Judgment no. 15/2021/DS-ST on dispute over reclaiming land use right, claim for annulment of contract for transfer of land use right and annulment of land use right certificates

THE PEOPLE'S COURT OF CAN THO CITY

JUDGMENT NO. 15/2021/DS-ST DATED APRIL 26, 2021 ON DISPUTE OVER RECLAIMING LAND USE RIGHT, CLAIM FOR ANNULMENT OF CONTRACT FOR TRANSFER OF LAND USE RIGHT AND ANNULMENT OF LAND USE RIGHT CERTIFICATES

On April 23 & 26, 2021 at the headquarters of the People's Court of Can Tho City, the first instance trial was conducted to hear the case No. 105/2020/TLST-DS dated April 27, 2020 in the matter of "Dispute over reclaiming land use right, claim for annulment of land use right transfer contract, annulment of land use right certificate”.

According to Decision to bring the case to first instance trial No. 29/2021/QD-ST dated March 30, 2021 between:

* Petitioner: Ms. Nguyen Thi Ngoc T., born in 1961; Address: 1 P.L. GDNS, T. on MSI OC4, Canada.

Temporary address: Next to No. 17B1 Residential area 923, Ward A, District N.K., Can Tho City.

Authorized representative: Mr. Ngo H.T..

Address: No. 206/12 T.P., Ward C., District N.K., Can Tho City.

Address: No. 58C H., T.B. ward, N.K. district, Can Tho city.

* Respondent: Ms. Tran Thi Ngoc Y., born in 1994; Address: No. 59 T.Đ.T., Ward 6, Soc Trang city, Soc Trang province.

* Persons with interests and obligations related to the case:

1. Ms. Pham Thi Hong D., born in 1995; address:  No. 59 T.Đ.T., Ward 6, Soc Trang city, Soc Trang province.

2. Ms. Nguyen Thi Hong T., born in 1969;

Residence: 17B1 Residential area 923, Ward A, District N.K., Can Tho City.

FACTUAL AND PROCEDURAL BACKGROUND

According to the petition filed by the petitioner, Ms. Nguyen Thi Ngoc T: Ms. Nguyen Thi Ngoc T. is an overseas Vietnamese in Canada. With the future plan to return to Vietnam to live, from 2014 to 2016, Mrs. T. bought a land plot in Can Tho city and asked her niece (daughter of Mrs. T’s sister), Pham Thi Hong D. (born in 1995, residing at 59 Ton Duc Thang, ward 6, Soc Trang city, Soc Trang province) to put the following 3 land plots in her name: Land plot No. 419, map sheet No. 86, area 70m2; Land plot No. 422, map sheet No. 86, area 70m2; Land plot No. 505, map sheet No. 86, area 70m2, all 03 land plots are located in Area 7, Ward A, Ninh Kieu District, Can Tho City and were granted certificates of land use rights under the name of Ms. Pham Thi Hong D..

In 2017, Tran Thi Ngoc Y (Ms. T’s niece) needed property to complete procedures for traveling abroad, so Ms. T. asked Dao to carry out procedures to transfer the title of above 03 land plots to Yen in the form of a contract of transfer, without handover of money. On these 03 land plots, Ms. T. built a house to live in together with 10 rooms for rent.

Currently, Ms. T has repatriated to Vietnam and registered her permanent residence in Bac Dan hamlet, My Phu commune, My Tu district, Soc Trang province. Due to the need to use it, Ms. T asked Tran Thi Ngoc Y. to carry out the procedures for transferring the title of the three land plots mentioned above to Ms. T. but Yen did not agree and said that this was Yen's land. So, Ms. T. sued Yen for:

1. Annulment of the contract of land use right transfer dated September 26, 2017 between Pham Thi Hong D. and Tran Thi Ngoc Y.; notarization number 762 volume No. 01/2017/TP/CC-SCC/HDGD notarized by Ngo Hong Thanh Private Notary Office on September 26, 2017.

2. Annulment of certificate of land use right, ownership of house and other property on land, number BT 377125, issued on May 5, 2014, with title transfer made to Tran Thi Ngoc Y. on November 2, 2017; certificate of land use right certificate of ownership of house and other property on land No. BT 377126, issued on May 5, 2014, with title transfer made to Tran Thi Ngoc Y. on November 2, 2017; certificate of land use right, ownership of house and other property on land, number CB 593518, issued on January 13, 2016, with title transfer made to Tran Thi Ngoc Y. on November 2, 2017.

3. Recognition of the following land plots: Land plot No. 419, map sheet No. 86, area 70m2; Land plot No. 422, map sheet No. 86, area 70m2; Land plot No. 505, map sheet No. 86, area 70m2, all 03 land plots are located in Area 7, Ward A, Ninh Kieu District, Can Tho City and under the legal use right of Ms. Nguyen Thi Ngoc T.

4. Recognition of the above-mentioned property on land, including houses and constructions on land with a total built-up area of ​​about 200m2, under the ownership of Ms. Nguyen Thi Ngoc T.

Respondent Ms. Tran Thi Ngoc Y. was duly summoned but did not appear in court, so she did not have any comments to present.

According to an independent petition, the person with related rights and obligations, Ms. Pham Thi Hong D. presented: Ms. D. is a niece of Ms. Nguyen Thi Ngoc T. (her sister’s daughter). Mrs. T. is an overseas Vietnamese who plans to return to Vietnam in the future, so she bought land in Can Tho and put the three land plots in the name of Ms. D: Land plot No. 419, map sheet No. 86, area 70m2; Land plot No. 422, map sheet No. 86, area 70m2; Land plot No. 505, map sheet No. 86, area 70m2, all 03 land plots are located in Area 7, Ward A, Ninh Kieu District, Can Tho City. Ms. Pham Thi Hong D. have been granted certificates of the above land plots. In 2017, Tran Thi Ngoc Y. completed procedures to travel abroad and got the consent of Ms. T., so Ms. D. transferred the title of the three land plots above to Yen (only completing paperwork for transfer contract, no money handover). Due to the need to use it, Ms. T asked Tran Thi Ngoc Y. to carry out the procedures for transferring the title of the three land plots mentioned above to Ms. T. but Yen did not agree. So, Ms. D. petitioned to annul the contract of land use right transfer dated September 26, 2017 between Ms. Pham Thi Hong D. and Ms. Tran Thi Ngoc Y., claiming for annulment of the land use right certificate in Ms. Y's name to return the property to Ms. T.; Ms. D. agreed to return the above property to Ms. T. and Ms. T. is entitled to carry out the procedures for registration of the right to use and ownership in accordance with the law.

The person with related rights and obligations, Ms. Nguyen Thi Hong T presented: As for the three disputed land plots, the land plot on which Ms. T. built the house was the one Ms. T. directly sold to Ms. T. The other 2 land plots on which Ms. T. built 10 rooms for rent were bought by Ms. T on behalf of Ms. T. Because Ms. T is an overseas Vietnamese, she asked Pham Thi Hong D. to put the property in her name. Then, because Tran Thi Ngoc Y. needed property to complete the procedures to study abroad, Ms. T asked Pham Thi Hong D. to put the property in Yen’s name. Ms. T. planned to only sponsor Yen for one year's tuition, but Yen thought that Ms. T. would support the entire course. When the parties talked about the above misunderstanding, a conflict arose, so Yen refused to return the property to Ms.T.. Currently, Tran Thi Ngoc Y. has still registered her permanent residence at her address in Soc Trang, but because she has been busy working far away, she is not often at home.

The property built on the land were built by Ms. T. about 2-3 years ago. Ms. T. has registered for temporary residence in a house on the disputed land. Because Ms. T. had to go far away in the coming time and was unable to appear in court, she requested for trial in absentia.

At the court hearing:

The authorized representative of the petitioner, Mr. Ngo Hong Thuy, presented:  The petitioner upheld the lawsuit claim to force Ms. D., Ms. Y to return Ms. T. the land use rights in the land plots No. 419, 422 , 505 at Area 7, Ward A, Ninh Kieu District, Can Tho City, which are in the name of Ms. Y., recognizing Ms. T.’s right to own the land plots and property on land, Ms. T. is entitled to carry out the procedures for granting the certificates of ownership according to regulations.

The representative of the People’s Procuracy of Can Tho city in the trial addressed:

- Regarding proceedings: Since accepting the case according to first-instance procedures and at today's court hearing, the litigants and the Judge, Reporter, and Trial Panel have strictly complied with the provisions of the civil procedure law.

- Regarding the content of the case: Through the events during the court hearing and based on documents in the case file, the procurator proposed to accept a part of the lawsuit claim of the petitioner, Ms. Nguyen Thi Ngoc T., and recognize Ms. T.’s right to own land use rights and property on land. Accept the independent petition of Ms. Pham Thi Hong D. on the annulment of the land use right transfer contract dated September 26, 2017 between Ms. Pham Thi Hong D. and Ms. Tran Thi Ngoc Y. due to a false contract; to re-issue the certificate of land use right to Ms. T. Petition the competent authority to revoke the certificate of land use right in Ms. Tran Thi Ngoc Y.'s name.

JUDGEMENT OF THE COURT

Pursuant to documents and evidence examined at the court hearing, the results of the adversarial process at the court hearing; the Trial Panel found that:

[1] In terms of court procedures:

- Regarding the disputed legal relationship:  Considering that in the Notice of acceptance of the case No. 11/TB.TLVA dated May 3, 2019, the Court determined the case as "Dispute over the contract for the transfer of land use rights", but based on the documents and evidence in the case file and on the basis of the petition of the petitioner, Ms. Nguyen Thi Ngoc T., independent petition of the person with related rights and obligations, Ms. Pham Thi Hong D., the Trial Panel considered this to be the legal relationship "Dispute over reclaiming land use right, claim for annulment of land use right transfer contract, annulment of land use right certificates" according to Clause 9 Article 26 of Civil Procedure Code 2015.

Because the petitioner, Ms. Tran Thi Ngoc T., has Vietnamese nationality but she has currently resided in Canada, according to Clause 3, Article 35, Point c, Clause 1, Article 37 of the Civil Procedure Code 2015, the case falls under the jurisdiction of the People's Court of Can Tho city.

The persons with related rights and obligations, Ms. Nguyen Thi Hong T. and Pham Thi Hong D. requested for trial in absentia. The respondent, Ms. Tran Thi Ngoc Y., was duly summoned by the Court but she did not appear in court for unknown reasons and the Court put up a notice for trial in the absence of Ms. Y. Pursuant to Articles 227 and 228 of the Civil Procedure Code 2015, the Trial Panel conducted trial in the absence of the involved parties in accordance with the law.

[2]. Regarding the content: Considering the petitioner's lawsuit claim, the independent petition of the person with related rights and obligations, Ms. Pham Thi Hong D.

Considering that:  land use right at plot No. 419, map sheet No. 86, area 70m2 with the certificate of land use right in the book No. CH 06593 issued on 05/5/2014; the land plot No. 422, map sheet No. 86, area 70m2 with the certificate of land use right in book No. CH 06592 issued on May 5, 2014; land plot No. 505, map sheet No. 86, area 70m2 with the land use right certificate in the book No. CH 09654 on January 13, 2014, were issued by the People's Committee of Ninh Kieu district to Ms. Pham Thi Hong D ., the land plots are located in Area 7, Ward A., Ninh Kieu District, Can Tho City. On September 26, 2017, Ms. Pham Thi Hong D. signed a contract to transfer to Ms. Tran Thi Ngoc Y. three land plots mentioned above and the contract was notarized. The title of property was transferred to Ms. Tran Thi Ngoc Y. by the branch office of land registration in Ninh Kieu district on November 2, 2017.

Although the land use rights of plots 419, 422, 505 in the name of Ms. Tran Thi Ngoc Y., the petitioner claimed that these land plots were purchased by the petitioner, but because she is an overseas Vietnamese, she asked Ms. D. to help receive the transfer and put the property in Ms. D’s name on her behalf; the petitioner then told Ms. D to transfer them to Ms. Y. for the purpose of carrying out procedures to go abroad. Due to the need to use it, Ms. T. asked Ms. Y to return the land use rights, but Ms. Y did not agree. Therefore, Ms. T sued Ms. D., Ms. Y, reclaiming the land use rights of the land plots 419, 422, 505, claiming annulment of the land use right transfer contract between Ms. D. and Ms. Y., claiming annulment of the revised land use right certificate in the name of Ms. Y.; requesting recognition of the right to use land plots and property on land plots for the petitioner.

In the commitment dated October 28, 2018 and the voluntary statement of the person with related interests and obligations, Ms. Nguyen Thi Hong T, she confirmed that from 2014 to 2016, Ms. T. sent to Ms. T. the amount of VND 470,000,000 to buy the land plots No. 422, 419, 505 and asked Pham Thi Hong D. to put these land plots in her name on behalf of Ms. T.. Ms. T. knew that in 2017, Tran Thi Ngoc Y. borrowed Ms. T. the above three land plots to carry out the procedures to go abroad. Ms. T agreed, so she asked Pham Thi Hong D. to transfer ownership to the respondent's name.  When Ms. T asked for it back, the respondent rejected it.

In the commitment dated October 19, 2018 and the independent petition, Ms. Pham Thi Hong D. confirmed that from 2014 to 2016, Ms. T. asked Ms. D. to put three land plots No. 422, 419, 505 in Ms. D’s name. In 2017, at the request of Ms. T., Ms. D. transferred them to Ms. Y. in her name to go abroad and Ms. D. handed over the original certificates of land use right to Ms. T. to keep. Now Ms. D. claimed annulment of the land use right transfer contract between Ms. D and Ms. Y. and annulment of the certificate of land use rights for the three land plots in the name of Ms. Y., Ms. D. agreed to return this property to Ms. T..

Considering that the presentation of Ms. D. and Ms. T. were consistent with other evidence contained in the following documents: Land use right transfer contract dated December 10, 2015, representing Ms. Nguyen Thi Hong T. and Mr. Vo L.N. transferred to Ms. Pham Thi Hong D. the land plot No. 505; Two land use right transfer contracts on the same day on March 31, 2014, Ms. Tran Thi C.H. and Mr. Pham Dinh T. transferred to Ms. Pham Thi Hong D. the land plots No. 419, 422; according to the verification minutes dated May 15, 2020, Mr. Nguyen Van Hoang, the leader of Group 2C, Residential Area 923, Ward A., provided information that the house and 10 rooms for rent on the disputed land were directly built by Ms. T. around 2018; according to the verification minutes at the Police Area 7, Ward A, Ms. T has registered temporary residence at house No. 17B1 residential area 923, ward A, Ninh Kieu district, Can Tho city, at the time when the rooms were put up for rent. Realizing that, the petitioner built a permanent house and 10 rooms for rent on the transferred land plots, she also had managed and used the land plots for a long time, but the respondent did not prevent or dispute. From the above evidence, it is grounded to determine that Ms. T was the one who paid to buy the land plots and asked Ms. D. to put the three land plots 419, 422, 505 in her name.

As for the land use right transfer contract dated September 26, 2017, signed between Ms. Pham Thi Hong D. and Ms. Tran Thi Ngoc Y.. The transfer of land plots 419, 422, 505 in fact only expressed on paper because the transfer value of all three plots 419, 505, 422 in the contract was 100,000,000 VND, no actual money handover. The transfer amount in the contract has an inappropriate difference compared to the time of 2014, Ms. T. sent VND 470,000,000to Ms. T. to buy three land plots. According to the price appraisal results on September 20, 2019, the market price at the time of the dispute in the locality was VND 9,000,000 to VND 13,000,000/m2. At the trial, the petitioner's representative confirmed the signing of the contract between Ms. and Ms. Y was just on paper, in fact the two parties did not have the real purpose of transferring, there was no handover of money between the parties.

As for the signing of land transfer contract between Mrs. and Tran Thi Ngoc Y., although the petitioner could not provide a written agreement for putting the property in the respondent’s name, but through the testimony of Ms. D., Ms. T. proves that the transfer contract signed on September 26, 2017 between Mrs. and Ms. Y. was only a false contract, just on the paper.

In addition, according to Official Letter No. 210/STP-HCTP dated January 22, 2021 of the Department of Justice of Can Tho city, according to Vietnam Passport No. N172613 issued on January 9, 2014 to the petitioner, it is determined that the petitioner still holds Vietnamese nationality; the petitioner also still owns property which is other house and land at 10/2 Tam Vu Street, Hung Loi Ward, Ninh Kieu District, Can Tho City, according to the certificate number CA 348277 issued by the Department of Natural Resources and Environment of Can Tho city on February 24, 2016. Therefore, the handover of land use rights and property on land; recognition of the property’s title of the petitioner was grounded.

Pursuant to Clause 1, Article 166 of the Civil Code 2015, it was found that the petitioner's lawsuit claim has grounds to accept a part of the petition for reclaiming the land use rights of three land plots 419, 422, 505 and recognizing the property’s title of the petitioner. Pursuant to Clause 1, Article 124 of the Civil Code 2015, the independent petition of the person with related interests and obligations, Ms. Pham Thi Hong D. There are grounds to declare the contract dated September 26, 2017 signed between Ms. Tran Thi Ngoc Y. and Ms. Pham Thi Hong D. invalid due to falsification; propose the competent authority to revoke the certificate of land use right No. CH 06593 issued on May 5, 2014; certificate of land use right in the book No. CH 06592 issued on 5/5/2014; certificate of land use right in book No. CH 09654 issued on January 13, 2016, issued by the People's Committee of Ninh Kieu district, Can Tho city to Ms. Pham Thi Hong D., with title transferred to Ms. Tran Thi Ngoc Y . on the same day November 2, 2017.

According to the independent petition, Ms. D agreed to return all three land plots above to Ms. T. and Ms. T. is entitled to put property in her name as per the law. Pursuant to Clause 2, Article 221 of the Civil Code, Ms. D voluntarily transferred ownership of the three land plots mentioned above to Ms. T.. Therefore, Ms. T. is entitled to carry out the procedures for transferring ownership in accordance with the law.

[3] When declaring the contract dated June 29, 2017 invalid, the interests of the parties related to the signed contracts must be resolved. Realizing that, the person with related rights and obligations, Ms. D., Ms. T. admitted that Ms. D., Ms. Y. just signed the land transfer contract on paper and put the property on her name on paper, while the land plots and other expenses were paid by Ms. T. Deeming that this case does not cause damage when the contract is invalidated, so it is not necessary to determine the fault of the parties causing the contract to be invalid to deal with the consequences.

[4] Regarding the effort to take care of the property when putting the name under someone else’s property: At the trial, the authorized representative of the petitioner determined that the disputed property had been managed and built by the petitioner; Ms. D., Ms. Y. only had her name on the papers and did not make any contributions during the time of putting property in their name. This testimony of the representative was consistent with the testimony of Ms. Nguyen Thi Hong T. in the record of declaration dated May 22, 2020. Therefore, there is no basis to consider the efforts of Ms. D., Ms. Y in this case.

[5] From the above analysis, it was found that the judgment of the trial panel was consistent with the proposal of the Procuracy at the trial.

[6] Regarding first instance civil court fee: Ms. T., Ms. D. received a refund of the paid court fee advance.

Ms. Y must pay a court fee of VND 300,000  

[7] Regarding the cost of on-site appraisal and first-instance property valuation: The total amount was VND 3,700,000.

The petitioner accepted and made the full payment.

For the foregoing reasons;

DISPOSITION

Pursuant to Article 26, Article 35, Article 37, Article 147, Article 227, Article 228, Article 271, Article 273 of the Civil Procedure Code 2015

Pursuant to Clause 1, Article 124, Clause 1, Article 166, and Clause 2, Article 221 of the Civil Code 2015

Pursuant to Clause 3, Article 100, Clause 1, Article 166, and Clause 1, Article 203 of the Land Law 2013.

Pursuant to Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 stipulating the court fees and charges, collection, exemption, reduction, management, and use thereof.

Declare:

1. Accept a part of the lawsuit claim of the petitioner, Ms. Nguyen Thi Ngoc T.

Recognition of Ms. Nguyen Thi Ngoc T’s ownership of land use rights in the land plot No. 419, map sheet No. 86, area 70m2; land plot No. 422, map sheet No. 86, area 70m2; land plot No.505, map sheet No.86, area 70m2, all located in Area 7, Ward A, Ninh Kieu district, Can Tho city that are all in the name of the respondent Tran Thi Ngoc Y. according to the land use right in the book No. CH 06593; certificate of land use right in book No. CH 06592; certificate of land use right in the book No. CH 09654 issued by the People's Committee of Ninh Kieu district, Can Tho city on the same day of November 2, 2017.

Recognition of the above-mentioned property on land including: 1. Main house 01 ground floor, 01 first floor, reinforced concrete columns, 60 x 60 ceramic tiled floor, tin-roofed, steel beam trusses, plaster ceiling, construction area 88.63m2, usable area 177.26m2, remaining quality 94%. 2. Row of rooms for rent (10 rooms), reinforced concrete columns, 50 x 50 ceramic tile floors, tin-roofed, plaster ceilings, box steel trusses, 1.7m high ceramic tiled walls, usable area 158.4m2, the remaining quality is 94%, (according to the record of appraisal and review dated September 20, 2019) owned by Ms. Nguyen Thi Ngoc T..

2. Accept the independent petition of Ms. Pham Thi Hong D.

- Declare the land use right transfer contract made on September 26, 2017 between Ms. Pham Thi Hong D. and Ms. Tran Thi Ngoc Y. invalid.

- Recognize that Ms. Pham Thi Hong D. voluntarily transfers the ownership of the land plot No. 419, map sheet No. 86, area 70m2; land plot No. 422, map sheet No. 86, area 70m2; land plot No. 505, map sheet No. 86, area 70m2, all 03 land plots are located in Area 7, Ward A, Ninh Kieu District, Can Tho City to Ms. Nguyen Thi Ngoc T.

- Propose the People's Committee of Ninh Kieu district, Can Tho city to revoke the certificate of land use right, ownership of house and other property on land, number CH 06593, issued on May 5, 2014; certificate of land use right, ownership of house and other property on land in book No. CH 06592 issued on 5/5/2014; certificate of land use right, ownership of house and other property on land in book No. CH 09654 issued on January 13, 2016 to Ms. Pham Thi Hong D., with title changed to Ms. Tran Thi Ngoc Y. on November 2, 2017, in order for issuing new certificates to Ms. Nguyen Thi Ngoc T. in accordance with the law.

Ms. T. has the right to register the land use rights with the competent authorities as per the law.

3. As for other matters:

- Regarding the cost of first-instance appraisal of assets: The total amount was VND 3,700,000. The petitioner accepted and made the full payment.

4. First instance civil fee:

- The petitioner may be reimbursed an amount of VND 300,000 (three hundred thousand dong) according to the receipt of court fee advance No. 001034 dated April 24, 2019 of Department of Civil Judgment Enforcement of Can Tho City.

- The person with related rights and obligations, Ms. Pham Thi Hong D. received a refund of the independent petition court fee advance of VND 300,000 according to receipt No. 000036 dated August 5, 2020 at the Civil Judgment Enforcement Department of Can Tho city.

- Respondent Ms. Tran Thi Ngoc Y. must pay VND 300,000.

5. In case the court verdict or decision is enforced as per regulations in Article 2 of the Law on enforcements of civil judgments, 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, 7b 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.

6. Within 15 days from the date of judgment pronouncement, the petitioner is entitled to appeal; the respondent and person with related interests and obligations in absentia are entitled to appeal within 15 days from the date of receipt of the judgment or the judgment is posted up