Judgment No. 1066/2019/DS-ST dated august 29, 2019 on a dispute over house ownership and land use right

THE PEOPLE’S COURT OF HO CHI MINH CITY

JUDGMENT NO. 1066/2019/DS-ST DATED AUGUST 29, 2019 ON A DISPUTE OVER HOUSE OWNERSHIP AND LAND USE RIGHT

On August 23 and 29, 2019, the People's Court of Ho Chi Minh City opens a public first-instance trial of the civil case No. 973/2017/TLST-DS dated October 31, 2017 on "Dispute over house ownership and land use right" according to the Decision to bring the case to appellate trial No. 3819/2019/QDXXST-DS dated August 23, 2019 of the People's Court of Ho Chi Minh City, between:

Plaintiff:  Mr. Le Van T (LE TOM), born in 1953.

Address: CORONA CA 92883, America.

Authorized representative: Ms. Nguyen Thi T1, born in 1994.

Address: Street N, Ward B, District N, Ho Chi Minh City.

(According to Letter of Authorization No. 008147 dated August 18, 2017 at Cho Lon Private Notary Office).

Defender:

Mr. Huynh Phi L - Q Law Office - Ho Chi Minh City Bar Association.

Address: Street N, Ward B, District N, Ho Chi Minh City.

Respondent:

1. Mr. Le Van T2, born in 1958.

2. Ms. Nguyen Thi U, born in 1979;

Co-address: Street H, Ward M, District T, Ho Chi Minh City.

Authorized representative of Ms. Nguyen Thi U: Mr. Le Van T2, born in 1958.

Address: Street H, Ward M, District T, Ho Chi Minh City.

(According to Letter of Authorization No. 00002325 dated March 4, 2019, made at Thinh Vuong Private Notary Office).

Persons with interests and obligations related to the case: Le Van T3, born in 2010.

Address: Street H, Ward M, District T, Ho Chi Minh City.

Legal representative:  Ms. Nguyen Thi U, born in 1979 (biological mother).

FACTUAL AND PROCEDURAL BACKGROUND

Representation of Mr. Le Van T, represented by Ms. Nguyen Thi T1:

House and land at Street H, Ward M, District T, Ho Chi Minh City (House M for short) were jointly bought by plaintiff Mr. Le Van T and respondent Mr. Le Van T2 in 2014 with money inherited from the estate, which is the house on Street N, Ward N, District B, Ho Chi Minh City (House B for short) left by their parents, Mr. Le Van T4 (died in 1995) and Mrs. Nguyen Thi T5 ( died in 2006) and 17,800 USD sent by the plaintiff through the wire transfer service.

At the time of buying the real estate mentioned above, because the plaintiff is not eligible to put the house and land in his name, he let the respondents have their names included in the title on his behalf. Believing the respondent as a full brother, the plaintiff did not make a document authorizing Mr. T2 and Ms. U to put the names in the title on his behalf while making a mortgage on the land use right (with property thereon) on January 27, 2015 to secure the capital contribution to buy the house earlier from the money inherited from House B and 17,800 USD through wire transfer.  Therefore, it is confirmed that there is no actual handover of the amount of VND 500,000,000 as indicated in the mortgage dated January 27, 2015. However, on January 23, 2015, Mr. Le Van T2 and his wife, Nguyen Thi U, made an agreement to acknowledge the purchase of House M from the amount of inheritance of his parents' estate as follows: "My brother and I inherit my parents' house and bought this house with that money”.  In fact, the sum of inheritance amount Mr. T2 received and the amount of 17,800 USD received through wire transfer is greater than 500,000,000 VND, but the plaintiff agrees to only request a contribution of 500,000,000 VND to buy ½ of House M, the rest is gifted to Mr. Le Van T2. Now the plaintiff asks the Court to recognize ½ of the house and land use right at Street H, Ward M, District T, Ho Chi Minh City as his property.

The letter of authorization for inheritance dated February 7, 2011 made by Mr. Le Van T was used for Mr. T2 to receive money from the house buyer and further keep Mr. T's money in House B to buy House M. Because if Mr. T did not make such a letter of authorization, the buyer would not pay the money, the specific amount was 360,000,000 VND.  The representative of the plaintiff rejects the respondent's claim that the letter of authorization dated February 7, 2011 expressed plaintiff’s intention to give Mr. Le Van T2 all of his inheritance.

Representation of respondents Mr. Le Van T2 and Ms. Nguyen Thi U:

The respondents confirm that they have received all documents as presented by the plaintiff.  House and land at Street H, Ward M, District T, Ho Chi Minh City are under their ownership and use. The House on N Street, Ward N, District B, Ho Chi Minh City, left by his parents, Mr. Le Van T4 (died in 1995) and Mrs. Nguyen Thi T5 (died in 2006), was divided equally among the 09 children, including Mr. T2. However, the amount of money used to buy the house and land at Street H, Ward M, District T, Ho Chi Minh City came from the amount of money Mr. Le Van T2 inherited and the savings of Ms. U and him.

Respondent Ms. Nguyen Thi U admitted signing the mortgage on the land use right (with property thereon) dated January 27, 2015 (the mortgage for short). Mr. T2 did not sign the mortgage because Mr. T did not give money.

On January 23, 2015, Mr. Le Van T2 and Ms. U both signed an agreement stating that if they both die before their son, Le Duc T3 (born on March 20, 2010) reaches 25 years old, the plaintiff will have the obligation to take care of this child.

In addition, the letter of authorization dated February 7, 2011 states that: “I hereby certify that my authorization is completely arbitrary, without any conditions, and does not aim to avoid the implementation of the legal obligations in accordance with applicable Vietnamese law.  I also undertake that from now on, I will not complain and dispute the above estate", the plaintiff gifted Mr. Le Van T2 the total VND 280,000,000, which is the amount the plaintiff is divided from the inheritance, so the respondent opposes the plaintiff's petition.  And the respondent further admits that the amount of 17,800 USD that the plaintiff transferred to the respondent, Tom Le as sender’s name, through the wire transfer during the period from September 25, 2013 to March 4, 2015 is as the same as the statement provided by the plaintiff.

At the first instance trial, the plaintiff's representative sustains the lawsuit petition, the litigants cannot reach agreement on the resolution of the case.

The respondent confirmed that the house in dispute was bought for VND 1,000,000,000. But he spent additional money to rebuild the house, so he asked Mr. T6 (the seller) to re-sign a house purchase contract of VND 1,850,000,000. As for the cost of VND 800,000,000 incurred in rebuilding the house, Mr. T2 determined that he could not provide any proof. For the piece of land in Ben Tre, the respondent confirmed that he only put his name in the title on behalf of the plaintiff without engaging the purchase and he completely transferred the amount to the plaintiff. The respondent claims that the amount of 17,800 USD sent by the plaintiff was for Mr. T2 to build the house in Ben Tre, not related to the house in dispute, but he confirms that he cannot show any proof of the construction cost. And he does not further make any counterclaim for the money he spent on building the house in Ben Tre.

The plaintiff's representative opposes the respondent's statement that the respondent used the amount of 17,800 USD to build the house in Ben Tre, because the house was completely built in 2013. This money actually was transferred in the time of buying House M, the respondent fails to provide any supporting evidence.

The lawyer of the plaintiff requests the Court to recognize house ownership and land use right as for ½ of House M on the certificate of house ownership and land use right in accordance with the law.

Opinion of the representative of the People’s Procuracy of Ho Chi Minh City at the court hearing:

Regarding legal proceedings: The Judge and the First Instance Trial Panel duly complied with the Civil Procedure Code in determination of dispute relation, taking of evidence, conciliation and adjudication. The litigants could exercise their rights and the court hearing was conducted with due process.

With reference to content: Request the Court to accept the entire petition of the plaintiff.

JUDGEMENT OF THE COURT

After considering the documents contained in the case files which have been verified at the trial and representation of the litigants at the trial, the Trial Panel finds:

Regarding legal proceedings:

[1] Regarding jurisdiction to resolve the case: The plaintiff is an overseas Vietnamese, so the case falls under the jurisdiction of the People's Court of Ho Chi Minh City under Clause 2 of Article 26, Clause 3 Article 35, Point c Clause 1 Article 37 of the Civil Procedure Code 2015 and Articles 464; 465; 466; 468; 469; 470; 476; 479 of Civil Procedure Code 2015 in Viet Nam.

[2] Dispute relation:  The plaintiff claims for his ownership of ½ of House M, so it should be determined as a dispute over property ownership under the provisions of Clause 2, Article 26 of the Civil Procedure Code 2015.

With reference to content:

[3] Plaintiff claims for recognizing that ½ of House M is owned by him, because the plaintiff only asked the respondents to put their names in title on his behalf.  The basis for the lawsuit petition is the mortgage on the land use right (with property thereon) dated January 27, 2015; the agreement dated January 23, 2015; the amount of money gave to the respondent to buy the house is equivalent to 500,000,000 VND, which is ½ of the value of the house, including 17,800 USD the respondent received through the wire transfer and the amount inherited from the house of the parents left to the respondent for custody.  The respondent denies the plaintiff's lawsuit petition on the grounds that the plaintiff's inheritance amount was gifted to the respondent under the letter of authorization dated February 7, 2011; and the amount of 17,800 USD was transferred by the plaintiff to the respondent to build the house in Ben Tre. Thus, the Trial Panel, for the purpose of settling the plaintiff's petition, should consider if the plaintiff transferred money to the respondent, how much money the plaintiff transferred to the respondent and whether the plaintiff transferred money to the respondent for the purpose of buying House M.

[4] Determining the handover of money Based on the respondent's statement at the trial and the documents contained in the file, Mr. Le Van T2 received 280,000,000 VND as the amount of inheritance from his parents’ estate which is the house on Street N, Ward N, District B; the plaintiffs' representative says that this amount was 360,000,000 VND, but cannot provide any supporting evidence.  Therefore, the Court finds just cause to determine the amount of money the plaintiff handed over to Mr. Le Van T2 from inheritance money was 280,000,000 VND.  Particularly, the amount of 17,800 USD that the respondent admitted receiving through the wire transfer service is the same as the statement at the time of 2015 provided by the plaintiff, which is 17,800 x 2,100 = 373,800,000 VND.  Although the statements between the two sides are considered contradictory, the Court of First Instance finds that it is not necessary to either cross-examine the amount of inheritance money or bring Mrs. Nguyen Anh Uyen T7 in the proceedings.  The Court finds just cause to determine that the respondent Mr. Le Van T2 has received the entire amount of the plaintiff's inherited amount of 280,000,000 VND and 17,800 USD transferred through the wire transfer service, totaling 653,800,000 VND.  However, the plaintiff's representative only asks to recognize 500,000,000 VND used to buy ½ of House M, the plaintiff gifts the rest to Mr. T2. This request, which is deemed beneficial for the respondent, should be accepted.

[5] Determining the purpose of money transfer:  The respondent, based on the inheritance authorization letter dated February 7, 2011, in which the principal was the plaintiff and Mr. Le Van T2 was the authorized person, with the content "by this document, I authorize my brother to keep my share of inheritance after selling the house ... ” determines that the plaintiff gifted Mr. Le Van T2 the full amount of 280,000,000 VND. This claim is contradictory and is rejected by the plaintiff; so the Court finds just cause to determine that the plaintiff did not gift the respondent Mr. Le Van T2 the share of inheritance as claimed by the respondent.

[6] Particularly, the respondent couple cannot provide any proof that the amount of 17,800 USD given by the plaintiff was spent on building the house in Ben Tre at the request of the plaintiff; the representative of the plaintiff also claims that the money related to house and land in Ben Tre had been settled before such amount of 17,800 USD was received, based on the handwritten paper dated August 28, 2013, written by Mr. T2 and co-signed and co-fingerprinted by the respondent couple, with the content "today is August 28, 2013, my wife and I and two witnesses sign and fingerprint and confirm all the said property on the land and the house is entirely owned by Mr. Le Van T's”. So, the Court finds just cause to reject the respondent's claim that the above-mentioned amount was spent on building the house in Ben Tre.

[7] Based on the house purchase deposit contract dated September 8, 2014, the seller Mr. Nguyen Van T6, the buyers Mr. Le Van T2 and Ms. Nguyen Thi U reached a contract for purchase of House M for 01 (one) billion.  In the voluntary statement dated April 17, 2019, Mr. Nguyen Van T6 determines the selling price was 01 (one) billion and the voluntary statement dated June 12, 2019, Mr. T6 determines that the selling price of 1,800,000,000 VND in the house purchase deposit contract was re-signed at the request of Mr. T2, as conformable as the representation of the Mr. T2 at the court hearing. The Court finds just cause to determine that Mr. Le Van T2 bought the House M for 01 (one) billion dong.

[8] As for the written arrangement dated January 23, 2015, the respondent couple admit  that Le Van T2 wrote it and they co-signed and co-fingerprinted it with the content "I, the undersigned, is Le Van T2 ... I have inherited from my parents ... have sold the house on Street N, Ward N, District B and I have bought another house on Street H ... to worship ancestors... We are... to take care of this house, if we sell it later, we will have to seek permission from Mr. Le Van T ... My brother and I use the inheritance from the parents' house to buy this house."  The respondent states that at that time he was suffering from traumatic brain injury after a traffic accident, so he did not know what he wrote but he fails to provide any supporting evidence. Thus, the plaintiff opposes this claim.

[9] In the lawsuit petition and voluntary statements in Court, the plaintiff and his authorized representative both admit, when giving money to buy the house, due to ineligibility for putting his name in the house purchase contract and the trust placed in the respondents, he let the respondent couple do that for him.  From the above-mentioned bases, the Court finds just cause to determine that the plaintiff contributed 500,000,000 VND to buy ½ of House M and let the respondent couple put their names in the title due to his ineligibility to buy a house.

[10] Considering the plaintiff's petition requesting the recognition of house ownership, residential land use right for ½ of House M, the Trial Panel finds:  At the time of buying the house on September 12, 2014, the plaintiff was an overseas Vietnamese, the law does not allow foreigners to buy a house in Vietnam, so the transaction of putting the house ownership in the name of others is considered null and void. Therefore, this case does not fall under eligible circumstance of house ownership recognition as prescribed in Point c, Clause 1, Article 159; Clause 3 Article 160 of the Law on Housing 2014 in Viet Nam, taking effect from July 1, 2015, as stated by the plaintiff's lawyer.  Thus, the Court finds just cause to reject the plaintiff’s claim for recognition of his ownership of ½ of House M.

 [11] Considering the consequence of declaring the transaction null and void, the Trial Panel finds that: When the plaintiff put the house ownership under name of the respondents, he gave the respondents an amount greater than the value of ½ of House M. Now, when the applicable Housing Law allows foreigners to buy houses in Vietnam, a rejection to the plaintiff’s claim is somewhat damage to him. Therefore, the Court finds just cause to only divide the house value in half. Pursuant to the Valuation Certificate No. 37/18/CT-VALUINCO-HCM in November 2018, the total value of the House M at the market price at the time of valuation is:  Land use right value is 2,300,496,000 VND, the value of 57m2 of ground floor is 196,222,500 VND, the total is 2,496,418,500 VND. The Court finds plausible ground to accept a part of the plaintiff's petition and recognize his ownership of ½ of House M, equivalent to the amount of 2,496,418,500 VND/2 = 1,248,209,000 VND,  but not to accept the request of the plaintiff to be named on the certificate of house ownership and land use right as to ½ of House on Street H, Ward M, District T, Ho Chi Minh City.

[12] Regarding first instance civil court fee: The plaintiff is exempt from all first-instance civil court costs, as he is a senior citizen and applies for court fee exemption under the provisions of Resolution 326/2016/UBTVQH14 dated December 30, 2016 of the Standing Committee of the National Assembly.

[13] Respondents Mr. Le Van T2 and Ms. Nguyen Thi U each bear ½ (half of) civil court fee related to monetary claim over the amount payable to the plaintiff, equivalent to a property value of 1,248,209,000 VND; in specific, each must pay first-instance civil court fee of 24,723,135 VND, which is calculated as follows:  36,000,000 + (448,209,000 x 3%) = 49,446,270/2 = 24,723,135 VND.  However, Mr. Le Van T2 applied for exemption from court fee. The Court finds just cause to accept it.

Therefore;

DISPOSITION

Pursuant to Clause 2, Clause 3 Article 26, Clause 3 Article 35, Point c Clause 1 Article 37 of the Civil Procedure Code 2015 and Articles 464; 465; 466; 468; 469; 470; 476; 479 of the Civil Procedure Code 2015;

Pursuant to Point c, Clause 1, Article 159; Clause 3 Article 160 of the Law on Housing 2014,  taking effect from July 1, 2015.

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

Declare:

1. Accept a part of the plaintiff's petition to recognize ½ (half) of the value of the House on Street H, Ward M, District T, Ho Chi Minh City owned by plaintiff Mr. Le Van T.

Respondents Mr. Le Van T2 and Ms. Nguyen Thi U are jointly responsible for paying Mr. Le Van T ½ (half) of the House on Street H, Ward M, District T, Ho Chi Minh City, equivalent to 1,248,209,000 dong (one billion, two hundred forty eight million, two hundred and nine thousand dong).

From the date the plaintiff files a request for judgment enforcement, if the respondent fails to pay the above amount, the plaintiff is entitled to sell the House on Street H, Ward M, District T, Ho Chi Minh City by order of the Court for payment to the plaintiff ½ (half) of the above value of the House at the time of sale.

2. Reject the request of the plaintiff to be named on the certificate of house ownership and land use right as to ½ of House on Street H, Ward M, District T, Ho Chi Minh City.

3. First instance civil fee:

First instance civil fee: The plaintiff does not bear first-instance civil court costs, because his lawsuit petition is accepted.  The plaintiff may be reimbursed an amount of 300,000 dong (three hundred thousand dong) according to the receipt of court fee advance No. AA/2017/0048044 dated October 27, 2017 of Department of Civil Judgment Enforcement of Ho Chi Minh City.

Respondent Mr. Le Van T2 is not subject to first-instance civil court fee.  Respondent Ms. Nguyen Thi U has to pay a civil court fee related to monetary claim of 24,723,135 VND (twenty four million, seven hundred twenty three thousand, one hundred and thirty five dong).

The judgment is enforced as per regulations in Article 2 of the Law on enforcements of civil judgments in Viet Nam, the judgment creditor and judgment debtor are lawfully allowed to reach an agreement on judgment enforcement, request judgment enforcement, be subject to voluntary execution or coercive judgment enforcement in compliance with regulations in Article 6, 7 and 9 of the Law on enforcement of civil judgments.  The effective period of judgment enforcement shall comply within provisions in Article 30 of the Law on enforcement of civil judgments.

4. With reference to right to appeal:

The involved parties have the right to appeal against the judgment within 15 (fifteen) days from the date of judgment pronouncement; for the involved parties who do not appear in court or at the pronouncement of the judgment but have plausible reasons, the time limit for appeal shall be counted from the date on which the judgment is received or posted up.