Judgment No. 146/2017/DS-PT dated december 11, 2017 on dispute over reclaiming leased house and division of common property

THE PEOPLE’S COURT OF TRA VINH PROVINCE

JUDGMENT NO. 146/2017/DS-PT DATED DECEMBER 11, 2017 ON DISPUTE OVER RECLAIMING LEASED HOUSE AND DIVISION OF COMMON PROPERTY 

On December 11, 2017, at the office of People’s Court of Tra Vinh Province, the appellate trial is conducted to hear the case No. 177/2017/TLPT-DS dated November 10, 2017 on dispute over reclaiming leased house and division of common property

as the First Instance Civil Judgment No. 26/2017/DS-ST dated September 6, 2017 of the People’s Court of City T was appealed.

According to the Decision to Bring the Case to Appellate Trial No. 28/2017/QDPT-DS dated November 22, 2017 between litigants:

- Petitioner: Mr. Tran Dinh X, born in 1964 (present).

Place of residence: street M, cluster 1, ward N, city T, Tra Vinh province.

Temporary residential address: street V, cluster 3, ward N, city T, Tra Vinh province.

Protector of legitimate rights and interest of the petitioner:  Lawyer Truong Hoang Phong of Truong Hoang Phong Lawyer’s Office, affiliated to Bar Association of Tra Vinh province (present).

- Respondent: Mrs. Pham Ngoc X, born in 1964 (present).

Place of residence: street M, cluster 1, ward N, city T, Tra Vinh province.

Protector of legitimate rights and interest of the respondent:  Lawyer Lam Khac Sinh of Lam Khac Sinh Lawyer’s Office, affiliated to Bar Association of Tra Vinh province (present).

- Person with relevant rights and obligations: Mr. Tran Vu K, born in 1989 (present).

Place of residence: street M, cluster 1, ward N, city T, Tra Vinh province.

- Appellant:  Mrs. Pham Ngoc X, the respondent in the case.

THE CASE

Representation of the petitioner, Mr. Tran Dinh X, in the lawsuit petition dated September 7, 2015, the affidavit and in reconciliation meetings:

The house on street M, cluster 1, ward N, city T, Tra Vinh province is associated with the land use right of the area of 151.3 m2, of the land plot No. 241, of the map No. 02, which was gifted by his father (Mr. Tran H). After he and Mrs. Pham Ngoc X divorced (in June 2010), he agreed to lease out this house to Mrs. Pham Ngoc X for VND 1,000,000 per month. A written lease agreement (without specific date) was made by Mr. Tran Vu K to confirm the said arrangement. Since of the date of lease agreement, Mrs. Pham Ngoc X had paid monthly rents of VND 1,000,000 continuously until May 2014 and then suspended the payment so far.

Now, Mr. Tran Dinh X files a lawsuit claiming Mrs. Pham Ngoc X to relocate to another place and revert the house to him. And she must pay the monthly rents of VND 1,000,000 from May 2014 until the case is completely settled.

As for the counterclaim of Mrs. Pham Ngoc X stating that the house associated with the mentioned land use right is their marital property which was gifted during their marriage and claiming a half of the house and land, he rejects it. Because the 4-storey house associated with the land use right of the area of 151.3 m2, of the land plot No. 241, of the map No. 02 was gifted by his father (Mr. Tran H, died in 2011) to him. In 1989, Mr. Tran H made a document to assign the title of the house and land to his children: Mr. Tran Dinh X and Mrs. Tran My H for permanent management and use (since Mr. Tran H went abroad).

On April 16, 2001, Mrs. Tran My H made a written consent to assign the title of the house and land to Mr. Tran Dinh X for exclusive ownership (since Mrs. Tran My H also went abroad). Accordingly, this house and land is his private property which was assigned by his father and sister as a place of ancestor worship and for descendants thereafter.

On May 8, 2001, he was granted the certificate of housing ownership and land use right by the People’s Committee of province T, thus this is his private property which was personally gifted during the marriage time with Mrs. Pham Ngoc X. Therefore, he refuses to divide it at the request of Mrs. Pham Ngoc X.

Representation of the respondent, Mrs. Pham Ngoc X, in the counterclaim dated January 26, 2016 and her affidavit:

In 1988, Mrs. Pham Ngoc X and Mr. Tran Dinh X got married; they had one common child named Mr. Tran Vu K, born in 1989. Mrs. Pham Ngoc X and Mr. Tran Vu K have lived together with Mr. Tran Dinh X in the house on street M, cluster 1, ward N, city T, Tra Vinh province since their marriage.

Since Mr. Tran H, her father-in-law, immigrated to the USA in 1989. On May 25, 1989, Mr. Tran H made a document to assign the title of the house on street M, cluster 1, ward N, city T, Tra Vinh province to Mr. Tran Dinh X and Mrs. Tran My H (Mr. Tran Dinh X’s sister) for permanent ownership. At that time, Mrs. Pham Ngoc X, Mr. Tran Dinh X and Mr. Tran Vu K all lived and run business at the this house.

On April 16, 2001, Mrs. Tran My H made a written consent to assign the title of the house and land to Mr. Tran Dinh X for permanent ownership. At that time, Mrs. Pham Ngoc X, Mr. Tran Dinh X and Mr. Tran Vu K all lived in this house.

On May 8, 2001, the People’s Committee of province T granted the certificate of housing ownership and land use right to Mr. Tran Dinh X. Although only the name of Mr. Tran Dinh X was put on the certificate, as the marriage between Mr. Tran Dinh X and Mrs. Pham Ngoc X still existed when the certificate was granted, he is only deemed as the representative whose name is put on the certificate of common property.

In 2010, Mrs. Pham Ngoc X and Mr. Tran Dinh X obtained divorce grant by the People’s Court of city T under the Decision on Amicable Divorce No. 89/2010/QDST-HNGD dated June 30, 2010. To avoid any difficulty in divorce concerning division of common property, Mrs. Pham Ngoc X and Mr. Tran Dinh X agreed not to request the court to resolve it. While managing and using the house, Mrs. Pham Ngoc X spent VND 30,000,000 on erecting a fence behind the house (second floor) (in unknown year) and VND 40,000,000 on rebuilding the bedroom for her child (in 2014). Other basic structures of the house remain unchanged.

Now, Mrs. Pham Ngoc X claims Mr. Tran Dinh X to divide her a half of the said house.

Representation of the person with relevant rights and obligations, Mr. Tran Vu K:

After Mr. Tran Dinh X and Mrs. Pham Ngoc X divorced, he made a lease agreement as arranged by his father and mother. Since the date of lease agreement, Mrs. Pham Ngoc X had paid monthly rents of VND 1,000,000 which Mr. Tran Dinh X used to rent another house to live. She stopped paying the rents since May 2014. Hearing the news from some friends that his father was about to get married again, he made a call and said “Now you are going to get married, there is somebody else to take care of you, so you would better not to receive the rents from mom any more”. Mr. Tran Dinh X agreed with him through the phone. So he told her mother not to keep paying the rents to Mr. Tran Dinh X.

While living in the house, Ms. K spent no money on repairing or mending the house, so, he makes no request for division of the house and land of their parents on street M, cluster 1, ward N, city T, Tra Vinh province.

In 2013, Mr. K built a mobile glass room in front of the house to run a wedding studio, but it was completely relocated. 2 air-conditioners installed for the studio were totally uninstalled, so he does not request the court to consider them further.

In the First Instance Civil Judgment No. 26/2017/DS-ST dated September 6, 2017 of the People’s Court of City T judged:

Stop adjudicating the part of the petition “Claiming rents and partial assets associated with the house” (2 air conditioners of Mr. Tran Vu K) of the petitioner.

Reject the counterclaim of Mrs. Pham Ngoc X for division of the common property which is the house on street M, cluster 1, ward N, city T, Tra Vinh province.

Accept the lawsuit request of the petitioner, Mr. Tran Dinh X.

Compel Mrs. Pham Ngoc X to relocate to another place (including all of her stuff) to revert the 4-storey house associated with the land use right of 151.3 m2, of the land plot No. 241, of the map No. 03, located on street M, cluster 1, ward N, city T, Tra Vinh province to Mr. Tran Dinh X (according to the certificate of housing ownership and land use right in the master register No. 162/GCN granted by the People’s Committee of province T on May 8, 2001).

Recognize the voluntary consent of Mr. Tran Dinh X to allow Mrs. Pham Ngoc X to keep residing in the house within 3 months since the effective date of the Judgment.

Recognize the voluntary consent of Mr. Tran Dinh X to pay support for the relocation cost, her contribution to the house and construction cost of the new house to Mrs. Pham Ngoc X, amounted to VND 250,000,000 (Two hundred fifty million dong).

Assign Mr. Tran Dinh X to receive: 1 iron cabinet, 1 sofa set, 2 ancestral altars, 1 MITSUBISHI air conditioner of Mrs. Tran My V.

Assign Mrs. Pham Ngoc X to receive: 1 NATIONAL air conditioner.

Parties do not claim other furniture in the house, so the Trial Panel did not consider them further.

In addition, the First Instance Judgment decided the court fee and announced the appeal right to litigants as per the law.

On September 20, 2017, Mrs. Pham Ngoc X filed an appeal claiming the Court of Appeal to:

- Reject the lawsuit petition of Mr. Tran Dinh X reclaiming the leased house, rents and assets associated with the house.

- Give her right to keep living in the house on street M, cluster 1, ward N, city T, Tra Vinh province in conformity with documents specifying the commitments of her father-in-law and brothers and sisters in law.

At today’s appellate court hearing, the petitioner still upholds his lawsuit request and the respondent changes her appeal towards requesting continuity of the lease agreement, the litigants could not reach an agreement to settle the case and give no further items of evidence.

Opinions of the protector of legitimate rights and interests of the petitioner: The house on street M, cluster 1, ward N, city T, Tra Vinh province was personally gifted to Mr. Tran Dinh X by his parents and he was granted the title deed. In this case, Mrs. Pham Ngoc X violated the obligation to pay rents because in 2010, Mrs. Pham Ngoc X and Mr. Tran Dinh X got divorced. Although Mrs. Pham Ngoc X has lived on the street M, she still had to pay monthly rents of VND 1,000,000 to Mr. Tran Dinh X. However, since May 2014, Mrs. Pham Ngoc X stopped paying the rents to him. This is a breach of the lease agreement. Now, as Mr. Tran Dinh X has no house to live, he reclaims this house from her. At today’s appellate court hearing, Mr. Tran Dinh X allows Mrs. Pham Ngoc X to keep staying in the house within 6 months, so request the Court of Appeal to correct the First Instance Judgment as to this part. According to the aforementioned analysis, request the Trial Panel to refute the appeal of the respondent and accept the lawsuit request of the petitioner.

Opinions of the protector of legitimate rights and interests of the respondent: Request the Trial Panel to accept the appeal of Mrs. Pham Ngoc X to keep staying in the house on the street M. Now, Mrs. Pham Ngoc X got into difficulties in dwelling and previously Mr. Tran H (Mr. Tran Dinh X’s father) and Mr. Tran Dinh X’s brothers and sisters made a written consent which allows Mrs. Pham Ngoc X to keep staying in the house on the street M after divorce. Hence, request Trial Panel to accept the appeal of Mrs. Pham Ngoc X.

Opinions from the representative of People’s Procuracy of Tra Vinh province: Regarding legal proceedings, the Judge and the Trial Panel of the Court of Appeal have complied with the Civil Procedure Code. The litigants have performed proper rights and obligations as prescribed in the Civil Procedure Code in Viet Nam.

In terms of the content: The appeal of Mrs. Pham Ngoc X is ungrounded to be accepted because the house on the street M was gifted to Mr. Tran Dinh X by Mr. Tran H and Mr. Tran Dinh X obtained a written consent from his father and brothers and sisters before he went abroad which means he has the right of disposal as to this house. After divorce, Mrs. Pham Ngoc X has still stayed in the house on the street M and had paid monthly rents of VND 1,000,000 to Mr. Tran Dinh X. Since the appeal of Mrs. Pham Ngoc X is ungrounded and at today’s court hearing, Mr. Tran Dinh X allows Mrs. Pham Ngoc X to keep staying in the house within 6 months, so request the Trial Panel to correct the First Instance Judgment as to this part. Accordingly, request the Trial Panel to refute the appeal of Mrs. Pham Ngoc X and accept the lawsuit request of the petitioner and correct partial First Instance Judgment.

Based on the evidence and documents examined at the trial, based on the results of the deliberation, on the basis of full and comprehensive consideration of the evidence and opinions presented by the litigants and procurator.

JUDGEMENT OF THE COURT

After consideration of the case files assessed and the adversarial process at the court hearing, the Trial Panel judges as follows:

 [1] The house on the street M associated with the land use right of 151.3m2, of the land plot No. 24, of the map No. 02, located in cluster 1, ward N, city T, Tra Vinh province was previously owned by Mr. Tran H, died in 2011 (Mr. Tran Dinh X’s father). In 1989, Mr. Tran H made a document to assign the title of the house and land to Mr. Tran Dinh X and Mrs. Tran My H for permanent management and use (because Mr. Tran H went abroad). On April 16, 2001, Mrs. Tran My H made a written consent to assign the title of the house and land to Mr. Tran Dinh X for exclusive ownership (since Mrs. Tran My H also went abroad). On May 8, 2001, Mr. Tran Dinh X was granted a certificate of housing ownership and land use right concerning the house on street M, cluster 1, ward N, town T, Tra Vinh province by the People’s Committee of Tra Vinh province. (now is city T), Tra Vinh province.

Article 27 of the Law on Marriage and Family 2000 in Viet Nam stipulates:

 “1. Common property of husband and wife includes property created by husband and wife, incomes generated from labor, production and business activities and other lawful incomes of husband and wife during the marriage period; property jointly inherited or given to both, and other property agreed upon by husband and wife as common property.

2. Where a property under the common ownership of husband and wife is required by law to be registered for ownership, the names of both husband and wife must be inscribed in the ownership certificate thereof.”

Since Mr. Tran Dinh X was personally gifted the house and he did not agree with Mrs. Pham Ngoc X to convert the house into the common property and the certificate of housing ownership does not have the name of Mrs. Pham Ngoc X, thus the Court of First Instance had sufficient grounds to determine that this house is owned by Mr. Tran Dinh X and compel Mrs. Pham Ngoc X to revert the house to Mr. Tran Dinh X and Mr. Tran Dinh X shall pay an amount equivalent to repair cost, contribution to the house maintenance and relocation allowance to Mrs. Pham Ngoc X.

 [2] Considering the request of Mrs. Pham Ngoc X to keep living in the house on street M, cluster 1, ward N, city T, Tra Vinh province in conformity with documents specifying the commitments of her father-in-law and brothers and sisters in law and she will continue paying rents to Mr. Tran Dinh X as agreed. The house on the street M was previously owned by Mr. Tran H, before going abroad, he made a document to assign the title of house to Mr. Tran Dinh X and Mr. Tran Dinh X was granted the certificate of housing ownership as per the law. The document dated June 2, 2010 made by Mr. Tran H, Tran H1, Tran Tieu K, Tran Ai T, Tran My V, Tran My H allowing Mrs. Pham Ngoc X to stay in the house on street M, cluster 1, ward N, city T, Tra Vinh province has no valid grounds, because these people were not the owner of the house. Alternatively, the brothers and sisters of Mr. Tran Dinh X also made a documents dated February 1, 2016 to assign the house to Mr. Tran Dinh X for ancestral worship and request Mrs. Pham Ngoc X to revert the house. After Mr. Tran Dinh X and Mrs. Pham Ngoc X got divorced, Mr. Tran Dinh X agreed to lease out the house to Mrs. Pham Ngoc X, but since May 2014, she stopped paying rents, Mr. Tran Dinh X now has no place to live, so he reclaims the house from her. Mrs. Pham Ngoc X requests her continuity to rent the house but Mr. Tran Dinh X rejects it. So, Mrs. Pham Ngoc X is obliged to revert the house to Mr. Tran Dinh X. At today’s appellate court hearing, Mr. Tran Dinh X allows Mrs. Pham Ngoc X to keep staying in the house within 6 months to arrange her relocation. Such a decision in conformity with laws and regulations should be accepted.

 [3] First instance civil court fee. The Court of First Instance accepted the lawsuit request of Mr. Tran Dinh X and compelled him to pay the court fee related to monetary claim based on the amount which he voluntarily pays Mrs. Pham Ngoc X for her contribution to the house repair and relocation allowance. This decision breaks the regulation of Clause 1 Article 147 of the Civil Procedure Code. The Trial Panel shall correct this part of the First Instance Judgment.

Mrs. Pham Ngoc X has to pay the appellate court fee as per the law.

Other decisions of First Instance Judgment which are appealed or protested shall remain effective.

Pursuant to documents and evidence mentioned above;

HEREBY DECIDES

Pursuant to Clause 2 Article 308 of the Civil Procedure Code.

Do not accept the appeal of Mrs. Pham Ngoc X.

Correct the First Instance Judgment No. 26/2017/DSST dated September 6, 2017 of the People’s Court of Tra Vinh province regarding court fees.

Pursuant to Articles 480, 482, 490 of the Civil Code 2005 in Viet Nam and Article 27 of the Law on Marriage and Family 2000;

Pursuant to Articles 129, 131, 132 of the Law on Housing 2014 in Viet Nam;

1. Compel Mrs. Pham Ngoc X to relocate to another place (including all of her stuff) to revert the 4-storey house associated with the land use right of 151.3 m2, of the land plot No. 241, of the map No. 03, located on street M, cluster 1, ward N, city T, Tra Vinh province to Mr. Tran Dinh X (according to the certificate of housing ownership and land use right in the master register No. 162/GCN granted by the People’s Committee of province T on May 8, 2001).

2. Recognize the voluntary consent of Mr. Tran Dinh X allowing Mrs. Pham Ngoc X to keep residing in the house within 6 months since the effective date of the Judgment. While staying in the house, Mrs. Pham Ngoc X may not change the current conditions of the house to ensure the judgment enforcement.

3. Recognize the voluntary consent of Mr. Tran Dinh X to pay support for the relocation cost, her contribution to the house and construction cost of the new house to Mrs. Pham Ngoc X, amounted to VND 250,000,000 (Two hundred fifty million dong).

4. Other decisions of First Instance Judgment which are appealed or protested shall remain effective.

5. First instance civil court fee: Mr. Tran Dinh X is not obliged to pay the first instance civil court fee. Refund Mr. Tran Dinh X the paid advance payment of VND 600,000 according to receipt No. 0011597 dated September 30, 2015 of the Sub-department of Civil Judgment Enforcement of City T.

6. Regarding appellate court fee: Mrs. Pham Ngoc X is obliged to pay VND 300,000. Mrs. Pham Ngoc X paid VND 300,000 of court fee advance according to the receipt No. 0012507 dated September 20, 2017 of the Sub-department of Civil Judgment Enforcement of City T, so she is deemed fully paying the appellate court fee.

In case the judgment or court decision 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, 7a and 9 of the Law on enforcement of civil judgments, and the effective period of judgment enforcement shall comply within provisions in Article 30 of the Law on enforcement of civil judgments.

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