Judgment no. 31/2018/DS-PT dated march 14, 2018 on dispute over property ownership

THE HIGH PEOPLE’S COURT IN HO CHI MINH CITY

JUDGMENT NO. 31/2018/DS-PT DATED MARCH 14, 2018 ON DISPUTE OVER PROPERTY OWNERSHIP

Because the first-instance judgment No. 08/2016/DS-ST dated September 22, 2016 of the People’s Court of Soc Trang Province was appealed, on March 14, 2018, the appellate trial was conducted at the courtroom of the High Court in Ho Chi Minh City to hear in the public the handled case No. 259/2016/TLPT–DS dated November 01, 2016 on property ownership dispute according to the Decision to bring the case to the appellate trial No. 649/2017/QDPT-DS dated January 20, 2017, between the following litigants:

Plaintiff:  Mrs. Du Thi Ch (Klinski Chia Thi), born in 1947; residence:  3047 El Camino Real West Palm Beach FL33409 – USA; temporary residence: No. 41, PCT street, Block 2, Ward 1, ST City, Soc Trang Province; (absent).

Authorized representative of the plaintiff (according to the power of attorney dated October 23, 2017): Mrs. Nguyen Thi Thu Tr, born in 1986; residence:  No. 278/46/77 TCD, Block 5, Ward 2, ST City, Soc Trang Province; (having submitted a petition for absence from the trial).

Person defending legitimate rights and interests of the plaintiff:  Mr. Nguyen Van Qu – Lawyer of QN Law Office, a member of Soc Trang Province Bar Association; (having submitted a petition for absence from the trial).

- Defendants:

1. Mr. Ly Hong Quoc Th, born in 1978; (present).

2. Ms. Du Hong V, born in 1980; (present).

Joint residence:  No. 20, Road No. 3,. LD 586 Residential Area, Block 1, Ward 3, ST City, Soc Trang Province.

- Entities having duties and interests from the lawsuit:

1. 586 Soc Trang Joint Stock Company;

Address:  No. 07, Road No. 01,. LD Commercial Residential Area, Ward 3, ST City, Soc Trang Province.

Legal representative of 586 Soc Trang Joint Stock Company:  Mr. Vo Ngoc C – Company’s Director; (absent)

2. Mr. Du Thanh Ngh; born in 1955; residence:  No. 440/4/6, LTK Street, Block 3, Ward 4, ST City, Soc Trang Province; current residence:  No. 20, Road No. 03,. LD 586 Residential Area, Block 1, Ward 3, ST City, Soc Trang Province.

- Appellant:  The defendants – Mr. Ly Hong Quoc Th and Mrs. Du Hong V.

CONTENTS OF THE CASE

According to the petition dated September 10, 2015 and the additional petition dated November 19, 2015, the plaintiff, Mrs. Du Thi Ch, state:

Early in 2013, because she is beginning to feel her age, she wishes to move to Soc Trang to live near her siblings, and then she contacted 586 LD Joint Stock Company (hereinafter referred to as “586 LD JSC”) to buy a house with no upstairs at Block D, THD Residential Area, Ward 2, ST City, Soc Trang Province (hereinafter referred to as the “house at Block D, THD Residential Area) with the price of VND 320,000,000. She has paid an amount of VND 288,000,000 to 586 LD JSC. To be specific: she has made the first transfer of VND 250,000,000 to her nephew, Ly Hong Quoc Th, according to transaction voucher dated January 21, 2013; the second transfer of VND 41,600,000 has been made on March 28, 2013; total amount she transferred to her nephew is VND 291,600,000, including VND 288,000,000 paid to 586 LD JSC and VND 3,600,000 used to cover relevant expenses.  After that, she found that the house was lacking in comfort, so she asked the leadership of 586 LD JSC for exchange of this house for the house located at LD 586 Residential Area, Ward 3, through Mrs. Trinh Thi H, an employee of the Company’s Sales Department, and her requested has been approved.  She bought the house No. 20, Road No. 03, LD 586 Residential Area, Block 1, Ward 3, ST City, Soc Trang Province (hereinafter referred to as the “house at No. 20, LD Residential Area”) with the price of VND 820,000,000. She has transferred an amount of VND 482,500,000 to Mr. Ly Hong Quoc Th according to transaction vouchers dated October 08, 2013. Adding an amount of VND 288,000,000 paid for the former house, total amount she transferred to Mr. Ly Hong Quoc Th is VND 770,500,000. According to the signed contract, she must pay a deposit of VND 738,000,000 to 586 LD JSC. Mr. Th has returned her the remaining amount of VND 32,500,000. The remaining amount of the house price of VND 82,000,000 shall be fully paid when all house documents are available.  Because she is a Vietnamese residing abroad, she is ineligible to have property in Vietnam titled in her name. Thus, she asked her nephew, Mr. Ly Hong Quoc Th, and his wife, Mrs. Du Hong V, to title the house.    Both 586 LD JSC and her siblings (including Mrs. Du Thi H1 and Mr. Du Thanh Ngh (father of Mrs. Du Hong V)) knew and certified that she is the one buying the house and uses names of others to title the house.  Until January 2015, she moved to the house for living and asked Mr. Th and Mrs. V to give back the ownership of the house to her but they refused and firmly asserted that the house is under their legal ownership.

Now, the plaintiff, Mrs. Du Thi Ch requests the Court to recognize her rights to ownership of the house No. 20, Road No. 03, LD 586 Residential Area, Block 1, Ward 3, ST City, Soc Trang Province, force Mr. Ly Hong Quoc Th and Mrs. Du Hong V to transfer the ownership of house to her, and announce the cancellation of the house purchase contract No. 553 dated January 08, 2013 signed between Mr. Th and Mrs. V and 586 LD JSC so that she can directly enter into a new house purchase contract with 586 LD JSC.

According to the written response to the court’s case acceptance notice dated October 16, 2015, and the written response to the court's notice of acceptance of additional petition dated February 01, 2016, and statements provided during the case settlement, the defendants, Mr. Ly Hong Quoc Th and Mrs. Du Hong V, stated:

Mrs. Du Thi Ch is their paternal aunt.  Mrs. Ch has given them cash, gold and diamond when she returned to Vietnam.  They admitted to have received money transferred by Mrs. Ch through Agribank – ST City Branch. To be specific:  On January 14, 2013, Mrs. Ch gave them VND 800,000; on January 21, 2013, Mrs. Ch gave them VND 250,000,000; on January 28, 2013, Mrs. Ch gave them VND 1,300,000; on March 07, 2013, Mrs. Ch gave them VND 1,000,000; on March 28, 2013, Mrs. Ch gave them VND 41,600,000; on June 14, 2013, Mrs. Ch gave them VND 20,000,000; on October 08, 2013 Mrs. Ch gave them VND 482,500,000. Total amount Mrs. Ch gave them in 07 times is VND 797,200,000.

They used the amount Mrs. Ch gave them to buy the house at Block D, THD Residential Area, with the price of VND 324,000,000 under the house purchase contract No. 507/HDMBN dated January 21, 2013 signed between them and 586 LD JSC. According to agreements laid down in the signed contract, they must pay a deposit of 90% of the house price as VND 291,600,000, and fully pay the remaining amount of 10% of the house price as VND 32,400,000 when 586 LD JSC delivers the certificate of right to use land, ownership of house and property on land.

On October 08, 2013, they reached an agreement with 586 LD JSC that they wish to sell the house No. D-69 located at the said THD Residential Area and purchase the house located at LD Commercial Residential Area, Ward 3, ST City for their convenience. Then, they bought the house at LD Commercial Residential Area with the price of VND 820,000,000. The required deposit for this house is 90% of the house price as VND 738,000,000. After deduction of the selling price of the house at THD Residential Area as VND 291,600,000, they must pay an additional amount of VND 446,400,000 to 586 LD JSC.  The remaining amount of 10% of the house price as VND 82,000,000 shall be fully paid when 586 LD JSC delivers them the certificate of right to use land, ownership of house and property on land.

They asserted that Mrs. Ch’s statement in her petition that she asked them to carry out procedures for house purchase and title the house is untrue because they have directly signed all documents relating the house purchase without the involvement with Mrs. Ch. And Mrs. Ch’s statement that she has transferred an amount of VND 770,500,000 to them in 03 times is also untrue. Really, she has given them an amount of VND 797,200,000 in 07 times as stated.  They have used the money given by Mrs. Ch and an amount of money they saved from their business to buy the house and stabilize their life since 2013.  Thus, they disagree about contents of the petition of Mrs. Ch and request the Court to reject the entire petition of Mrs. Du Thi Ch.

According to the official statement dated August 24, 2015 and initial statement dated October 28, 2015 provided by the person having duties and interests from the lawsuit, Mr. Du Thanh Ngh stated:

Mrs. Du Thi Ch is his elder sister.  In 2013, because she wishes to return to Vietnam and live near siblings, Mrs. Ch has contacted 586 LD JSC to buy a house with no upstairs at Block D, THD Residential Area, Ward 2, ST City, Soc Trang Province.  However, because Mrs. Ch is an overseas Vietnamese, she cannot have the certificate of house ownership titled in her own name. Thus, she has used the names of other persons.  Initially, Mrs. Ch intended to ask him and his wife to title the house but some marital conflicts have arisen between him and his wife. Mrs. Ch thought that if he gets divorce from his wife, the house will be involved in dispute. Thus, Mrs. Ch has asked his daughter, Du Hong V, and her husband, Ly Hong Quoc Th, to title the house.  Mrs. Ch has transferred money to V and Th via Agribank to buy a house whose price is about more than three hundred million Vietnamese dongs. He said that he did not know the exact buying price of the house.  Because the house is lacking in comfort and far away from the market, Mrs. Ch has exchanged it for the house No. 20, Road No. 03, 586 LD Residential Area, Block 1, Ward 3, ST City, Soc Trang Province.  Mrs. Ch has directly discussed and reached an agreement on the house exchange and house price with 586 LD JSC, and at the same time, asked Ly Hong Quoc Th and Du Hong V to act as a party of the house purchase contract with the house price of VND 820,000,000.

The entire amount of money used to purchase the house No. 20, Road No. 03, LD Residential Area has been transferred by Mrs. Ch to Mrs. V and Mr. Th who purchased and titled the house on Mrs. Ch’s behalf.  He clearly knew all facts stated above because he is the one keeping both houses mentioned above. V and Th only returned home after working hours.   After that, because Mrs. V and Mr. Th planed to appropriate the house, they asked him to move out. From that, dispute has arisen and Mrs. Ch has brought the case to the Court.  He requested the Court to recognize the right to ownership of house of Mrs. Ch who asked Mr. Th and Mrs. V to buy and title the house on her behalf, and force Mr. Th and Mrs. V to return the house to Mrs. Ch.

According to the first-instance civil judgment No. 08/2016/DSST dated September 22, 2016, the People’s Court of Soc Trang Province judged that:  

Pursuant to Clause 2 Article 26, Clause 3 Article 35, Point c Clause 1 Article 37 of the Civil Procedure Code in 2015;

Pursuant to Articles 255, 256, 599, 600 of the Civil Procedure Code in 2005, and Article 8 of the Law on housing in 2014;

To judge that:  The entire petition of Mrs. Du Thi Ch is accepted.

+ To recognize the right to ownership of the house with a storey above the ground floor located at No. 20 (location C2-22), Road No. 03, LD Commercial Residential Area, Block 1, Ward 3, ST City, Soc Trang Province, of Mrs. Du Thi Ch (Klinski Chia Thi). Mr. Ly Hong Quoc Th and Mrs. Du Hong V are forced to return the entire house to Mrs. Du Thi Ch.

+ The house purchase contract No. 553/HDMBN, dated October 08, 2013 signed between 586 LD JSC and Mr. Ly Hong Quoc Th and Mrs. Du Hong V shall be cancelled. Mrs. Du Thi Ch is entitled to enter into the house purchase contract directly with  586 LD JSC to buy the said house.

Additionally, the first-instance judgment also stipulates the first-instance court fees and rights to appeal against the judgment in accordance with laws.

On October 06, 2016, the defendants, Mr. Ly Hong Quoc Th and Mrs. Du Hong V lodged an appeal against the entire first-instance judgment on the following grounds:  The plaintiff could not provide evidences that she asked them to title the house; the first-instance Court's judgments are deemed biased because the Court made judgments on the only basis of statements provided by Mr. Du Thanh Ngh who has previously had conflicted with them; Mrs. Ch did not clearly say that the transferred amount of money must be used for paying the house price in all 07 transfers of money.  

At the appellate trial, the defendants, Mr. Ly Hong Quoc Th and Mrs. Du Hong V, still keep their appeal unchanged.

The procurator attending the trial and expressing opinions of the Procuracy about the compliance with laws during the case settlement during the trial of appellate: The Judge – Presiding Judge and the Trial panel have strictly complied with legal procedures; the litigants have properly exercised and performed their rights and obligations, and attended the trial in accordance with regulations laid down in the Civil Procedure Code;

Regarding the appeal lodged by Mr. Ly Hong Quoc Th and Mrs. Du Hong V:  The first-instance court's judgment that the entire petition of Mrs. Du Thi Ch is accepted is reasonable because of the following reasons:  Mrs. Du Thi Ch has directly carried out the house purchase transaction; the amounts of money transferred by Mrs. Ch are conformable with the house price, payment date of the house price, and the original house document kept by her.  Although the first-instance court has made mistake of failing to apply the precedent No. 02 of the Council of Justices of the People’s Supreme Court, Mr. Ly Hong Quoc Th and Mrs. Du Hong V have enjoyed benefits by living in this house. So, Mr. Th and Mrs. V have been compensated for titling and managing the house on behalf of Mrs. Ch.  Hence, the appellate trial panel is requested to reject the appeal lodged by the defendants, Mr. Th and Mrs. V, and keep the first-instance judgment unchanged.

JUDGMENTS OF THE COURT 

[1] The appeal of the defendants, Mr. Ly Hong Quoc Th and Mrs. Du Hong V, is valid because it has been lodged within the prescribed period and in accordance with laws, and shall be handled according to the appellate procedures as follows:

- Regarding the court procedures:

[2] The first-instance court has correctly determine the disputed legal relationship, handled and settled the case within its jurisdiction in accordance with the Civil Procedure Code.

- Regarding contents of the case:

[3] Although Mr. Ly Hong Quoc Th and his wife, Mrs. Du Hong V have acted as the buyer of the house purchase contract No. 507/HDMBN on January 21, 2013 with 586 LD JSC to buy the house located at Block D-69, THD Residential Area, with the house price as VND 324,000,000, and the buyer has paid a deposit of 90% of the house price as VND 291,600,000.  On October 08, 2013, both parties have carried out procedures for termination of the house purchase contract, 586 LD JSC agreed to return the received money of VND 291,600,000 (receipt No. 61) to the buyer. On the same day, October 08, 2013, Mr. Th and Mrs. V have entered into the house purchase contract No. 553/HDMBN with 586 LD JSC to buy a house with a storey above the ground floor located at No. 20 (location C2-220), Road No. 3, LD Residential Area, Block 1, Ward 3, ST City ("house No. 20 - LD Residential Area") with the price of VND 820,000,000. Two parties have reached an agreement that immediately after signing the house purchase contract, the buyer shall pay an amount of VND 738,000,000 (as 90% of the house price), and the remaining amount of VND 82,000,000 shall be fully paid when the buyer receives the certificate of house ownership.  Mr. Th and Mrs. V also believed that they used the money given by Mrs. Du Thi Ch and an amount of money they saved from their business to buy the house. Thus, this house is legally subjected to their ownership.

[4] However, after examining documents and evidences provided by Mrs. Du Thi Ch:  Through Agribank – Nam Sai Gon Branch, on January 21, 2013, Mrs. Ch has transferred an amount of VND 250,000,000 (Receipt No. 10) to Mr. Ly Hong Quoc Th; on March 28, 2013, Mrs. Ch has transferred an amount of VND 41,600,000 (Receipt No. 12) to Mr. Th; total amount of 02 transfers is VND 291,600,000 which matches with the amount that Mr. Th and Mrs. V paid to 586 LD JSC for buying the house at Block D - THD Residential Area.  On October 08, 2013 (the day on which Mr. Th and Mrs. V and 586 LD JSC carried out the termination of the house purchase contract regarding the house No. 20, LD Residential Area - BL 18, 19), Mrs. Ch has transferred an amount of VND 482,500,000 (receipt No. 16) to Mr. Th, and also on this day, 586 LD JSC has made the receipt No. 241 recording the payment made by Mr. Th to 586 LD JSC an amount of VND 738,000,000 under the contract No. 553/HDMBN for buying the house No. 20 (C2-22), LD Residential Area (Bl 14). Thus, total amount of 03 transfers made by Mrs. Ch to Mr. Th is VND 774,100,000. The difference between this amount and the amount paid by Mr. Th to 586 LD JSC is VND 36,100,000.   This means that the amount of money transferred and transfer date match with the amount and payment date of house price paid by Mr. Th and Mrs. V.

[5] Mrs. Ch has some siblings in Vietnam and Mrs. V is only her niece. Mrs. V cannot provide the reasons that Mrs. Ch gave her a lot of money within a short period of time as stated above.  Moreover, Mrs. Ch keeps the original of the house purchase contract No. 553 dated October 08, 2013. At the appellate trial, both Mr. Th and Mrs. V stated that original house documents are kept by them and have been stolen. It is ungrounded to accept this statement.

[6] On the other hand, according to the statement dated August 24, 2015 (BL 67) and the initial statement provided by Mr. Du Thanh Ngh (who is Mrs. V’s father) made on October 28, 2015 (BL 71), the statement of Mrs. Du Thi H1 (who is Mrs. Ch’s younger sister) at the first-instance trial, these persons have asserted that Mrs. Ch has transferred money to V and Th through Agribank and asked Du Hong V (who is Mr. Ngh’s daughter) and her husband, Ly Hong Quoc Th, to enter into the house purchase contract on behalf of Mrs. Ch.

[7] From the above analysis and judgments, the court deems that:  The first-instance court has well-founded reasons to determine that Mrs. Ch has provided the entire amount of money for buying the house No. 20 LD Residential Area and asked Mr. Th and Mrs. V to title the house on her behalf because when buying the house, Mrs. Ch was residing abroad and she was not allowed to title property in Vietnam, and amongst 07 amounts of money that Mr. Th and Mrs. V admitted to have received from Mrs. Ch in 2013 (according to their written response to the court’s notice of case acceptance – BL 59), there were 03 amounts of money Mrs. Ch transferred to Mr. Th for buying house (VND 250,000,000 + VND 41,600,000 + VND 482,500,000), and only 04 remaining amounts of money that Mrs. Ch did not mention in her petition  were given by Mrs. To Mr. Th and Mrs. V who have really used them.

 [8] Although Mr. Du Thanh Ngh has changed his statement that Mrs. Ch has given money to Mr. Th and Mrs. V for buying house and he did not clearly know about the fact Mrs. Ch asked Mr. Th and Mrs. V to title the house.  Deeming that this statement is contrary to his initial statement and Mr. Ngh cannot provide legitimate reasons thereof, so the fact the first-instance court judged that his statement is untrue and unfounded is reasonable.

[9] Regarding conditions for recognition of right to ownership of house of Vietnamese residing abroad: Article 1 of the Law on citizenship in 2008 stipulates that:  “Vietnamese citizen shall have Vietnamese nationality (Clause 1); rights and obligations of a Vietnamese citizen that has a foreign nationality and lives abroad shall conform to relevant laws (Clause 4). Clause 1 Article 8 of the Law on housing in 2014 stipulates that a Vietnamese residing abroad shall have right to ownership of house recognized if he/she is allowed to enter Vietnam. Mrs. Du Thi Ch has Vietnamese nationality as certified by Department of Justice of Ho Chi Minh City on February 06, 2013 (BL 08). Since 2012, she has been allowed to make multiple entries into Vietnam (BL 21 – 29). She has made an entry into Vietnam and stayed in Vietnam for more than 08 months (BL 23). Thus, pursuant to the above-mentioned regulations, Mrs. Ch is eligible to have the right to ownership of house in Vietnam recognized.

[10] Thus, the first-instance court’s judgments that the house of dispute is under the legal ownership of Mrs. Ch; Mr. Th and Mrs. V are forced to return her the house; the house purchase contract signed between Mr. Th and Mrs. V and 586 LD JSC shall be invalidated so that Mrs. Ch is entitled to directly enter into a new house purchase contract with 586 LD JSC are well-founded and conformable with Articles 255, 256, 599, 600 of the Civil Code.

[11] However, in this case, Mr. Th and Mrs. V have put a lot of effort to buy, title, manage and keep the house for Mrs. Ch. Thus, Mrs. Ch must repay Mr. Th and Mrs. V for their service so as to ensure interests and duties of the litigants according to the precedent No. 02/2016/AL approved by the Council of Justices of the People’s Supreme Court on April 06, 2016. The first-instance court has mistake of omitting the precedent No. 02/2016/AL in the course of settling the case and also failed to collect documents and evidences for determining the value of the disputed house at the date of first-instance trial in order to determine the amount paid to Mr. Th and Mrs. V for titling, managing and keeping the house for Mrs. Ch.

[12] Thus, the appellate trial panel unanimously accepts a part of the appeal lodged by the defendants, Mr. Ly Hong Quoc Th and Mrs. Du Hong V; the first-instance judgment is invalidated and the case is transfer to the first-instance court for rehear the case according to first-instance procedures.

[13] The statement that Mr. Th and Mrs. V said that they have repaired the house by using their own money shall be considered and judged by the first-instance court when rehearing the case according to first-instance procedures.

[14] The litigants lodging appeal, Mr. Ly Hong Quoc Th and Mrs. Du Hong V, shall not pay the appellate civil court fees as regulated by laws.

For the said reasons;

THE COURT DECIDES

Pursuant to Clause 3 Article 308 and Article 310 of the Civil Procedure Code in 2015;

- To accept a part of the appeal lodged by the defendants, Mr. Ly Hong Quoc Th and Mrs. Du Hong V.

The first-instance judgment No. 08/2016/DS-ST dated September 22, 2016 of the People’s Court of Soc Trang shall be invalidated and the case shall be reheard by the People’s Court of Soc Trang according to first-instance procedures.

- The first-instance civil court fees shall be decided when the People’s Court of Soc Trang rehears the case according to first-instance procedures.

- Mr. Ly Hong Quoc Th and Mrs. Du Hong V must not pay the appellate civil court fees.  

+ VND 200,000 of the appellate civil court fees temporarily paid under receipt No. 003470 dated October 06, 2016 of the Civil Judgment Enforcement Department of Soc Trang Province shall be refunded to Mr. Ly Hong Quoc Th.  

+ VND 200,000 of the appellate civil court fees temporarily paid under receipt No. 003469 dated October 06, 2016 of the Civil Judgment Enforcement Department of Soc Trang Province shall be refunded to Mrs. Du Hong V. The judgment of the appellate court comes into force from the date of judgment pronouncement, on March 14, 2018.