As foreigners, Mr. V and Mr. H are not entitled to own houses and land in Vietnam under Vietnam’s law, they asked Mrs. O and Mrs. T to put the house ownership under their names.  Therefore, under the agreement on purchase of the house and land at 15B Tong Dan between Mrs. O and Mrs. T as the purchaser and Mr. Le Huy Sich’s family as the seller made on March 10, 1993 at the Public Notary Office No. 1 of Hanoi City, Mrs. O and Mrs. T are co-owners of the said real estate. In order to facilitate the management, use and reconstruction of the new house at 15B Tong Dan, the house ownership have been put under different names, such as Mrs. O’s name in 2000; Mr. Th’s name in 2013. Upon the dispute over house and land ownership right in the lawsuit petition, Mrs. O and Mr. V have four requests for cancellation of deeds of gift and cancellation of certificate of housing ownership and residential land use right, including request for cancellation of certificate of housing ownership and residential land use right issued by the People’s Committee of HK District to Mr. Th on December 3, 2013. Although Mrs. O and Mr. V regarded Mrs. T as the respondent and Mr. Th as the person with relevant rights and obligations in the lawsuit petition before the acceptance of the case, the Court of First Instance was supposed to explain Mrs. O and Mr. V that they should regard Mr. Th as the respondent in the case in accordance with Article 56 of the Civil Procedure Code 2005 (now is Article 68 of the Civil Procedure Code 2015).

-Secondly, lack of procedural participants: The litigants in this case all confirm that in 1979, when living in Vietnam, Mr. Tran Van Th got married to Mrs. Do Kim Phuong, then they both immigrated to the UK and have lived together since then. In 2012, Mr. Th returned to and settled in Vietnam. He was issued with an identification card No. 025618848 dated March 15, 2012 by People's Public Security of Ho Chi Minh City (case file p. 578). Pursuant to Clause 1, Article 122 of the Law on Marriage and Family 2014: “legal relations in terms of marriage and family of the Socialist Republic of Vietnam are applicable to conjugal relationship involving foreign elements”; Article 33 of the Law on Marriage and Family 2014 stipulates that the property during marriage period is the common property of the married couple. Moreover, the petitioner Mrs. O admitted that in 1993, Mrs. Phuong returned to Vietnam and gave her USD 70,000 to buy the house 15B Tong Dan and when the dispute arose, Mr. Th has requested the Court of First Instance multiple times to bring his wife Mrs. Do Kim Phuong into legal proceedings. But during the case settlement process, the Court of First Instance did not bring Mrs. Phuong into the legal proceedings as the person with relevant rights and obligations, which is considered as a procedural error. Meanwhile, Mrs. Le Thi Th2 who got married to Mr. V in 2004 when the house at 15B Tong Dan was bought 11 years ago was brought into the legal proceedings as the person with relevant rights and obligations.

[2] Regarding dispute:

[2.1] Determine who are people spending money to buy the house at 15B Tong Dan, Trang Tien Ward, HK District, Hanoi City? Under the “house purchase agreement” made on March 10, 1993 at Public Notary Office, Hanoi City, Mr. Le Huy Sich is the seller and Mrs. T, born in 1946 and Mrs. O, born in 1949 are the purchaser. Under the “application for house purchase” dated February 22, 1993 submitted to Hanoi Land Department, the section specifying reasons for purchase and how the old house will be dealt with as follows: “A new house is bought for new family, the old house is left for parents”. Accordingly, the reason for the house purchase: “A new house is bought for new family, the old house is left for parents” does not reflect the reality, because Mrs. O and Mrs. T at that time had their own families. Moreover, when buying the house, only Mrs. O and Mrs. T put the house ownership under their names without their husbands’ names. And according to their financial conditions at the time, they cannot have their own money in the marriage period to buy a house for their own. Therefore, there are valid grounds for determining that Mrs. O and Mrs. T only put the house ownership under their names on behalf of Mr. V and Mr. Th and Mr. V and Mr. H, as foreigners under Vietnam’s law, they are not entitled to buy real estate in Vietnam. However, the Court of First Instance did not clearly determine to whom the sum of money to buy the house at 15B Tong Dan, Trang Tien Ward, HK District belongs. In the lawsuit petition, additional lawsuit petition, and depositions made at the first instance court hearing and today’ appellate court hearing, the petitioner Mrs. O and Mr. V both confirmed that the sum of money to buy the house on March 10, 1993 belongs to Mr. Th and Mr. V with equal contribution, but Mrs. O and Mr. V does not submit any item of evidence proving that Mr. V contributed a half of the sum of money.  However, Mr. Th and Mrs. T believe that all the sum of money to buy the house and build the new house belongs to Mr. Th. To prove this matter, at today’s appellate court hearing, Mr. Th asserts that he gave Mrs. O more than USD 60,000 in person with the witness of his father-in-law (Mrs. Phuong’s father) by taking photos when Mr. Th and Mrs. Phuong gave money to Mrs. O; Mr. Th also confirmed that Mrs. Phuong (his wife) returned to Vietnam to give Mrs. O USD 70,000, Mrs. O received USD 130,000 in total to buy the house at 15B Tong Dan (equivalent to VND 1.4 billion ). During the settlement process at the Court of First Instance and appellate court hearing, Mrs. O confirmed that before the house purchase date, March 10, 1993, Mrs. Phuong returned to Vietnam to give her USD 7,000 but this sum of money belongs to Mr. Th and Mr. V as joint contribution. However, Mrs. O fails to prove the contribution of Mr. V. Accordingly, there are valid grounds for determining that when buying the house 15B Tong Dan in 1993, Mr. Th contributed USD 70,000, which should be converted into VND and determined the percentage such amount accounts for in the sum of VND 1.4 billion. And as for the remaining sum, extra items of evidence must be collected to determine financial resources of Mr. Th and Mr. V in the UK. Mr. Th declares that he is the owner of some restaurants in the UK, so he had money to buy the house and land at 15B Tong Dan and Mr. V is only his worker; Mr. V also presents that fact but in converse. The Court of First Instance made judicial assistance requests via Ministry of Foreign Affairs and the Ministry of Justice in accordance with the Law on Judicial Assistance but gives no reply; moreover, in the judicial assistance request (case file p. 199 through 201), the Court of First Instance does not mention the verification of financial resources of Mr. Th and Mr. V in the UK as the basis for them to buy the real estate in Vietnam.

[2.2] Determine who are people spending money to demolish the old house and build the new house at 15B Tong Dan, Trang Tien Ward, HK District, Hanoi City.? At today’s court hearing, Mr. Nguyen Dinh Vu (Mr. Th’s cousin) admits that in 1996, he was asked by Mr. Th to supervise the demolition of the old house and construction of the new house at 15B Tong Dan; Mr. Vu asserts that Mr. Th is the person who gave money to him to hire designers and build the new house, totaling VND 1.3 billion. Mrs. T and Mrs. O both admit this matter, Mr. V claims that he sent money to Mr. Vu but fails to give any item of evidence and at today’s appellate court hearing, during cross-examination, Mr. Vu does not admit it. Therefore, the new house at 15B Tong Dan was built using money of Mr. Th. The Court of First Instance wrongly determined that the new house was built using money of both Mr. Th and Mr. V.

[2.3] Based on above analysis, there are plausible grounds to determine that this is a civil case in terms of housing ownership and land use right in Vietnam; the formation of the house and land since 1993 as follows: Mr. Th and Mr. V sent money to Mrs. O and Mrs. T, who live in Vietnam, for them to buy the house and put the house ownership under their names. Accordingly, this case has some dispute contents similar to the Case No. 02/2016/AL of the Council of Judges of the Supreme People’s Court ratified and announced in the Decision No. 220/QD-CA on April 6, 2016 of Chief Justice of the Supreme People’s Court in terms of the case reclaiming property in which there are some keywords in the case below: “null and void civil transactions”; “property reclaim”, “bases for determining ownership”; “overseas Vietnamese”. In this case, at the time of purchase of the house at 15B Tong Dan, Trang Tien Ward, HK District, Hanoi City in 1993 Mr. Th and Mr. V stayed abroad, the house ownership was put under the names of Mrs. T and Mrs. O. And then under the only name of Mrs. T and under the only name of Mr. Th in 2012. The dispute in question is exactly the dispute over real estate ownership between Mr. V and Mr. Th. When settling this dispute, the Court of First Instance would have been necessary to clarify the specific contribution of Mr. Th and Mr. V in VND 1.4 billion to buy the house in 1993.

[3]. Regarding matters mentioned in the part ([1] litigants’ positions and lack of procedural participants and part [2] insufficient taking of evidence, the appellate court hearing cannot provide them; therefore, it is necessary to quash the entire First Instance Judgment and refer it to the Court of First Instance to retry the case in order to ensure interests of the litigants. When the case is retried, if the litigants cannot reach an agreement again, the Court of First Instance should comply with guidance in Joint Circular No. 12/2016/TTLT-BTP-BNG-TANDTC dated October 19, 2016 of the Ministry of Justice, Ministry of Foreign Affairs and the Supreme People’s Court on procedures for mutual legal assistance in civil matters to determine the financial resources of the married couple Mr. Th, Mr. V abroad when they sent money to Vietnam to buy the house and build the new house in 1996. After taking sufficient evidence and cross-examination between the litigants, etc. in accordance with the Civil Procedure Code, the Court should determine whether Mr. Th and Mr. V are entitled to own the house associated with land use right in accordance with the Law on Housing and the Law on land in force. The above mentioned determination will help to determine whether the house and land at 15B Tong Dan, Trang Tien Ward, HK District, Hanoi City is private ownership or ownership in common, or joint ownership between the married couple Mr. Thiep, Mr. V, etc. in accordance with Articles 211, 214, 215, 216 and 217 the Civil Code 2005 (now are Articles 205, 207, 208, 209, 210 the Civil Code 2015).

If there are valid grounds for determining that the ownership proportion of the house and land at 15B Tong Dan of Mr. Th and his wife (including to money to buy the house and land in 1993 and to build the new house in 1996 and repair it later) is greater than the ownership proportion of Mr. V and cannot be divided in kind under Article 219 of the Civil Code 2015, it is advisable to give Mr. Th and his wife the house ownership and land use right  and they must compensate the remaining ownership proportion to Mr. V and his wife according to the market value at the time of first-instance trial so as to ensure the interests of the litigants in the case. When retrying the case, if Mrs. T and Mrs. O or other litigants in the case claims their contribution during the purchase in 1993 and construction of new house, maintenance, repair and lease etc. their claims shall be settled in the same case to ensure their interests.

Documents of the People’s Committee of Hanoi City in terms of issuance of “certificate of housing ownership and residential land use right’” and documents of Public Notary Office No. 1 of Hanoi City and NT Private Notary Office relevant to the house 15B, Tong Dan Street, Trang Tien Ward, HK District, Hanoi City will be decided by the Court of First Instance when retrying the case.

From the above analysis, there is no basis to accept the arguments of the representative of the Superior People’s Procuracy requesting the upholding of First Instance Judgment, but it is advisable to accept the appeals of Mrs. Tran Thi Tan T and Mr. Tran Van Th as well as the arguments of lawyers of Mrs. T, Mr. Th; cancel the entire First Instance Judgment and refer the case file to the Court of First Instance to retry the case under first instance procedure after taking Mrs. Do Kim Phuong into legal proceedings as the person with relevant rights and obligations so as to ensure the interests of litigants.

With reference to court fees: As the entire First Instance Judgment is quashed and the case file is referred to the Court of First Instance to retry the case under first instance trial, appellants do not have to pay the civil appellate fee but the court fee advance will not be returned to Mrs. T and Mr. Th and the Court of First Instance will charge it the first instance court fee.

Pursuant to documents and evidence mentioned above:

HEREBY DECIDES

Pursuant to Clause 3 Article 308, Article 310 and Clause 3 Article 148 of the Civil Procedure Code 2015; accept the appeal of Mrs. Tran Thi Tan T and Mr. Tran Van Th (aka H).

1. Quash he entire First Instance Judgment No. 18/2016/DSST dated September 29, 2016 of People’s Court of Hanoi City on “dispute over division of common property, cancellation of certificate of housing ownership and residential land use right, cancellation of gift deed for real estate” between Mrs. Tran Thi O, Mr. Tran Van V as petitioner and Mrs. Tran Thi Tan T as respondent and Mr. Tran Van Th and some agencies and other peoples whose names mentioned in the page 2 of this judgment as persons with relevant rights and obligations.

2. Refer the case file to People’s Court of Hanoi City for re-conducting the first-instance trial as per the law.

3. With reference to court fees: Appellants do not have to pay appellate civil court fees; their obligations to pay the court fees shall be redetermined when retrying the case under first instance procedure.

This Appellate Judgment shall take legal effect from the date of pronouncement./.


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Judgement no. 202/2017/DS-PT dated july 20, 2017 on dispute over claim for division of common property, cancellation of certificate of housing ownership and residential land use right and cancellation of gift deed for real estate

Số hiệu:202/2017/DS-PT
Cấp xét xử:Phúc thẩm
Agency issued: Tòa án nhân dân cấp cao
Field:Dân sự
Date issued: 20/07/2017
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