Judgement no. 797/DS-ST dated june 17, 2020 regarding property ownership dispute

PEOPLE’S COURT OF HO CHI MINH CITY

JUDGEMENT NO. 797/DS-ST DATED JUNE 17, 2020 REGARDING PROPERTY OWNERSHIP DISPUTE

On June 17, 2020, at the Court Room of the People's Court of Ho Chi Minh city, the first-instance trial of the case No. 158/2014/TLST-DS entertained on May 13, 2014 regarding "Dispute over property rights" according to the decision to bring the case to trial No. 1951/2020/QDXXDSST-DS dated April 27, 2020 of the People's Court of Ho Chi Minh city; the decision to adjourn the court hearing No. 5041 dated May 21, 2020 between litigants:

Plaintiff: Mrs. Tran Thi Minh T, born in 1965, and permanently residing at: HAMARVG 73 2610 LILLEHAMMAR NORWAY, temporarily residing at: 341/05 A, B ward, C district, Ho Chi Minh city. Authorized representative: Mr. Nguyen Van H, born in 1980, residing at: No. 412E, ward S, district G, Ho Chi Minh city (present). Defendant: Mr. Le Trong N, born in 1983, residing at: No. 369, Block M, D, ward Y, district Z, Ho Chi Minh city (absent). Persons with associated rights and obligations:

1. Mr. Ly H, born in 1962, Residing at the same address as Mrs. T.

Authorized representative: Mr. Nguyen Van Y, born in 1992, residing at: 412E, ward F, district G, Ho Chi Minh city (absent). 2. Mr. Co T, born in 1945. 3. Mrs. Ly P, born in 1955, jointly residing at:  137 A, B ward, C district, Ho Chi Minh city. Authorized representatives of Mr. T and Mrs. P: Mr. Nguyen Van H, born in 1980, residing at:

Address: No. 412E, ward F, district G, Ho Chi Minh city (present). Witnesses:

1. Mr. Nguyen Van Y, born in 1992, residing at: No. 412E, ward F, district G, Ho Chi Minh city (present). 2. Mr. Vuong Minh N, born in 1959. Address:  No. 341/05 A, ward B, district C, Ho Chi Minh city (absent).

CASE DETAILS

 According to the petition to sue filed on April 24, 2014 by the plaintiff, Mrs. Tran Thi Minh T, and the testimony provided by Mrs T’s authorized representative, Mr. Tran Tan Hong and Mr. Nguyen Van H, they make the following statement:

The house No. 341/05 A, ward B, district C, Ho Chi Minh city was bought by Mrs. T in 2008. However, because she was an overseas Vietnamese, she was not eligible to own the house in her name in Vietnam at that time, Mrs. T asked her husband’s elder brother and sister, Mr. Co T and Mrs. Ly P, to own the house in their name on her behalf. Till May 2012, when seeing that Mrs. T's stepchild, Ly Trong N, matured, Mrs. T asked him to own the house in his name on her behalf. Transfer of the name of the owner of the house which is documented in a contract for transfer of the house from Mr. T, Mrs. P to Mr. N was completed and the house got the certificate No. BL 139317 dated July 6, 2012.

On September 28, 2013, between the married couple, Mr. Ly H and Mrs. T, and Mr. N existed a written agreement under which he own the house in his name on their behalf, including clauses stating that, whenever Mrs. T needs the house, Mr. N is bound to return the ownership of the house to Mrs. T.

By 2014, after meeting regulatory requirements concerning the overseas Vietnamese’s ownership of the house, Mrs. T contacted and informed Mr. N to get him ready to transfer the home ownership back as agreed upon. At first sight, Mr. N agreed but then he refused to do so. Till now, Mr. N has deliberately failed to fulfill his commitment and has a defiant attitude towards Mrs. T. This act of Mr. N goes against social ethics and is in breach of the law.

Currently, all of the original documents on home ownership are kept by Mrs. T and the house is also in her custody.

Now, Mrs. T is asking the Court to force Mr. N to be responsible for transferring the ownership of the house to her in accordance with the law, and grant her recognition of the ownership of the entire house.

In the testimony dated June 4, 2014 and the report dated May 29, 2014 of Mr. Ly Trong N, he made the following statement: In October 2010, Mr. Ly H, who is Mr. N's biological father, and Mrs. Tran Thi Minh T, who is Mr. N's stepmother, currently living in Norway came to Mr. N and informed Mr. N of the house No. 341/05 A, Ward B, District C, Ho Chi Minh City of their intention to give Mr. N this property as a way to console him because Mr. N did not live with his biological parents since childhood. Till July 2012, transfer of the house to Mr. N was completed.

In 2011, Mr. Ly H and his spouse asked Mr. N to perform a transaction to buy a garden land of 5000m² in C commune, T district, Dong Nai province with Mr. Nguyen Hieu H1 (testified by Mr. Vuong Minh N and his spouse as witnesses living next door at 341/05 A, Ward B, District C).

Currently, Mr. N is the representative who owns the house in his name on behalf of Mr. H and Mrs. T to perform the transaction to purchase and sell the land plot with Mr. H1. Up to now, the documentation requirements for transfer the land use right have been completely satisfied but the payment of the contract value has not yet been completed. Mr. and Mrs. Ly still owe USD 29,500 to the transferor, Mr. H1. Now Mr. N is asking Mr. and Mrs. Ly to make the payment of the remaining amount of VND 29,500 to settle the transfer contract to avoid any future legal action that he may be involved. After Mr and Mrs. Ly complete the payment of the remaining amount to Mr. H1 or have a written agreement with Mr. H1 in front of a third party as a witness and notify Mr. N of the above agreement, Mr. N will transfer the land use rights and land-attached property to Mr. and Mrs. Ly.

Persons with associated rights and obligations:  In the testimony dated January 16, 2018 of Mr. Co T and Mrs. Ly P, they made the following statement: In 2008, Mr. T and his spouse, Mrs. P, owned the land and house located at 341/05 A, Ward B, District C, Ho Chi Minh City in their name on behalf of Mrs. Tran Thi Minh T, a Norwegian national, (Mrs. T is the wife of Mr. Ly H, her younger brother). The reason for this is that, at that time, Mrs. T had a need to buy a house in Vietnam to live and worship her parents, but she was not eligible to own the house in her name. After buying the house, Mrs. T rebuilt the whole house as it is today, completed the construction and was granted the certificate of ownership bearing the names of Mr. T and Mrs. P, No. CH 01045 dated May 15, 2012, issued by the People's Committee of District 11. All of the original copies of the documentation related to the land and house are left by Mrs. T and Mrs. T is in custody of the house.  

Till May 2021, as Mrs. T told Mr. T and Mrs. P that she wanted to change the ownership name to the name of Mr. H's stepson, Ly Trong N, Mr. T and Mrs. P agreed to come to the public notary office to sign their name in the form of a sale and purchase contract to transfer the ownership to Mr. N in his own name as requested by Mrs. T, specifying the contractual price which is VND 200,000,000. After completely signing and transferring to Mr. N’s name, Mr. T and Mrs. P were no longer related to the house and land mentioned above. In fact, this transaction is the lending of name to Mrs. T as the owner, not sale and purchase of the house.

Now, there exists a dispute between Mrs. T and Mr. N over the house. Mr. T and Mrs. P are not involved in the dispute and do not have any demand, and request the Court to consider returning the house to Mrs. T according to the original truth. Because of their old age, Mr. T and Mrs. P ask for absence from inquiry sessions and the litigation process.

As a person with associated rights and obligations, Mr. Ly H  has his authorized representative:  In the testimony dated April 4, 2017, Mr. H made the following statement: The house No. 341/05 A, ward B, district C, Ho Chi Minh city was bought by Mrs. T in 2008 by her own money. However, because she was not eligible to own the house in her name in Vietnam at that time, Mrs. T asked Mr. Co T and Mrs. Ly P to own the house in their name on her behalf. Till May 2012, Mrs. T asked Mr. H's stepson, Ly Trong N, to lend his name as the owner and made a transfer contract from Mr. T and Mrs. P to Mr. N. After that, Mr. N and Mrs. T established an agreement on lending the name as the owner of the house mentioned above under which Mr. N must have obligations to transfer ownership of the above-mentioned house at Mrs. T’s request.

Mr. H has no opinion or involves in any dispute related to the above house and requests the Court to force Mr. N to transfer the ownership of the above-mentioned house to Mrs. T.

Witnesses:

Mr. Vuong Minh N and Mr. Nguyen Van Y stated in the testimony dated July 5, 2019: On September 28, 2013, Mr. H, Mrs. T and Mr. N asked Mr. N and Mr. H to witness the agreement on lending the name as the owner of the house No. 341/03 Lac Long Quan, Ward B, District C, Ho Chi Minh City that was bought by Mrs. T at her own expense and owned in Mr. Ly Trong N’s name on her behalf because she was living abroad. This agreement includes the clause under which Mr. N is bound to return the right to use and own the house to Mrs. T at her disposal.

At the trial court:

Plaintiff’s representative, Mr. Nguyen Van H, made the following statements: Based on the documentary evidence as well as testimonies of the defendant and the witnesses, there are grounds to determine that the house and land located at No. 341/05 A, Ward B, District C, Ho Chi Minh City was bought by the plaintiff at her own expense and she asked the defendant to act on her behalf to own the property. So the Court is requested to accept the plaintiff's petition to sue. Because the plaintiff has all the documents required by Vietnamese law to prove the ownership of the house of an overseas Vietnamese, the right to own the house and use the land of the plaintiff should be recognized.

The defendant, Mr. Ly Trong N, was duly summoned by the Court for the second time, but he was absent without reason.

Persons with associated rights and obligations:

Mr. Co T and Mrs. Ly P, represented by Mr. Nguyen Van H, requested the grant of the recognition of the ownership of the aforesaid house and land to the plaintiff.

Mr. Ly H represented by Mr. Nguyen Van Y requested the Court to accept the plaintiff’s claim.

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

Regarding the legal proceedings: The Judge and the Trial Panel have strictly complied with the provisions of the civil procedure law from the date they accepted the case to the date before this court hearing. Litigants have fully assured litigation rights and obligations.

Regarding case contents:  Pursuant to documents and evidence contained in the case file which have been verified at the court hearing, the statements of the litigants, and the testimony of the defendant and the persons with associated rights and interests, there are enough grounds for concluding that the house and land located at No. 341/05 A, Ward B, District C, Ho Chi Minh City was bought by Mrs. Tran Thi Minh T at her own expense but, due to ineligibility for owning the property in her name, Mrs. T asked Mr. T and Mrs. P to own it in their name for her and then they continued to ask Mr. N to bear his name as the trusted owner of the property. Therefore, the Trial Panel is requested to accept the plaintiff’s claim.

COURT’S JUDGEMENTS

After studying documents and evidence available in the case file which have been examined at court and based on the arguments at the court hearing and the Procuracy Representative’s opinions, The Trial Panel considers that

[1] Regarding the legal proceedings: As Mrs. Tran Thi Minh T, who is currently residing in Norway, sues Mr. Ly Trong N in a dispute regarding ownership of the house and land located at 341/05 A, Ward B, District C, Ho Chi Minh City, according to Clause 2, Article 26, Clause 3, Article 35, Point c, Clause 1, Article 37 of the 2015 Civil Procedure Code in Viet Nam, the case falls under the jurisdiction of the People's Court of Ho Chi Minh City.

Because Mr. Ly Trong N was summoned by the Court to a meeting to check the submission and disclosure of evidence and the valid trial for the second time, but he was absent, based on Point b, Clause 1, Article 227 of the 2015 Civil Procedure Code, the Trial Panel held the trial in the absence of Mr. N.

[2] Regarding case details:

Considering the claim of the plaintiff, Mrs. Tran Thi Minh T, regarding the recognition of the right to the land and house located at 341/05 A, Ward B, District C, Ho Chi Minh City. The Trial Panel considers that Dating back to 2008, the married couple, Mr. Co T and Mrs. P, owned the land and house located at 341/05 A, Ward B, District C, Ho Chi Minh City in their name on behalf of Mrs. Tran Thi Minh T, a Norwegian national, (Mrs. T is the wife of Mr. Ly H, her younger brother). The reason for this is that, at that time, Mrs. T was not eligible to own the house in her name. After buying the house, Mrs. T rebuilt the whole house as it is today, completed the construction and was granted the certificate of ownership bearing the names of Mr. T and Mrs. P, No. CH 01045 dated May 15, 2012, issued by the People's Committee of District C. Till December 2012, as Mrs. T told Mr. T and Mrs. P that she wanted to change the ownership name to the name of Mr. H's stepson, Mr. Ly Trong N, Mr. T and Mrs. P agreed to come to the public notary office No. K to sign their name in the form of a sale and purchase contract to transfer the ownership to Mr. N in his own name.

On July 6, 2012, Mr. N was granted a Certificate of the right to use the land and own the house and other land-attached property by the People's Committee of District C, No. CH01122. On September 28, 2013, there is a written agreement between Mrs. T, Mr. Hai and Mr. N on the lending of the name as the owner of the house and land located at No. 341/05 A, Ward B, District C, Ho Chi Minh City, containing the following terms and conditions: Mr. Ly H and Mrs. Tran Thi Minh T (Party A) asked Mr. Ly Trong N (Party B) to lend his name as the owner of the property. After discussion, we all agree on the following:

The whole house and the right to use the land located at No. 341/05 A, Ward B, District C, Ho Chi Minh City were bought by Party A at their own expense and asked Party B to lend their name as the owner, and was granted the certificate of ownership of the house, use of the land and other land-attached property, No. BL 139317 and registered number CH01122 dated July 6, 2012. Party A agreed to continue asking Party B to lend the name to own the aforesaid house and land for them while Party A was still abroad and did not satisfy the conditions prescribed by law to own the house in Vietnam in their own name. Whenever Party A is qualified and has demand for use of the property, they will notify Party B in writing and Party B is responsible for transferring the right to use the land and own the house to Party A within one month… This written agreement was signed in front of two witnesses, Mr. Vuong Minh N and Mr. Nguyen Van Y.

In the statement dated May 29, 2014 and the testimony dated June 4, 2014, Mr. N also admitted that he acted on behalf of Mrs. T and Mr. H as the owner of the aforesaid property.

In the testimony of Mr. T and Mrs. P dated January 16, 2018, they both said that the house and land located at 341/05 A, Ward B, District C, Ho Chi Minh City were purchased by Mrs. Tran Thi Minh T in 2008. Mr. T and Mrs. P only lent their name to own the property because Mrs. T was a foreigner who had not yet met the prescribed conditions to register her real estate in Vietnam. The fact that Mr. T and Mrs. P transferred it to Mr. N was at Mr. T's request.

In the testimony dated April 4, 2017 of Mr. Nguyen Van Y, the representative of Mr. Ly H, he said that the house and land located at 341/05 A, Ward B, District C, Ho Chi Minh City was owned by Mrs. T who bought it at her own expense in 2008. This is Mrs. T's private property and Mr. H is not involved in any claim or dispute over the property.

In the testimony dated July 5, 2019, as witnesses, Mr. Vuong Minh N and Mr. Nguyen Van Y stated: On September 28, 2013, Mr. H, Mrs. T and Mr. N asked Mr. N and Mr. H to witness the agreement on lending the name as the owner of the house No. 341/03 Lac Long Quan, Ward B, District C, Ho Chi Minh City, stating that the property was bought by Mrs. T at her own expense and owned in Mr. N’s name on her behalf because she was living abroad.

According to documents and evidence contained in the case file and the statements of the litigants above, the trial panel has grounds for concluding that the house and land located at No. 341/05 A, Ward B, District C, Ho Chi Minh City was bought by Mrs. Tran Thi Minh T at her own expense in 2008. At the time, because a foreigner was not allowed to own the property in his/her name according to legislative regulations, Mrs. T asked Mr. T and Mrs. P to own the property for her.  In 2012, at the request of Mrs. T, Mr. T and Mrs. P transferred their names as the owners of the property to Mr. N and Mr. N was granted a Certificate of the right to use the land, own the house and other land-attached property No. CH001122 dated July 6, 2012 issued by the People's Committee of District C.

Considering that Mr. N thinks that he cannot transfer the name of the owner of the property to Mrs. T because there is a contract to transfer land use rights under which Mr. N is in the name of Mrs. T's husband and wife to own the property in Trang Bom, Dong Nai, which has not yet been paid, and still owes Mr. H1 and Mrs. Em an amount of USD 29,500. So he intends to transfer the name of the owner of the house and land at 341/05 A, Ward B, District C, to Mrs. T after settling that contract. The trial panel considers that this request of Mr. N is not a counterclaim. On the other hand, Mrs. T, Mr. Hai, Mr. H1 and Mrs. Em did not dispute this contract and the process of settling the case, and Mr. N was not present at the Court to clarify Mr. N’s claim regarding the land use right transfer contract between Mr. N and Mr. H1 and his wife, Mrs. Em, although Mr. N has been summoned many times. Hence, there is no grounds for considering this claim of Mr. N. If any litigant makes any request later, this request will be resolved in another case.

Regarding efforts to protect and preserve the property:  In the testimony dated January 16, 2018 of Mr. Co T and Mrs. Ly P, they neither claimed nor disputed about the house and land mentioned above. As regards Mr. N, after lending his name to own the house on behalf of Mr. T and Mrs. P in July 2012, Mr. N had no contribution to preserve or embellish the above-mentioned house and land because, according to the verification results of the police of Ward B, District C, Ho Chi Minh City, Mr. N did not have a permanent or temporary residence registration at the address No. 341/03 Lac Long Quan, Ward B, District C, Ho Chi Minh City. In addition, after buying the house and land mentioned above, according to the temporary residence confirmation of the Police of Ward B, District C, Mrs. T often returned to Vietnam and Mrs. T was the one who demolished the entire old house and built a new house existing till today.

According to the provisions of Clause 6, Article 5 of the 2013 Land Law in Viet Nam, “Users of the land who are allocated or leased land by the State shall have their land use rights recognized, or receive land use rights transferred in accordance with this Law. They include:   Overseas Vietnamese regulated in accordance with laws on nationality”. According to point c of clause 1 of Article 159 in the 2014 Housing Law in Viet Nam, the regulations are as follows:  Foreigners eligible for the homeownership in Vietnam are foreign individuals who are allowed to enter Vietnam”; Clause 6, Article 160 of the Law on Housing 2014 stipulates that “For foreign individuals specified at point c, clause 1, Article 159 of this Law, they must be allowed to enter Vietnam and are not entitled to diplomatic or consular privileges and immunities in accordance with the law”; Point b, Clause 2, Article 5 of Decree No. 99/2015/ND-CP dated October 20, 2015 of the Government stipulates that “In case of holding a foreign passport, it must still be valid with the entry check stamp of the immigration authority printed in the passport book and enclosed with documents proving that they still have Vietnamese nationality or papers certifying that they are of Vietnamese origin, which are issued by the Departments of Justice of the provinces and centrally-run cities, overseas Vietnamese representative agencies, overseas Vietnamese regulatory authorities or other documents as prescribed by law”. After checking with the above provisions, Mrs. Tran Thi Minh T provided the Court with the following documents: Certificate of visa exemption dated July 3, 2013; Certificate of entries into Vietnam from the immigration authority of Vietnam; Declaration book of temporary absence and temporary residence, certified by the Police of Ward B, District C, Ho Chi Minh City; Certificate No. 26/STP-HT dated January 18, 2014 of the Ho Chi Minh City’s Department of Justice for Mrs. Tran Thi Minh T who is of Vietnamese origin. So Mrs. Tran Thi Minh T is a foreigner qualified to own a house in Vietnam in accordance with Vietnamese law. Therefore, the Trial Panel’s acceptance of the petition to sue from Mrs. Tran Thi Minh T is grounded.

The representative of the People's Procuracy of Ho Chi Minh City requests the Trial Panel to accept the petition to sue of the plaintiff, Mrs. Tran Thi Minh T. According to the aforesaid analysis, upon considering that this request is grounded, the Trial Panel accepts the claim.

[3] Regarding trial court costs: Since the plaintiff files a lawsuit for the dispute over ownership of the property, not the value of the property and the plaintiff's claim is accepted, the plaintiff will not have to bear the first-instance civil court costs. Mr. N is liable for first instance court costs without quotas of VND 200,000 (two hundred thousand Vietnamese dong). However, at the trial, Mr. Hong, who is the legal representative of Mrs. T, wishes to voluntarily pay the court costs for Mr. N. It should be noted because of the above reasons:

HEREBY DECIDES

Pursuant to Clause 1 of Article 26; clause 3 of Article 35; Point c, Clause 1, Article 37; Article 227; Articles 228 and 273 of the 2015 Civil Procedure Code.

Pursuant to Article 164; Article 165; Article 167; Articles 169 and 170 of the 2005 Civil Code in Viet Nam. 

Pursuant to Clause 6, Article 5 of the 2013 Land Law; Point c Clause 1 Article 159; Clause 6, Article 160 of the 2014 Law on Housing.

Pursuant to the Ordinance on court costs and fees in Viet Nam.

Pursuant to the Government's Decree No. 99/2015/ND-CP in Viet Nam dated October 20, 2015, elaborating and providing guidance on certain articles of the Housing Law.

Pursuant to the Resolution No. 01/2012/NQ-HDTP in Viet Nam dated June 13, 2012 of the Council of Judges of the Supreme People’s Court, providing instructions about application of several regulations of laws on Court costs and fees.

1. Accepting Mrs. Tran Thi Minh T’s claim in the petition to sue regarding “Dispute over ownership of the house”.

1.1. Recognizing the right to use the land and own the house to the land plot No. 54, map sheet No. 54, located at No. 341/03 Lac Long Quan, Ward B, District C, Ho Chi Minh City for Mrs. Tran Thi Minh T .

1.2. From the effective date of the judgment, Mr. Ly Trong N is responsible for carrying out procedures for transferring the right to use the land and own the house and other land-attached property for the land plot No. 54 at No. 341/03 Lac Long Quan, Ward B, District C, Ho Chi Minh City for Mrs. Tran Thi Minh T. In case Mr. N does not carry out the procedures for transferring the owner’s name to Mrs. T, Mrs. T is entitled to contact competent state agencies to carry out procedures for legalizing the right to use the land and own the house and other land-attached property for the land plot No. 54, map sheet 54 at No. 54. 341/03 Lac Long Quan, Ward B, District C, Ho Chi Minh City as prescribed by law.

2. Regarding the first-instance civil court costs: Mrs. Tran Thi Minh T is liable for VND 200,000 (two hundred thousand Vietnamese dong). This amount is deducted from the court costs paid in advance of 24,000,000 VND (twenty four million Vietnamese dong) according to the receipt No. 06883 dated March 12, 2014 of the Civil Judgment Execution Department of Ho Chi Minh City. Refunding the amount of 23,800,000 (twenty three million eight hundred thousand dong) to Mrs. T. In case the judgment or decision is enforced according to the provisions of Article 2 of the Law on Civil Judgment Execution in Viet Nam, the obligor and obligee may agree to execute the judgment, voluntarily execute the judgment or be forced to execute the judgment according to the provisions of Articles 6, 7 and 9 of the Law on Civil Judgment Enforcement. Time limit for execution of the court judgement shall be subject to regulations laid down in Article 30 in the Law on Civil Judgement Execution.

Litigants may file an appeal within 15 days from the date of the court’s pronouncement. Absent litigants are entitled to appeal within 15 days from the date on which the judgment is properly served or from the date the judgment is posted.