Judgment No. 210/2019/DS-PT dated june 07, 2019 on dispute over joint owned property

THE HIGH PEOPLE’S COURT IN HO CHI MINH CITY 

JUDGMENT NO. 210/2019/DS-PT DATED JUNE 07, 2019 ON DISPUTE OVER JOINT OWNED PROPERTY  

Because the first-instance judgment No. 1734/2018/DS-ST dated November 27, 2018 of the People’s Court of Ho Chi Minh City has been appealed, on June 07, 2019, the appellate trial has been conducted at the High People’s Court in Ho Chi Minh City to hear in the public the handled case No. 37/2019/TLPT-DS dated January 16, 2019 regarding “dispute over joint owned property” according to the Decision to bring the case to the appellate trial No. 869/2019/QDPT-DS dated May 16, 2019, between the following litigants:

1. Plaintiff:  Mrs. Giang Chheng H, born in 1980 (present).

Address:  159/20 HVT, Ward T, District P, Ho Chi Minh City.

Contact address: No. 17 TKD, Ward T, District M, Ho Chi Minh City.

2. Defendant: Mrs. Dinh Thi A, born in 1952 (absent).

Address:  1580 Third Street, SF-CA 94124, USA.

Lawfully authorized representative of Mrs. A: Mrs. Lam Dinh Anh N, born in 1984 (present).

Permanent residence: 144A NDC, Ward T, District P, Ho Chi Minh City.

Temporary residence:  159/20 HVT, Ward T, District P, Ho Chi Minh City (The power of attorney bears the consular legalization given by the Consulate General of the Socialist Republic of Vietnam in San Francisco, USA, on November 01, 2016).

3. Persons with related interests and duties in the lawsuit:

3.1. Mrs. Lam Dinh Anh N, born in 1984 (present).

3.2. Mr. Lam Dinh Hong Q, born in 1986 (absent).

He has the same permanent residence and temporary residence with Mrs. Lam Dinh Anh N.

Lawfully authorized representative of Mr. Q: Mrs. Lam Dinh Anh N, born in 1984 (The power of attorney bears the certification No. 414/TH, volume 1 given on August 26, 2016 of the People’s Committee of Ward T, District P, Ho Chi Minh City) (present).

Appellant:  Mrs. Lam Dinh Anh N.

CONTENTS OF THE CASE

According to the petition and statements provided by the plaintiff, Mrs. Giang Chheng H, represented by Mrs. Tran Thi Minh Nguyet, during the proceedings:

Mrs. Giang Chheng H is the daughter of Mrs. Dinh Thi S; Mrs. Dinh Thi A is the younger sister of Mrs. Dinh Thi S, and has two children, including Mrs. Lam Dinh Anh N and Mr. Lam Dinh Hong Q. The origin of the house and land located at No. 159/20 HVT, Ward T, District P, Ho Chi Minh City, is as follows:

In 1975, Mrs. S bought the house for residence. On April 16, 2008, the district People's Committee granted the Certificate of residential house ownership and land use rights No. 2631/2008/UB-GCN to Mrs. S. Until 2009, Mrs. S applied for a permit to build the house and obtained the building permit No. 1244/GPXD from the People’s Committee of District P on October 09, 2009, and then Mrs. S built the house with current conditions remaining unchanged up to now. On October 14, 2010, Mrs. S made a contract to gift a half of the house No. 159/20 HVT mentioned above to Mrs. Dinh Thi A (Contract No. 007963, volume No. 4, certified by Cho Lon Private Notary Office on October 14, 2010). Then, Mrs. S carried out procedures for modification of house ownership certificate and the People’s Committee of District P issued with the Certificate of ownership of residential house and property attached to land No. BD 853223, entered into certificate register at No. CH03467 on December 31, 2010, to Mrs. S (and her co-owner, Mrs. A). At this time, Mrs. S, Mrs. H (who is the daughter of Mrs. S), Mrs. A and her children, including Mrs. N and Mr. Q, lived together at the said house. Until 2013, when Mrs. A immigrated to USA, there was a conflict between Mrs. S and Mrs. A’s children, and Mrs. S and her daughter, Mrs. H, moved to a leased house.

Until 2015, Mrs. S gifted a half of the said house under her ownership to Mrs. Giang Chheng H, and the People’s Committee of District P issued a new Certificate of ownership of residential house and property attached to land No. BY 169902, entered into certificate register at No. CH00005 on January 05, 2015 to Mrs. H (in which, Mrs. H and Mrs. A are co-owners of the house). Currently, Mrs. S and her daughter are facing difficulty in house. Mrs. S is suffering from a serious disease but living at a leased house, while Mrs. A and her children still have a house No. 144A NDC, Ward T, District P in addition to the house in dispute.

According to the petition submitted by Mrs. H, she requests Mrs. A to transfer the said house to her and she will make payment to Mrs. A for a half of the said house. Total value of the said house and land is VND 4,008,000,000 (rounded) according to the valuation report No. 220.06/2018/CT-BDS dated June 30, 2018 given by Thuong Tin Appraisal Joint Stock Company. Mrs. H will make payment of VND 2,004,000,000 to Mrs. A through her representative, Mrs. N, so that Mrs. H takes the full ownership over the said house and land.

The defendant, Mrs. Dinh Thi A with her representative, Mrs. Lam Dinh Anh N, stated:  Mrs. Dinh Thi A is her mother and has authorized her to decide any matters relating to the said house, including the sale, purchase, donation or transfer of the house. She completely agrees on the plaintiff’s statements about their relation. With regard to origin of the house, she does not sure about the house origin but Mrs. A told her that she gave money to Mrs. S to buy the house, and according to the certificate of house ownership, each of Mrs. H and Mrs. A is entitled to a half of the house and land.

The house was built in 2008 with its current conditions kept unchanged up to now. In 2013, after Mrs. A had immigrated abroad, Mrs. S and Mrs. H did not want to live at the said house and moved to a leased house. Thus, her brother, Mr. Q, and she have managed and used the house until now. She confirmed that in addition to the house in dispute, she has a house No. 144A NDC, Ward T, District P.

She also agreed that total value of the said house and land is VND 4,008,000,000 (rounded) according to the valuation report No. 220.06/2018/CT-BDS dated June 30, 2018 given by Thuong Tin Appraisal Joint Stock Company. However, Mrs. A wants to receive the house and will make payment for a half of the house to Mrs. H with the following reasons: her family has managed and used the house since 2013; her daughter, Mrs. N, has given birth to a child, and thus has residential demand.

Persons with related interests and duties in the lawsuit:

Mrs. Lam Dinh Anh N who also acts as the representative of Mr. Lam Dinh Hong Q provides and has the same statements and requests with the defendant.

According to the first-instance civil judgment No. 1734/2018/DS-ST dated November 27, 2018, the People’s Court of Ho Chi Minh City,

Pursuant to Clause 9 Article 26, Clause 3 Article 35 and Article 37 of the 2015 Civil Procedure Code in Viet Nam;

Pursuant to Article 155, 163, 207, 209, 218, 221, 223 and 357, and Clause 1 Article 688 of the 2015 Civil Code in Viet Nam;

Pursuant to the 2009 Ordinance on court fees and charges in Viet Nam and Clause 1 Article 48, Point d Clause 1 Article 12 and Clause 6 Article 15 of the Resolution No. 326/2016/UBTVQH14 in Viet Nam on court fees and charges dated December 30, 2016 of the Standing Committee of National Assembly, and the Law on civil judgment enforcement in Viet Nam.

Judged:

1. The petition of Mrs. Giang Chheng H is accepted. To be specific:

1.1. The house and land No. 159/20 HVT, Ward T, District P, Ho Chi Minh City are under the joint ownership of Mrs. Giang Chheng H and Mrs. Dinh Thi A (according to Certificate of ownership of residential house and property attached to land No. BY 169902, issued by the People’s Committee of District P to Mrs. Giang Chheng H and Mrs. Dinh Thi A on January 05, 2015). Thus, each of Mrs. H and Mrs. A will be entitled to a half of the property.

1.2. Mrs. Giang Chheng H is granted the full ownership of the said house and is responsible for making payment of VND 2,004,000,000 (Two billion zero hundred and four million) for a half of the house to Mrs. Dinh Thi A via her representative, Mrs. Lam Dinh Anh N.

2. Within 2 (two) months from the date on which the judgment takes legal effect, Mrs. Giang Chheng H is required to make payment of VND 2,004,000,000 to Mrs. Dinh Thi A via her representative, Mrs. Lam Dinh Anh N, and Mrs. Dinh Thi A via her representative, Mrs. Lam Dinh Anh N, is required to transfer the house No. 159/20 HVT, Ward T, District P, to Mrs. Giang Chheng H. At the same time, Mrs. Lam Dinh Anh N and Mr. Lam Dinh Hong Q must move out of the house and return the house to Mrs. Giang Chheng H.

2.1. After Mrs. Giang Chheng H completes the payment of VND 2,004,000,000 (Two billion zero hundred and four million) to Mrs. Dinh Thi A, Mrs. Giang Chheng H is entitled to apply to competent authorities for modification of certificate of house ownership.

2.2. After 2 (two) months from the date on which the judgment takes legal effect and the judgment creditor has submitted a written request for judgment enforcement, if Mrs. Giang Chheng H fails to make the payment of VND 2,004,000,000 to Mrs. Dinh Thi A, Mrs. Giang Chheng H shall incur interests, calculated according to the basic interest rate announced by the State Bank of Vietnam at the payment time, for the late payment period.

3. The request of Mrs. Dinh Thi A, via her representative, Mrs. Lam Dinh Anh N, to make payment for a half of the house No. 159/20 HVT, Ward T, District P, to Mrs. Mrs. Giang Chheng H in order to get the full ownership of the said house, is refused.

Additionally, the first-instance judgment also contains the judgments on the appraisal costs, the court fees and rights to appeal against the judgment in accordance with laws.

On December 07, 2018, Mrs. Lam Dinh An N filed an appeal requesting the appellate court to amend the first-instance judgment and grant the house to her or cancel the judgment for re-determining the house’s value. At the appellate trial, Mrs. Lam Dinh Anh N keeps her appeal unchanged and requests the court to allow her to take back the house because she and her brother have been living at this house. Now, Mrs. Lam Dinh Anh N expresses her expectation to pay an additional amount of VND 100,000,000 to receive the house.

Mrs. Giang Chheng H refuses to accept the appeal of Mrs. Lam Dinh Anh N because she is suffering from a serious disease and she is living at a leased house at Bien Hoa, Dong Nai Province, and does not have any house, and thus has an urgent for the house, while Mrs. A is living abroad and owns a house No. 144A NDC, Ward T, District P, Ho Chi Minh City. Mrs. Giang Chheng H agrees to pay an additional amount of VND 100,000,000 to receive the house and land.

The representative of the High-level People’s Procuracy in Ho Chi Minh City gives the following opinions about the case: With regard to legal procedures, the litigants, judges and court clerk have strictly complied with regulations and laws; with regard to the case’s contents, the first-instance court's decision to grant the ownership of the house to Mrs. Giang Chheng H is made in accordance with regulations and laws because the house and land cannot be physically divided and Mrs. Giang Chheng H and her family do not own any other house and are living at a leased house, while Mrs. A still owns another house No. 144A NDC, Ward T, District P, Ho Chi Minh City, which is under a lease. The voluntary payment of additional amount of VND 100,000,000 of Mrs. Giang Chheng H is recorded. Mrs. A’s request for re-valuation of the house and land is unfounded, thus the appellate trial panel is requested to refuse the appeal of Mrs. A.

JUDGMENTS OF THE COURT

After investigating documents and evidences in the case file, which have been verified at the trial, and based on the arguments at the trial, the Court finds that: 

- Mrs. Dinh Thi A files an appeal within the prescribed time limit and is lawful, and thus shall be considered according to the appellate procedures.

- In consideration of the appeal of Mrs. Dinh Thi A, the Court finds that:

 [1]. According to the petition of Mrs. Giang Chheng H, the first-instance court determines that this is a civil case of “dispute over joint owned property”, and the defendant, Mrs. Dinh Thi A, currently lives in USA, and thus the case is under the jurisdiction of the People’s Court of Ho Chi Minh City in accordance with Article 26 and Article 37 of the 2015 Civil Procedure Code.

 [2]. In consideration of the appeal of Mrs. Dinh Thi A, the origin of the house and land No. 159/20 HVT, Ward T, District P, Ho Chi Minh City, is under the ownership and use right of Mrs. Dinh Thi S.

On October 14, 2010, Mrs. Dinh Thi S made a contract to gift a half of the house No. 159/20 HVT, Ward T, District P, Ho Chi Minh City, to her sister, Mrs. Dinh Thi A;

In 2013, Mrs. Dinh Thi A immigrated to USA and the conflict between her children and Mrs. Dinh Thi S has occurred. Thus, Mrs. Dinh Thi S and her daughter moved to a leased house in Bien Hoa City, Dong Nai Province.

In 2015, Mrs. Dinh Thi S gifted her ownership of a half of the house to her daughter, Mrs. Giang Chheng H. Currently, Mrs. Dinh Thi S and her daughter are facing difficulty in residence; Mrs. Dinh Thi S is suffering from a serious disease and living at a leased house, while Mrs. Dinh Thi A is living abroad, does not have demand for residence and also owns another house at No. 144A NDC, Ward T, District P, Ho Chi Minh City; Because of the conflict occurring between the parties and according to their statements provided at the trial, the house is so small (3.3 m wide and 12 m long) that it cannot be divided into halves, thus the first-instance court has accepted the plaintiff’s request for division of the joint owned property to grant the full ownership and right to use the house and land to Mrs. Giang Chheng H and request her to make payment for a half of the house and land to Mrs. Dinh Thi A; the court’s decision is well-grounded.

 [3]. In consideration of the appeal of Mrs. Dinh Thi A requesting for re-valuation of house and land, the court finds that: The first-instance court has entered into a service contract with Thuong Tin Appraisal Joint Stock Company to determine the value of the property in dispute in accordance with regulations in Article 104 of the 2015 Civil Procedure Code. On June 30, 2018, Thuong Tin Appraisal Joint Stock Company has given a valuation report No. 220.06/2018/CT-BDS in which total value of house and land is VND 4,008,000,000 and unanimously agreed by two parties without any complaint. After the first-instance trial, Mrs. Dinh Thi A is not granted the right to receive house and land, and thus makes an appeal because she believes that Thuong Tin Appraisal Joint Stock Company has undervalued the house and land. There is no ground for accepting this appeal.

[4]. Now, Mrs. Dinh Thi A makes an appeal without providing documents or evidences of the case, thus the appellate trial panel accepts the opinions given by the representative of the High People’s Procuracy in Ho Chi Minh City and refuses the entire appeal of Mrs. Dinh Thi A. However, Mrs. Giang Chheng H agrees to make an additional payment of VND 100,000,000 as proposed by Mrs. Lam Dinh Anh N to receive the entire house. This content is voluntary and conformable with laws, and thus accepted. Mrs. Giang Chheng H shall pay total amount of VND 2,104,000,000 to Mrs. Dinh Thi A, thus a part of the judgment will be amended. Mrs. Dinh Thi A is exempted from payment of the appellate civil court fees because she is an elderly person.

For the said reasons,

THE COURT DECIDES

Pursuant to Clause 2 Article 308 of the 2015 Civil Procedure Code;

Pursuant to Clause 3 Article 35 and Article 37 of the 2015 Civil Procedure Code;

Pursuant to Article 155, 163, 207, 209, 218, 221, 223 and 357, and Clause 1 Article 688 of the 2015 Civil Code;

Pursuant to the 2009 Ordinance on court fees and charges and Clause 1 Article 48, Point d Clause 1 Article 12 and Clause 6 Article 15 of the Resolution No. 326/2016/UBTVQH14 on court fees and charges dated December 30, 2016 of the Standing Committee of National Assembly;

* The appeal of Mrs. Dinh Thi A is refused. It’s judged:

1. The petition of Mrs. Giang Chheng H is accepted. To be specific:

1.1. The house and land No. 159/20 HVT, Ward T, District P, Ho Chi Minh City, are under the joint ownership of Mrs. Giang Chheng H and Mrs. Dinh Thi A (according to Certificate of ownership of residential house and property attached to land No. BY 169902, issued by the People’s Committee of District P to Mrs. Giang Chheng H and Mrs. Dinh Thi A on January 05, 2015). Thus, each of Mrs. H and Mrs. A will be entitled to a half of the property.

1.2. Mrs. Giang Chheng H is granted the full ownership and use right of the said house and land; Mrs. Giang Chheng H is responsible for making payment of VND 2,104,000,000 (Two billion one hundred and four million) for a half of the house and land to Mrs. Dinh Thi A via her representative, Mrs. Lam Dinh Anh N.

2. Within 2 (two) months from the date on which the judgment takes legal effect, Mrs. Giang Chheng H is required to make payment of VND 2,104,000,000 to Mrs. Dinh Thi A via her representative, Mrs. Lam Dinh Anh N. At the same time, Mrs. Dinh Thi A, Mrs. Lam Dinh Anh N, and Mr. Lam Dinh Hong Q are responsible for returning the house and land No. 159/20 HVT, Ward T, District P, Ho Chi Minh City, to Mrs. Giang Chheng H.

2.1. After Mrs. Giang Chheng H completes the payment of VND 2.104.000.000D (Two billion one hundred and four million) to Mrs. Dinh Thi A, Mrs. Giang Chheng H is entitled to apply to competent authorities for a certificate of house ownership and land use right in the name of Mrs. Giang Chheng H.

2.2. After 2 (two) months from the date on which the judgment takes legal effect and the judgment creditor has submitted a written request for judgment enforcement, if Mrs. Giang Chheng H fails to make the payment of VND 2,104,000,000 to Mrs. Dinh Thi A, Mrs. Giang Chheng H shall incur interests, calculated according to the basic interest rate announced by the State Bank of Vietnam at the payment time, for the late payment period.

3. The request of Mrs. Dinh Thi A, via her representative, Mrs. Lam Dinh Anh N, to make payment for a half of the house No. 159/20 HVT, Ward T, District P, Ho Chi Minh City, to Mrs. Mrs. Giang Chheng H in order to get the full ownership of the said house, is refused.

4. Mrs. Giang Chheng H voluntarily pays the property valuation costs and has made the full payment.

Regarding the first-instance civil court fees:  Mrs. Giang Chheng H pays VND 37,040,000 which is deducted from the advanced court fees of VND 12,000,000 paid by Mrs. H under the receipt No. AG/2010/09615 dated November 17, 2015 at the Civil Judgment Enforcement Division of Ho Chi Minh City. Mrs. Giang Chheng H is required to pay an additional amount of VND 25,040,000. Mrs. Dinh Thi A is exempted from payment of the court fees according to Resolution No. 326/2016/UBTVQH14.

Regarding the appellate civil court fees: Mrs. Dinh Thi A is exempted.

The judgment is enforced at a competent civil judgment enforcement division.

In case the judgment is enforced according to Article 2 of the Law on enforcement of civil judgments, the judgment creditor and 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 Articles 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.

The judgment of the appellate court comes into force from June 07, 2019.