Judgment No. 20/2018/DS-ST dated november 15, 2018 on dispute over borrowed house and land use rights

PEOPLE’S COURT OF HAI PHONG CITY

JUDGMENT NO. 20/2018/DS-ST DATED NOVEMBER 15, 2018 ON DISPUTE OVER BORROWED HOUSE AND LAND USE RIGHTS

On September 21 and November 15 of 2018, at the office of the People’s Court of Hai Phong City, a first-instance trial court is conducted to hear the Case No. 13/2017/TLST-DS dated April 17, 2017 on “Dispute over borrowed house and land use rights” according to the Decision to Bring the Case to Trial No. 710/2018/QDDXXST-DS dated April 05, 2018, Decision to Adjourn the Hearing No. 786/2018/QDDST-DS dated March 17, 2018 and Decision to Adjourn the Hearing No. 2839/QDDST-DS dated August 28, 2018 and the Notice of Hearing No. 3242/TB-TA dated October 19, 2018 between litigants:

- Petitioner: Mr. Nguyen Ban A; born in 1940; place of residence: 687 group 2 compartment 8, B town, B district, Dong Nai province;

Authorized legal representative of petitioner: Mr. Le Hong C, born in 1974; place of residence: D commune, E district, Hai Phong city (authorized via the power of attorney form dated May 16, 2016); present.

- Respondents:

1. Ms. Nguyen Thi Phuong G, born in 1981; place of residence: 100 H, I ward, K district, Hai Phong city; absent (with request for trial in absentia).

Mr. Doan Vu L, born in 1981; place of residence: 12 17/46 M street, K district, Hai Phong city; absent.

- Persons with relevant rights and obligations:

1. Mrs. Nguyen Hoai N, born in 1941; place of residence: the USA; absent.

2. Ms. Bui Thuy O (P), born in 1959; registered permanent residence: 100 H, I ward, K district, Hai Phong city; current place of residence: the USA; absent (with request for trial in absentia).

3. The People’s Committee of K district, Hai Phong city; address of office: 10 Q, R ward, K district, Hai Phong city;

Authorized legal representative of the People’s Committee of K district: Mr. Pham Tien S, position: Chairman of the People’s Committee of district K; absent.

THE CASE

Representation of the petitioner Mr. Nguyen Ban A in the lawsuit petition dated June 17, 2016, the amended lawsuit petitions dated July 28, August 15 and September 28, 2016 and other documents:

Mr. Nguyen Van T and Mrs. Pham Thi u (died in 1995) have three children who are Mr. Nguyen Ban A, Mrs. Nguyen Hoai N and Mr. Nguyen Van V. In 1964, when Mr. T and Mrs. U were alive, they bought a land plot of approximately 200m² from Mr. Dang Van X with a handwritten contract. Then they built 03 level-4 houses with corrugated fibre cement roof to reside in (now is the house at 100 Dinh Dong, I ward, K district, Hai Phong city). In 1971, Mr. T passed away. In 1979, Mrs. U sold 01 house to Mr. Y; gave 01 house to her son Mr. V as a gift, and lived in 01 house. Mrs. N moved out after getting married and resided in the USA. In 1995, before passing away, Mrs. U made a will (certified by local authority) to pass the house at 100 H, I ward, K district, Hai Phong city down to Mr. A and Mrs. N. In 2005, Mr. A and Mrs. N paid to have the house reconstructed into a 03-story house as it is now; however, as a long time has passed, Mr. A is unable to recall the exact amount of money. In 2011, Mrs. N made an affidavit of waiver of inheritance rights and agreed to give Mr. A full rights to use the whole house at 100 H, I ward, K district, Hai Phong city (this affidavit was notarized at Notary office A’). In 2014, Mr. A was granted the certificate of land use rights No. CH00110/DDH dated August 01, 2014 for use of an area of 64.80m² on lot No. 196, map No. 06 with the lot address being 100 H, I ward, K district, Hai Phong city. In 2005, Mr. A allowed Ms. O (daughter of Mrs. N) to live rent-free. After Ms. O left to reside overseas, Ms. O’s daughter Ms. G continued to occupy the house illegally. Mr. A has asked Ms. G and Mr. L to return the house many times and requested resolution from local authority but to no avail. Now, Mr. A files a lawsuit requesting the Court to compel Ms. G and Mr. L to return the land plot and property on land at 100 H, I ward, K district, Hai Phong city to Mr.A.

Representation of the respondent Ms. Nguyen Thi Phuong G in the voluntary statements dated November 11, 2016 and December 21, 2017 and other documents: Ms. G is the daughter of Ms. O and granddaughter of Mrs. N. Mr. A is Mrs. N’s older brother. Mr. A has lived in Dong Nai since 1960. Ms. G does not have detailed knowledge of the origin of the disputed land at 100 H, I ward, K district, Hai Phong city. Ms. G only knows that Ms. G’s mother brought Ms. G and Ms. G’s younger brother to live with Mrs. U from 1995 until now (at that time, Ms. G’s parents were divorced). Mrs. U and Mr. T do have 3 children as represented by the petitioner. In 2005, Mrs. O demolished the old level-4 house of Mrs. U to build the 03-story house as it is now. After this house was finished, at the end of 2005, Mrs. O moved to the USA, while Ms. G has continued to live in this house until now. In 2007, Ms. G started co-habiting with Mr. L without marriage registration and have two common children. Mr. L only visits the house sometimes, with no contribution to the construction of the 03-story house and no relation to this house. Mrs. O is the person who directly paid for and supervised the construction of the house; however, Ms. G has no knowledge of the actual amount of money. During the settlement of the case at the People's Court of K district, Hai Phong city, Ms. G filed a counterclaim dated November 25, 2016 requesting the Court to consider cancelling the certificate of land use rights granted to Mr. A and to include the People’s Committee of K district, Hai Phong City in the legal proceedings of the case. On December 21, 2017, Ms. G withdrew this request and did not ask for resolution from the Court further. During the settlement of the case, Ms. G received notices from the Court. However, due to personal reasons, Ms. G cannot appear in Court for the settlement of the case and requests for trial with the absence of Ms. G.

Representation of Mr. Doan Vu L in the voluntary statement dated November 11, 2016: Mr. L and Ms. G started co-habiting since 2007, having 02 common children without marriage registration as presented by Ms. G. Mr. L neither knows nor cares whether the house at 100 H is the property of Ms. G’s family. When Mr. L met and began a relationship with Ms. G, Ms. G was already living with Ms. G’s mother and younger brother in the house at 100 H. As Ms. G’s mother and younger brother relocated to the USA, Mr. L does live in this house but not frequently. Currently, Mr. L lives in Mr. L’s parents’ house at 12/17/46 Lach Tray, Hai Phong. In 2005, when Ms. G’s mother built this house, Mr. L made no contribution to the construction of this house, thus it is wrongful for Mr. A to file a lawsuit against Mr. L. Mr. L requests the Court not to summon Mr. L. 

Representation of the person with relevant rights and obligations Ms. Bui Thuy O (P) in the document dated January 23, 2018: Ms. O returned to Vietnam on January 14, 2018 and came back to the USA around February 03, 2018. Ms. O is the biological daughter of Mrs. Nguyen Hoai N and the birth mother of Ms. G. Mrs. N has lived in the USA since 1978; in December 2005, Mrs. N sponsored Ms. O and Ms. O’s son to move to the USA. As Ms. O is not a USA citizen yet, Ms. O has no permanent residence and frequently changes place of residence, thus she is unable to provide the Court with her USA address. Due to certain conflicts, Ms. O and Mrs. N neither live together nor contact each other; the house and land at 100 H were the property of Mr. T and Mrs. U (maternal grandparents of Ms.O). As Ms. O’s parents were divorced, Ms. O lived with Mrs. U from when Ms. O was a young child until Ms. O's marriage in 1980. In 1995, due to Ms. O’s divorce, Ms. O brought her two children to live with Mrs. U. When Ms. O came to live in the house, Mrs. U had a level-4 house and had given the adjacent house to Mr. V as a gift. On September 22, 1995, Mrs. U passed away. On March 01, 1995, Mrs. U made a will leaving house and land as inheritance (the original copy is kept by Ms. O) with the following details: Mrs. U and Mr. T had a land plot of 200m² since 1964. In 1976, a part of the land was sold and a land plot of 117m² remained. In 1978, Mrs. U gave Mr. V (youngest son) half of the land (58.5m²) and built a house and ancillary facilities for residential purpose on the other half which would later be inherited by Mr. A and Mrs. N. In 2005, Ms. O rebuilt the house into a 03-story house as it is now. The rebuilding was made without permission from local government, thus subject to a fine according to the Notice No. 11/TB-UB dated August 24, 2005 by the People's Committee of I ward. The payment for rebuilding the house was partially made by Ms. O’s birth mother Mrs. N (USD 15,000) and the remaining amount was covered by Ms. O (USD 22,000). When Ms. O rebuilt the house, there was no objection. As Mr. A is filing a lawsuit to reclaim the house and land, Ms. O claims: The land belongs to Mr. A but the property on land - the 03-story house - was paid by Mrs. N and Ms. O, thus, if Mr. A would like to reclaim the house, he must repay the house’s value to Ms. O.

Representation of the person with relevant rights and obligations Mrs. Nguyen Hoai N in the documents dated August 17, 2017, September 24, 2018 and October 27, 2018 (sent from the USA to the Court by post): The three siblings Nguyen Ban A, Nguyen Hoai N and Nguyen Van V agreed to let Mr. A receive the inheritance of the property of Mrs. N’s parents at 100 H as notarized on March 07, 2011. Mrs. N and Ms. Bui Thuy O (P) have no rights upon the land and house on land at 100 H. On the payment for the 03-story house, Mrs. N sent the money via Mr. Pham Phuc E’ in Vietnam to cover the building cost.

In the first-instance court session, the authorized legal representative of the petitioner still upholds the petition, upholds the representation in voluntary statements and represents: Mr. A holds the legal rights to use the area of 64,80m2; Mrs. N paid most of the cost for building the 03-story house on land and Mr. A contributed a small amount to it. Mrs. N agreed to give it as a gift to Mr. A (represented in Mrs. N’s voluntary statements dated August 17, 2017, September 24, 2018 and October 27, 2018), thus she requests the trial panel to compel Ms. G and Mrs. O to return the house and land at 100 H to Mr. A. While using the house, Ms. G leases the house and receives monthly rents of approximately VND 5,000,000 - 6,000,000, thus the petitioner requests the trial panel not to record her housekeeping effort.

In the court session, Ms. G, Mrs. N, Mrs. O, Mr. L and the authorized legal representative of the People’s Committee of K district are absent.

In the court session, the Procurator evaluates:

In terms of procedure: During the settlement of the case and in the first-instance court session, the Judge, the trial panel and the court clerk have complied with provisions of the Civil Procedure Code. The litigants have exercised the rights and fulfilled the obligations of litigants as prescribed in the Civil Procedure Code.

Evaluation on case settlement: The conflict of the case is the dispute over borrowed house and land use rights and cancellation of certificate of land use rights. The respondent has withdrawn the request for cancellation of the certificate of land use rights, thus this request is not considered further. All litigants admit that the land originally belonged to Mr. T and Mrs. U. Mrs. U left a will naming Mr. A and Mrs. N as beneficiaries of the land. In 2011, Mrs. N waived her inheritance rights to Mr. A. The cost for the 03-story house on the abovementioned land was covered by Mrs. N, Mrs. N agreed to give it as a gift to Mr. A. Therefore, Mr. A and Mrs. N both hold inheritance rights. While using the house, Ms. O and Ms. G has earned profits from leasing the house, thus their housekeeping efforts are not recorded. The lawsuit petition of Mr. A has valid grounds, so hereby request the trial panel to accept and compel Ms. G to return the house and land to Mr. A.

JUDGEMENT OF THE COURT

- In terms of court procedure:

[1] The conflict of the case which is dispute over borrowed house and land use rights is prescribed in clause 2 Article 26, clause 3 Article 35, point a clause 1 Article 37 of the Civil Procedure Code and is under the jurisdiction of the People’s Court of Hai Phong city.

[2] In terms of participation in legal proceedings: In the lawsuit petition and amended lawsuit petitions, the petitioner Mr. A files a lawsuit against Ms. G and Mr. Doan Vu L. However, after consideration of the evidence in the case dossier, representation of Mr. L, of the respondent and persons with relevant rights and interests, the findings are as follows: In reality, Mr. L cohabits with Ms. G without marriage registration; Mr. L does not frequently live in the house at 100 Dinh Dong, is irrelevant and makes no contribution to the disputed property at 100 H, thus Mr. L is not relevant to the case and there is no need to determine whether Mr. L is participating in the case as a respondent or person with relevant rights and obligations.

[3] During the settlement of the case, Ms. G requested the cancellation of the certificate of land use rights No. CH00110/DDH dated August 01, 2014 granting Mr. A use of the area of 64.80 m². While the court had not accepted Ms. G’s request, on December 21, 2017, Ms. G withdrew this request, thus it is not necessary to determine whether the People's Committee of K district, Hai Phong city is participating in the case as a person with relevant rights and obligations as prescribed in Article 68 of the Civil Procedure Code.

[4] In the court session, Ms. G and Ms. O are absent, requesting the Court to hear the case in absentia. The request of Ms. G and Ms. O is in compliance with provisions in clause 1 Article 228 of the Civil Procedure Code, thus the trial panel accedes to it and hears the case in their absence.

[5] Mr. L and the authorized legal representative of the People’s Committee of K district are absent without reasons despite being duly served with the second summons, thus, pursuant to point b clause 2 Article 227, clause 3 Article 228 of the Civil Procedure Code, the Court hears the case in their absence. Mrs. N, currently living in the USA, has made her representation on the case, thus the Court hears the case in her absence as prescribed in point a clause 5 Article 477 of the Civil Procedure Code in Viet Nam.

[6] In terms of the prescriptive period: This is a conflict regarding dispute over property with no prescriptive period, thus the lawsuit petition of the petitioner is considered and settled by the Court as prescribed by law.

- In terms of the lawsuit petition of the petitioner

[7] Relationships between litigants are determined as follows: Mr. T (died in 1971) and Mrs. U (died in 1995) have three children who are Mr. Nguyen Ban A, Mrs. Nguyen Hoai N and Mr. Nguyen Van V. Ms. O is Mrs. N’s biological child; Ms. G (biological daughter of Ms. O) is currently managing and using the house at 100 Dinh Dong.

[8] In terms of the origin of the land at 100 H: Considering the representations of Mr. A, Mrs. N, Mr. V and Ms. O, the origin is identified as follows: Mr. T and Mrs. U bought a land plot of 200m² (now at 100 Dinh Dong) from 1964. In 1978, Mrs. U sold a part of the land, thus the remaining area was 117m². In the same year, Mrs. U gave Mr. V half of the land (58.5 m²) and used the remaining half (58.5m²) for residential purpose. On February 26, 1995, Mrs. U made a will to leave house and land as inheritance with the following contents: Due to her old age, Mrs. U left the house and land to Mr. A and Mrs. N. This document was certified by the People’s Committee of I ward, K district, Hai Phong city on March 01, 1995, with the signature and fingerprint of Mrs. U; signatures of Mr. V, Mr. A, Mrs. N and neighbor-witnesses who are Mrs. Tran Thi B’, Mr. Tran Xuan C and Ms. Bui Thuy O. On March 07, 2011, together, Mr. A, Mrs. N and Mr. V made an affidavit of waiver of inheritance rights with the following contents: “... With this document, co-beneficiary Mrs. Nguyen Hoai N, currently residing in the USA, waives her right of inheritance of the real estate located at 100 Dinh Dong street, I ward, K district, Hai Phong city to co-beneficiary Mr. Nguyen Ban A. Mr. Nguyen Ban A fully receives waiver of inheritance rights from Mrs. Nguyen Hoai N which is the right to use the land plot of 58.5m² at house 100 Dinh Dong, I ward, K district, Hai Phong city”. This affidavit was notarized at Notary office A’, Hai Phong city. In addition, on the same date, at Notary office A’, Mrs. N made a deed of gift for her inheritance share with the abovementioned contents. Therefore, the representations of Mr. A, Mr. V, Mrs. N and Mrs. O all match and are appropriate to the will detailing house and land inheritance made by Mrs. U on March 01, 1995; appropriate to the affidavit of waiver dated March 07, 2011 on the origin of the disputed property. Thus, Mr. A holds the legal rights to use the land plot of 64. 80 m²; located at 100 H, I ward, K district, Hai Phong city as inherited from Mrs. U and Mr. T and receives the share that Mrs. N inherited from Mrs. U and Mr. T. In 2014, the People’s Committee of K district, Hai Phong city granting Mr. A the certificate of land use rights of the urban residential land plot of 64.80m² (located at 100 H, I ward, K district, Hai Phong city) has valid grounds and is lawful.

Now, considering that Mr. A claiming Ms. G to return the land at 100 H to Mr. A has valid grounds, such claim should be accepted. At the present, Ms. G is managing and using the house and land at 100 H, but, in reality, this disputed property also concerns Ms. O, thus it is necessary to compel both Ms. O and Ms. G to return the land plot at 100 H to Mr. A in compliance with the certificate of land use rights No. CH00110/DDH dated August 01, 2014 granted by the People's Committee of K district  as prescribed in Article 105, Article 166 and Article 158 of the Civil Code in Viet Nam, clause 7 Article 166 of the Land Law. It also has to be said that although there is a discrepancy between the area granted to Mr. A by the People's Committee of K district and the area represented by the litigants, after onsite appraisal, the house and land that Ms. G is using is appropriate to the certificate of land use rights granted to Mr. A, thus there is no dispute and is recognized by the competent authority, requiring no questioning or resolution.

[9] In terms of the 03-story house built on the land at 100 H: All litigants confirm that Mrs. U and Mr. T did build 03 houses, in 1978, Mrs. U sold 01 house; gave 01 house to Mr. V; and lived in 01 house. In 1995, after Ms. O’s divorce, Ms. O and her children came to live with Mrs. U. In 2005, the house was rebuilt into a 03-story house as it is today by Ms. O. The payment for building the 03-story house, as Ms. O represented, was partially made by Mrs. N and the rest by Ms. O; as Mr. A represented, the payment was made by Mrs. N and Mr. A, however, Mr. A is unable to determine and prove the exact amount of money Mr. A and Mrs. N each gave. According to Mr. V, the funding for the house was from Mrs. N. Mrs. N represented that Mrs. N asked her daughter Victoria D’ (daughter of Mrs. N) to send the payment via Mr. Pham Phuc E’ to Ms. O to cover the cost for building the house. In the record dated October 22, 2018, Mr. Pham Phuc E' represented that: Mrs. N asked her daughter Victoria D’ to send the funding for building the 03-story house at 100 H to Mr. E’’s account at G’ Commercial Joint Stock Bank - Hai Phong branch. The amount of money was USD 30,056.41, and another amount of USD 10,000 was transferred via a friend of Mrs. N, thus the total amount was USD 40,000. This total amount was transferred by Mr. E’ to Ms. O to build the house. Mr. E’ affirmed all money for building the house belonged to Mrs. N. Therefore, Mrs. N’s testimony matches the testimonies of Mr. V and Mr. E’ and a part of Ms. O’s testimony; the testimonies of Mrs. N and Mr. E’ are also appropriate to the bank statement provided by G’ Commercial Joint Stock Bank  - Dong Do branch Giang Vo transaction office. At the same time, Ms. O represents that she has contributed an amount of money but is unable to provide any proof. Therefore, there are valid grounds to determine that the payment for the 03-story house at 100 H, K district came from Mrs. N. Mrs. N gifted it to Mr. A, thus it is necessary to accept Mr. A’s lawsuit petition to reclaim the house at 100 H, K district as prescribed in Article 105, Article 166 and Article 158 of the Civil Code.

- In terms of first-instance civil court fee, fee for judicial assistance abroad and fee for property appraisal:

[10] Mr. A does not have to pay the first-instance civil court fee as prescribed in Article 147 of the Civil Procedure Code.

[11] Ms. O and Ms. G must pay the court fee as prescribed in Article 147 of the Civil Procedure Code; clause 1 Article 27 of the Resolution No. 326/2016/UBTVQH14 in Viet Nam on rates, exemption, reduction, collection, payment, management and use of Court fees and charges dated December 30, 2016 by the Standing Committee of the National Assembly.

[12] Mrs. Nguyen Hoai N does not have to pay the first-instance civil court fee as prescribed by law.

[13] Mr. A must pay the fee for judicial assistance abroad amounting to VND 239,000 as prescribed in Article 153 of the Civil Procedure Code. Mr. A has fully paid this amount.

[14] In terms of the property appraisal fee, Mr. A has paid it to the agency that appraises property. Now, Mr. A does not enquire about this amount, requiring no further questioning or resolution.

Pursuant to documents and evidence mentioned above:

HEREBY DECIDES

Pursuant to Articles 105, 166 and 158 of the Civil Code, clause 7 Article 166 of the Land Law in Viet Nam;

Pursuant to Article 147 and Article 153 of the Civil Procedure Code clause 1 Article 27 on rates, exemption, reduction, collection, payment, management and use of Court fees and charges dated December 30, 2016 by the Standing Committee of the National Assembly.

Hereby judges: Accept the lawsuit petition of the petitioner:

1. Compel Ms. Bui Thuy O (P) and Ms. Nguyen Thi Phuong G to return to Mr. Nguyen Ban A the land plot of 64.80m² and the 03-story house built on the land plot of 64.80m², urban residential land; with the address at 100 H, I ward, K district, Hai Phong city (according to the certificate of land use rights No. CH00110/DDH dated August 01, 2014 granted by the People’s Committee of K district, Hai Phong city).

2. In terms of the first-instance civil court fee:

- Mr. Nguyen Ban A does not have to pay the first-instance civil court fee. Mr. A has paid VND 200,000 (Two hundred thousand dong) as court fee advance according to the receipt of court fee advance No. 14354 dated October 04, 2016 by the Civil Enforcement Agency of Hai Phong city. Refund Mr. Nguyen Ban A this amount of money.

- Ms. Bui Thuy O (P) and Ms. Nguyen Thi Phuong G must each pay VND 300,000 (Three hundred thousand dong) of first-instance civil court fee.

- Mrs. Nguyen Hoai N does not have to pay the first-instance civil court fee.

3. In terms of the fee for judicial assistance abroad: Mr. A must pay VND 239,000 (Two hundred thirty-nine thousand dong) for the fee for judicial assistance abroad. Mr. A has paid the abovementioned amount according to the International Invoice dated June 28, 2017, so Mr. A has fully paid the fee for judicial assistance abroad.

Within 15 days (Fifteen days) starting from the date of pronouncement, Mr. A has the right to make an appeal to the Superior People's Court in Hanoi.

Within 15 days (Fifteen days) starting from the date on which the judgment is received or posted up, Ms. G has the right to make an appeal to the Superior People’s Court in Hanoi.

Within 01 month (One month) starting from the date on which the judgment is legally delivered, both Ms. Bui Thuy O and Mrs. Nguyen Hoai N have the right to make an appeal to the Superior People’s Court in Hanoi.

In case the judgment is enforced in accordance with provisions in Article 2 of the Law on Enforcements of civil judgments in Viet Nam, the enforcement creditor and the enforcement debtors are lawfully allowed to reach an agreement on judgment enforcement, request judgment enforcement, be subject to voluntary execution or coercive judgment enforcement in accordance with provisions in Article 6, 7 and 9 of the Law on Enforcements of civil judgments; and the effective period of judgment enforcement shall comply with provisions in Article 30 of the Law on enforcement of civil judgments.