Judgement no. 659/2020/DS-PT dated december 9, 2020 regarding dispute over land use right

HIGH PEOPLE’S COURT OF HO CHI MINH CITY

JUDGEMENT NO. 659/2020/DS-PT DATED DECEMBER 9, 2020 REGARDING DISPUTE OVER LAND USE RIGHT

On December 9, 2020, at the headquarter of the High People’s Court of Ho Chi Minh City, the appellate trial of the case No. 445/2020/TLPT-DS, regarding “Dispute over land use right”, entertained on August 25, 2020, which is open to the public, takes place when the appeal against the preliminary ruling on the civil case No. 52/2019/DS-ST dated December 25, 2019 of the People’s Court of Tra Vinh province is made.

According to the Decision to bring the case to the appellate trial No. 4016/2020/QD-PT dated November 25, 2020 between litigants:

1. Plaintiff: Mrs. Lu Thi S, born in 1937, residing at: No. A B USA (absent).

Plaintiff’s authorized representative: Mr. Tran Khac S, born in 1977, residing at: No. A, neighborhood V, ward C, Tra Vinh city, Tra Vinh province (According to the Power of Attorney dated July 3, 2019), (Present).

2. Defendant: Mrs. Nguyen Thi N, born in 1963; residing at neighborhood C, town C, district C, Tra Vinh province (absent).

Defendant’s authorized representative: Mr. Dang Van C, born in 1971, residing at Hamlet Y, commune D, Tra Vinh city, Tra Vinh province (According to the Power of Attorney dated July 3, 2019), (Present).

3. Persons with associated rights and obligations:

3.1. Mr. Thach P, born in 1929, residing at No. A B USA (Died in 2013).

Successors of Mr. Thach P’s litigation rights and obligations:

3.1.1. Mrs. Lu Thi S, born in 1937, residing at No. A B 98106 USA.

3.1.2. Mr. Thach S, born in 1977 (Mr. P’s son), residing at C, E, D USA.

(filing a petition for trial in absentia).

3.2. Mrs. Thach Thi Hong N, born in 1965, residing at Hamlet X, commune P, district K, Tra Vinh province (absent).

Mrs. Thach Thi Hong N’s authorized representative: Mr. Kim Thanh S, born in 1995, residing at: Hamlet M, commune H, district C, Tra Vinh province (According to the Power of Attorney dated March 18, 2019), (Filing a petition for trial in absentia).

3.3. Mr. Lam Minh T, born in 1984 (absent).

3.4. Mrs. Lam Diem T, born in 1986 (absent).

3.5. Mrs. Lam Ngoc T, born in 1984 (absent).

3.6. Mrs. Nguyen Thi N, born in 1984 (absent).

Living at the same address: neighborhood A, town C, Tieu Can district, Tra Vinh province. Appellant: Plaintiff Mrs. Lu Thi S.

CASE DETAILS

* According to the petition to sue filed on June 28, 2010 of by Mrs. Lu Thi S, and the testimony provided by Mr. Lam Khac S who is Mrs. S’s authorized representative, they testify that:

Mr. Thach P and Mrs. Lu Thi S has a land lot No. 177 covering an area of 9,080 m² as shown in the map sheet No. 6, which is located at hamlet A, commune T, district K, Tra Vinh province.  In 1991, after being sponsored by their descendants and approved of by the government, Mr. P and Mrs. S immigrated to the US. Then they transferred the land to Lam Kim X for farming uses. An oral agreement, instead of a written one, between them existed. In 2010, when returning to visit her family, after Mrs. Lu Thi S discovered that Mrs. N had forged the signatures of Mrs. S and Mr. P to transfer the title to the land to Mr. Lam Kim X, she complained to the local authority, and then filed a lawsuit. After Mr. Lam Kim X had died, Mrs. Nguyen Thi N transferred the land to Mrs. Thach Thi Hong N. Now, Mrs. Lu Thi S is requesting Mrs. Nguyen Thi N to return the right to use the rice farming land covering an area of ​​9,080 m² as part of the lot No. 177 in the map sheet No. 6 located at hamlet A, commune T, district K, Tra Vinh province.

* According to the testimony existing during the process of handling the case, Mr. Dang Van C, an authorized representative of Mrs. Nguyen Thi N, gave the following statements:

Mrs. Nguyen Thi N also agreed that the disputed land was originally belonged to Mr. Thach P and Mrs. Lu Thi S, but in 1991, transferred to Mr. Lam Kim X, who is Mrs. Nguyen Thi N’s husband, by Mr. Thach P and Mrs. Lu Thi S. After Mr. Lam Kim X died (in 1992), Mrs. Nguyen Thi N took over this land lot from him to continue to crop. In 2007, Mrs. Nguyen Thi N was granted a certificate of the right to use this land lot by the People's Committee of Cau Ke district. In 2010, Mrs. Nguyen Thi N transferred the entire land to Mrs. Thach Thi Hong N before Mrs. Thach Thi Hong N was granted a certificate of the right to use this land lot. On reckoning this, Mrs. Nguyen Thi N objects to the petition to sue filed by Mrs. Lu Thi S.

* As a person with associated rights and obligations, Mrs. Thach Thi Hong N made her statement as follows:

On February 3, 2010, she acquired the right to use this land lot transferred from Mrs. Nguyen Thi N at the unit price of 38,000,000 VND/ 1 công (the unit of measurement of an area of land that is equivalent to approximately 1000 m²). The purchase price of this land lot is VND 266,000,000 (7 công x VND 38,000,000). At the time, when receiving the transferred land, Mrs. N was not informed that this land was disputed because Mrs. Nguyen Thi N showed her the contract for transfer of the land from Mrs. Lu Thi S to Mr. Lam Kim X proving that this land lot was transferred to Mr. Lam Kim X, and the land use right certificate in the name of Mrs. Nguyen Thi N and during the transfer process, no one disputed. Furthermore, after the People's Committee of Phong Thanh had affirmed that the land was not in dispute, Mrs. N proceeded to signing a transfer contract and then was granted a land use right certificate by the People's Committee of Cau Ke district on March 23, 2010 for the land of ​​8,756 m² belonged to the lot No. 88 in the map sheet No. 34, which is located in hamlet A, commune T, district K, Tra Vinh province. Now, she is requesting the Court to adjudicate this dispute in accordance with law.

* As a person with associated rights and obligations, Mr. Thach P made his statement on October 24, 2011 as follows:

In 1991, before his family immigrated to the US, Mr. Lam Kim X and Mrs. Nguyen Thi N came and begged to use this land for cropping purposes to earn money to raise their children because of their material hardship. On seeing that they are in pitiful situation, he agreed to temporarily assign this land lot to help Mr. X to surmount his difficulty on condition that, every year, Mr. Lam Kim X and Mrs. Nguyen Thi N had to pay taxes to the state after each crop harvest, and offer an additional 40 giạ (unit of measure that is about thirty kilograms of grain in weight) for the annual death anniversaries of his grandparents (to Thach Thi Dong X for his grandparents’ death anniversaries, and to Lam R for his grandparents-in-law’s death anniversaries). He and his wife did not transfer the title to the land lot to anyone (records 80-87).

* As persons with associated rights and obligations, (Mr./Mrs.) Lam Minh T, Lam Diem T, Lam Ngoc T and Nguyen Thi N refused to get themselves involved in the litigation process and gave no opinion concerning the case.  

* In the Judgement No. 52/2019/DS-ST dated December 25, 2019, the People’s Court of Tra Vinh province judged the case as follows: 

Pursuant to Article 166 and 203 in the 2013 Law on Land in Viet Nam.

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

Rejecting the petition to sue filed by Mrs. Lu Thi S to request Mrs. Nguyen Thi N to return the right to use the rice farming land covering an area of ​​9,080 m² (actually 8,756.3 m² determined after the field survey) as part of the lot No. 177 in the map sheet No. 6 located at hamlet A, commune T, district K, Tra Vinh province.

In addition, the ruling by the court of first instance made an official pronouncement on court costs, legal fees and the right to appeal.

On January 9, 2019, Mrs. Lu Thi S filed an appeal against the entire preliminary ruling, requesting a retrial to compel the defendant to return the disputed land to the plaintiff.

At today's court hearing, Mrs. S's representative, Mr. S, still upholds the appeal request and gives the following statements: In 1991, as Mrs. S and her husband immigrated in another foreign country and were not entitled to the land use right in Vietnam, Mrs. S let Mr. X to use and manage the land lot on Mrs. S’s behalf for 40 giạ of rice annually offered as a recompense. This transaction was not documented. After the death of Mr. X, Mrs. N secretly carried out lawful formalities to change Mr. X's name to her name shown in the land use right certificate as the holder, and then sold the land to Mrs. N. In 2010, the dispute took place after Mrs. S came back to Vietnam and knew that Mr. X was granted the land use right certificate and Mrs. N transferred the 9,000m² land to Mrs. N. Mrs. S requested Mrs. N to return the land. If it is established that Mrs. S is not eligible for the agricultural land use right, the Court is petitioned to compel Mrs. N to recompense Mrs. S at the land price decided by the Court.   

Mr. C - Mrs. N’s representative – gave the following statement:  Mrs. S is an overseas Vietnamese who is not eligible to possess the right to use rice cropping land in Vietnam. Mrs. N frustrated Ms. S's statement. In 1991, besides transferring the land to Mr. X, Mrs. S and her husband transferred the land to Mrs. Ha and made a transfer document similar to the one given Mr. X. All land transfer documents are certified by the local governments. The portion of land that Mrs. S transferred to Mr. X obtained the land use right certificate in 1995. Then Mrs. N transferred it to Mrs. N and managed to change to Mrs. N's name. Therefore, the Court is requested to dismiss the appeal and uphold the preliminary ruling.

- The Procuracy’s representative expressed his/her opinion on the resolution of the case:

Regarding the litigation process: The Court of first-instance and the appellate Court and litigants strictly complied with procedural regulations.

Regarding contents of the appeal: All litigants admitted that the disputed land was originally under the ownership of Mrs. S and her husband. In 1991, Mrs. S and her husband immigrated and settled abroad, leaving a part of the rice land for Mr. X and the rest for Mrs. Ha under the transfer certificates granted by the local authority. Mrs. Ha and Mr. X were both been granted the land use right certificates but Mrs. S only has a dispute with Mrs. N, Mr. X's wife. Mrs. S’s leaving the land for Mr. X is conformable to the provisions of Decision No. 121/CP issued by the Government in 1979. Therefore, there are grounds to determine that Mrs. S and her husband have transferred the land to Mr. X. The letter provided by Mrs. S does not contain any information indicating that Mr. X borrowed land. Requesting the Court to deny the appeal and uphold the preliminary ruling.

COURT’S JUDGEMENTS

After studying and examining documents and evidence and based on the arguments at the court session, the trial panel shall come to the following judgements:

[1]- Regarding the origin of the disputed land: Mrs. Lu Thi S entered a dispute with Mrs. Nguyen Thi N to request her to return an area of ​​9,080m² (actually 8,756m²) of the rice farming land in plot 177, map sheet No. 06, located at hamlet A, commune T, district K, Tra Vinh province, obtaining the certificate of land use right in Mr. Lam Kim X's name on November 22, 1995. After Mr. X's death, Mr. X's wife, Mrs. N, carried out the inheritance procedures and was granted the certificate of land use right in the name of Mrs. Nguyen Thi N on January 22, 2007. In 2010, Mrs. N transferred the entire land lot to Mrs. Thach Thi Hong N. On March 23, 2010, Mrs. N was granted the certificate of land use right, lot No. 88, map sheet No. 34, covering an area of 8,756m², located at hamlet 1, Thach Phong commune, at the actual transfer price of VND 266,000,000 (the contractual price was VND 100,000,000 according to the record No. 325).

Mrs. N admitted that the above land was originally owned by Mrs. S and her husband, Mr. Thach P. However, Mrs. N said that, in 1991, before leaving the country for the United States, Mrs. S and her husband had transferred the land to Mr. Lam Kim X, Mrs. N’s husband.

Mrs. S believed that the above land was assigned to Mrs. S’s husband from his ancestors for use during the period from 1956 to 1991, was not legally registered but they paid taxes on such land until 1991. Around April 1991, Mrs. S and her husband immigrated (Record No. 123). Mrs. S did not admit the transfer of the land to Mr. X, but supposed that, in 1991, as she and her husband were sponsored to immigrate abroad, the part of this land was given to Mr. X, as their descendant, for farming purposes, and annually Mr. X must offer 40 giạ of rice as a recompense. The oral agreement between them existed when they gave the land part to Mr. X in 1991 when they immigrated. Mrs. S did not admit to signing in two written documents: “Application for certification of transfer of the right to use agricultural land” made on April 9, 1991 and “Deed of transfer of agricultural land and payment on crop yields” made on April 19, 1991.

[2]- Although Mrs. S and her husband, Mr. P, did not admit to having transferred the land use right to Mr. X and concluded that the assessment could not identify the signatures on the two documents "Application for certification of transfer of the right to use agricultural land" made on April 9, 1991 and "Deed of transfer of agricultural land and payment on crop yields " made on April 19, 1991 but, in fact, Mrs. N and Mr. X have been given the land for use by Mrs. S and her husband since 1991, and Mr. X has been granted a land use right certificate since 1995. In 2010, Mrs. N transferred this land to Mrs. Thach Thi Hong N to complete the land title transfer to Mrs. N since 2010.

The Judicial Precedent No. 35/2020/AL in Viet Nam ratified by the Panel of Judges of the Supreme People's Court on February 5, 2020, and published as an annex to the Decision No. 50/QD-CA in Viet Nam dated February 25, 2020 of the Chief Justice of the Supreme People’s Court, draws the following conclusions: Of total area of ​​4,924m² of land which Mr. D and Mrs. T were granted the certificate of the right to use by the People's Committee of city P on December 26, 2005, there are 4,624.9m² of land, lot No. 09, map sheet No. 58, which is an agricultural land (Land use right certificate No. AD 579313). According to the provisions of Clause 5, Article 14 of the 1987 Land Law in Viet Nam, and Clause 3, Article 26 of the 1993 Land Law in Viet Nam, the State shall be authorized to recover the land if the land user does not use the land for more than 6 months or 12 months without the State's consent. According to the provisions of Clause 11 Article 38 of the 2003 Land Law in Viet Nam and point h, Clause 1, Article 64 of the 2013 Land Law, violations involving land uses against the land law may lead to the State’s recovery, including “land used for annual crops is not used for a period of 12 consecutive months; land used for perennial plants is not used for a period of 18 consecutive months; land for afforestation is not used for a period of 24 consecutive months; ...". The cassation court judges that, although Mr. C and Mr. K used 4,624.9m² of agricultural land before that, and because they have settled abroad without using land for many years, this agricultural land is subject to the State's recovery; as Mr. D and his wife have directly used, annually declared and paid taxes to the State and have been granted the certificate of land use right by the State in 2005, they have the legal right to use this land.

Thus, Mr./Mrs. C and K have not used the land for many years, so the land is subject to the State’s recovery. Meanwhile, Mr. D and his wife have used, declared and paid taxes to the State and then have been granted the certificate of the right to use the land as evidence that Mr. D and Mrs. T have the legal right to use this land. Therefore, the Preliminary Ruling No. 98/2014/DS-ST dated January 14, 2014 of the People's Court of Buon Ma Thuot city, and the Appellate Civil Judgment No. 06/2016/DS-PT dated January 11, 2016 of the People's Court of Dak Lak province, are denying the petition to sue of Mr. K in which Mr. D and Mrs. T are requested to return the aforesaid land, and conclude that the petition is ungrounded and illicit.

After being granted the certificate of land use right by the People's Committee of city P on December 26, 2005 for lot No.09, map sheet No.58, for the agricultural land covering an area of ​​4,624.9 m², in 2009, Mr. T and Mrs. D pledged the land with Bank A to take out a mortgage. Because Mr. D and Mrs. T defaulted on their debt, the creditor Bank sued; the People's Court of Dak Lak province settled the case by issuing the Decision on recognition of the agreement between the involved parties No. 47/2011/QDST-KDTM dated June 17, 2011 that bound Mr. D and Mrs. T to pay the debt to the Bank. If not, the Bank has the right to sell off the right to use 2 land lots that Mr. D and his wife have mortgaged. After that, the right to use the aforesaid two land lots was up for auction for execution of obligations stated in the court’s award to the Bank; the successful bidder is Mr. H, so according to the provisions of Articles 138 and 258 of the Civil Code in Viet Nam, Mr. H is the bona fide third party who has the lawful right to use the aforesaid two land lots without regard to the dispute between Mr. K and the marital couple, Mr. D and Mrs. T.

[3]- Considering that as the circumstances of this case are similar to those in the above-mentioned precedent, by applying the above precedent, the petition to sue filed by Mrs. S is rejected.

[4]- Because Mrs. S appeals but does not provide evidence for her appeal, Mrs. S's appeal is rejected; the decision of the first instance court is upheld.

Appellate court cost: Mrs. S must be liable for this cost.

In light of the aforesaid grounds;

HEREBY DECIDES

Pursuant to Clause 1, Article 308 of the Civil Procedure Code in Viet Nam, denying the appeal of the plaintiff Mrs. Le Thi S; upholding the preliminary ruling No. 52/2019/DS-ST dated December 25, 2019 of the People's Court of Tra Vinh province as follows:

Pursuant to Clause 3 of Article 26 in the 1993 Law on Land, Clause 1 and 5 of Article 166 in the 2013 Law on Land, the Judicial Precedent No. 35/2020/AL passed by the Panel of Judges of the Supreme People's Court on February 5, 2020 and announced under the Decision No. 50/QD-CA dated February 25, 2020 of the Chief Justice of the Supreme People’s Court.

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

1. Rejecting the petition to sue filed by Mrs. Lu Thi S to request Mrs. Nguyen Thi N to return the right to use the rice farming land covering an area of ​​9,080 m² (actually 8,756.3 m² determined after the field survey) as part of the lot No. 177 in the map sheet No. 6 located at hamlet A, commune T, district K, Tra Vinh province.

2. Regarding costs of judicial proceedings:

Regarding the fee of property appraisal and valuation: Compelling Mrs. Lu Thi S to pay VND 5,624,266 which is deducted from the sum of VND 8,000,000 which is the advance amount that Mrs. S paid. Refunding Mrs. Lu Thi S the balance of VND 2,375,734 which she can receive at the Office of the People’s Court of Tra Vinh province.

Expertise fee: Obligating Mrs. Lu Thi S to bear the cost of VND 600,000 which is deducted from the sum of VND 3,000,000 that Mrs. S paid in advance; refunding Mrs. Lu Thi S the balance of VND 2,400,000 that she can receive at the Office of the People’s Court of Tra Vinh province.

3. Regarding court cost:

- First-instance court cost: Granting the first-instance court fee waiver to Mrs. Lu Thi S. Refunding Mrs. Lu Thi S the sum of VND 4,750,000 (Four million seven hundred and fifty thousand Vietnamese dong) that she paid for the first-instance civil court fee in advance according to the receipt No. 006768 dated November 16, 2010 of the Civil Judgment Execution Department of Tra Vinh province.

- Regarding the appellate court cost: Mrs. Lu Thi S must be liable for VND 300,000 which is deducted from the appellate court cost in advance according to the receipt No. 0007532 dated January 15, 2020 of the Civil Judgment Execution Department of Tra Vinh province.

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