Judgement No. 221/2021/DS-PT dated April 27, 2021 Re.Dispute over the home ownership right, home sale and purchase contract and revocation of certificate of home ownership and residential land use right  

HIGH PEOPLE’S COURT OF HO CHI MINH CITY

JUDGEMENT NO. 221/2021/DS-PT DATED APRIL 27, 2021 RE.DISPUTE OVER THE HOME OWNERSHIP RIGHT, HOME SALE AND PURCHASE CONTRACT AND REVOCATION OF CERTIFICATE OF HOME OWNERSHIP AND RESIDENTIAL LAND USE RIGHT

On March 16, 2021, at the headquarter of the High People’s Court of Ho Chi Minh City, the appellate trial of the civil case No. 660/2020/TLPT-DS dated December 23, 2020 regarding: “Dispute over the home ownership right, home sale and purchase contract and revocation of certificate of home ownership and residential land use right”. Because of the fact that the civil preliminary ruling No.: 1368/2020/DS-ST dated August 28, 2020 of the People’s Court of Ho Chi Minh city, is appealed. According to the Decision to bring the case to trial No.: 833/2021/QĐPT-DS dated March 3, 2021 between litigants: - Plaintiff: Mrs. Tran Son Tay Kim L (Trân Son Tây Vve. Pousson Dore Marceline Kim L), born in 1947;

Address: Marguettes 75012 Paris, France.

Her authorized representative: Mrs. Nguyen Thi A, born in 1962 (present) Address: Ward 12, District 10, Ho Chi Minh City. - Defendant: Mrs. Tran Thi Bich P, born in 1947 (absent): Address: Ward 11, District 10, Ho Chi Minh City. Her authorized representative: Mr. Nguyen Thanh B, born in: 1977 (absent);

Address: Ward 7, Phu Nhuan District, Ho Chi Minh City.

- Other persons with associated rights and obligations:

1/ Mr. Tran Son Tay Casimir, T,, born in 1945 (absent);

Address: No. 492/4/7, Le Quang Dinh street, Ward 11, BT district, Ho Chi Minh city.

Her authorized representative: Mrs. Nguyen Thi Le V, born in 1962 (present);

Address: Ward 12, District 10, Ho Chi Minh City.

2/ Mrs. Thuy H, born in 1965 (absent);

Address: Thanh Cong ward, Ba Dinh district, Hanoi city.

Her authorized representative: Mrs. Le Thi Ai L, born in 1980 (present);

Address: Phuoc Kieng ward, Nha Be district, Ho Chi Minh city.

No. 3/ A, ward B, district C, Ho Chi Minh city (absent).

4/ People’s Committee of BT District, Ho Chi Minh city The authorized representative: Mr. Nguyen Quoc Thanh, Mr. Pham Duc Anh and Mrs. Ngo Thi Hoai (applying for their absence);

Address: BT District, Ho Chi Minh city.

Witnesses:

1/ Mr. Nguyen Van T, born in: 1952 (present).

Address: Ward 9, District 4, Ho Chi Minh City.

2/ Mrs. Duong Thi H, born in 1951 (applying for her absence);

Address: Ward 17, Phu Nhuan District, Ho Chi Minh City.

CASE DETAILS

In the petition to sue, pleadings and at the mediation sessions, the plaintiff Mrs. Tran Son Tay Kim L (Trân Son Tây Vve. Pousson Dore Marceline Kim L) who is represented with her authorization by Mrs. Nguyen Thi Le V., made the following statements:

On April 3, 1997, Mrs. Tran Son Tay Kim L (hereinafter referred to as Mrs. Kim L) and Mr. Tran Son Tay Casimir, T (hereinafter referred to as Mr. T) signed a contract to buy and sell the house attached to the land plot located at Ward 11, BT District, Ho Chi Minh City (hereinafter referred to as the house 492/4/7 Le Quang Dinh). Mrs. Kim L paid him the full amount agreed upon in the contract. The purchase and sale of the above-mentioned house was documented in paper because, at that time, Mrs. Kim L was a foreigner (French nationality) who has not yet qualified to bear her name as the holder of the ownership of the house attached to the residential land.

Because Mr. T was also a foreigner, thus at the time Mr. T bought the house, couldn't use his name in the certificate of ownership, he also asked another person, Mrs. Duong Thi Huong, (passport number N114897 issued on November 5, 2007 issued by the Embassy of Vietnam in France) to lend him her name in legal documents evidencing his ownership of the aforesaid land-attached house. However, Mrs. Kim L and Mr. T made the following agreements: Mrs. Kim L asked the person named Mrs. Tran Thi Bich P (born in 1947, ID card No. 020824573, place of issue: Ho Chi Minh city’s Police) to lend her her name to bear her name in the certificate on Mrs. Kim L's behalf for the house No. 492/4/7 Le Quang Dinh that Mrs. Kim L bought from Mr. T and signed the contract (No. 2001/HĐ-MBN) for sale and purchase with Mrs. Duong Thi Huong at the Notary Office No. 1, Ho Chi Minh city dated . April 8, 2010, BT district’s People’s Committee granted the Certificate of the right to use the land, own the house and other land-attached property No. BB 610132, number entered in the certification register CH00149, to Mrs. Tran Thi Bich P. After that, Mrs. P made a will on September 7, 2011, which was certified by the Notary Office No. 1, Ho Chi Minh City (notary number 024575, volume 09TP/CC-SCC/DC) to leave the aforesaid property and 2 land plots in Hoi An town, Quang Nam province to Mrs. Kim L.

Mr. T and Mrs. Kim L signed a handwritten contract on June 19, 2007 to rent this house for a long term from June 2007 and pay the rent directly to Mrs. Kim L. However, in the legal aspect, Mr. T repeatedly signed a rental contract with Mrs. P to fulfill his financial obligations to the state agency. The contract was certified at the notary office.

Mrs. P abused Mrs. L's trust to take the original document of the house No. 492/4/7 Le Quang Dinh of Mrs. Kim L to use it as a mortgage for a high-interest loan but, in fact, entered into a house sale and land use right transfer contract with Mrs. Thuy H, notary number 034920, volume 8, dated August 16, 2012 at the SG Notary Office. In addition, the two parties also made a handwritten agreement under which the buyer was committed to let the seller redeem the house, and the seller must pay interest for 6 months. However, after 04 months of conclusion of the contract, Mrs. H applied for her land title and home occupancy and was granted the Certificate of the right to use the land, own the house and other land-attached property No. BM570390 dated January 16, 2013.

Upon realizing the trick, Mrs. Kim L and Mr. T got in contact with Mrs. P. At this time, Mrs. P made a written confirmation that the house No. 492/4/7 Le Quang Dinh belonged to Mrs. Kim L and she was just a person. legally acting in her name, also admitting to signing a fraudulent transfer contract with Mrs. Thuy H to borrow Mrs. H an amount of 3 billion dong. After that, Mrs. P met Mr. T and gave Mr. T some papers that Mrs. P had submitted to the Department of Natural Resources and Environment of BT District asking to prevent the transfer of the house 492/4/7 Le Quang Dinh. In fact, every month, Mrs. P had to pay the 4.5% interest to Mrs. Thuy H, equivalent to 135 million/month, but Mrs. Thuy H violated the handwritten agreement between the two parties. Mrs. P also submitted an application to the Court to declare the revocation of the house sale and purchase contract dated August 16, 2012, but has not yet paid the court fee in advance.

Mrs. Duong Thi Huong, who is acting in the name of Mr. T's real estate in dispute, also has a letter of confirmation of the lending of the name in the certificate. Mrs. Thuy H sent people to the house 492/4/7 Le Quang Dinh many times to threaten Mr. T, who is the tenant of Mrs. Kim L's house, and Mr. T reported to the police of Ward 11, BT district to ask them to make the occurrence report.

Mrs. Tran Son Tay Kim L requested the following actions:

1/ Revoking the contract for house sale and purchase and the transfer of residential land use rights signed between Mrs. Tran Thi Bich P and Mrs. Thuy H, notary number 034920, volume 8 dated August 16, 2012 at the SG Notary Office.

2/ Invalidating the Certificate of land use right, ownership of house and other land-attached assets No. BM570390 issued by the People's Committee of BT District on January 16, 2013 to Mrs. Thuy H.

3/ Recognizing that the real property No. 492/4/7 Le Quang Dinh is owned and used by Mrs. Kim L, and Mrs. L has the right to contact competent state agencies to apply for the certificate of land use right, ownership of house and other property attached to the land according to the provisions of the law because she is now eligible to be named in the certificat of land use right and house ownership.

With regard to the defendant: During the process of handling of the case and at the trial, the defendant - Mrs. Tran Thi Bich P and her authorized representative - Mr. Nguyen Thanh B, was absent without valid reason although they received legal procedures documents served and posted by law. According to the case file, in the record No. 79-80, there was the petition to sue filed by Mrs. P on July 25, 2013 with the following contents: Mrs. Tran Thi Bich P who has her name in the certificate of ownership of the house 492/4/7 (formerly, 498/8/7) Le Quang Dinh according to the Certificate of the right to use the land, own the house and other land-attached property No. BB 610132, number entered in the certification register CH00149 issued by the BT district’s People’s Committee on April 8, 2010.

On August 16, 2012, she borrowed an amount of VND 3,000,000,000 (three billion dong) from Mrs. Thuy H at the interest rate of 4.5%/month. The loan was secured by the house 492/4/7 Le Quang Dinh. The two parties entered into the house sale and purchase contract whereunder the borrower and the lender commit to each other that the creditor must repay the loan to redeem the house. As of November 16, 2012, Mrs. Thuy H has received a loan interest of VND 445,000,000 through Mrs. Le Thi Ai L who is the recipient of the money. However, on December 20, 2012, Mrs. H completed the land registration procedure and changed the name of the holder of the certificate to her name according to the Certificate of land use right, ownership of house and other land-attached assets number BM570390 issued by the People’s Committee of BT district issued on 16/01/2013. This means that Mrs. H completed the land registration and transfer procedures within the validity period of the contract even though she asked Mrs. P to continue to pay monthly interest.

Mrs. H's act violated the above-mentioned purchase and sale contract and agreement. This was the fraudulent sale contract aimed at concealing the loan transaction. In light of the fact, She petitioned the Court to pronounce that the house sale and purchase contract dated August 16, 2013 is null and void because of its fraudulence.

Mrs. P returned the money to Mrs. H and Mrs. H returned the house to Mrs. P. However, Mrs. P did not pay the court fee in advance, so the Court did not accept the petition to sue.

As a person with associated rights and obligations, Mr. Tran Son Tay Casimir made the following statements: In 1992, when he bought the house No. 492/4/7 Le Quang Dinh from Mr. Tran Van Hai, Mrs. Tran Thi Ba, Mr. Tran Van Nam, Mr. Tran Van Nghia at the price of 18 taels of 9T6 gold, he was the one who directly took part in the negotiation, delivering and receiving money to buy the house and took custody of the house. Then he asked Mrs. Duong Thi Huong to lend him her name in the certificate because he was a foreigner at this time, thus not being allowed to own the house in Vietnam. After Mrs. Huong was granted the certificate of legal ownership. With the help of Mrs. Huong, he applied for a construction permit and spent the cost of rebuilding the whole house. In 1997, he sold the house to Mrs. Kim L with the handwritten agreement to receive 65,000 dong and received enough money for the sold house. Because Mrs. Kim L was also a foreigner, she also asked Mrs. Tran Thi Bich P to lend her her nam in the certificate. He asked Mrs. Huong to come to the notary office to sign the purchase and sale contract and Mrs. P was also granted the certificate of the right to own home and use land. In 2007, he rented the house to live, signed a handwritten rental contract with Mrs. Kim L and signed a legally notarized contract with Mrs. P. During the rental period, Mr. T directly paid the rent to Mrs. Kim L according to the receipt. He did not know the trade between Mrs. P and Mrs. Thuy H. During his stay in this house, he did not see anyone coming to see the house to buy and sell the house. Before September 4, 2013, he did not know who Mrs. H and Mrs. Le Thi Ai L were. When the incident happened, Mrs. H came to the house to break the door lock, cut off the electricity and water services and demanded him to move out and hand over the house. The police of Ward 11, BT district and other police forces have repeatedly kept multiple records of the situation. Currently, Mr. T is actually residing in this house with the current status of the house which has not changed because Mr. T has not carried out any repairs to the house from the start date of renting. Mr. T has no dispute and does not claim anything with the rental contract between Mrs. Bich P and Mr. T.

As the representative for the person with associated rights and obligations, Mrs. Thuy H, Mrs. Le Thi Ai L made the following statement: Mrs. Thuy H always respects and strictly observes the law She is the legal owner of the house No. 492/4/7 Le Quang Dinh, confirms that there is no loan and the fraudulent estate transfer contract signed between her and Mrs. P. The purchase and sale of the house is legal in accordance with the law and on a bona fide basis. Mrs. H thoroughly studied the property she wanted to buy and, at the time of signing the sale and purchase contract, there was absolutely no dispute over the above property. The purchase and sale was completed and the state already granted her legal title to the land.

She asked the Court to grant her the land title and home occupancy for the house No. 492/4/7 Le Quang Dinh. At the same time, the Court is requested to force Mr. Tran Son Tay Casimir, T and those who are occupying Mrs. H's house to return it to her.

Because Mrs. Tran Thi Bich P is a lawyer with legal knowledge, the process of selling the house to Mrs. H has also taken place legally and completed. The plaintiff is in collusion with the defendant for the purpose of infringing upon Mrs. H's legal land title and home tenure.

Therefore, she is requesting that the Trial Panel fairly accept the requests of Mrs. Thuy H in accordance with law.

As a person with associated rights and obligations, the SG Notary Office made the following statement: On 16/8/2012, it notarized the contract for sale, purchase and transfer of land title and home occupancy, notary number 034920, for the house No. 492/4/7 Le Quang Dinh signed between the seller, Mrs. Tran Thi Bich P and the buyer, Mrs. Thuy H. The notarization of such contract is legitimate.

Witness Mrs. Duong Thi Huong issued the written document stating the refirmation as follows: For the house No. 492/4/7 (formerly, 498/8/7) Le Quang Dinh, she was only legally named on behalf of Mr. Tran Son Tay Casimir T. Mr. T was the person directly participating in the negotiation and delivering the money and buying the house at the price of 18 taels of 9T6 gold that the house seller received, and acquiring the house and keeping custody of it. After that, Mr. T invested his own money to rebuild the house and had full control over the house and land. Mrs. Huong did not spend any money to buy a house and build a house as this house was not owned and used by her. She confirmed that, in 1997, Mr. T sold the house No. 492/4/7 (formerly, 498/8/7) Le Quang Dinh to his younger sister, Mrs. Tran Son Tay Kim L (French nationality) and Mr. T received the amount in full which was USD 65,000 paid by Mrs. Kim L. At the request of Mr. T, she acted on his behalf to legally sell this house to Mrs. Tran Thi Bich P who was in the name of Mrs. Tran Son Tay Kim L because, at that time, Mrs. Kim L was not qualified to bear her own name as the holder of land title and home ownership. Mrs. Huong committed to tell the truth and take responsibility before the law for her testimony. She filed a request for trial in absentia.

Witness Mr. Nguyen Van T gave his testimony as follows:

In August 2012, he learned through a broker that Mrs. P needed to sell the house 492/4/7 Le Quang Dinh. Through Mrs. Ai L, he knew that Mrs. Thuy H had a need to buy a house in Ho Chi Minh City, so he recommended it to her. He took Mrs. Ai L and Mrs. Thuy H to come to meet Mrs. P at the house. After the agreement, the parties proceeded with procedures for sale and purchase of the house at the SG Notary Office. He witnessed and signed as the witness of the signing of the sale and purchase contract and the delivery and receipt of the amount of VND 03 billion. This amount was directly delivered by Mrs. Thuy H to Mrs. Tran Thi Bich P at the SG Notary Public Office immediately after signing the purchase and sale contract.

According to the preliminary ruling No. 32/2016/DS-ST dated January 8, 2016, the People’s Court of Ho Chi Minh city made the following decision: 1/ Accepting the petition to sue of Mrs. Tran Son Tay and pausson Dore Marceline Kim L. Confirming that the house No. 492/4/7 (formerly, 498/8/7) Le Quang Dinh, Ward 11, BT District, Ho City Chi Minh is owned by Mrs. Tran Son Tay and Pausson Dore Marceline Kim L.

2/ Do not accept the objection of the person with the rights and obligations, Mrs. Thuy H. Declaring that the contract of sale and purchase of the house No. 492/4/7 (formerly, 498/8/7) Le Quang Dinh, Ward 11, BT District, Ho Chi Minh City between Mrs. Tran Thi Bich P and Ms. Thuy H on August 16, 2012 and notarization number 034920, volume 08 at SG Notary Office on August 16, 2012 is invalid.

3/ Compelling Mrs. Tran Thi Bich P to be liable to pay her debt of an amount of VND 4,166,075,000 (four billion one hundred and sixty six million zero hundred and seventy five thousand dong) to Mrs. Thuy H.

4/ Revoking the Certificate of home ownership and land use right at No. 570390 issued by the People's Committee of BT District on January 16, 2013 to Mrs. Thuy H".

In addition, the preliminary ruling made an official pronouncement on the court fee, right of appeal, right of request for enforcement of the court judgement and obligations to execute the judgement of litigants.

At the Appellate Civil Judgment No. 121/2018/DS-PT dated June 11, 2018, the High People's Court in Ho Chi Minh City annulled the Preliminary Ruling No. 32/2016/DS-ST dated January 8, 2016 of the People's Court of Ho Chi Minh City for the following reasons: The trial court did not include the People's Committee of District BT to participate in the court proceedings as a person with the rights and obligations and forced Mrs. P to pay Mrs. H an amount of VND 4,166,075,000 while the involved parties did not request this, leading to the excessive action in comparison with the request of the involved parties; Although Mrs. Thuy H requested the transfer of the case to the investigating agency, the trial Court did not consider, thus leading to the omission of the claim of the involved parties.

After accepting the case again, the Court summoned the parties to take testimonies and collect more documents and evidence. Plaintiff - Mrs. Kim L; the person with the associated rights and obligations - Mr. T; Witness - Mrs. Duong Thi Huong upheld their previous statements. Mrs. Kim L upheld her petition to sue; Mrs. Huong filed an application for trial in her absence. Defendant Mrs. Tran Thi Bich P and her authorized representative, Mr. Nguyen Thai B, was duly summoned by the Court many times, but they were always absent without valid reason, and had neither statements nor claim. Though the person with associated rights and obligations, the SG Notary Office,was duly summoned by the Court, it was absent from all trial, mediation and court hearing sessions. As the person with associated rights and obligations, People's Committee of BT District has written opinions affirming the granting of certificates of land use right and ownership of house and other land-attached assets to Mrs. P and Mrs. H for the real estate No. 492/4/7 (formerly, 498/8/7) Le Quang Dinh is in accordance with the law; at the same time, the authorized representative of the People's Committee of BT District had an application for trial in his or her absence.

In her pleading, the person with associated rights and obligations, Mrs. Thuy H, and her authorized representative, Mrs. Le Thi Ai L, upheld their previous statements about the contents of the case and made the following requests: Recognizing that the house No. 492/4/7 Le Quang Dinh is under her ownership and custody; forcing Mr. T and related persons to hand over the above-mentioned land and property to her; forcing Mr. T to pay the rent to Mrs. H up to the time Mr. T hands over the house to Mrs. H. The court issued a notice clearly requesting Mrs. H and her authorized representative, Mrs. L, to pay the court fee in advance, but Mrs. H and her authorized representative, Mrs. L, neither came to the Court, nor submitted their written representation to the Court. Though the court also issued a notice to Mrs. Thuy H whose authorized representative is Mrs. Le Thi Ai L and to the defendant Mrs. Tran Thi Bich P who has an authorized representative, Mr. Nguyen Thanh B, regarding the request for settlement of consequences in case the Court declares whether the contract on transfer of land use right and house ownership signed between Mrs. P and Mrs. H is invalid or not, none of them gave their representation to the Court. In the process of collecting evidence and preparing for the trial of the case, when the Court has re-valued the disputed property, which is the real estate No. 492/4/7 Le Quang Dinh, the involved parties had no opinion on the value of the disputed property.

At the first-instance court hearing, as Mrs. Thuy H’s authorized representative, Mrs. Le Thi Ai L confirmed in writing before the Court that Mrs. H had no request to settle the consequences of the house sale contract between Mrs. P and Mrs. H if it is declared invalid; the involved parties did not request the Court to transfer the case to the investigating agency for criminal procedures.

The person protecting the plaintiff’s legitimate rights and interests, Mr. Tran Minh Thien made the following statements:

The fact is that Mr. Tran Son Tay Casimir, T sold the house 492/4/7 Le Quang Dinh to Mrs. Kim L; because both were foreigners (French nationality) who did not fully meet the conditions to own the real estate in Vietnam as prescribed by law, they could not conduct the transaction in their own name, asking someone to sign his/her name in the transaction, that is, asking Mrs. Huong, who is in the name of the house and real estate for Mr. T, to sell the house to Mrs. P in the name of the buyer Mrs. Kim L. In addition, the plaintiff shown a lot of proofs such as: The letters of confirmation of Mrs. Huong, Mr. T, Mrs. Ba and relatives of Mrs. P and Mrs. Kim L that all stated that Mrs. P is only the legal representative for Mrs. Kim L; other evidences like Mrs. Kim. L’s filing her complaint against Mrs. P to the Ho Chi Minh City Bar Association; Mrs. Kim L’s report and petition for suspension of all transactions related to the real estate No. 492/4/7 Le Quang Dinh, etc. From the above analysis, it shows that the representation of the plaintiff's representative is completely grounded. Kim L is now eligible to own the real estate in Vietnam. Based on Article 8 of the Law on Housing, the Trial Panel is requested to accept the entire petition to sue of the plaintiff.

- The representative of the People’s Procuracy of Ho Chi Minh city gave the following opinions about the case:

+ Regarding legal procedures: The Judge, the Trial Panel, and the Clerk have strictly followed the procedures prescribed in the Civil Procedures Code 2015; the exercise of rights and obligations of the participants in the proceedings from the time of acceptance of the case to the trial panel’s pre-deliberation of the case strictly complies with the provisions of the 2015 Civil Procedure Code.

+ Regarding case contents: Determining that the contract for purchase and sale of the house No. 492/4/7 Le Quang Dinh between Mrs. Tran Thi Bich P and Mrs. Thuy H is not a fraudulent contract aimed to hide the loan relationship, because Mrs. H did not admit her loan extended to Mrs. P; and the plaintiff and Mrs. P also failed to present evidence to prove that Mrs. H lent money to Mrs. P. Regarding the agreement to redeem the house within 6 months between Mrs. P and Mrs. H, because it is not a condition binding Mrs. H to be eligible to register her house ownership, Mrs. H did not violate the agreement. However, according to the documents, the evidence contained in the file such as the confirmation of the defendant; Mrs. P, Mrs. Huong as a witness; persons with associated rights and obligations; Mr. T and other relevant proofs, it is inevitable that they have to determine that the house No. 492/4/7 Le Quang Dinh is the property owned by Mrs. Kim L in the name of Mrs. P. To her explicit knowledge that the aforementioned property was not under her ownership, because her illegal sale of the house to Mrs. H is illegal, the contract must be revoked. Based on the confirmation of the police of Cam Ha commune, Hoi An city, Quang Nam province, Mrs. Kim L has registered to temporarily reside at Mrs. Pham Thi Kim Thoa's house, at quarter 15, Dong Na village, Cam Ha, Hoi An from 2005 to present; at present, Mrs. L is eligible to own the house in Vietnam; Therefore, it is proposed that the Trial Panel accept the entire claim of the plaintiff.

According to the preliminary ruling No. 1368/2020/DS-ST dated August 28, 2020, the People’s Court of Ho Chi Minh city made the following decision: 1/ Accepting the entire petition to sue of Mrs. Tran Son Tay Kim L (Trân Son Tây Vve. Pousson Dore Marceline Kim L).

Confirming that the house No. 492/4/7 (formerly, 498/8/7) Le Quang Dinh, Ward 11, BT District, Ho City Chi Minh is under the ownship and custody of Mrs. Tran Son Tay Kim L (Trân Son Tây Vve. Pousson Dore Marceline Kim L). Declaring that the contract of sale and purchase of the house No. 492/4/7 (formerly, 498/8/7) Le Quang Dinh, Ward 11, BT District, Ho Chi Minh City between Mrs. Tran Thi Bich P and Ms. Thuy H on August 16, 2012 and notarization number 034920, volume 08 at SG Notary Office on August 16, 2012 is invalid.

Voiding the certificate of the right to use the land, own the house and land-attached property having the registered number BM570390 issued by the People's Committee of District BT, Ho Chi Minh city on 16/01/2013 to Mrs. Thuy H.

Mrs. Tran Son Tay Kim L (Trân Son Tây Vve. Pousson Dore Marceline Kim L) has the right to contact competent state agencies to register for issuance of the certificate of the right to use land, own house and and other land-attached assets, and bears all relevant fees and charges as prescribed by law.

2/ Court fee and legal proceeding costs:

Regarding the trial court fee: Mrs. Tran Thi Bich P is exempted from the trial court fee Refunding Mrs. Tran Son Tay Kim L (Trân Son Tây Vve. Pousson Dore Marceline Kim L) the amount of court fee paid in advance which is 46,000,000 dong (forty six million Vietnamese dong) according to the receipt No. AG/2010/05589 dated July 23, 2013 of the Civil Judgment Execution Department of Ho Chi Minh City.

Regarding costs of judicial proceedings: Mrs. Tran Son Tay Kim L (Trân Son Tây Vve. Pousson Dore Marceline Kim L) is voluntarily liable for all costs related to valuation of the property and has completely fulfilled her payment obligations.

In addition, the preliminary ruling had pronoucnement of the rights to appeal; rights to request enforcement and execution of the court’s judgement of litigants.

On September 9, 2020, Mrs. Le Thi Ai L, the representative of Mrs. Thuy H (who has the related rights and obligations), filed an appeal against the entire preliminary ruling to request the modification of the preliminary ruling towards rejecting the plaintiff's claim, recognizing the house sale and purchase contract between Mrs. Thuy H and Mrs. P on the following grounds: Mrs. P's using her name in the house sale and purchase contract on behalf of Mrs. Kim L is not correct, fake, and occurs after Mrs. P has sold the house to Mrs. Thuy H.

At the appellate court hearing, the involved parties did not withdraw the appeal; the plaintiff did not withdraw the petition to sue; the involved parties do not reach agreement among themselves on the settlement of the case.

When attending the court hearing, the representative of the High People’s Procuracy of Ho Chi Minh city gave the following opinions about handling the case:

The trial panel strictly abided by the provisions of law. Regarding the case content, the real estate in dispute has the origin of Mr. T’s purchase of it and then asking Mrs. Huong to lend her name as the holder of the certificate. After that, it was sold to Mrs. Kim L who had French nationality, and she asked Mrs. P to stand in her name. All of these facts are grounded. Because Mrs. P made the contract for transfer of the house in dispute that was not under the onwership of Mrs. P, the first instance court's pronouncing that this transaction is invalid is legal. Requesting the Trial Panel not to accept Mrs. Thuy H’s appeal and uphold the preliminary ruling.

COURT’S JUDGEMENTS

After studying the documents available in the case file which have been examined at the court session and based on the litigation results at the court session, the trial panel shall draw the following conclusions:

[1] Regarding the legal proceedings: Because the preliminary ruling is appealed by the party involved in the case, the case falls under the jurisdiction of the High People's Court in Ho Chi Minh City.

[2] Regarding case contents:

[2.1]. Regarding the plaintiff’s request for the grant of recognition of the right to use land and own the house No. 492/4/7 Le Quang Dinh, Ward 11, BT District, Ho Chi Minh City: According to the evidence and documents in the case file, the house No. 492/4/7 (formerly, 498/8/7) Le Quang Dinh originally belonged to Mr. Tran Dam and Mrs. Tran Thi Hai. After they died, their children, including: Tran Van Hai, Tran Thi Ba, Tran Van Nam and Tran Van Nghia, sold the above property to Mr. Tran Son Tay Casimir, T (French nationality) in 1992. However, because Mr. T was a foreigner at this time, he was not allowed to own the real estate in Vietnam. He asked Mrs. Duong Thi Huong, born in 1951, to act on his behalf as a home buyer and legally own the above-mentioned property. In 1997, Mr. T sold the house to Mrs. Tran Son Tay Kim L under a handwritten house sale and purchase contract which agreed that Mrs. Kim L would ask Mrs. Tran Thi Bich P to act in her name because Mrs. L was a French overseas Vietnamese who was not allowed to own the real estate in Vietnam in her name (record No. 219). The witness - Mrs. Huong - confirmed that the entire amount of money to buy the house which was 18 taels of 9T6 gold was Mr. T's money. Mr. T directly negotiated and delivered the money to buy the house with the above seller. Then, Mr. T was also the person who spent his money to rebuild the whole house and directly manage and use it. Mrs. Huong was only the person lending her name in the certificate on his behalf. Mrs. Huong also confirmed that Mr. T directly received from Mrs. L the amount of USD 65,000 that Mrs. L paid him and asked her to go to the Notary Office No. 1, Ho Chi Minh City to sign the contract for sale of the house 492/4/7 Le Quang Dinh. to the buyer, Mrs. Tran Thi Bich P (according to the original copy of Mrs. Huong's reaffirmation paper, record 221, 222). The plaintiff's testimony and Mr. T's testimony are consistent with that of the witness - Mrs. Huong, and the confirmation of one of the sellers of the house to Mr. T, Mrs. Tran Thi Ba, and other evidence included in the case file. In addition, after completing the lending of her name in the certificate, the defendant Mrs. Tran Thi Bich P made a will in 2011 to leave the house 492/4/7 Le Quang Dinh and two other assets in Quang Nam province to Mrs. Kim L. The will is certified by the Notary Office No. 1, Ho Chi Minh City, and Mrs. P make the written confirmation on June 1, 2013 (record 62) stating that the entire money paid to buy the house 492/4/7 Le Quang Dinh was Mrs. Kim L’s, and she was only the person acting in her name without any contribution to buying and managing the above real estate. During the period from the date of acceptance of the case, through all levels of trial, Mrs. P and her authorized representative were properly summoned and served with other procedural documents, but were not present at the Court. So, the Court could not take her testimony. Mrs. P also had no written objections about the evidence provided by the plaintiff. Therefore, based on Article 93, Clause 1, Article 95 of the Civil Procedures Code, the above-mentioned evidence can serve as the basis for settling the case. From the above evidence, there are grounds to determine that the real estate No. 492/4/7 Le Quang Dinh belongs to Mrs. Tran Son Tay Kim L; Pursuant to Article 164, Clause 2, Article 170 of the 2005 Civil Code, the first-instance trial panel recognized that the real estate No. 492/4/7 Le Quang Dinh is under Mrs. Tran Son Tan Kim L’s ownership. During the adjudiction process, Mrs. Kim L provided the followings: Certificate of overseas Vietnamese No. 553-XN/UBNV dated September 18, 2013 of the State Committee on Overseas Vietnamese – Ministry of Foreign Affairs (record 232); application for confirmation of temporary residence dated January 9, 2014 certified by the Police of Ward 11, BT District, Ho Chi Minh City that Mrs. Kim L has had many times to register for her temporary residence at 498/8/7 (now, 492/4/7) Le Quang Dinh during the period of 2012-2013 and confirmation of the Police of Cam Ha commune, Hoi An city, Quang Nam province: From 2005 to present, Mrs. Kim L, born in 1947, has registered to temporarily reside at Mrs. Pham Thi Kim Thoa's house, residing in group 15, Dong Na village, Cam Ha, Hoi An. There are enough grounds to allow Mrs. Tran Son Tay. Kim L to bear her name in the certificate in Vietnam according to the provisions of Clause 1, Article 186 of the 2013 Land Law and Articles 7, 8 of the 2014 Housing Law. Mrs. Kim L is entitled to contact relevant state agencies, register residential land use right and ownership of land-attached assets in accordance with current law, and bear all taxes and fees as prescribed by law.

[2.2]. For the request for revocation of the contract of sale and purchase of the house and transfer of land use right at notary number 034920, volume 08 TP/CC-SCC/HDGD dated August 16, 2012 made at the SG Notary Office, Ho Chi Minh City for the house No. 492/4/7 Le Quang Dinh between Mrs. Tran Thi Bich P and Mrs. Thuy H, and revocation of the Certificate of land use right, ownership of house and other land-attached assets No. BM570390 issued by the People's Committee of BT District on January 16, 2013 to Mrs. Thuy H of the plaintiff Since Mrs. Thuy H assumes that she is a bona fide and legitimate buyer, she disagrees with the plaintiff's request. Mrs. H asks Mr. T to hand over the house to her. Considering the plaintiff's opinion that Mrs. P signed a false house sale and purchase contract with Mrs. H to conceal the loan relationship but the plaintiff could not present any proofs and Mrs. H did not admit it, there was no ground to assume that the house purchase contract between Mrs. P and Mrs. H is a false contract. However, based on the documents and evidence analyzed above, at the time of signing the contract, although Mrs. P fully knew that the aforementioned property was not under her ownership (she was only the person legally acting on behalf of Mrs. Kim L in her name), but arbitrarily made a contract to buy and sell the above house with Mrs. Thuy H without the knowledge of Mrs. Kim L, this act is illegal. As Mrs. P is not the owner of the property, she cannot dispose of the property in any way. Mrs. P performed the fraudulent act by signing the house sale and purchase contract with Mrs. Thuy H and this act is illegal.

Article 128 of the Civil Code stipulates that the civil transaction is null and void when it violates regulations on prohibited acts and is in breach of social morals as follows: “If the objectives and subject matters of a civil transaction violates regulations on prohibited acts or social ethics, it shall be invalidated.

Regulatory prohibitions are regulatory provisions not allowing the subjects of law to perform certain acts.” Therefore, the declaring the contract for house sale and transfer of land use right between Mrs. P and Mrs. H invalid, and requesting the cancellation of the certificate of land use right, ownership of house and other assets attached to the land, of the plaintiff, are grounded.

Based on the above arguments, the first instance trial panel accepted the entire petition to sue of the plaintiff and the opinions of the persons defending the legitimate rights and interests of the plaintiff, and accepted the proposal of the representative of the Ho Chi Minh City People's Procuracy: Realizing the house No. 492/4/7 (formerly, 498/8/7) Le Quang Dinh, Ward 11, BT District, Ho Chi Minh City is under the ownership and custody of Mrs. Kim L; announcing that the sale and purchase contract of the house No. 492/4/7 (formerly, 498/8/7) Le Quang Dinh, Ward 11, BT District, Ho Chi Minh City between Mrs. Tran Thi Bich P and Mrs. Thuy H on August 16, 2012, notary number 034920, volume 08 at the SG Notary Office on August 16, 2012 is invalid; revoking the Certificate of land use right, ownership of house and other land-attached assets No. BM570390 issued by the People's Committee of BT District, Ho Chi Minh City on January 16, 2013 to Mrs. Thuy H; granting Mrs. Kim L the right to contact competent state agencies to sign and issue certificates of the right to use residential land and other land-attached assets and requesting her to bear all taxes and fees as prescribed by law.

[2.3] Regarding the consequences of the invalidated contract: During the process of settlement of the case and through the court sessions, though the first-instance trial panel repeatedly gave explanations to and guided the involved parties about the request for settlement of the consequence that the real estate sale and purchase contract signed between Mrs. and Ms. P is invalid, Mrs. H and her authorized representative, Mrs. Ai L, does not claim to settle the amount of 3,000,000,000 VND that Mrs. H gave Mrs. P. This is the free will of the litigant. Because the litigant did not have such claim and did not pay the court fee in advance in accordance with regulations, it is not possible to deal with the consequence of the invalid contract in this case. Moreover, at the Appellate Civil Judgment No. 121/2018/DS-PT dated June 11, 2018, the High People's Court in Ho Chi Minh City annulled the Preliminary Ruling No. 32/2016/DS-ST dated January 8, 2016 of the People's Court of Ho Chi Minh City on the ground that the trial court’s forcing Mrs. P to pay Mrs. H the amount of 4,166,075,000 dong without the litigant’s claim for such amount was the action much more than needed by the litigant. Therefore, the first-instance trial panel did not settle the consequence of the invalid contract in this case. Mrs. H has the right to request another lawsuit in another case in accordance with the law.

According to the judicial judgement No. 02/2016/AL in Viet Nam of the Judicial Council of the Supreme People's Court regarding the dispute over claim on the property involving overseas Vietnamese that have spent money acquiring the transferred land use right and ask other domestic persons to receive the land use right in their name. When settling the dispute of this kind, the Court must consider and calculate the effort in preserving, protecting, embellishing the real estate to increase the value of the land use right for the person lending his/her name. In the course of the case settlement and at the court hearing, Mrs. P was not present and did not give any opinion on the settlement of the case. Therefore, Mrs. P is entitled to initiate another lawsuit to claim for his/her above effort in accordance with the law.

[2.4] In terms of the court fee: Because all of the plaintiff’s claims are accepted, the defendant must be obliged to execute the first-instance civil judgment based on the value of the disputed property, and the defendant must bear a non-quota court fee of 300,000 VND for declaring the contract invalid. Nonetheless, after considering that Mrs. M, born in 1947, is an elderly person as per Article 2 of the Law on the Elderly in Viet Nam, according to Clause 1, Article 12 of the Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of the National Assembly’s Standing Committee, prescribing the rates, exemption, reduction, collection, payment, management and use of court fees and charges, she is exempt from paying the first-instance civil court fee. The plaintiff is refunded the advance payment of the court fee.

Regarding costs of judicial proceedings: Total cost of first and second valuation is 4,500,000 dong which Mrs. Kim L voluntarily bears without asking the Court to make its judgement on it.

[3]. The appellate trial panel finds that the above judgment of the first-instance court was completely grounded in accordance with law. On the other hand, according to Clause 2, Article 138 of the 2005 Civil Code, it is stated that “With respect to the transaction involving immovable property or movable property, if it is compulsory to register the ownership right which has been transferred by another transaction to the bana fide third person, the transaction with the bona-fide third person is immediately invalid". Mrs. P’s real estate transaction as stated above with Mrs. Thuy H on August 16, 2021 shall be subject to the 2005 Civil Code. Therefore, because of Mrs. Thuy H’s appeal without providing evidence of her own claim, there are none of grounds to accept her request and the preliminary ruling msut be upheld upon the request of the High People’s Procuracy at the appellate trial session.

[4]. Regarding the appellate civil court fee: Owing to the appeal that is not accepted, Mrs. Thuy H shall incur the appellate trial court fee according to Article 148 of the 2015 Civil Procedures Code.

In light of the foregoing:

HEREIN DECIDES

Pursuant to Clause 1 of Article 308; Clause 1 of Article 148 in the 2015 Civil Procedures Code in Viet Nam;

To reject the appeal of the person with associated rights and obligations, Mrs. Le Thi Ai L (Mrs. Thuy H’s representative) and upholding the preliminary ruling No. 1368/2020/DS-ST dated August 28, 2020 of he People’s Court of Ho Chi Minh city. Pursuant to Clause 2 and 3 of Article 26; Point c, Clause 1, Article 37; Point c, Clause 1, Article 39, 93 and 95 of the 2015 Civil Procedure Code;

Pursuant to Article 127 and 128; Clause 2, Article 136; Article 137; Clause 2, Article 138, 255 and 410 of the 2005 Civil Code in Viet Nam;

Pursuant to Clause 1, Article 186 of the 2013 Land Law in Viet Nam; Article 7 and 8 of the 2014 Law on Housing in Viet Nam;

Pursuant to the Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of the Standing Committee of the National Assembly, stipulating rates, exemption, reduction, collection, payment, management and use of court fees and charges.

To apply Article 6, 7, 9 and 30 of the Civil Judgement Execution Law in Viet Nam. To make the following pronouncements:

1/ Accepting the entire petition to sue of Mrs. Tran Son Tay Kim L (Trân Son Tây Vve. Pousson Dore Marceline Kim L). Confirming that the house No. 492/4/7 (formerly, 498/8/7) Le Quang Dinh, Ward 11, BT District, Ho City Chi Minh is under the ownship and custody of Mrs. Tran Son Tay Kim L (Trân Son Tây Vve. Pousson Dore Marceline Kim L).

Declaring that the contract of sale and purchase of the house No. 492/4/7 (formerly, 498/8/7) Le Quang Dinh, Ward 11, BT District, Ho Chi Minh City between Mrs. Tran Thi Bich P and Ms. Thuy H on August 16, 2012 and notarization number 034920, volume 08 at SG Notary Office on August 16, 2012 is invalid.

Voiding the certificate of the right to use the land, own the house and land-attached property having the registered number BM570390 issued by the People's Committee of District BT, Ho Chi Minh city on 16/01/2013 to Mrs. Thuy H.

Mrs. Tran Son Tay Kim L (Trân Son Tây Vve. Pousson Dore Marceline Kim L) has the right to contact competent state agencies to register for issuance of the certificate of the right to use land, own house and and other land-attached assets, and bears all relevant fees and charges as prescribed by law.

2/ Court fee and litigation costs:

Regarding the trial court fee: Mrs. Tran Thi Bich P is exempted from the trial court fee Refunding Mrs. Tran Son Tay Kim L (Trân Son Tây Vve. Pousson Dore Marceline Kim L) the amount of court fee paid in advance which is 46,000,000 dong (forty six million Vietnamese dong) according to the receipt No. AG/2010/05589 dated July 23, 2013 of the Civil Judgment Execution Department of Ho Chi Minh City.

Regarding costs of judicial proceedings: Mrs. Tran Son Tay Kim L (Trân Son Tây Vve. Pousson Dore Marceline Kim L) is voluntarily liable for all costs related to valuation of the property and has completely fulfilled her payment obligations.

Mrs. Thuy H shall be liable for the appellate trial court fee of 300,000 dong which is deducted from the court fee paid in advance according to the receipt No. 0092631 dated September 23, 2020 of the Civil Judgment Execution Department of Ho Chi Minh City.

Other decisions of the preliminary ruling not subject to any appeal or protest are already in force.

The Appellate Judgement shall enter into force from the pronouncement date.


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Judgement No. 221/2021/DS-PT dated April 27, 2021 Re.Dispute over the home ownership right, home sale and purchase contract and revocation of certificate of home ownership and residential land use right  

Số hiệu:221/2021/DS-PT
Cấp xét xử:Phúc thẩm
Agency issued: Tòa án nhân dân cấp cao
Field:Dân sự
Date issued: 27/04/2021
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