Judgment No. 244/2019/DS-PT dated august 21, 2019 on a dispute over land use right

THE PEOPLE’S COURT OF BEN TRE PROVINCE

JUDGMENT NO. 244/2019/DS-PT DATED AUGUST 21, 2019 ON A DISPUTE OVER LAND USE RIGHT

On August 21, 2019, at the headquarters of the People's Court of Ben Tre province, a appellate trial is conducted to hear case No.  234/2019/TLPT-DS dated July 26, 2019 on a dispute over land use right.

Based on the First Instance Civil Judgment No. 44/2019/DS-ST dated June 7, 2019 of the People’s Court of district L which was appealed.

Based on the Decision to Bring the Case to Appellate Trial No. 195/2019/QDPT-DS of July 31, 2019, among the involved parties:

- Plaintiff:  Ms. Bach Ngoc B, born in 1942, residing at: No. 07, street H, ward 1, city M1, Tien Giang province.

Legal representative authorized by plaintiff:  Mr. Bach Ngoc N3, born in 1978, residing at: Village N4, commune N5, district M4, Ben Tre province (under the letter of authorization dated July 11, 2019).

- Respondent: Mrs. Pham Thi K, born in 1916, residing at: Village N, commune V, district L, Ben Tre province (died on September 20, 2018).

The successor of litigation rights and obligations of the respondent:

1. Ms. Bach Ngoc B, born in 1942, residing at: No. 07, street H, ward 1, city M1, Tien Giang province.

2. Ms. Bach Ngoc H3, born in 1946, residing at: village N, commune V, district L, Ben Tre province.

3. Mr. Tran Van M, born in 1950, residing at: village N, commune V, district L, Ben Tre province.

4. Ms. Tran Thi S, born in 1955, residing at: No. 239/37, street K2, ward P, district P1, Ho Chi Minh City.

Authorized representative of Mr. Tran Van M and Ms. Tran Thi S: Mr. Tran Van N1 (under the letter of authorizations dated August 1, 2019 and August 5, 2019).

5. Ms. Bach Ngoc A, born in 1943, residing at: village N, commune V, district L, Ben Tre province (died).

The successor of litigation rights and obligations of Ms. Bach Ngoc A:  

5.1. Mr. Nguyen Ngoc T, born in 1935, residing at: village H1, commune V, district L, Ben Tre province.

5.2. Ms. Nguyen Thi Ngoc T1, born in 1981, residing at: village Y, commune T5, district L, Ben Tre province.

5.3. Ms. Nguyen Thi Ngoc T2, born in 1984, residing at: village Q, commune T5, district L, Ben Tre province.

5.4. Ms. Nguyen Thi Hanh D, born in 1987, residing at: village P2, commune T5, district L, Ben Tre province.

Authorized representative of the successor of litigation rights and obligations of Ms. Bach Ngoc A: Ms. Nguyen Thi Ngoc T1 (under the letter of authorization dated April 18, 2019).

Ms. Nguyen Thi Ngoc T1 filed a request trial in the absentia to the Court.

- Persons with interests and obligations related to the case:

1. Mr. Tran Van M, born in 1950;

2. Ms. Nguyen Thi M3, born in 1954;

3. Mr. Tran Van N1, born in 1985;

Co-residing at: village N, commune V, district L, Ben Tre province.

Defense lawyer of Mr. Tran Van M, Ms. Nguyen Thi M3, Mr. Tran Van N1: Mr. Nguyen Hoang V1, lawyer of Nguyen Hoang V1 Law Office, affiliated to Bar Association of Ben Tre province.

4. Ms. Tran Ngoc H2, born in 1977, residing at: village N, commune V, district L, Ben Tre province.

Authorized representative of Ms. Nguyen Thi M3, Ms. Tran Ngoc H2:

Mr. Tran Van N1 (under the letter of authorization dated August 1, 2019).

5. Mr. Tran Van B1, born in 1967, residing at: village N, commune V, district L, Ben Tre province.

6. Ms. Nguyen Thi T3, born in 1980, residing at: village N, commune V, district L, Ben Tre province.

Mr. Tran Van B1, Ms. Nguyen Thi T3 filed a request trial in the absentia to the Court.

7. The People’s Committee of district L, Ben Tre province.

Legal representative of the People’s Committee of district L: Mr. Tran Van D - position: President.

Authorized representative of Mr. Nguyen Van D: Mr. Pham Van R – position: Deputy Manager of Division of Natural Resources and Environment of district L.

- Appellant:  Ms. Bach Ngoc B who is the plaintiff, Mr. Tran Van M who is both the successor of the litigation rights and obligations of the respondent and the person with related rights and obligations.

THE CASE

Representation of the plaintiff, Ms. Bach Ngoc B, in the lawsuit petition and statements during the lawsuit settlement:

In 1972, Ms. Bach Ngoc B bought a piece of land of 3,900m2, covering land plots No. 1848 and 1849, map sheet No. 02, located in: Dong Nam village, commune V, district L, Ben Tre province (now is land plots No. 05 and 41, map sheet No. 16, located in: village N, commune V, district L, Ben Tre province). Back to the day when the piece of land was bought, she lived abroad, so under applicable Vietnamese law at that time, she was not eligible for putting her name in the land use right certificate, after that she asked her mother, Mrs. Pham Thi K, to do so and also become a custodian of that piece of land. They also agreed that, in the course of custody, Mrs. K may earn yield from that piece of land. In 1990, Mrs. Pham Thi K was issued with a land use right certificate by the People’s Committee of district T, Ben Tre province.

Thereafter, when she came back to Vietnam, Mrs. K agreed to return the piece of land to her. On December 8, 2005, Mrs. Pham Thi K made a letter of authorization stating that Ms. Bach Ngoc B has the exclusive right to take care of this piece of land and also gave the land use right certificate to Ms. B. The record of reconciliation dated February 11, 2006 of the reconciliation board of Dong Nam village, commune V and the record of reconciliation dated May 8, 2013 of the People’s Committee of commune V, district L indicate that Ms. B, Mrs. K and Mr. M came into arrangement that Mr. M would receive an area of 1.300m2 in this piece of land, and Ms. B would receive the remaining area. However, Mr. M and family have refused to return the piece of land and have prevented her from visiting Mrs. K, thus, she requests Mrs. K to return her the area of 2,600m2, a part of the land plots 1848 and 1849, map sheet No. 02, located in: Dong Nam village, commune V, district L.

Representation of Mr. Tran Van M, Ms. Tran Thi S, Ms. Nguyen Thi M3 in the statements and during the lawsuit settlement:

The piece of land in dispute was previously bought by Mrs. K from Mr. Nguyen Van P2 and Mr. Nguyen Van T4 in May 1975. After the purchase, Mrs. K cultivated this piece of land and was issued with a land use right certificate by the People's Committee of district L, Ben Tre province. Back to the days when this piece of land was bought, it was just for growing miscellaneous crops, after that, Mrs. K, Mr. M and Ms. M3 have made land improvement. Around 1980, Mr. M and family moved to live together with Mrs. K and have cultivated this piece of land. Currently, Mr. M and family built 2 houses on this piece of land, 1 house for Mr. M, Ms. M3, Mr. N1 and Mrs. K to live (land plot No. 05, map sheet No. 16) and 1 house for Ms. H2 to build a beauty salon (land plot No. 41, map sheet No. 02).

With respect to the letter of authorization dated December 8, 2005 supplied by the plaintiff, he agrees with the content of authorization and the authorizing person. However, the validity period of authorization is only 1 year. After December 8, 2006, that letter of authorization ceases to be valid. The record of reconciliation dated February 11, 2006 of the reconciliation board of Dong Nam village, commune V supplied by the plaintiff and the record of reconciliation dated May 8, 2013 have similar content. Nevertheless, after the reconciliation, the involved parties did not follow the agreement in the reconciliation, so Mr. M changed his mind. As custodians of the piece of land in dispute, Mr. M and Ms. M3 reject the request of Ms. Bach Ngoc B. Ms. S, despite not a custodian of this piece of land, also agrees with Mr. M about that.

Representation of the successor of litigation rights and obligations of the respondent, Ms Bach Ngoc H3:

She agrees with the representation of the plaintiff, Ms. Bach Ngoc B. She requests the Court to hold that the piece of land must be returned to its owner.

The representation of the successor of litigation rights and obligations of Ms. Bach Ngoc A:

Agree with the representation of Ms. Bach Ngoc H3 and have no further comment.

Representation of the person with related rights and obligations, Mr. Tran Van N1 and authorized representative of Ms. Tran Ngoc H2:

Mr. Tran Van N1 agrees with the representation of Mr. Tran Van M.

Representation of the person with related rights and obligations, Mr. Tran Van B1 and Ms. Nguyen Thi T3:

Mr. B1 and Ms. T3 built a house on the piece of land in dispute (it is located in the back side of the piece of land). When the house was built, there was no dispute between the parties. Since the parties do not argue about the house in which they are living, he gives no further request. Where the Court determines that the piece of land on which they built the house belongs to Ms. B or Mrs. K, they agree to relocate upon the request of the land owner.

Representation of the person with related rights and obligations, the People’s Committee of district L: The piece of land in dispute with area of 3,900m2 now covers the land plots No. 05 and 41, map sheet No. 16 and is located in: Village N, commune V, district L, Ben Tre province and the land use right certificate thereof is in the name of Mrs. Pham Thi K. The land use right certificate was issued to Ms. K with due process.

In the first instance civil judgment No. 44/2019/DS-ST dated June 7, 2019, the People’s Court of district L held that:

Accept partial lawsuit petition of Ms. Bach Ngoc B concerning the dispute over the land use right against the respondent Mrs. Pham Thi K.

Ms. Bach Ngoc B may receive:

the piece of land with area of 1,192.5m2, in land plot No. 41 of map sheet No. 16, located in: village N, commune V, district L, Ben Tre province and all crops and facilities thereon.

the piece of land with area of 500m2, in land plot No. 05 of map sheet No. 16, located in: village N, commune V, district L, Ben Tre province and all crops and facilities thereon.

(attached map).

Ms. Bach Ngoc B is obliged to complete the paperwork for the transfer of ownership, split of the said piece of land with the competent authorities as per the law.

Force Ms. Bach Ngoc B to refund Mr. Tran Van N1, Ms. Tran Thi H2 VND 45,198,000 (forty five million one hundred ninety eight thousand dong).

Force Ms. Bach Ngoc B to refund Mr. Tran Van M and Ms. Nguyen Thi M3 VND 43,000,000 (forty three million dong).

Recognize that Mr. M and Ms. M had made contribution to the piece of land with area of 1,964.6m2 of the land plot No. 05, map 16, located in: village N, commune V, district L, Ben Tre province and the land use right certificate thereof is in the name of Mrs. Pham Thi K. In which, Mr. M and Ms. M3 has the land use right of 982.3m2 and Mrs. K has the land use right of 982.3m2.

Mr. M and Ms. M3 is obliged to complete the paperwork for necessary adjustment associated with this piece of land with the competent authorities as per the law.

In addition, the judgment also pronounced the court fee, the cost of proceedings, appeal right and the request for judgment enforcement of the litigants.

After the first instance trial, on June 19, 2019, Mr. Tran Van M made an appeal, requesting to correct the first instance civil judgment No. 44/2019/DS-ST dated June 7, 2019 of the People’s Court of district L and refuse the entire lawsuit petition of the plaintiff.

On June 20, 2019, Ms. Bach Ngoc B made an appeal, requesting to correct partial first instance civil judgment and accept the entire lawsuit petition of the plaintiff, and she refused to refund the value of facilities and crops on land to the respondent and persons with related rights and obligations.

At the appellate trial, the plaintiff Ms. Bach Ngoc B and the successor of the litigation rights and obligations of the respondent and the person with related rights and obligations, Mr. Tran Van M still uphold their appeals. The litigants fail to agree on lawsuit settlement.

Defense of the defense lawyer of Mr. Tran Van M, Ms. Nguyen Thi M3, Mr. Tran Van N1:

The plaintiff stated that she had bought the piece of land in 1972 for VND 2,500,000 but she emigrated to the foreign country in 1979. So her statement claiming that she must ask Mrs. K to put her name in the land use right certificate because she has held foreign nationality is ungrounded. Mrs. K also did not confirm this event. Mrs. K had taken care and used this piece of land continuously, had registered and was issued a land use right certificate as per the law. Request the appellate court refuse the appeal of the plaintiff, accept the appeal of the respondent, correct the first instance civil judgment, and refuse the lawsuit petition of the plaintiff.

Opinions of the representative of the People’s Procuracy in the trial: In terms of procedural matter: The participant in proceedings, presiding authorities or officers have complied with the Civil Procedure Code; in terms of content matter: request the first instance court neither accept the appeal of the plaintiff nor accept the appeal of the respondent, and uphold the first instance civil judgment.

After taking account of all documents and evidences available in the case file, the representations of the litigants and the adversarial process at the trial;

JUDGEMENT OF THE COURT

[1] The actual area of the piece of land in dispute is 1,192.5m2, in land plot No. 41 and 1,164.5m2, in partial land plot No. 05, map sheet No. 16, located in: village N, commune V, district L, Ben Tre province. Regarding the origin of the piece of land: the plaintiff claims that she received transfer of it from Ms. Pham Thi K1 in 1972, and then, because of her foreign nationality, she asked her mother, Mrs. Pham Thi K, to put her name in the land use right certificate. The respondent Mrs. Pham Thi K and Mr. Tran Van M claim that this piece of land was transferred from Mr. Nguyen Van P2, Mr. Nguyen Van T4 in 1975, was used continuously and she was issued with the land use right certificate by the People’s Committee of district L.

[2] According to the written undertaking dated February 16, 2016 of Ms. Pham Thi K1, in 1972, she transferred the piece of land in dispute to Ms. B for VND 2,500,000. In the request for confirmation dated July 12, 2018, Ms. B states that she was allowed to emigrate to the USA on May 23, 1979. So her statement claiming that she must ask Mrs. K to put her name in the land use right certificate because she has held foreign nationality is ungrounded. Mrs. K also did not confirm this event. At the appellate trial, Ms. B also confirms that when emigrating to the USA, she had no house or land left and she did not declare the piece of land in dispute as her asset with the competent authorities when living abroad.

[3] The letter of authorization dated May 18, 2005 and the record of reconciliation dated February 11, 2006 dated May 8, 2013 do not stated that Mrs. K confirmed that the piece of land in dispute was previously transferred from Ms. K1 to Ms. B and Ms. B asked her to put her name in the land use right certificate as well as Mrs. K agreed to return it to Ms. B. Mrs. K only authorized Ms. B to take care and use this piece of land and agreed to gift Ms. B the area of about 2,000m2 and gift Mr. Tran Van M the area of about 1,300m2.

[4] Accordingly, although Ms. B received the piece of land in 1972, she did not emigrated to the USA until 1979; furthermore, she did not take care or use this piece of land. Therefore, based on the fact that Mrs. K had used this piece of land for a long time and continuously, had fulfilled all rights and obligations of a land user, the land use right certificated issued by the People’s Committee of district L to Mrs. K is deemed legal.

From the foregoing consideration, the Court does not accept the appeal of the plaintiff, accept the appeal of the successor of the litigation rights and obligations of the respondent and the person with related rights and obligations, Mr. Tran Van M, correct the first instance civil judgment No. 44/2019/DS-ST dated June 7, 2019 of the People’s Court of district L.

[5] Regarding VND 2,230,000 charged for measurement and valuation of assets and taking of evidence which Ms. Bach Ngoc B is obliged to pay, she paid it already.

[6] Regarding court fees:

- First instance civil fee: Pursuant to point dd clause 1 Article 12, Article 26 of Resolution No. 326/2016/UBTVQH14 in Viet Nam dated December 30, 2016 of Standing Committee of the National Assembly, as a senior citizen, Ms. B is exempt from such fee.

Refund Ms. Bach Ngoc B the court fee advance of VND 10,840,000 according to the receipt No. 0023840 dated October 18, 2017 of Sub-Department of Civil Judgment Enforcement of district L, Ben Tre province.

- Regarding appellate civil fee: Pursuant to point dd clause 1 Article 12, Article 29 of Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of Standing Committee of the National Assembly, as a senior citizen, Ms. B is exempt from such fee.

Refund Mr. Tran Van M the court fee advance of VND 300,000 according to the receipt No. 0004369 dated June 25, 2019 of Sub-Department of Civil Judgment Enforcement of district L, Ben Tre province.

Therefore;

HEREBY DECIDE

Pursuant to Article 2 and Article 308, Article 309 of the Criminal Procedure Code 2015 in Viet Nam;

Refuse the appeal of the plaintiff, Ms. Bach Ngoc B;

Accept the appeal of Mr. Tran Van M who is both the successor of the litigation rights and obligations of the respondent and the person with related rights and obligations.

Correct the first instance civil judgment No. 44/2019/DS-ST dated June 7, 2019 of the People’s Court of district L, Ben Tre province.

Pursuant to Articles 166, 168 of the Civil Code in Viet Nam; Articles 166, 170, 203 of the Land Law in Viet Nam; Resolution No. Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of Standing Committee of the National Assembly.

Declare:

Refuse lawsuit petition of the plaintiff Ms. Bach Ngoc B concerning the dispute over the land use right against the respondent Mrs. Pham Thi K.

Regarding VND 2,230,000 charged for measurement and valuation of assets and taking of evidence which Ms. Bach Ngoc B is obliged to pay, she paid it already.

With reference to court fees:

- First instance civil fee: As a senior citizen, Ms. Bach Ngoc B is exempt from this fee. Refund Ms. Bach Ngoc B the court fee advance of VND 10,840,000 according to the receipt No. 0023840 dated October 18, 2017 of Sub-Department of Civil Judgment Enforcement of district L, Ben Tre province.

- Regarding appellate civil fee: As a senior citizen, Ms. Bach Ngoc B is exempt from this fee.

Refund Mr. Tran Van M the court fee advance of VND 300,000 according to the receipt No. 0004369 dated June 25, 2019 of Sub-Department of Civil Judgment Enforcement of district L, Ben Tre province.

In case 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, 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 takes legal effect from the date of pronouncement.